NLRB Overrules Three Major Decisions in December 2019

So far in the month of December, the National Labor Relations Board (Board) overruled three major decisions that had been issued by the Board during the Obama administration. Below is a brief summary of each decision.  

Board Overrules Decision Requiring Employers to Continue Checking Off Union Dues After Contract Expires

In Valley Hospital Medical Center, 368 NLRB No. 139 (December 16, 2019), the Board overruled Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), which held that an employer’s statutory obligation under Section 8(a)(5) of the National Labor Relations Act (Act) compelled it to continue deducting union dues even after the collective bargaining agreement that established the checkoff arrangement expired. 

In Valley Hospital, the Board returned to the longstanding precedent set by Bethlehem Steel, 136 NLRB 1500 (1962), remanded on other grounds sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964), that an employer’s obligation to check off union dues ends when its collective bargaining agreement containing the checkoff provision expires. In overruling Lincoln Lutheran and returning to the longstanding precedent of Bethlehem Steel, the Board reasoned that a dues checkoff provision properly belongs to the limited category of mandatory subjects of bargaining that are exclusively created by contract and are enforceable through Section 8(a)(5) of the Act only for the duration of the contract.   

Board Overrules Decision Restricting an Employer’s Ability to Keep an Investigation Confidential

In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (December 16, 2019), the Board abandoned the requirement for a case-by-case determination of whether confidentiality can be required during internal investigations, as set forth in Banner Estrella Medical Center, 362 NLRB 1108 (2015), enf. denied on other grounds, 851 F.3d 35 (D.C. Cir. 2017). In Apogee the Board adopted the approach set forth in Boeing Co., 365 NLRB No. 154 (2017) for evaluating employer rules and concluded that investigative confidentiality rules for open investigations are categorically lawful under Boeing (Boeing Category 1), but investigative confidentiality rules for closed investigations fall into Boeing Category 2, requiring individualized scrutiny in each case as to whether any post-investigation adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

Board Overrules Decision Giving Employees the Right to Use Employer-Owned Equipment for Non-Work Purposes

In Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (December 16, 2019), the Board overruled the decision in Purple Communications, Inc., 361 NLRB 1050 (2014), which gave employees the right to use employer-owned equipment for non-work purposes, including soliciting for union-related issues. 

Decades of Board precedent establish that the Act generally does not restrict an employer’s right to control the use of its equipment. See Register Guard, 352 NLRB 1110, 1114-15 (2007) (citing cases), enfd. in part and remanded sub nom., Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard, the Board held that this precedent and the principle for which it stands, applies with equal force to an employer’s email. Id.

In Purple Communications, the Board overruled Register Guard, and held for the first time that employees do have a right to use employer-owned equipment for non-work purposes.  In Caesars Entertainment, however, the Board overruled Purple Communications, and returned to the standard announced in Register Guard. 

Under that standard, employees generally have no statutory right to use employer equipment, including IT resources, for Section 7 purposes. Nonetheless, the Board recognized an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another. In short, “an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that the employees would otherwise be deprived of any reasonable means of communicating with each other.”

Although the decision in Caesars Entertainment now permits employers to have a blanket prohibition regarding the use of its IT resources for non-work purposes, the practical reality is that employees frequently use employer IT resources for personal reasons, and as a result, many employers impose reasonable use restrictions. In those instances, the employees likely still have a right to use the employer’s IT resources to solicit other employees for union-related reasons, so long as the use is otherwise reasonable. Stated otherwise, although the Caesars Entertainment decision permits a blanket prohibition on such use, it does not authorize employers to discriminatorily apply a reasonable use restriction so as to exclusively prohibit union-related solicitations.