National Labor Relations Board Overrules Three Major Decisions

From the PA Chamber of Business & Industry

In the month of December, the National Labor Relations Board overruled three major Obama-era decisions that greatly impact the employer community.

In the first decision, the NLRB overturned a previous ruling which required employers to continue deducting union dues even after the expiration of a collective bargaining agreement. In overturning this ruling, the Board reasoned that a dues checkoff provision properly belongs in the “mandatory subjects of bargaining” category that are enforceable only for the duration of the contract.

The second decision that was recently overruled by the Board related to an employer’s ability to keep an internal investigation confidential. The NLRB abandoned the requirement of a case-by-case evaluation for whether confidentiality is required. It adopted the reasoning from an earlier Boeing case that for open investigations, confidentiality rules are lawful; but confidentiality requirements for closed investigations should be made on a case-by-case basis so that any employer-related concerns can be adequately considered.

Lastly, the NLRB overruled a decision that gave employees the right to use employer-owned equipment for non-work purposes – including soliciting for union-related issues. The Board ultimately determined that decades of precedent establish that employers’ rights are generally not restricted from controlling use of their own equipment. Under this standard, employees generally have no rights to use employer equipment – including IT resources – except under instances in which an employer’s email system becomes the only reasonable means by which employees can communicate with one another. However, the Board also acknowledged the reality that employees frequently use employer IT resources for personal reasons, and recognized that employers should maintain reasonable use restrictions.