Locke Lord QuickStudy: NLRB Reverses Course with Significant Rulings on Employee Email Use, Investigation Confidentiality, and Union Election Rules

Many employers realize that the National Labor Relations Board’s (“Board”) priorities shift ‎based on the President’s policy positions.  The reason for this dynamic is that the President ‎appoints the Board’s five members, and three of the members share party affiliation with the ‎President.  In general, the Board tends to favor employer-friendly outcomes during Republican ‎administrations, while employee-friendly outcomes dominate under Democratic administrations.‎

In December 2019, the Board, dominated by a 3-1 Republican majority, put the latest round of ‎this cycle on full display by walking away from three Obama-era priorities, each of which we ‎discuss below:‎

1. Use of employer communication systems;‎
2. Confidentiality during workplace investigations; and ‎
3. Union election rules.‎

Employers May Limit Employee Use of Employer-Owned Email Systems

In December 2014, the Board ruled in Purple Communications, Inc., 361 NLRB No. 126, that ‎the National Labor Relations Act (“Act”) gave an employee the right to use an employer’s email ‎system during non-working time for communications that were otherwise protected by the Act.  ‎In other words, employees, during their breaks, could discuss union issues or other protected ‎concerted activities via the employer’s email system without fear of discipline or termination.‎

The Board summed up the scope of its ruling as follows:‎

1. The ruling only applied to employee who already had access to the employer’s email ‎system in the course of their work. 
2. The ruling did not require employers to provide employees access to the email system ‎where they otherwise had none.‎
3. An employer could only justify a total ban on non-work use of its email system by ‎‎“demonstrating that special circumstances make the ban necessary to maintain production ‎or discipline.”  If the employer could not justify a total ban, it could apply a uniform and ‎consistent policy limiting non-work use, but only to the extent the policy was necessary to ‎maintain production and discipline.‎

The Purple Communications decision thus overruled Register Guard, 351 NLRB 1110 (2007), ‎which stood for the proposition that the Act did not give employees the right to use their ‎employer’s email systems for union or other protected concerted activities.‎

On December 16, 2019, in Caesars Entertainment, 368 NLRB No. 143, the Board overruled ‎Purple Communications and returned to the Register Guard standard.  Employers again have the ‎right to control the use of their equipment, including email systems.  An employer may therefore ‎impose content-neutral restrictions on email use (e.g., no personal use during work time), but it ‎cannot impose discriminatory parameters (e.g., prohibit “union activity” but allow other ‎solicitations).‎

The Board also carved out an exception to Register Guard for “those rare cases where an ‎employer’s email system furnishes the only reasonable means for employees to communicate with ‎one another.”  The Board will determine whether such a “rare occasion” exists on a case-by-case ‎basis.‎

Employers May Require Confidentiality During Workplace Investigations

In Banner Estrella Medical Center, 362 NLRB 1108 (2015), the Board ruled that employers who ‎prohibit employees from discussing ongoing workplace investigations violate the Act.  Employers ‎would generally issue a confidentiality restriction for various legitimate reasons, such as to ‎protect the integrity of the investigation, reduce the likelihood of retaliation, or quash disruptive ‎rumors.  ‎

In Banner Estrella, the employee complained to human resources about his performance review.  ‎As part of its usual process, the employer directed the employee not to discuss his complaint with ‎anyone so that it could properly investigate his concerns.  The employee then filed an unfair labor ‎practice charge with the Board, claiming that the confidentiality rule violated his right to discuss ‎his working conditions with co-workers.  According to the Board, a generalized concern about ‎protecting the integrity of an investigation integrity did not outweigh the employee’s right to ‎engage in activity protected by the Act.‎

Rather than rely on a generalized concern, the Board stated that employers had to conduct a ‎case-by-case analysis regarding the need for confidentiality.  The employer thus had to ‎‎“determine whether in any given investigation witnesses needed protection, evidence was in ‎danger of being destroyed, testimony was in danger of being fabricated or there was a need to ‎prevent a cover up.”  ‎

On December 16, 2019, the Board overruled Banner Estrella with its decision in Apogee Retail ‎LLC, 368 NLRB No. 144.  The Board held that Banner Estrella improperly placed the burden on ‎employers to prove that an investigation required confidentiality.  Rather than requiring an ‎employer prove an investigation necessitates confidentiality, the new framework presumes that a ‎confidentiality requirement is lawful.  The Board arrived at this conclusion by relying on the ‎standard it set in The Boeing Company, 365 NLRB 154 (2017), which also upended the Board’s ‎Obama-era approach to evaluating workplace rules for compliance with the Act.  Under the ‎Boeing standard, the Board found that the confidentiality rule in Apogee was facially neutral and ‎that the employer’s justification for it outweighed any potential adverse impact on the ‎employee’s rights, especially if the employer limited the confidentiality rule to the duration of the ‎investigation.‎

Union Election Rules Will Slow Down the Election Process

In December 2014, the Board published a final rule that dramatically changed the Board’s union ‎election procedures.  The Obama-era Board designed those rules to streamline and expedite the ‎election process, which meant that employers would have less time to run effective campaigns ‎against unions.  In general, the 2014 rule expedited the election process by delaying the ‎resolution of certain issues, such as voter eligibility and the appropriateness of the bargaining ‎unit, until after the election.‎
On December 18, 2019, the Board issued a final rule revising the expedited election process.  The ‎new rules will take effect on April 16, 2020.  The Board stated that the revisions “will create a ‎fairer and more efficient election process” and will create meaningful opportunities to resolve ‎disputes over the scope of a bargaining unit and voter eligibility before the election.  Some of the ‎highlights of the 2019 revisions include:‎

• Providing at least 20 business days from the issuance of the direction of election to the ‎date of the actual election. ‎
• Requiring parties to litigate and the regional directors to resolve all disputes regarding ‎scope of the bargaining unit and voter eligibility (including disputes over supervisory ‎status) before the election.  The rules also give the parties the ability to agree to permit ‎disputed employees to vote subject to challenge and additional time to schedule pre-‎election hearings (generally, an increase from 8 calendar days from the date of the notice ‎to 14 business days);‎
• Greater discretion for regional directors to postpone hearings;‎
• Additional time for employers to comply with the requirement to post and distribute ‎Notices of Petition for Elections (increase from 2 business days to 5 business days); and
• Additional time for employers to file a Statement of Position and greater discretion for ‎regional directors to grant extensions.‎
  For employers who may face a union election petition on or after April 16, 2020, the revisions to ‎the election rules will provide additional time to prepare defenses and to provide relevant ‎information to employees as part of the election campaign.  ‎

Conclusion

The Board’s latest round of changes impacts workplaces of all types—union and non-union alike.  ‎Employers who revised any of their email policies or investigation practices to comply with ‎Obama-era precedent now have an opportunity to revisit those rules.  Employers who may find ‎themselves the targets of union organizing drives should, to the extent possible, take advantage ‎of the new election rules.  Employers would be wise to consult with labor and employment ‎counsel to explore the potential benefits these changes may bring.‎