The National Labor Relations Board (“NLRB” or “Board”) in a series of policy moves and case decisions has taken a more employer-friendly turn. Of note:
- Caesars Entertainment, which said that employers can restrict work email use to business use and prevent employees from using work email for union organizing or union business;
- Apogee Retail, which said that employers can prohibit employees from discussing pending workplace investigations; and
- “Quickie election” rules scaled back.
What does this mean for you? If you carefully revised your employee handbook during the Obama-era NLRB and carefully attempted to avoid “Section 7 Rights” issues, you may be able to revise the handbook again—particularly conduct, confidentiality, photography, investigation, and social media policies. In addition, you no longer have to fear a quickie union election after a brief organizing campaign.
In Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel & Casino, No. 28-CA-060841, 368 NLRB 143 (2019), in a split 3-1 decision, the NLRB overruled its prior controversial Purple Communications decision from 2014. In Caesars, the NLRB held that employers do not violate federal labor laws by restricting use of their work email systems for nonbusiness purposes, restoring the law that was in place since 2007 in Register Guard. The Obama-era Purple Communications decision held that employees could use employer-provided work email systems to engage in concerted activity, including union business and organizing, so long as it was on non-work time. Purple Communications is no longer the law.
In Apogee Retail LLC dba Unique Thrift Store & Kathy Johnson, No. 27-CA-191574, 27-CA-198058, 368 NLRB 144 (2019), in a split 3-1 decision, the NLRB overruled its prior controversial Banner Health System decision from 2015. In Apogee Retail, the Board held that employers can prevent employees from discussing confidential workplace investigations while the investigation is still ongoing. Previously, the Obama-era Board held that requiring confidentiality of investigations violated workers’ rights to discuss the terms and conditions of their employment and engage in organizing.
In Apogee Retail, the Board applied the new 2017 test for balancing workers’ rights against workplace rules, such as those in employee handbooks. The Board now weighs workplace rules by placing them in one of three categories: (Category 1) rules that are presumptively legal because they do not affect workers’ rights or because the employers’ reasons for maintaining them outweigh any infringement of workers’ rights; (Category 2) rules that more strongly affect workers’ rights but may be legal on a case-by-case basis if employers can justify them; and, (Category 3) rules that are always illegal. The Board placed rules restricting discussion of pending investigations into Category 1, which are presumptively legal. A workplace rule that more broadly restricted discussing closed investigations would fall into Category 2, according to the Board.
Finally, the NLRB scaled back Obama-era regulations permitting “quickie elections” in the union election process. The new rules ease several deadlines and direct that certain disputes must be resolved before an election vote, rather than after. Employers will have 5 days—as opposed to 2—to respond to a Notice of Petition for Election. Employers will have at least 14 business days—as opposed to 8 calendar days—between a pre-election hearing notice and the pre-election hearing. Most notably, union representation elections may still be scheduled at “the earliest practicable date,” but the rule clarifies that elections will not normally be scheduled earlier than 20 business days after the decision and direction of election. These new rules will be in place 120 days after December 18, 2019.