NLRB Restricts Work E-Mail for Unions, Approves Confidentiality Policies

Allen Smith, J.D. By Allen Smith, J.D. December 18, 2019
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NLRB Restricts Work E-Mail for Unions, Approves Confidentiality Policies

​In a pair of landmark rulings issued Dec. 17, the National Labor Relations Board (NLRB) decided that companies—unionized and nonunionized alike—can ban employees from using work e-mail for nonbusiness purposes, including union organizing, and may prohibit them from discussing confidential interviews during investigations. The two decisions—Caesars Entertainment Corp. and Apogee Retail respectively—overturn two controversial Obama board decisions, Purple Communications and Banner Health System.

The board also issued a significant decision on Dec. 16 in favor of employers, ruling they don't have to keep deducting union dues from payroll and funding unions after a collective bargaining agreement has expired.

Nonbusiness E-Mail Ban

In Purple Communications, the NLRB had ruled that employers must let employees use company-owned e-mail to communicate about union issues. In Caesars Entertainment Corp., the board clarified that work e-mail may be restricted to business purposes in most instances.

Employees have no statutory right to use employer equipment, including IT resources, for National Labor Relations Act (NLRA) purposes, the board stated in Caesars Entertainment Corp. It recognized an exception to this rule, which was in place prior to Purple Communications, "in those rare cases where an employer's e-mail system furnishes the only reasonable means for employees to communicate with one another."

An employer's policy to restrict e-mail still needs to be neutrally worded, said John Merrell, an attorney with Ogletree Deakins in Greenville, S.C. If the policy prohibits union uses of e-mail or other IT resources, such as Slack, but permits other personal uses, that would be problematic, he said.

The policy also can't be discriminatorily applied, he cautioned. If a policy says e-mail or other IT resources can't be used for personal purposes but allows employees to use company e-mail to solicit membership in outside groups or religious organizations while disciplining employees for soliciting union support, that also would violate the NLRA.

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

Ban on Discussing Confidential Investigation

In Banner Health System, an NLRB administrative law judge held that an employer's confidentiality agreement violated the NLRA but that its investigative nondisclosure policy did not. However, the NLRB ruled that the confidentiality agreement was unlawful and that the employer had an unlawful policy of asking employees not to discuss certain types of workplace investigations without performing the required individualized inquiry into the need for confidentiality.

The U.S. Circuit Court of Appeals for the District of Columbia affirmed the conclusion that the confidentiality agreement violated the NLRA. But the appeals court reversed on the claim that the company had a categorical policy of unlawfully asking employees not to discuss certain kinds of HR investigations. Instead, it found that the HR professional's "testimony identifying sexual harassment and other types of cases where she may ask someone to keep things confidential did not suggest that she necessarily did so in all such cases."

In Apogee Retail, the NLRB went one step further, overruling the board's decision in Banner Health System to hold that investigative confidentiality rules are lawful when they apply for the duration of any investigation.

"If the rule requires confidentiality after the conclusion of an investigation, then it's going to be subject to closer scrutiny and need to be supported by legitimate business justifications," said Mark Kisicki, an attorney with Ogletree Deakins in Phoenix.

Banner Health System unduly restricted employers, prohibiting them from issuing a confidentiality rule absent evidence violence was likely or witness tampering was taking place, Kisicki said. This prior ruling "flies in the face of everything we know about investigations," he said. "We're likeliest to get the clearest picture of the truth when witnesses haven't been talking with each other."

He called Banner Health System "an unrealistic approach" that "put the NLRA above all other laws and all other rights, including Title VII" of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission admonishes employers to protect confidentiality so information isn't leaked to wrongdoers. Victims are more likely to come forward if they know the investigation will be kept confidential, he added. This is particularly significant in the era of the #MeToo movement, Kisicki said.

Not all confidentiality rules will pass muster under the board's recent decision, he cautioned. For example, a confidentiality rule that applies to union matters might violate the NLRA, he said.

Dues 'Check-Off Case'

In its third recent significant decision, Valley Hospital Medical Center, the board ruled that employers no longer must follow employees' "check off" or sign off on payroll deductions for unions if a collective bargaining agreement has expired.  

The prior obligation to pay the union after a contract has expired unfairly tipped the playing field toward unions, funding them when there was no reason an employer should be required to continue that obligation, said Phillip Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.

Dissenting from the NLRB's decision, Board Member Lauren McFerran said, "The majority has overruled precedent to diminish the scope of collective bargaining, undermine the role of unions in the American workplace and empower employers. Its reasoning is both ironic and completely irrational—to save collective bargaining, the board must undermine it—this seems to be the majority's view."

However, the board majority said that "there is not, and cannot be, any obligation enforceable under the act until that obligation is created by the parties in a collective-bargaining agreement."

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