Another December, Another Flurry of Pro-Employer NLRB Changes

The National Labor Relations Board (NLRB) likes to act in December, partly because that’s often when Board member terms end, and 2019 is no exception. Democrat Member Lauren McFerran’s term expired on December 16, leaving only three active members (all Republican). Around the same time, the Board issued a handful of important, pro-employer changes.

Softening the Obama-Era Election Rules

On December 13, 2019, the Board issued a final rule amending its election procedures. The NLRB uses these procedures to determine whether employees are unionized. The new amendments extend deadlines and add steps to ensure certain disputes are resolved before employees vote. For example:

• The NLRB will now give parties at least 14 business days’ notice of the pre-election hearing, an increase from the 8-10 calendar days’ notice the NLRB currently gives. This is a reprieve for employers, who are often surprised by the notice and must quickly prepare evidence for the hearing.
• When the parties disagree about which employees are eligible to vote and unionize, the NLRB will now normally resolve those issues before the election. Currently, the NLRB proceeds to a quicker election by postponing resolution of such issues until after employees vote.

Overall, the amendments partially scale back the 2014 Obama-era rule that drastically sped up the election process. The employer community criticized the 2014 rules for enabling unions to “ambush” them with an organizing campaign. Republican Chairman John Ring described the new amendments as “common sense changes to ensure expeditious elections that are fair and efficient [,] will allow workers to be informed of their rights and will simplify the representation process to the benefit of all parties.” The rule is scheduled to take effect on April 16, 2020.

Creating Safe Harbor for Confidentiality in Investigations

On December 16, 2019, the Board held that employers can once again maintain a work rule generally requiring employee confidentiality during investigations into alleged misconduct. In a 3-1 split decision, Apogee Retail, the Board overruled the Obama-era decision Banner Estrella Medical Center, which mandated that employers prove that confidentiality was necessary to the integrity of an investigation on a case-by-case basis.

With this new decision, the Board gives employers peace of mind knowing they can generally require confidentiality for the duration of any workplace investigation. However, such employer “gag orders” must be carefully drafted so as not to discourage employees from discussing their own potential or actual discipline, but only prohibiting them from conversing about the investigations or interviews conducted during such investigations; not to ban discussions with union representatives (for union-represented employees only); and to be limited in scope to open or ongoing investigations, since employers still need to prove that confidentiality post-investigation is necessary and not outweighed by the adverse impact on an employee’s National Labor Relations Act (NLRA)-protected rights.

Returning Control of Email to Employers

Can employees use employer property for union activities, including union organizing? In general, the NLRA prohibits employers from restricting use of their property just to prevent union activities, but if an employer prohibits use of its property for any non-work purpose, it can apply that rule to union activities as well.

But in December 2014, the NLRB took a different stance when it came to employer email systems, ruling that an employer who allows employees access to its email system for business purposes must also allow employees to use that email system during non-work time for union organizing.

On December 17, 2019, the NLRB reversed course. In another 3-1 split decision, Caesars Entertainment, the Board reestablished an employer’s right to restrict employee use of its email system during nonworking time for nonbusiness purposes if it’s done in a nondiscriminatory manner. There is one exception—if an employer’s email system is the only reasonable means for employees to communicate with one another, employees must be allowed to use it for union activities. However, such cases should be few and far between. As the Board points out, the modern workplace allows employees to be digitally connected beyond the use of a company’s email system.

What Do These Have in Common?

The Board split along party lines in each of these cases, all of which roll back Obama-era initiatives. The employer email and investigation confidentiality decisions align those issues with more generally applicable labor law principles, which is helpful to everyone. But on balance, employers are happier than unions this December.