NLRB Ends 2019 with a Flurry of Pro-Employer Decisions

The National Labor Relations Board ended 2019 with a bang by reversing Obama-era case law on several fronts.

• NLRB Allows Employers to Limit Use of E-Mail and IT Systems to Business-Use Only

In Caesars Entertainment, 368 NLRB No. 143 (2019), the Board overturned its 2014 holding in Purple Communications, Inc. that had allowed employees to use an employer’s e-mail for union organizing and other concerted activities.  Overruling Purple Communications, the Board held in Caesar’s Entertainment that employees do not have a statutory right to use employers’ e-mail and other information-technology (IT) resources to engage in non-work-related communications. Rather, employers have the right to control the use of their equipment, including their email and other IT systems, and they may lawfully exercise that right to restrict the uses to which those systems are put, provided that they do not discriminate against union or other protected concerted communications.  In short, employers may restrict the use of their e-mail and IT systems to business use only, provided they do not discriminate against employees who use the system for union-related and other protected activities.

• Employers May Discontinue Withholding Union Dues After Contract Expires

Many collective bargaining agreements contain provisions allowing employees to have their union dues automatically deducted from their pay and sent to the union by the employer. These provisions are commonly known as “dues checkoff” provisions. The question becomes, does a dues checkoff requirement continue after the collective bargaining agreement (and with it, the union security provision) expires?  In Valley Hospital Medical Center, Inc., 368 NLRB No. 139 (2019), the Board overturned an Obama-era holding in Lincoln Lutheran of Racine which held that employers were obligated to continue to check off and remit union dues even after the expiration of collective bargaining agreements. Now, the Board has re-established that dues checkoff provisions are enforceable only for the duration of the contractual obligation created by the parties.  In other words, dues checkoff ends when the contract expires.  The effect of this decision will be interesting to watch, as it may result in the interruption of a significant revenue stream for many unions while contracts are being negotiated.

• NLRB Restores Confidentiality of Workplace Investigations

In a case in which Matt Lynch of the firm represented the employer, the NLRB overruled precedent and held that an employer may require employees to maintain the confidentiality of ongoing workplace investigations.  For more details of this case—Apogee Retail LLC d/b/a Unique Thrift Store—please see the News section of our website.