Board Ends 2019 by Overturning Multiple Obama-Era Labor Decisions

By Brian Casaceli and Nicholas Anastasopoulos, Mirick, O’Connell, DeMallie & Lougee, LLP

In what has become a yearly tradition, the National Labor Relations Board (the “Board”) ended another calendar year – this time, 2019 – with a flurry of precedent-altering decisions.

In Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), the Board held that work rules mandating confidentiality during workplace investigations are presumptively lawful. The Board’s decision in Unique Thrift Store overturned its 2015 decision – Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (2015) – which required employers to affrmatively prove the need for nondisclosure rules in ongoing internal investigations on a case-by-case basis.

In deciding Unique Thrift Store, the Board was careful to note that the analysis will be different if an employer’s rule mandating confidentiality is not limited in duration to “open investigations”. In that instance, the work rule must be individually scrutinised to determine “whether any post-investigation adverse impact on NLRAprotected conduct is outweighed by legitimate justifications”.

In a second major decision – Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) – the Board held an employer has the right to restrict its employees from using its own equipment, such as its email system, for non-work related communications, provided it does so on a non-discriminatory basis. In this respect, an employer can establish restrictions on the use of its email system, but the use restrictions cannot target union or other protected concerted communications.

The Board’s decision in Rio All-Suites Hotel and Casino overturned its 2014 decision – Purple Communications, Inc., 361 NLRB No. 126 (2014) – which held that employees given access to the employer’s email communication system had a right, during nonworking time, to use that system to engage in union-related activities.


Brian Casaceli

Brian Casaceli

GGI member firm
Mirick, O’Connell, DeMallie & Lougee, LLP
Law Firm Services
Worcester (MA), Boston (MA), USA
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Nicholas Anastasopoulos

Nicholas Anastasopoulos

GGI member firm
Mirick, O’Connell, DeMallie & Lougee, LLP
Law Firm Services
Worcester (MA), Boston (MA), USA
T: +1 508 860 1540
This email address is being protected from spambots. You need JavaScript enabled to view it.
W: mirickoconnell.com


Published: GGI Insider, No. 106, March 2020 l Photo: Marcio - stock.adobe.com

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