1. New Rules Overhaul Election Procedures
The NLRB issued new election rules that overhaul the rules governing union election; the previous rules were commonly referred to as “quickie” or “ambush” election rules. The nicknames are due to the quick deadlines employers faced after receiving notice that a union filed an election petition with the NLRB. The rules also revert back to addressing questions about which positions are within the group subject to organizing before the election. These new election rules become effective April 16, 2020.
2. Employers Can Restrict Use of Employer Email Systems
In Caesars Entertainment, the NLRB restored employers’ rights to restrict employee use of the employer’s email system so long as it does so on a nondiscriminatory basis, and returned to the standard announced by the NLRB in the 2007 case, Register Guard. Under the Register Guard standard, employees do not have a statutory right to use employer email and other IT resources to engage in non-work-related communications, unless, in rare cases, the use of employer-provided email is the only reasonable means for employees to communicate with each other.
3. Employers Can Request Confidentiality During Investigations
In Apogee Retail, the NLRB ruled that employers may require confidentiality during the course of workplace investigations. The decision is intended to better align with other federal agency guidance on workplace investigations, including from the EEOC’s enforcement guidance. However, the NLRB remanded the case for further consideration because the employer’s rule on confidentiality did not limit confidentiality to the duration of the investigation. Previously, under the NLRB’s Banner Estrella standard, employers were required to prove, on a case-by-case basis, that special circumstances justified the need for confidentiality during a workplace investigation.
4. Employers May Stop Deducting Dues When Contract Expires
In Valley Hospital Medical Center, the NLRB held that an employer’s statutory obligation to check off union dues ends upon expiration of the collective bargaining agreement containing the checkoff provision. The majority explained that there is no independent statutory obligation to check off union dues after contract expiration, even where the contract does not contain a union-security provision. The decision returns to the standard that existed for over 50 years, and was first announced by the NLRB in the 1962 Bethlehem Steel case.
5. Long-Standing Arbitrator Deferral Standard Restored
In United Parcel Service, Inc., the NLRB has restored the legal standard it uses to decide whether to defer to an arbitrator’s prior resolution of a grievance regarding employee discipline that was an alleged unfair labor practice (ULP). Under the restored standard, the NLRB will defer to the arbitrator’s decision where (1) the arbitration proceedings appeared fair and regular, (2) all parties agreed to be bound, (3) the arbitrator considered the ULP issue, and (4) the arbitrator’s decision is “not clearly repugnant” to the National Labor Relations Act (NLRA). The decision returns to the standard that existed for nearly 60 years, and was first announced in the 1955 Spielberg Mfg. Co. case.
For questions on how these new rules and decisions affect your company, contact Kyle Abraham at 503-276-2132 or email@example.com, or Nicole Elgin at 503-276-2109 or firstname.lastname@example.org.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please email or call Traci Ray at 503-276-2115. Copyright ©2020 by Barran Liebman LLP.
Las Alertas electrónicas son escritas por abogados de Barran Liebman para sus clientes y amigos. Las Alertas no son proveídas como asesoramiento legal, sino solo como anuncios de leyes de empleo, leyes laborales y beneficios de empleo. Si esto ha sido remetido a usted y quisieras empezar a recibir las Alertas directamente, por favor mándanos un correo electrónico o llama a Traci Ray al 503-276-2115. Derechos de autor ©2020 por Barran Liebman LLP.