Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Employers Get their Email Systems Back: NLRB Overrules Purple Communications

Posted in Employee Handbooks, Property Rights, Union Organizing

Nearly eighteen months ago, this blog asked whether employers will get their email system back. Last month, the NLRB answered with a resounding “yes”! In Caesars Entertainment, 368 N.L.R.B. 143 (2019), the NLRB overturned its prior decision in Purple Communications.  In doing so, the NLRB returned to its rule that employers may limit employee’s use of the employer’s IT resources if it does so in a non-discriminatory fashion.

For those who have followed this issue, the regulation of the use of employer’s email is a fine example of the “pendulum” effect in NLRB precedent, particularly over the last decade, or maybe even two. The NLRB has long recognized that employers have the right to regulate the use of their property and equipment. The NLRB has always balanced that right against employees’ right to engage in protected, concerted activity.

The NLRB was originally presented this question in 2007, during the Bush II Board. The NLRB held then, in case called Register Guard, that an employer could prohibit non-business use of its email system. Seven years later, the Obama Board reversed Register Guard in Purple Communications.  The Obama Board weighed the interests differently.  It believed that an employer’s property interests had to yield to the employee’s right to utilize those systems for union or other concerted purposes.

In its most recent decision, the NLRB has returned to the Register Guard rule. It did so after considering amici briefs submitted by a number of employer and labor organizations. The Trump Board viewed employer email systems as similar to employer-owned televisions, bulletin boards, copy machines, telephones and public address systems. The NLRB has previously ruled that employers may prevent employees from using all of this equipment for union organizing or other concerted activities.

Significantly, the NLRB majority did recognize that there may be situations in which the employer’s rights must yield. For example, the majority acknowledged that there may be cases in which the email system is the only reasonable means for employees to communicate with one another. In such a case, employees may have a right to utilize the employer’s email system. The NLRB left the nature and extent of that exception, however, to future cases.

Member McFerran (D) wrote a dissenting opinion. McFerran argued that Purple Communications was properly decided and, importantly, recognized the realities of the modern workplace in which email has “effectively become a ‘natural gathering place’ pervasively used for employee-to-employee conversations.”

For the labor professional, the NLRB’s decision brings the issue of employer restrictions on use of its IT equipment full circle. Indeed, the NLRB recognizes that its rule in Caesars Entertainment applies not only to email resources, but other IT resources. Employers with a concern about limiting the use of their IT equipment, therefore, should review their policies to determine whether the NLRB’s decision is one that suggests any changes to their policy or approach.

NLRB Concludes Pending Workplace Investigations May Be Kept Confidential

Posted in Employee Handbooks, NLRB

As many employers know, confidentiality can be essential to performing workplace investigations.  Last month, in Apogee Retail, LLC, a 3-1 decision, the NLRB agreed.  Applying the test for facially neutral rules established in The Boeing Company, 365 N.L.R.B. No. 154 (2017) (discussed here), the NLRB held that workplace rules that require employees to keep pending workplace investigations confidential while the investigation is open are generally legal.  The decision arose after a thrift store retailer, Apogee Retail, prohibited its employees from discussing investigations in its Code of Business Conduct and Ethics and in its Loss Prevention Policy.

In finding that confidentiality rules are generally legal, the NLRB overruled a 2015 Obama Board decision.  In that decision, Banner Estrella, the NLRB had concluded that employers could not require employees to keep investigations confidential unless they could show a legitimate and substantial business justification that outweighed its employees’ Section 7 rights.

The NLRB explained that Banner Estrella had inappropriately placed the burden on employers to establish that its interests outweighed their employees’ Section 7 rights.  According to the NLRB, the reasoning of Banner Estrella not only contradicted Supreme Court and NLRB precedent but also “failed to recognize and weigh the importance of employers in providing, and of their employees in receiving, assurances that reports of incidents of misconduct . . . will be held in the strictest confidence by all concerned, management and workers alike.”  The NLRB further noted that its new decision aligns the NLRB’s stance on confidentiality of investigations closer to other federal guidance, including guidance from the EEOC and OSHA.

Labor professionals should note, however, an important caveat to the NLRB’s holding.  If a confidentiality rule is not limited to an open investigation, the NLRB will treat the rule as a Category 2 rule under Boeing.  Thus, an employer will need to prove that legitimate justifications outweigh any post-investigation adverse impact on NLRA-protected rights.  The NLRB remanded the case to an ALJ to conduct the required balancing of the competing interests because the rule at issue was silent as to the duration of the confidentiality obligation.

Member McFerran (D) dissented.  McFerran argued that the NLRB’s decision will prevent employees from seeking the help of their coworkers, union, and the NLRB.  McFerran called the decision “out-of-touch with realities of the modern American workplace and the goals of federal labor law” and warned that it could even prevent victims of sexual harassment in the workplace from seeking help.

The NLRB’s decision means that employers have more ability to provide instructions to those involved in workplace investigations to keep them confidential.  This should improve an employer’s ability to address effectively workplace misconduct of many types, including sexual and other forms of unlawful harassment.  But, as a result of the caveat noted above, a prudent employer will revisit any confidentiality instructions to ensure that they will pass muster under the Boeing test, as the NLRB applied in Apogee Retail.

NLRB Returns to Former Stance on Employers’ Obligations to Continues Dues Checkoff after CBAs Expire

Posted in Strikes, Union Negotiations

On Monday, the NLRB reinstated its long-standing position that the NLRA does not require employers to continue dues checkoff after the expiration of a collective bargaining agreement. The case, entitled Valley Hospital Medical Center, 368 N.L.R.B. No. 139 (“Valley Hospital”), came after a four-year-long departure from that long-standing position.

Many labor professionals may see the NLRB’s ruling as a return to normalcy. The NLRB’s position on this issue dates back over half a century to a case entitled Bethlehem Steel, 136 N.L.R.B. 1500 (1962). In Bethlehem Steel, the NLRB held that dues checkoff provisions fell into the category of terms and conditions of employment which an employer may unilaterally change following the expiration of a collective bargaining agreement.  Accordingly, employers were not required to continue dues checkoff following the expiration of a collective bargaining agreement. Continue Reading

The NLRB Puts an End to “Quickie” Election Procedures

Posted in Rulemaking, Union Organizing

On December 13, the NLRB announced significant changes to its election representation procedures.  The final rule will be published tomorrow, and become effective on April 16, 2020.  The net effect of the rule is to substantially alter the so-called “quickie” or “ambush” election rule adopted by the Obama NLRB in 2014.  The NLRB started this process just about two years ago when it issued a request for information about the election rule.

The main thrust of the changes to the rule involve extending the time periods allowed for the parties (and primarily the employer) to take certain actions required in order to process an election petition.  The result will be to slow down the election process and, the NLRB says, to allow for more orderly litigation of contested issues in an election.

Labor professionals who have extensive dealings with the NLRB will want to read the rule in its entirety, but here is a sampling of some of the more significant changes to the process: Continue Reading

Part 3: Will the Federal Government Take Over the UAW?

Posted in Union Membership, Unions

Amid the ever growing UAW corruption scandal, UAW President Gary Jones has taken a paid leave of absence, after the U.S. Justice Department accused him of embezzling over $700,000 in membership dues, among other charges.  UAW Vice President Rory Gamble has been appointed acting President, and he has hired Deloitte LLP to conduct a forensic audit of UAW finances.  His goal is to avoid a federal government take over of the union, which happened to the Teamsters for over a decade.

So far, the FBI’s investigation has netted the following officials who have been convicted and sentenced to federal prison:

  • Five UAW Officials:
    • Monica Morgan-Holiefield: 18 months
    • Norwood Jewel: 15 months
    • Nancy Johnson: 1 year + 1 day
    • Keith Mickens: 1 year + 1 day
    • Virdell King: 60 days
  • Three Chrysler Executive:
    • Al Iacobelli: 5½ years
    • Jerome Durden: 15 months
    • Michael Brown: 1 year + 1 day

Five other UAW officials have been charged, but not yet convicted and sentenced.

NLRB Proposed Rule States Graduate Students Are Not Employees

Posted in NLRB, Rulemaking

Last week, by a 3-1 vote, the NLRB approved a proposed rule that would classify graduate students, who conduct paid teaching and research, as students rather than “employees” under federal labor law. This rule would divest graduate students of their right to unionize and would end a recent wave of graduate student unionization efforts at private universities across the country. NLRB Chairman John Ring (R) stated that the purpose of the rulemaking was “to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

The status of graduate students under federal labor law has been a contested partisan issue for decades.  In fact, if approved, the new rule would be the fourth time since 2000 that the NLRB has changed its position on the ability of graduate students to unionize. However, in the past, the NLRB has made these decisions on a case-by-case basis—not through formal rulemaking.

Prior to 2000, graduate students at private colleges and universities were considered students. In 2000, the NLRB, controlled by appointees of President Clinton, ruled that graduate students at NYU were employees and could unionize. In 2004, when appointees of President George W. Bush assumed control, the NLRB reversed course and found that graduate students at Brown University should not be considered employees and did not have the right to unionize because their relationship to the university was “primarily educational.” The Obama-era NLRB then overturned that decision in 2016, deciding that students at Columbia University who received compensation for teaching and research that they performed at the direction of the university could be considered employees with the right to unionize.

In making its decision, the majority cited to the 2004 Brown University decision and noted that the research and teaching work performed by graduate students is “vital to their education,” provides them with “knowledge of their discipline,” and is necessary to building faculty relationships. The only Democrat on the NLRB, Member Lauren McFerran, voted against the proposed rule, calling the distinction between economic and educational relationships “made up.”

The rule is likely to have vast consequences for private universities where graduate students have already formed unions – many of which are currently involved in negotiations over an initial contract. Before the NLRB can make its final vote on the proposed rule, a 60-day period for public comment must pass.

Are Management’s Actions “Covered”? NLRB Finally Adopts “Contract Coverage” Standard for Employer Unilateral Changes

Posted in Union Negotiations

Yesterday, in a stark reversal of its precedent, the NLRB discarded the “clear and unmistakable waiver” standard.  Its replacement?  An employer-friendly “contract coverage” standard to determine whether a unionized employer has improperly changed a policy or practice regarding a mandatory bargaining subject.

In MV Transportation, Inc., 368 N.L.R.B. No. 66 (2019), the NLRB upheld an employer’s unilateral changes to its policies on a number of issues.  These included changes to policies addressing light duty work assignments, safety issues, and adherence to work schedules.  The NLRB found that provisions in the management rights clause of the applicable collective bargaining agreement (“CBA”) allowed the employer to make these changes without bargaining with the union.

The NLRB stated that it will apply the “contract coverage” standard when an employer makes a unilateral policy change based on a claim that language in the CBA allowed the employer to make the change.  When an employer defends a unilateral change on that basis, the NLRB will first apply ordinary principles of contract interpretation to the plain meaning of the CBA to determine whether the scope of the applicable CBA provision(s) permits the change.  The CBA need not specifically mention the policy or issue that the employer has chosen unilaterally to change.

If the plain language of the contract does not permit the employer’s unilateral policy change, however, the standard will be different.  In that case, the NLRB will examine the parties’ bargaining history and past practices regarding the issue.  It will continue to ask whether the union clearly and unmistakably waived its right to bargain over the change at issue. Continue Reading

Some Guidance for Employers on Drafting Lawful Conduct Rules

Posted in Employee Handbooks

Earlier this month, the NLRB’s Division of Advice (“Advice”) released a memorandum that opined on a variety of CVS Health’s (the “Company’s”) policies.  It considered whether those policies were “unlawfully overbroad” as they related to employees’ Section 7 rights under the NLRA.  It found that some were, but most were not.

The advice memorandum is a good read for labor professionals.  It provides examples of permissible employer regulations on employee conduct, including social media policies and codes of conduct.  More broadly, it may further help employers navigate the uncertain waters created in the wake of the Board’s recent Boeing Co. decision.  Furthermore, although Advice determined that most of the Company’s rules were permissible, its finding that several rules were unlawful was particularly noteworthy because it did so despite CVS Health’s savings clause.

In Boeing Co. (covered on this blog here), the Board set a new standard for addressing when a facially-neutral work rule, if reasonably interpreted, would potentially interfere with employees’ Section 7 rights under the NLRA.  The NLRB stated that moving forward it would evaluate two things: (i) the nature and extent of the rule’s potential impact on Section 7 rights, and (ii) legitimate business justifications associated with the rule(s).  Using this analysis, the NLRB created several different categories of rules:  those that are lawful, those that warrant individualized scrutiny, and those that are patently unlawful to maintain.

Applying this framework, Advice concluded that two policies were unlawful.  As previously mentioned, this was despite a savings clause in the Company’s social media policy that claimed that it “is not intended to interfere with any rights provided by the National Labor Relations Act.”  The disclaimer also provided that the policy is not “meant to limit your legal right to use social media to speak about…union-related topics or activities with others inside or outside the Company….”  Interestingly, Advice did not cite the NLRB’s 2014 ruling (which this blog previously discussed here) that such savings clauses “may, in certain circumstances, clarify the scope of an otherwise unambiguous and unlawful rule.”  Advice instead cited NLRB rulings from 1994 and 2007 holding that particular savings clauses did not cure employers’ otherwise overbroad prohibitions on protected activity. Continue Reading

NLRB Issues Notice of Proposed Rulemaking Amending Election Procedures

Posted in NLRB, Rulemaking

On August 12, 2019, the NLRB published a Notice of Proposed Rulemaking in the Federal Register regarding election procedures that the NLRB majority contends is essential to preserving employees’ right to free choice of representation.

The proposed rule contain three changes to current NLRB election regulations:

  • First, it replaces the current blocking charge policy with a vote-and-impound procedure. That is, under the amended regulations, a union election would not be blocked by a pending unfair labor practice charge.  Instead, the ballots would be impounded until the charge was resolved.
  • Second, it overrules Dana Corp, 351 N.L.R.B. 434 (2007). For voluntary recognition and for a post-recognition agreement to have a contract-bar effect, (1) the unit employees would need to be notified that voluntary recognition had been granted and (2) there would be a 45-day open period during which an election petition could be filed.
  • Third, in the construction industry, it requires affirmative evidence of majority employee support to prove a Section 9(a) relationship.  Contract language alone would not be sufficient proof.

The only Democrat on the NLRB, Member Lauren McFerran, dissented from the proposed amendments.  In her opinion, the majority’s amendments, if implemented, would not protect employee free choice of representation.  Further, she believes that the majority’s proposal appears “arbitrary,” fails to meet even minimal standards of reasoned decision making, relies on faulty premises, does not ask critical questions, and fails to analyze data and agency experience.

Whether these proposed amendments are ultimately implemented is, at best, uncertain.  The proposal is subject to public comments during the public comment period, which currently extends until October 11, 2019.  Following the public comment period, the NLRB will review the comments received and make any necessary charges to develop a final amended election rule.  While it does not appear that any comments have been submitted at this time, the NLRB’s proposed joint employer rule alone prompted 29,000 comments, suggesting that this proposal could also receive significant public attention.

Regardless, the proposed amendments to the election procedures is more evidence that the NLRB, under Chairman Ring’s leadership, is moving (or attempting to move) towards more rulemaking, rather than relying on case adjudication, to set precedent.  As we previously reported, Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions.

Chairman John Ring: The NLRB in 2019

Posted in NLRB, Rulemaking

On June 27, 2019, NLRB Chairman John Ring spoke at the 36th Carl A. Warns, Jr. and Edwin R. Render Labor and Employment Law Institute in Louisville, Kentucky.  Chairman Ring (R), a former management attorney who previously worked for the Teamsters before graduating from law school, was confirmed by the Senate in April 2018.  Chairman Ring sought to explain his vision for the NLRB and to give the audience a glimpse of what to expect in the next few years from the agency.

Chairman Ring articulated two objectives for the future of the NLRB.  First, Chairman Ring intends to expedite the processing of NLRB cases.  As many labor professionals can testify, the NLRB can take years to resolve a case.  To help reduce these delays, and with Chairman Ring’s guidance, the NLRB launched an internal pilot program in October 2018.  According to Chairman Ring, the pilot program can be summarized as (1) setting deadlines for all stages of NLRB cases and (2) limiting the time NLRB members can spend on dissents and concurrences.

Second, Chairman Ring would like to see the NLRB move towards more rulemaking, rather than relying only on case adjudication, to set precedent.  Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions.  The NLRB has already issued a proposed rule for the joint employer standard and solicited input from the public on the 2014 Election Rule, and is currently sifting through thousands of comments that were submitted in response (the NLRB received 29,000 comments on the proposed joint employer rule alone).  Chairman Ring stated that the NLRB is expected to issue proposed rules in “mid-summer” regarding the blocking charge and voluntary recognition policies, whether students at universities are employees, and conversion of agreements in the construction industry.

Chairman Ring also reminded audience members that the NLRB is soon expected to have three Republican members (and no Democrats).  Since Member Mark Pierce’s (D) term ended in August 2018, the NLRB has had one open seat.  The term of Lauren McFerran, the remaining Democrat on the NLRB, is set to expire in December 2019.  According to Chairman Ring, the two Democrat seats could remain unfilled for some time.  The fact that the NLRB will operate with three Republican members is significant because Republican members have historically been more management friendly.

Chairman Ring finally informed the audience that the NLRB issued several decisions in June that he considers significant.  The first, Prime Healthcare Paradise Valley, LLC, 368 N.L.R.B. No. 10 (2019), determined that arbitration agreements are unlawful if employees are unable to file charges with the NLRB.  The second, UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2, held that employers do not have to allow union organizers access to their property, so long as they prohibit other nonemployees from similar activity.

Labor professionals will want to stay tuned.  Whether Chairman Ring’s vision for the NLRB will be fully realized is yet to be seen.  His vision of consistency and clarity in this area of the law would be welcome to most, but using rulemaking to achieve that goal is a substantial departure from the path the NLRB has traditionally followed.