NLRB Reverses Three Obama-Era Decisions in One Day

December 19, 2019

By: Subhash Viswanathan and Stephanie H. Fedorka

On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration.  Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.

Valley Hospital Medical Center, Inc.

In Valley Hospital Medical Center, Inc., the Board majority ruled that employers are not obligated to continue to check off and remit union dues after the expiration of a collective bargaining agreement.  In so holding, the Board reversed its 2015 decision in Lincoln Lutheran of Racine and returned to the prior precedent set in its 1962 Bethlehem Steel decision.  The Board held that dues checkoff provisions belong to the limited category of mandatory bargaining subjects exclusively created by the contract, and therefore such provisions are enforceable through Section 8(a)(5) of the National Labor Relations Act only for the duration of the contractual obligation created by the parties.  The Board found that “[t]here is no independent statutory obligation to check off and remit dues after expiration of a collective bargaining agreement containing a checkoff provision, just as no statutory obligation exists before parties enter into such an agreement."  The Board further noted that this same reasoning applies even in the absence of a union-security provision in the collective bargaining agreement.

Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino

In Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, the Board majority ruled that employees have no statutory right to use their employer's equipment -- including their employer's e-mail system and information technology resources -- to engage in union organizing activity or other concerted activity pursuant to Section 7 of the National Labor Relations Act.  In so holding, the Board reversed its 2014 decision in Purple Communications, Inc. and returned to the prior precedent set in its 2007 Register Guard decision.  Citing Supreme Court authority, the Board majority held that an employer's right to control the use of its property and equipment should only be infringed to accommodate employees' Section 7 rights if such an infringement is necessary to avoid creating an "unreasonable impediment to the exercise of the right to self-organization."  The Board determined that, in a typical workplace, oral solicitation and face-to-face literature distribution are sufficient to enable employees to exercise their Section 7 rights.  Accordingly, restrictions on the use of the employer's e-mail system do not create "an unreasonable impediment to the exercise of the right to self-organization" in most circumstances.

The Board held, however, that an employer might be found to have violated the National Labor Relations Act by restricting the use of its e-mail system in two circumstances:  (1) where there is proof that employees would otherwise be deprived of any reasonable means of communicating with one another; or (2) where there is proof that the employer has applied the restriction in a discriminatory manner by prohibiting only union-related communications.

Apogee Retail d/b/a Unique Thrift Store

In Apogee Retail d/b/a Unique Thrift Store, the Board majority held that a workplace rule requiring employees to maintain the confidentiality of open workplace investigations is lawful under the National Labor Relations Act because the adverse impact on employees' Section 7 rights is relatively slight and is outweighed by the employer's justification for having such a rule.  The Board majority also held, however, that a workplace rule requiring employees to maintain the confidentiality of workplace investigations that have been completed requires individualized scrutiny in each case to determine "whether any post-investigation adverse impact on NLRA-protected conduct is outweighed by legitimate justifications."  In so holding, the Board applied the standards set forth in its 2017 Boeing Co. decision to analyze the legality of workplace rules and reversed its 2015 decision in Banner Estrella Medical Center.