Just before the holidays, on December 16, 2019, the NLRB reinstated long-standing precedent dating back to the 1960s allowing all private employers to maintain confidentiality of workplace investigations, restrict nonbusiness use of company e-mail, and cease deducting union dues after a collective bargaining agreement expires if their employees are represented by a union. In doing so, the Board overturned three of the most controversial decisions of the previous (Obama-era) Board. We discuss the new cases in the following sections.
Blanket Confidentiality Rules for Workplace Investigations Are Again Lawful
In Apogee Retail LLC d/b/a Unique Thrift Store and Kathy Johnson, 368 NLRB No. 144 (Dec. 16, 2019), the NLRB held that private employers may require confidentiality for all workplace investigations and prevent employees from discussing investigations with each other for the duration of the investigation, overturning Banner Estrella Medical Center, 362 NLRB 1108 (2015). In Banner Estrella, the NLRB had held that blanket employer rules requiring confidentiality during workplace investigations were unlawful under the National Labor Relations Act and that confidentiality could be required only on a case-by-case basis, depending on the circumstances of each situation. That decision by the Obama Board provoked criticism from the Equal Employment Opportunity Commission (EEOC), which said that the decision conflicted with EEOC requirements that employers maintain confidentiality when investigating allegations of sexual harassment and other unlawful discrimination. The Board's Apogee decision eliminates that dilemma, at least while the investigation is pending.
Private employers should maintain or adopt policies requiring that workplace investigations be conducted promptly and confidentially whether they involve sexual harassment, discrimination, or any other allegation of workplace misconduct. When an investigation has been completed, however, the employer should carefully consider whether continuing confidentiality is either necessary or appropriate. Both the EEOC and NLRB will continue to assess the lawfulness of post-investigation confidentiality in light of their respective agency priorities. The NLRB prioritizes employee communication of workplace conditions; the EEOC prioritizes protecting employees from possible retaliation by other employees for alleging discrimination. Thus, the chance of an employer's being caught between the conflicting agency priorities has been decreased but not eliminated.
Private Employers Can Again Exclude Non-Work Messages From Company E-mail Systems, Including Employee Messages Regarding Union Organizing and Other Third-Party Solicitation
On the same day, the NLRB overruled the Obama Board decision in Purple Communications, Inc., 361 NLRB 1050 (2014), and held that private employers have the right to exclude non-work messages from company e-mail systems, including employee e-mails regarding union organizing and other third-party issues. Caesars Entertainment d/lb/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (Dec. 16, 2019). The Board decision reinstated the rule originally promulgated in Register Guard, 351 NLRB 1110 (2007).
Caesars Entertainment, a Las Vegas hotel and casino, included among its rules for company e-mail use that "[c]omputer resources may not be used to . . . [s]end chain letters or other forms of non-business information." An NLRB hearing examiner had found this rule unlawful under Purple Communications because the employer's IT policy would ban e-mails regarding collective concerted activity, including messages advocating union organizing and other union causes. The NLRB requested briefing on whether the Purple Communications case should be overruled and used the Caesars Entertainment case to reinstate the Register Guard rule.
In Caesars Entertainment, the Board squarely held that private sector employees do not have a statutory right to use their employer's e-mail and other IT resources and that private employers have the right to control the use of their systems, as long as they do not discriminate against union or other protected concerted communications.
The key takeaway from the Caesars case is that private employers may now establish policies that prohibit employees from engaging in any non-work-related use of company e-mail or other IT resources. If such a policy is adopted, it must be consistently enforced.
Private Employers Can Again Stop Deducting Union Dues From Employee Paychecks After Expiration of a Collective Bargaining Agreement
Also on December 16, the NLRB reinstated the long-standing rule in Bethlehem Steel, 136 NLRB 1500 (1962), that a collective bargaining agreement (CBA) provision requiring a private employer to deduct union dues from employee paychecks is inherently a contractual provision; therefore, the employer's obligation to deduct union dues ceases as soon as the CBA's term expires. Valley Hospital Medical Center, 368 NLRB No. 139 (Dec. 16, 2019). The Board ruled that mandatory dues deductions, like no-strike clauses and bans on employer lockouts, are strictly contractual terms that cease to exist when a CBA expires.
Member Lauren McFerran dissented, stating her view that depriving unions of dues while attempting to negotiate a new CBA was one of a series of decisions by the NLRB Republican majority designed to destabilize management/union relationships by providing additional economic leverage to employers.
The Trump Board's readoption of the 1962 Bethlehem Steel rule gives private employers additional economic leverage when negotiating a new contract by allowing employers to cut off the direct flow of union dues from employees' paychecks to the union.
These decisions are welcome news to all private employers whether or not their employees are represented by unions. As is always the case with federal labor law, however, they may not last for long, depending on which party's candidate wins the White House in 2020.