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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:
- Use of employer communication systems;
- Confidentiality during workplace investigations; and
- 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:
- The ruling only applied to employee who already had access to the employer’s email system in the course of their work.
- The ruling did not require employers to provide employees access to the email system where they otherwise had none.
- 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.
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.