On June 26, 2015, the National Labor Relations (NLRB) Board issued two decisions which significantly impact the confidentiality of employer investigations into employee misconduct.

In the first case, Banner Health Systems, 362 NLRB No. 137, a 2-1 Board majority reaffirmed an  earlier decision which had been vacated by the D.C. Circuit Court of Appeals since the Board lacked a proper quorum based upon the Supreme Court’s Noel Canning decision.
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Amendments to the National Labor Relations Board’s (NLRB) election rules went into effect on April 14, 2015.  The new rules have already had a major impact on the timing of and procedures for union elections.

The history leading up to the adoption of these amendments was discussed in Schiff Hardin’s February 7, 2014 and December 15, 2014 Labor & Employment Alerts.  As noted in those alerts, the practical effect of these amendments will be to shorten the time between the filing of a petition for an election and the actual election, thus giving employers less time to communicate with their employees about issues relating to unionization.  As we predicted, the time between the filing of a petition and the actual election has decreased significantly.  According to statistics recently released by the NLRB, since the rules took effect, the average time between the petition and the election was about 23 days.  Prior to the new rules, the average time between petition and election was 38 days.  Thus, as a result of the new rules, the employer’s time to communicate with its employees prior to the election has been shortened, on average, by about 2 weeks.
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