The National Labor Relations Board (NLRB) is a federal agency that administers the National Labor Relations Act (NLRA) by overseeing and managing relationships between unions and private-sector employers. Between December 16–19, 2019, the NLRB issued a trio of rulings that reversed prior union/employee-friendly decisions. These decisions affect both union and non-union employers and cover a range of issues, including confidentiality in workplace investigations, employee use of employer e-mail systems, and the continuation of union dues checkoff after the expiration of a collective bargaining agreement.
NLRB Decision 1: Confidentiality of Investigations
A prior NLRB decision, issued in 2015, determined that concerted activity by employees protected by the NLRA generally invalidated employer policies preserving the confidentiality of internal investigations. In its December 19, 2019 ruling, the NLRB reversed itself, and held that work rules requiring confidentiality during the course of a workplace investigation are now presumptively lawful. The prior 2015 NLRB decision had required employers to prove, on a case-by-case basis, that the integrity of an investigation would be compromised without confidentiality.
In its 2019 ruling, the Board determined that confidentiality rules should be divided into two categories in order to determine their enforceability. First, the NLRB held that a rule that requires employees to maintain confidentiality only during the pendency of the investigations is always lawful. Conversely, the NLRB held that a workplace rule not explicitly limited to the duration of the investigation must show “one or more legitimate justifications” for requiring post-investigation confidentiality to be deemed lawful. This effectively removed some of the burden previously placed on the employer to prove the necessity of confidentiality in all cases.
In making this determination, the NLRB recognized the substantial interest employers and employees have in keeping details confidential. The NLRB further noted that confidentiality is so highly valued in the workplace investigative process that it, the Equal Employment Opportunity Commission (EEOC), and the Occupational Safety and Health Administration (OSHA) take steps to preserve confidentiality during their own investigations.
Given this ruling, employers, whether its employees are unionized or not, should review their confidentiality policies surrounding internal investigations. If appropriate, investigative policies and procedures should be modified to clearly require confidentiality only for the duration of an ongoing investigation and to reserve the right to extend the confidentiality requirement after the investigation is concluded, if legitimate justification exists.
NLRB Decision 2: Employee Use of Employer E-Mail for Union Organizing
In 2014, the NLRB issued a controversial ruling that granted employees the right to use their employer’s email system for union organizing and other protected activity found in Section 7 of the NLRA during nonworking time. On December 17, 2019, the NLRB reversed this ruling and held that an employee has no statutory right to use their employer’s technological equipment—including e-mail systems and information technology resources—to engage in union organizing activity or other concerted activity pursuant to Section 7 of the NLRA.
In doing so, the NLRB returned to prior precedent in place before the 2014 ruling. The NLRB, citing United States Supreme Court authority, held that an employer’s right to control the use of its property and equipment should only be infringed to accommodate employees’ Section 7 rights if such an infringement is necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.” Thus, although this ruling broadens an employer’s rights regarding its e-mail systems, a policy may still violate the NLRA in one of two circumstances: (1) where there is proof that employees would otherwise be deprived of any reasonable means of communicating with one another; or (2) where there is proof that the employer has applied the restriction in a discriminatory manner towards union organizing, such as by allowing other nonbusiness use, but not for union organizing.
This ruling is particularly important to review because it affects all employers that provide a corporate e-mail system, not just unionized ones. Employers may therefore wish to review their employee e-mail usage policies to take advantage of the new flexibility, while still being mindful of the rule’s exceptions.
NLRB Decision 3: Stopping Union Dues Checkoff After Contract Expiration
The third major NLRB decision, issued on December 16, 2019, overruled 2015 changes governing dues checkoff obligations—the automatic deduction of union dues from employees’ paychecks—when a collective bargaining agreement ends, restoring precedent that had been in place since 1962. From 1962 until 2015, the dues checkoff obligation ended automatically at the expiration of the collective bargaining agreement. In 2015, in a complete reversal, the NLRB held that employers are obligated to continue to check off union dues after a collective bargaining agreement expires as part of the same requirement to continue most other terms and conditions of employment under the well-established law that when a collective bargaining agreement expires and the parties have yet to reach a new agreement, the employer must continue all contractually-established terms and conditions of employment that are mandatory subjects of bargaining.
The NLRB’s 2019 decision returned dues checkoff to its pre-2015 status. Checkoff provisions, the NLRB reasoned, belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and therefore are enforceable only during the duration of the contract. This newly-defined return to the NLRB’s prior half-century-old rule restores leverage to employers to stop dues deductions in the collective bargaining process once the collective bargaining agreement expires. Employers with collective bargaining relationships and contracts with unions for its represented employees should take note of this development.
Takeaway
These three decisions are beneficial to employers and workplace policy. The NLRA applies to all covered employers whether or not some or all of their employees are represented by a union. The protected concerted activity protections extend to both union represented and non-union represented employees alike.
Each of these decisions provide additional protections to or expand rights of employers in the form of greater control over corporate policy decision-making and private corporate property, as well as leverage during the collective bargaining process. It is important for employers to note, however, that with the adoption of any policy following an NLRB decision, such employer-friendly decisions could change in the future, either under a newly appointed Board by a President’s Administration, or from federal court review. Accordingly, it is advisable to consult with experienced legal counsel when making any substantive changes to formal policies to help ensure against any NLRA violations.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
