by Matthew H. Parker
In three decisions issued this month – addressing union dues, employees’ use of employers’ e‑mail systems, and the confidentiality of workplace investigations – the National Labor Relations Board (split along party lines) continued to swing the pendulum back towards a more management-favorable position from that which we saw under the last administration. Employers should take note of these decisions as they are looking ahead to 2020.
#1 – Dues Checkoff Requirements Expire with CBAs
In Valley Hospital Medical Center, Inc. (issued on December 16th), the NLRB returned to its prior longstanding position that employers can lawfully stop collecting union dues from employees’ paychecks once the operative collective bargaining agreement (imposing that requirement) expires. As such once a CBA is no longer in effect, checkoff provisions (along with no-strike/no lockout clauses, arbitration requirements, management rights clauses, and union security requirements) are no longer enforceable until you reach a new agreement. The Board specifically held that employers are free, upon contract expiration, “to use dues – checkoff cessation as an economic weapon in bargaining.”
#2 – Employers Need Not Allow Non-Business Use of E-mail Systems
In Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino (issued on December 17th), the NLRB overruled a controversial earlier decision that had concluded that rules banning the use of e-mail systems for non-business purposes unlawfully interfered with employees’ rights to engage in protected concerted activity. The majority explicitly held: “Employees have no statutory right to use employer equipment, including IT resources, for [NLRA] Section 7 purposes.” In other words, employees no longer have the statutory right to use employers’ e-mail systems for organizing. So long as employers do not discriminate against communications concerning terms and conditions of employment, neutral rules limiting the use of company e-mail systems to business purposes will not violate the NLRA.
#3 – Employers Can Require Confidentiality of Workplace Investigations
In Apogee Retail LLC d/b/a Unique Thrift Store (issued on December 17th), the NLRB dialed back prior precedent that had precluded employers from requiring employees to maintain the confidentiality of workplace investigations. Whereas previously, the Board had held that such confidentiality requirements unlawfully interfered with employees’ Section 7 rights, the Apogee majority concluded that such rules – so long as they are facially neutral and limited to the pendency of active investigations – are presumptively valid. As such, employers responding to complaints alleging issues such as hostile work environments can lawfully tell witnesses that they are not to discuss the allegations with their coworkers. The Board concluded that such rules only have a “comparably slight” effect on employees’ Section 7 rights, which is outweighed by employers’ interests in protecting workers’ privacy and aiding in investigations.
Happy Holidays to all from our entire team at Whelan Corrente & Flanders LLP!