NLRB rolls back 2 key Obama era anti-management decisions

This week, the National Labor Relations Board decided two cases that rolled back key Obama era anti-management NLRB decisions.

• Apogee Retail LLC d/b/a Unique Thrift Store, which overturned Banner Estrella Medical Center and held that work rules requiring confidentiality during the course of workplace investigations are presumptively lawful.

• Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, which overturned Purple Communications and held that an employer can lawfully restrict employee use of its email system as long as it does so on a nondiscriminatory basis.

Apogee Retail is a much bigger deal than Caesars Entertainment. Purple Communications required employers to allow employees to use their email systems for union-related communications if they otherwise allowed employees to use the email systems for any other purpose. Because it's still the employer's system, however, the employer still has access to the communications. I question why any employee would want to use an employer's email system to talk union business, as they should assume the employer is reading all of their union-related emails.

Apogee Retail, however, reverses the biggest tragedy of the Obama-era NLRB. As I wrote all the way back in 2012 criticizing Banner Estrella Medical Center:

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel. …

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

The Board concluded that determined that a confidentiality rule limited to the duration of an internal investigation is generally lawful.

Bravo NLRB (for now). Still, it's best to save your policies that complied with Purple Communications and Banner Estrella Medical Center. All bets are off if a Democrat takes back the White House in 2020, and you just might need to dig them out.