Prior to the new year, the National Labor Relations Board (NLRB or Board) made several big moves, approving greater confidentiality in workplace investigations, expanding employers’ ability to restrict employee email use and increasing deference to arbitral procedures.
First, the NLRB held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful, overturning a 2015 decision in Banner Estrella Medical Center that required a case-by-case analysis of the issue.
The Banner framework improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed employee rights under Section 7 of the National Labor Relations Act (NLRA), the Board said.
Instead, the Board applied the test for facially neutral workplace rules established in The Boeing Company and determined that investigative confidentiality rules limited to the duration of the investigation are generally lawful.
“There are obvious mutual interests to be served by encouraging and allowing employees to report wrongdoing without fear of reprisal from the subject of the investigation,” the majority wrote. “Among other considerations, such reporting promotes the goals of the antidiscrimination statutes by helping employers eradicate workplace discrimination and deal with it promptly and effectively when it occurs. And this, in turn, also furthers the employees’ collective interest in having a discrimination-free workplace.”
Because Apogee Retail’s rules were not limited on their face to the duration of any investigation, the NLRB remanded the case for a determination of whether the employer had one or more legitimate justifications for requiring confidentiality even after an investigation is over, and if so, whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their Section 7 rights.
To read the decision in Apogee Retail LLC, click here.
Next, the Board tossed the Purple Communications Inc. standard with regard to restrictions on employee email use, holding that employees do not have a statutory right to use employers’ email systems on nonworking time for communications protected by Section 7.
Employers may restrict employee use of the email system if they do so on a nondiscriminatory basis, the NLRB said, returning to the prior standard found in Register Guard. Employers have the right to control the use of their equipment and property—including their email and other IT systems—and they may lawfully exercise that right to restrict the uses to which those systems are put, according to the decision.
According to the Board, while the Purple Communications Inc. decision noted that an employer’s email system was a useful, convenient and effective additional means for employees to engage in Section 7 discussions with their coworkers, such convenience is not “sufficient to negate employers’ right to regulate the use of their IT systems,” since this would “ignore the Supreme Court’s directive to resolve the tension between employees’ Section 7 rights and employers’ property rights ‘with as little destruction of one as is consistent with the maintenance of the other.’”
The NLRB carved out an exception for the “rare” circumstance where the use of the employer-provided email is the only reasonable way for employees to communicate with one another on nonworking time during the workday. The decision did not attempt to define the scope of the exception but said it would be fleshed out on a case-by-case basis.
Applying the standard—and giving it retroactive effect—the NLRB determined that Caesars Entertainment’s facially neutral restrictions on the use of its email system did not violate the NLRA.
To read the decision in Caesars Entertainment, click here.
Finally, the Board “returned to its traditional standard” for post-arbitral deferral when deciding whether to defer to an arbitrator’s prior resolution of a grievance concerning an employee’s discipline or discharge that has been alleged to violate the NLRA.
The 2014 decision in Babcock & Wilcox Construction Co., Inc. represented a “drastic contraction of deferral practices that had existed for decades and that we reestablish today,” the NLRB wrote.
Under the restored standard (found in 1984’s United Technologies Corp.), the Board will defer to the 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 arbitrator’s decision is not clearly repugnant to the purposes and policies of the Act.
This standard will better promote the strong federal policy in favor of arbitration, the NLRB added.
With retroactive application, the Board applied the standard to United Parcel Service, Inc. and reversed the administrative law judge, dismissing the complaint and deferring to the unanimous decision of a joint grievance panel.
To read the decision in United Parcel Service, Inc. click here.
Why it matters: The Board’s employer-friendly perspective continues with the reversal of three different decisions on major issues including workplace confidentiality and employee use of employer email systems, allowing employers greater flexibility to impose neutral workplace rules than the Board had previously allowed.