ILMA Compoundings - February 2020 - 34

COUNSEL COMPOUND

NLRB Makes Additional
Employer-Friendly Changes
By Jeff Leiter

I

LMA regularly reports to the
members on key decisions by the
National Labor Relations Board
(NLRB). Late last year, the NLRB
handed down a number of meaningful
employer-friendly rules and decisions
that undo changes made by the
Obama-era NLRB to longstanding
rules, procedures and precedent affecting the employer-employee relationship.
Let me highlight some of the NLRB's
end-of-year activities.

ELECTION RULE
On Dec. 13, the NLRB announced
over a dozen amendments to its union
election procedures that roll back the
Obama-era "quickie election" rule.
This 2015 rule had put employers
at a disadvantage by shrinking the
election campaign timeline and
deferring important bargaining unit
composition determinations to after
elections were held. Here, the NLRB
did not completely rescind the quickie
election rule, but its new provisions
will have that effect.
The new rules emphasize pre-election clarity, but they sacrifice some
of the speed from the 2015 rule. The
NLRB now will have additional time
to receive papers, conduct a formal
hearing, receive and review briefs,
issue a decision, and conduct an
on-site secret ballot election.
When a petition is filed in a
representation case, a hearing typically
is scheduled 18 calendar days later,
and employers must file a comprehensive Statement of Position within
10 calendar days of being served.
The petitioning union must serve a
responsive Statement of Position prior
to the hearing.

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FEBRUARY 2020

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If the parties are unable to agree on
election details, including job classifications to be included in the unit
and the supervisory status of certain
employees, and a hearing is necessary,
the election now will not be scheduled
until a minimum of 20 business days
(at least 28 calendar days) after the
NLRB regional director issues a ruling
called a "direction of election."
Because the NLRB's new election
rules do not take effect until April 16,
employers threatened with organization efforts should be vigilant, as
unions may try to file quickie election
petitions before this new effective date.

those systems. The Caesars decision,
however, contains one exception from
Register Guard - that is, employees
may use company email when it is "the
only reasonable means for employees
to communicate with one another."
However, the NLRB said this exception
should be rare.
Employers that previously revised
their communications and/or nonsolicitation policies to comply with
Purple Communications may now
again implement a ban on union
solicitations by email, provided the
policy is written and applied in a non
discriminatory fashion.

WORK EMAILS FOR UNION
ORGANIZING
On Dec. 17, the NLRB decided
Caesars Entertainment Corp. dba Rio
All-Suites Hotel and Casino, holding
that the casino did not violate Section
7 the National Labor Relations Act
(NLRA) when it barred employee use
of its email system for nonbusiness purposes. Caesars overturned the NLRB's
2014 Purple Communications case, in
which the Obama-era NLRB held that
employees could use their employers'
email systems to organize or engage in
other concerted activities protected by
NLRA Section 7, making any contrary
policies presumptively invalid.
The NLRB essentially has reverted
back to its Register Guard case, in
which it held there is no statutory right
for employees to use employer-provided
email for non-work purposes. The
NLRB in Caesars reiterated that an
employer's communication systems,
including its email system, are its
property and that employers have a
property right to control the use of

UNION DUES COLLECTION
On Dec. 16, the NLRB held in Valley
Hospital Medical Center that employers can unilaterally stop deducting
union dues from employees' paychecks
once a collective bargaining agreement
(CBA) expires. The NLRB overturned
the Obama NLRB's 2015 decision
in Lincoln Lutheran, which held that
an employer cannot stop deducting
union dues once a CBA expires. In
overturning Lincoln Lutheran, the
NLRB returned to its prior precedent
from Bethlehem Steel, which had
been the settled rule since 1962.
The effect of the decision is that
unions will have to timely negotiate
successor agreements to ensure their
continuous receipt of automatic union
dues deductions by employers. This
change should give some leverage to
employers in CBA negotiations.
WORKPLACE INVESTIGATIONS
On Dec. 17, the NLRB decided
Apogee Retail LLC dba Unique Thrift
Store and Kathy Johnson, finding that
employers do not necessarily violate
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