Happy New Year, Employers! From Your Friends at the NLRB.
In December, the National Labor Relations Board (NLRB) issued a flurry of employer-friendly decisions. Management can toast the following end-of-year gifts and look forward to continuing success at the Board in the new year.
Ambush Election Rule
Out with the old: In 2014, the Obama-era Board instituted its infamous “ambush election” rules, which set very tight election time limits, foreclosed employers from litigating critical issues of bargaining unit scope and voter eligibility before the election, and effectively limited an employer’s ability to educate its workers about the pitfalls of unionization.
In with the new: The new Rules, which are set to take effect on April 14, 2020, will ease some of these onerous restrictions, including:
- Elections will be suspended to give the parties an opportunity to litigate, at the pre-election hearing stage, issues of scope and voter eligibility. Decisions on those issues will be issued before the election is scheduled.
- All deadlines have been extended and will be calculated in business days, not calendar days. Among the extensions are:
- The NLRB will provide 14 business days’ advance notice of the date of the pre-election hearing to resolve disputes (extended from 8 calendar days’ notice);
- Employers will have 8 business days after receiving the hearing notice to file their statement of position in response to the union’s representation petition (increased from 7 calendar days), and unions will be required to file their response to the employer’s position statement at least 3 business days before the hearing; the current rule does not require unions to provide any written response in advance of the hearing, but simply provides for unions to orally respond to the employer’s position statement at the hearing itself;
- Employers will have 5 business days after the NLRB’s direction of the election to submit voter lists and post and distribute the Notice of Election, as opposed to a 2-business day requirement under the current rules;
- An election can be scheduled no fewer than 20 days after the direction of election (the current rule contains no minimum time period between the petition and the election).
According to NLRB statistics, the ambush election rules have reduced the average time between the filing of a union petition and holding the election from 38 days to 23 days. With these new changes, it is anticipated that this time span will increase to an average of 30 days in uncontested cases. (See Law360's, "NLRB Scales Back Obama Board's Election Regs"). According to the sole dissenting Board member Lauren McFerran (whose term expired on December 16, 2019), the new rule could increase this timeframe to 78 days in contested cases. (See Bloomberg Law's “Union Elections Slower, More Complex Under NLRB Change,” The Daily Labor Report).
Confidentiality during Workplace Investigations
Out with the old: The Obama Board’s 2015 decision in Banner Health held that an employer’s blanket policy prohibiting employees from discussing workplace investigations violated its employees’ rights under the National Labor Relations Act (NLRA) to discuss workplace matters, and required employers to establish that the imposition of a gag order in each case was necessary to avoid compromising the investigation.
In with the new: The Trump Board reversed Banner Health, concluding that employer policies requiring employees to maintain confidentiality for the duration of the workplace investigation are facially lawful Category 1 rules as described in the Board’s 2017 Boeing decision.
Employee Use of Employer’s Email System
Out with the old: In 2014, the Board issued its Purple Communications decision, holding, in part, that workplace rules prohibiting employees from using company email systems for union activity are presumptively invalid.
In with the new: On December 17, 2019, the Board reversed course, holding that employees have no statutory right to use an employer’s technology resources to engage in union organizing and other non-work related activities. The NLRB explained that “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 in doing so, they do not discriminate against union or other protected concerted communications.” The Board’s decision carved out an exception where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.
Out with the old: In its 2015 Browning-Ferris decision, the Obama Board significantly widened the net for imposing joint employer liability on companies for unfair labor practices (ULPs) committed by their subcontractors or franchisees. Various cases seeking to impose joint employer liability on McDonald’s for alleged ULPs committed by its franchisee restaurants had been pending before the NLRB since 2012. In 2018, the NLRB’s general counsel brokered a settlement with McDonald’s, its franchisees, and their workers, that absolved McDonald’s of any joint employer responsibility. An NLRB Administrative Law Judge (ALJ) rejected the settlement, in part, because of the importance of adjudicating McDonald’s liability as a joint employer.
In with the new: The Board vacated the ALJ’s decision and ordered the judge to approve the settlement, noting that the settlement will address all alleged violations of the Act while avoiding the risk of litigation. Notably, the majority’s decision commented that if the case proceeded to trial, it would probably have very little precedential value because the NLRB has promulgated a proposed joint employer rule, which would reinstitute the pre-Browning-Ferris standard, imposing joint employer liability on a franchisor only if it has “direct and immediate control” of another’s workers. It is expected that this proposed joint employer rule will be finalized and implemented in early 2020.
Dues Checkoff After Expiration of Collective Bargaining Agreement
Out with the old: In its 2015 Lincoln Lutheran of Racine decision, the Board overturned a 50+ year precedent by ruling that an employer must continue to deduct union dues from its employees’ paychecks and remit the dues to the union after the collective bargaining agreement (CBA) that imposed the checkoff obligation had expired.
In with the new: On December 16, 2019, the Trump Board rejected the Lincoln Lutheran decision and returned to its prior rule, holding that an employer has a right to cease deducting union dues upon the expiration of the CBA. The Board explained that dues deduction belongs in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and are enforceable only for the duration of the CBA.
Deferral to Arbitration
Out with the old: Unions and/or aggrieved employees frequently file a ULP charge with the NLRB challenging an employee’s discipline or discharge, where the subject dispute is covered under the grievance arbitration provision in parties’ CBA. In an effort to avoid NLRB litigation, employers seek to have the NLRB defer to an arbitrator’s resolution of the matter. In 2014, the NLRB overturned a three-decade precedent by tightening the standards under which the Board will defer a case to arbitration.
In with the new: On December 23, 2019, the Board once again flipped and reinstated its traditional Spielberg deferral standard. The NLRB explained that it will defer such cases to the grievance arbitration process where: (1) the arbitral proceedings appear to have been fair and regular; (2) the parties have agreed to be bound; (3) the arbitrator considered the ULP issue; and (4) the arbitrator’s decision is not clearly repugnant to the NLRA. The Board’s ruling shifts the burden of proof to the party challenging deferral.
The expiration of Member McFerran’s term leaves the Board with a three-person, Trump-appointed quorum. Thus, employers should expect additional friendly decisions from the Board in advance of the November 2020 election.