Trump Labor Board Gives Employers End-of-Year Gifts

February 6, 2020 by Andrew Baker

In a series of decisions issued in December, the Trump-appointed majority on the NLRB reversed several important Obama Board decisions favoring unions and workers. In addition to the decision to allow employers to unilaterally cease dues deductions upon expiration of a contract (reported on previously), the Trump Board reversed Obama Board decisions granting employees greater rights to use employer-provided email systems for union communications and granting unions greater access to statements gathered by employers during workplace investigations.

In Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (December 17, 2019), the Board overruled Purple Communications, Inc., 361 NLRB 1050 (2014), and returned to its earlier rule set forth in Register Guard, 351 NLRB 1110 (2007). In Purple Communications, the Board held that if an employer gives employees access to an email system, it must let them use the system on nonworking time to communicate with each other for union and concerted action purposes, unless the employer could show special circumstances related to the need to maintain production or discipline. In Rio All-Suites, the Board reversed course, holding that an employer may bar employees from using company email for union and concerted action communications altogether, absent a showing that the employer’s email system constitutes the only reasonable means for employees to communicate with one another – likely never.

In Apogee Retail, 368 NLRB No. 144 (December 16, 2019), the Board overruled Banner Estrella Medical Center, 362 NLRB 1108 (2015), with the Trump majority coming up with a rule giving far greater leeway to employers to require confidentiality of their workplace investigations. In Banner Estrella, the Board required a case-by-case determination of whether confidentiality can be required in a specific investigation. Recognizing the important union and concerted action rights at issue, the burden was on the employer to justify why, with regard to a particular investigation, requiring confidentiality was justified. In Apogee Retail, the Trump majority held that an employer confidentiality rule that applies only for the duration of the investigation is always lawful. A rule that is not so limited in duration may or may not be lawful depending on whether the employer has a legitimate justification for requiring the rule; if so, the rule is lawful if the justification outweighs the effect of the rule on employees’ exercise of their union and concerted activity rights.

We can expect more decisions of a like nature from the Trump Board, which now consists of only three members, each of whom are Trump appointees.

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