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Key Recent NLRB Decisions January 2020

Apogee Retail LLC, 368 NLRB No. 144 (Dec. 16, 2019)

The Board overruled Banner Estrella Medical Center, holding that blanket rules requiring confidentiality during open investigations are presumptively lawful. The Banner Estrella decision had required a legitimate and substantial business justification for investigative confidentiality rules, placing the burden on the employer to show on a case-by-case basis the need for confidentiality outweighed its employees’ Section 7 rights to discuss their terms and conditions of employment. The bar was set very high for employers to overcome this burden.

In this case, the Board held that a rule requiring confidentiality where it was limited to the duration of a workplace investigation is a Boeing Category 1 rule. The rules at issue, in this case, were not limited on their face to the duration of any investigation. As such, the Board found they fall within Boeing Category 2.


Caesars Entertainment, 368 NLRB No. 143 (Dec. 16, 2019)

The Board overruled Purple Communications and returned to the standard announced in Register Guard. Under the Register Guard standard, employees have no statutory right to use employer equipment, including IT resources and employer email, for Section 7 purposes. The Board reasoned that although the Act does limit an employer’s property right to control the use of its premises, the Act does not generally restrict an employer’s right to control the use of its equipment. However, the Board stated it will recognize an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.


Valley Hospital Medical Center, Inc., 368 NLRB No. 139 (Dec. 16, 2019)

The Board overruled Lincoln Lutheran of Racine and returned to the longstanding rule established in Bethlehem Steel, under which an employer’s statutory obligation to check off union dues ends when its collective bargaining agreement containing a checkoff provision expires. The Board explained that dues checkoff provisions belong in the limited category of mandatory bargaining subjects that are exclusively created by the collective bargaining agreement and are enforceable through Section 8(a)(5) only for the duration of the contractual obligation created by the parties. The Board noted this holding applies even where the contract does not contain a union-security provision. Under the previous Lincoln Lutheran standard, the Board had held an employer’s statutory obligation to check off union dues would continue to be enforceable after the collective-bargaining agreement’s expiration.

The Board found the employer, in this case, had no obligation to continue dues checkoff after the collective bargaining agreement’s expiration and dismissed the complaint.


United Parcel Services, Inc., 369 NLRB No. 1 (Dec. 23, 2019)

The Board overruled Babcock and re-instated both the Spielberg/Olin post-arbitral deferral standard and related pre-arbitral deferral standards that existed prior to Babcock. Babcock greatly diminished the prospect of Board deferral to collectively bargained grievance arbitration procedures for the resolution of disputes over discipline and discharge, and Babcock was not necessary to protect employees’ Section 7 rights or the Board’s jurisdiction to resolve unfair labor practice allegations. As such, Babcock disrupted the labor relations stability the Board is charged by Congress to encourage.

Under the Spielberg/Olin standard the Board returned to for post-arbitral deferral in unfair labor practice cases alleging discipline or discharge in violation of Sections 8(a)(1) and (3), the Board will defer to an arbitrator’s decision where: (1) the arbitration proceedings were fair and regular; (2) the parties agreed to be bound; (3) the contractual issue was factually parallel to the unfair labor practice issue; (4) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice; and (5) the decision was not clearly repugnant to the purposes and policies of the Act.

Applying the Spielberg/Olin standard to the facts of this case, the Board reversed the ALJ and dismissed the complaint, deferring to the unanimous decision of a joint grievance panel upholding the discharge of the Charging Party, who had filed an unfair labor practice charge with the NLRB alleging the employer had unlawfully terminated his employment in violation of Section 8(a)(3).

Categories: Labor Law Blog