The National Labor Relations Board (NLRB) governs certain rights of workers in union and non-union workplaces. NLRB cases impact such things as employee rights to complain about working conditions on behalf of oneself and others and the right to communicate to co-workers about interest in unionization. As a result, trends in NLRB decisions are important to all companies, union and non-union.

NLRB decisions in recent months clearly signal a determination to reverse many of the more pro-employee and pro-union decisions from recent years. The decisions often impact employee rights in non-union as well as union workplaces. Three decisions illustrate the trend.

Employer rights to restrict email use

In Caesar’s Entertainment Corp., the NLRB decided that an employer rule banning use of the company email system for any non-business purpose, including soliciting support for a union, is valid. The decision reverses the NLRB 2014 Purple Communications decision in which the NLRB had ruled it was illegal for an employer to have a broad ban on use of email for non-work solicitation, including solicitation for unions. The Purple Communications NLRB members viewed email communication as equivalent to other means of employee discourse and felt that employees must be permitted to use it to discuss unions, at least during non-work time. In the Caesar’s Entertainment Corp. case, the current, more business-friendly NLRB, gives employers the broad right to ban solicitation for any group or cause by use of company email, except in the rare circumstance where employees have no other effective means of communication.

Confidentiality in workplace investigations

It is common for employers conducting workplace investigations to insist that witnesses being interviewed maintain confidentiality about the subjects discussed. But, in its Banner Estrella Medical Center decision in 2015, the NLRB held that broad rules imposing confidentiality in workplace investigations improperly limit the ability of employees to discuss terms and conditions of employment. That decision allowed an employer to require confidentiality only where it could show that the specific interviews being conducted required confidentiality to protect the integrity of the investigation. Recently, in Apogee Retail, LLC, dba Unique Thrift Store, the NLRB overturned the Banner Estrella decision and held that an employer’s general rule requiring confidentiality of persons interviewed in investigations will presumptively be considered valid. This decision removes a potential pitfall for employers conducting internal investigations and brings NLRB precedent more in-line with expectations of the EEOC and with common employer practices for maintaining confidentiality in investigations.

Union Organizing Buttons

It has long been the case that employees in non-union workplaces enjoy the right to express support for unionization by, among other means, wearing buttons at work expressing their support.  Employer rules prohibiting wearing buttons expressing union support were generally considered unlawful unless the employer could demonstrate special circumstances supporting the ban, such as the potential for damage to product in a manufacturing environment. Continuing its trend toward a more pro-business approach, the current NLRB decided in a case involving Walmart Stores, Inc., that the company limitation of buttons to those which are “small” and “non-distracting” is legal. A word of caution though: this decision does not reverse the general rule which gives employees a broad right to express support for unions by buttons or other insignia on apparel. The Walmart rule in question was upheld as it related to employees on the sales floor, in part because of the potential for distraction from or interference with customer service.  Notably, the rule was held to be not lawful as it applied to areas off the selling floor. Non-union employers should proceed with caution when developing rules that restrict employees from wearing clothing or buttons that express support for unions. But, this decision is another in a clear line of cases trending towards more latitude for employer restrictions in non-union workplaces.

Each of these cases takes its lead from the NLRB Boeing decision in 2017 concerning employee handbook rules. In the decision, the NLRB established a balancing test for considering employer rules which might infringe on employee rights to express support for unionization. Under the Boeing test, the Board balanced the employer interest in any specific restriction imposed by a facially-neutral rule against the possible impact on employee rights. The Boeing case was a clear shift away from the direction taken by the NLRB under the previous administration, which was  as a clear presumption against employer restrictions if they might be interpreted by employees as restricting protected activity.