The NLRB Has Gifted Employers Some Very Nice Decisions This December

By Kathleen J. Jennings (kjj@wimlaw.com)

December has been a busy month for the National Labor Relations Board (NLRB), which has been putting some very nice presents under the tree for employers. These gifts have come in the form of rulings that have turned back many Obama-era rules or precedents.

  • On December 12, 2019, the NLRB ordered an agency judge to approve a settlement that, among other things, absolved McDonald’s Corp. of any responsibility as a joint employer for labor violations by its franchisees. This is considered a major victory for employers in the franchise space, and it paves the way for anticipated rules governing the joint employer relationship from the Department of Labor, the EEOC and the NLRB. We are looking for some of these to be announced in January 2020.
  • On December 13, 2019, the NLRB announced changes to union election procedures that are likely to slow down that process. One of the major changes is that all disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. In other words, the election can be delayed while the parties litigate and resolve issues concerning unit scope and voter eligibility. Furthermore, the NLRB announced that some time periods for actions have been enlarged, and all time periods that apply to election rules will be calculated in business days, rather than calendar days, as had been previously done. During the Obama Administration, the NLRB issued new rules that were often characterized by employers as “quickie election” rules because they greatly sped up the union election process, which employers generally considered to be an advantage for the unions.
  • On December 17, 2019, the NLRB ruled that businesses can ban workers from using company email for union and other organizing purposes. In that decision, which overruled precedent from the Obama era, the Board stated that “employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.” (Caesars Entertainment Inc. , N.L.R.B., Case 28-CA-060841, decision 12/17/19).
  • Also on December 17, 2019, the NLRB ruled that employer rules that require employees to maintain confidentiality of workplace investigations into matters such as sexual harassment are lawful. (Apogee Retail , N.L.R.B., Case 27-CA-191574, Decision 12/17/19). This overruled an Obama-era case that required employers to justify such confidentiality policies.
  • On December 23, 2019, the NLRB held that Wal-Mart’s dress code policy limiting the wearing of union insignia was lawful. (Wal-Mart Stores Inc. , N.L.R.B., No. 13–CA–114222, 12/16/19).

The current NLRB’s Republican majority means that we can expect to see more pro-employer rulings in 2020.

Happy New Year to all of our readers!

Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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