The NLRB Returns to Pre-Obama-Era Board Standards in Two Significant Decisions

On December 16, 2019, the National Labor Relations Board (NLRB or Board) issued two significant decisions overruling Obama-era NLRB decisions. Both decisions were 3-1 with the three Republican appointees, Chairman Ring, Member Kaplan, and Member Emanuel joining in the majority, and the Democrat appointee, Member McFerran, writing a dissent.

In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB 143 (December 16, 2019), the Board ruled that an employer could restrict the use of its email system so that employees could not use it to engage in union organizing, union activities, or other Section 7 purposes. This decision has major significance for all non-union employers that intend to prevent their employees from using the company email system to solicit support for a union from their fellow employees.

The Caesars Entertainment decision overruled a 2014 decision by the Obama-era Board, Purple Communications, 361 NLRB 1050 (2014), and returned to the previous standard set forth in Register Guard, 351 NLRB 1110 (2007), which had been decided by the Bush-era Board. Purple Communications was intended to help unions and their supporters engage in union organizing of non–union employers. Although the dissent highlighted the majority’s reasoning in Purple Communications, which had been persuasive in pointing out that so much communication in the workplace today is by email or other electronic means, the current Republican majority Board returned to the prior standard by explaining that employees have no right to use their employer’s equipment, including email, for their own purposes.

Caesars Entertainment did provide one possible exception in cases where it would limit an employer’s ability to restrict employee use of its email system—a situation where there was no other way for employees to communicate with each other. The Caesars Entertainment decision now allows employers once again to draft and enforce rules prohibiting the use of the company’s email system for purposes that are not related to the employer’s business.

The other decision issued was Valley Hospital Medical Center, 368 NLRB 139 (December 16, 2019), which overruled the Obama-era Board’s Lincoln Lutheran of Racine, 362 NLRB 1655 (2015) decision, and returned the NLRB to a standard it had set in 1962, in Bethlehem Steel, 136 NLRB 1500 (1962), which had been applied consistently since its issuance. The Valley Hospital decision is extremely significant for employers with active union collective bargaining agreements as it renews an employer’s right to refrain from checking off union dues when a collective bargaining contract with a dues check off provision expires. In Lincoln Lutheran, the Board had reversed Bethlehem Steel holding that it would find an employer to be guilty of an unfair labor practice if that employer stopped checking off dues when the collective bargaining agreement with the dues check off provision had expired.

Under the National Labor Relations Act, when a collective bargaining agreement expires, employers are prohibited from making unilateral changes in employee’s wages, hours, and working conditions, unless the parties are at impasse. However, since 1962, and with the Bethlehem Steel decision specifically, there had always been an exception to this rule that once a collective bargaining agreement with a check off of dues provision expired, that employer’s obligation to check off union dues ended. The ability to refrain from deducting dues from employee paychecks has been an important tactic to pressure unions to negotiate a contract acceptable to an employer as it affected the union in its pocketbook. Even without this tactic, having it available to employers seemed to make many unions more willing to reach a collective bargaining agreement or an extension agreement without work stoppage on terms acceptable to employers.

Any business negotiating a collective bargaining agreement will welcome the return to over 50 years of precedent as a result of this decision as it increased a union’s financial risk of going on strike or refusing to negotiate a contract extension once the collective bargaining agreement expired. The standard once again expressly provides that a check off of dues clause is only enforceable for the term of the collective bargaining agreement, because it was exclusively created by that collective bargaining agreement.

Interestingly, these two decisions were both issued on December 16, 2019, illustrates the political nature of the Board. Split decisions tend to reflect the division between the political parties of the Board members. We expect the Republican majority on the Trump-era Board to continue issuing decisions that are favorable to employers.

About the Author:

James B. Perry is a Member in Dickinson Wright’s Detroit office where he assists clients in all areas of labor and employment law. He can be reached at 313-223-3096 or and you can visit his bio here.