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January 13, 2020

NLRB Brings End-of-Year Cheer to Employers

The National Labor Relations Board (NLRB) closed out 2019 by issuing a series of employer-friendly rules and decisions, significantly modifying precedent made under the Obama-era NLRB. As described more fully below, the NLRB’s flurry of rules and decisions in the 2019 holiday season involved relaxing the rules for union election procedures, allowing employers to ban the use of work email for union organizing, allowing employers to cut off the collection of union dues upon the expiration of a collective bargaining agreement (CBA), allowing employers to implement certain confidentiality rules regarding workplace investigations, and overturning the Obama-era rule on deferring the processing of unfair labor practice charges to arbitration proceedings.

Union Election Procedure Rules

On December 13, 2019, the NLRB announced numerous changes to its union election procedures that’ll become effective on April 16, 2020. These changes include rolling back the Obama-era “quickie election” rule, which took effect in April 2015. This rule put employers at a disadvantage by reducing the timeline for election campaigns and postponing bargaining unit composition determinations until after elections. 

The NLRB changes to election procedures include:

  • Pre-election hearings: Pre-election hearings will generally be scheduled 14 business days from the notice of the hearing instead of eight business days.
  • Notice of petition for election: Employers will be required to post and distribute a notice of petition for an election within five business days after service of the notice of hearing instead of within two business days.
  • Non-petitioning party position statement: Non-petitioning parties––usually employers––will be required to file a position statement within eight business days after service of the notice of hearing instead of within seven business days.
  • Petitioning party position statement: Petitioners––usually unions––will be required to file a position statement responding to the issues raised in the non-petitioning party’s position statement at least three business days before the hearing. Currently, a petitioning party is generally not required to provide a pre-hearing position statement.
  • Determinations regarding unit scope and voter eligibility: Any disputes between parties regarding unit scope and voter eligibility will be decided before an election by the NLRB regional director. Currently, disputes regarding unit scope and voter eligibility don’t generally need to be decided prior to an election.
  • Post-hearing briefs: Within five business days of the close of a pre- or post-election hearing, parties will be permitted to file post-hearing briefs with the NLRB regional director. Currently, post-hearing briefs are only allowed by special permission of the NLRB regional director.
  • Scheduling of election: NLRB regional directors are required to schedule elections for the “earliest date practicable.” However, starting on April 16, the NLRB will not schedule an election until at least 20 business days after the date of the direction of election unless there’s an agreement by the parties stating otherwise. Currently, NLRB regional directors can set elections for as early as 13 calendar days from the petition filing date.
  • Voter lists: Employers must provide a voter list within five business days after the issuance of a direction of election instead of within two business days.
  • Election certification: The NLRB regional director will no longer certify an election if a request for review of the election results is pending or could still be filed. Currently, NLRB regional directors must issue election certifications despite a pending or possible request for review.

Work Email Use Standard

On December 17, 2019 in Caesars Entertainment Corp. d/b/a Rio All-Suites Hotel and Casino, the NLRB ruled employers can implement and enforce workplace rules that bar the use of their email system for non-business purposes. In deciding Caesars, the NLRB overruled its previous Obama-era Purple Communications decision that banned workplace policies that prevented employees from using employers’ email systems to engage in concerted activities. 

The Caesars decision contains an exception allowing employees to use an employer’s email system when it’s “the only reasonable means for employees to communicate with one another.” However, as noted by the NLRB, this limited exception will be rare because, in most workplaces, employees have alternative and adequate avenues to communicate with each other, including in person or via phone, text message, or social media.

Union Dues Collection

On December 16, 2019 in Valley Hospital Medical Center, the NLRB ruled employers can unilaterally stop deducting union dues from employees’ paychecks upon the expiration of a CBA (generally, terms and conditions continue until impasse when a CBA expires). The NLRB overturned the Obama-era NLRB 2015 decision in Lincoln Lutheran that held an employer can’t stop deducting union dues once a CBA expires. 

Discussing Workplace Investigations

On December 17, 2019, the NLRB decided employers can generally prohibit employees from discussing pending workplace investigations as long as the bans are limited to the period of the active investigation. Specifically, in Apogee Retail LLC dba Unique Thrift Store and Kathy Johnson, the NLRB determined employers can implement rules banning employees from discussing pending workplace investigations “where, by their terms, the rules apply for the duration of any investigation.” Apogee Retail overruled the Obama-era NLRB Banner Health System decision that found those policies to be an unlawful infringement on employee rights. 

Arbitration Deferral 

The NLRB reinstated its position prior to the Obama era on deferral in unfair labor practice proceedings to arbitration, including grievance arbitrations. Specifically, the NLRB will now defer to an arbitration decision if: (1) the arbitration proceedings were fair and regular, (2) the parties agreed to be bound, (3) the contractual issue was factually parallel to the alleged unfair labor practice issue, (4) the arbitrator was presented generally with the facts relevant to resolving the alleged unfair labor practice, and (5) the decision of the arbitrator was not clearly repugnant to the purposes and policies of the National Labor Relations Act. 

If you would have any questions regarding the content of this alert, please contact Ross Greenky, associate, at rgreenky@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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