The National Labor Relations Board (NLRB) issued several important rule changes and case decisions favorable to employers over the last several weeks as part of its year-end wrap-up activities and ahead of the expiration of Board Member Lauren McFerran’s term on December 16, 2019.

The new rules ensure more fairness for employers in the election process particularly because several changes incorporate more reasonable timeframes for employers to conduct required actions.

To prepare your organization for 2020, outlined below is an update of significant Board rulemaking initiatives and case decisions issued as a result of this recent activity.

Rulemaking

On December 18, 2019, without a notice and comment period, the Board implemented a final rule which contains several changes to representation case procedures. The new procedures are scheduled to go into effect beginning April 16, 2020 and are unlikely to be successfully challenged.

The chart below provides a matrix by topic area that compares the current Board election rules to the changes implemented last week.

Case Decisions

In addition to the election rules changes noted above, the NLRB issued a number of significant decisions that have implications for all Board stakeholders, including employers. A partial list of such decisions include the following:

Union Dues Check Off

Valley Hospital Med. Ctr., 368 NLRB No. 139 (Dec. 16, 2019)

The Board overruled 2015 changes governing dues check off obligations when a CBA ends, restoring long standing precedent under which an employer’s statutory obligation to check off union dues ends upon expiration of the CBA containing the check off provision. Thus, an employer has no independent statutory obligation to check off and remit employees’ union dues after the expiration of the CBA even where the contract does not contain a union-security provision.

Use of Employer Email

Caesars Entertainment Corp., 2018 WL 3703476 (Dec.17, 2019)

The Board invited briefs in August of 2018 on whether it should overturn the legal standard articulated in Purple Comms., 361 NLRB 1050 (2014). In that Obama-era decision, the Board allowed employee use of employer email for union business, prohibiting employers from imposing limitations on use of its email systems. On Dec. 17, 2019, the Board issued a decision in which it held that employers can ban workers from using company email for union business, union organizing purposes, and for other nonbusiness matters. Accordingly, employers may now restrict use of their email and other information technology systems to certain purposes as long as they do not discriminatorily target unionrelated communications and similar activity.

Supervisor Status

Bloomsburg Care and Rehab. Ctr., 06-RC-241173 (Dec. 3, 2019)

The Board affirmed an agency judge’s ruling letting nurses at a Pennsylvania nursing home vote on whether to organize with the Retail Wholesale and Department Store Union, saying they are not union-ineligible supervisors. In doing so, the Board expressed a willingness to reconsider its worker status test that hinges on whether businesses actually follow alleged supervisors’ disciplinary recommendations.

Workplace Investigations

Apogee Retail LLC, 27-CA-191574 (Dec. 17, 2019)

In this decision, the Board applied its Boeing rules handbook framework and established that employers don’t necessarily violate workers’ rights to act collectively when they bar employees from discussing workplace investigations. The Board held that such confidentiality rules are generally legal as long as they are limited to the period of the active investigation.

Settlements

McDonald’s Settlements Approved (Dec. 12, 2019)

After nearly three years of protracted litigation, on Dec. 12, 2019, the Board instructed an administrative law judge to approve settlements resolving complaints against McDonald’s USA LLC and 29 franchisees, based on violations allegedly committed by franchisees. The case involved issues of joint employer liability and Board recusal policies. The approved settlements do not impose joint and several liability on McDonald’s USA, LLC as a joint employer.

Office of the General Counsel

Neutrality Agreements

• In a consideration of an appeal by the National Right to Work Legal Defense Foundation, Inc. of dismissal of an unfair labor practice charge it had filed against a union and employer, the Board’s General Counsel challenged the existing standards surrounding neutrality agreements between employers and unions seeking to organize an employer’s employees.
• Neutrality agreements are often used by unions to bypass Board-conducted secret ballot elections, and generally consist of an agreement by the employer to recognize a union without an election where the union can show the employer it has majority support among the employer’s employees.
• In the challenged case, the employer agreed to provide the union with employees’ contact information to assist it in organizing, and to recognize the union without an election if the union showed majority support. Although the Regional Director found the agreement to be lawful, the General Counsel, in his review of the Regional Director’s decision, indicated that in his view the agreement was unlawful because the employer provided the union with more than just “ministerial aid” during the organizing campaign.
• The General Counsel’s challenge to how the Board normally approaches neutrality agreements could have major implications for organizing efforts around the country, as unions often rely on neutrality agreements to bypass the election process. Employers should take care to ensure that any such agreements they enter into with union organizers limits the assistance they are obligated to give to the union.

Looking Ahead to 2020

Although the rulemaking changes and case decisions will guide deliberations and laborrelated activity as we move into the next decade, they were not unanticipated. The current Republican Board majority will likely continue to issue significant decisions, including a joint employer rule in this coming year. An upcoming January Intelligence Briefing will address the expected changes to the NLRB in the coming year.

Despite the significant Board rulemaking and decisions outlined above, employers should continue to consult with trusted experts in labor relations to educate and train managers and employees regarding such developments, and also continue to follow all provisions of the National Labor Relations Act.

Contact us for the full intelligence briefing download.