The Holidays Came Early for Employers

By James Korte

Employers rejoice! The National Labor Relations Board (NLRB) released a string of rulings on Monday reversing three controversial Obama-era decisions. With these rulings, the NLRB returned to long-standing rules in areas of significance prior to the sweeping changes made by the Obama-era Board. The NLRB’s return to the “old” tests should again provide employers with the clarity necessary to determine their legal obligations.

The NLRB in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (Dec. 16, 2019), found that the casino’s policy barring use of its email system for nonbusiness purposes did not violate federal labor law. This decision overruled Purple Communications, where the Obama-era Board had found employees could generally use their employers’ email systems to organize or engage in union or other concerted activities protected by Section 7 of the National Labor Relations Act. Caesars reinstates the standard announced in Register Guard, 351 NLRB 1110 (2007), where employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes. Caesars, however, established an exception to the Register Guard standard “in those rare cases where the employer’s email system furnishes the only reasonable means for employees to communicate with one another.”

The NLRB also issued Apogee Retail LLC, 368 NLRB No. 144 (Dec. 16, 2019), overruling Banner Health System and finding that employers do not violate workers’ rights to act collectively when employers bar employees from discussing workplace investigations. The Board found that invoking confidentiality for workplace investigations is generally legal as long as it is limited to the period of active investigation. The Board applied its 2017 decision, Boeing Co., 365 NLRB No. 154 (2017), to find that investigative confidentiality rules fall with the “Boeing Category 1” rules.

Finally, the NLRB issued Valley Hospital Medical Center, Inc. dba Valley Hospital Medical Center, 368 NLRB No. 139 (Dec. 16, 2019), which reinstated the principle that dues checkoff ends with the expiration of a collective bargaining agreement. This decision overruled the NLRB’s 2015 decision in Lincoln Lutheran of Racine, that a union can continue to insist on dues checkoff post-expiration. The Board returned to the rule of Bethlehem Steel, which had stood for half a century, that employers do not have to facilitate a union’s finances if there is no collective bargaining agreement in place.