The pandemic has thrown a number of obstacles at employers and employees as everyone attempts to navigate a novel situation. On August 13, 2020, the National Labor Relations Board ("NLRB") Division of Advice ("Advice"), the agency's internal think-tank, published five Advice Memoranda dismissing unfair labor practice charges against employers in connection with issues concerning the COVID-19 pandemic. The Memoranda were all drafted by Advice within the past two months, expanding upon the guidance previously released on July 15.
Each Memoranda addresses a different COVID-related complaint concerning a variety of topics, such as employers' responses to employees voicing concerns about workplace safety, allegations the employer engaged in discriminatory layoffs, and obligations to engage in midterm bargaining over COVID-related issues and provide information.
While some might characterize Advice's dismissal of cases as giving employers more latitude, the results in the various Memoranda are consistent with existing Board case law. Although not binding on disputes amongst other parties, the Memoranda are intended to give the public some idea of how the agency would handle similar types of issues and-although these cases are fact-dependent-the Memoranda are instructive when employers are considering their obligations under the National Labor Relations Act ("NLRA" or "Act") during these turbulent and uncertain times.
Alleged Discriminatory Layoffs and Employer Response to Section 7 Activity during COVID-19:
- In Hornell Gardens, employees in a health care facility took various actions in response to the COVID-19 pandemic. One employee refused to share gowns, noting personal disgust and fear for that individual and his family's safety. Another employee refused to work a scheduled shift due to concerns about COVID-19 exposure. Because of these actions, the employer threatened (in a statement in an online newsletter) to report the employees to the New York licensing authority for quitting without notice. Advice concluded that the employees' conduct was not protected by Section 7 of the Act because the employees never spoke to management about their concerns nor did they contemplate or engage in group action, a requirement for the conduct to be deemed "protected, concerted activity" under Section 7 of the Act. Advice also found that the employer's statement about reporting the employees for abandoning their posts was not an unlawful "blackball" threat against future employment, but rather was a legitimate warning given the strict licensing requirements for patient care in the industry.
- In Marek Brothers Drywall, Advice concluded that an employee of a Texas-based concrete company engaged in protected, concerted activity when the employee made comments relating to the lack of available resources to wash and sanitize as a precaution against COVID-19. Nonetheless, the record was insufficient to demonstrate employer knowledge or animus as it related to the employer's decision to layoff the employee. Accordingly, Advice determined that dismissal did not violate Section 8(a)(1) of the Act.
Midterm Bargaining related to Union's Proposals for Paid Sick Leave and Hazard Pay:
- In Memphis Ready Mix, Advice concluded that the Employer did not violate Section 8(a)(5) of the Act by refusing to bargain over the Union's midterm proposals regarding paid sick leave and hazard pay that were raised in light of COVID-19. In this case, the CBA (which remained in effect until at least September 30, 2020, and if not terminated, then year-to-year thereafter) already addressed leaves of absences and wages, and included a standard zipper clause, which Advice deemed "dispositive" because the clause provided that matters not covered by the CBA shall not be "subject to further collective bargaining" during the term of the agreement.
Duty to Furnish Information:
- In Crowne Plaza O'Hare, in connection with the employer's shutdown of its hotel and initiation of staff layoffs, Advice concluded that the hotel did not violate the Act when it declined to provide information requested by the union concerning funding the employer sought under the CARES Act and other financial information, as well as documents between the company and clients to support the layoff decision. While the employer provided the union with partial responses (including charts showing the decrease in the hotel's occupancy level), Advice concluded that the employer was not obligated to provide the detailed financial information the union sought because the employer did not cite to insufficient funds or lack of assets as the reason for the layoffs. Rather, the hotel was temporarily closed due to COVID-19 "due to loss of business," which was undisputed, and is an entrepreneurial decision for which no decisional bargaining obligation attaches. Although employers are generally required to bargain over the "effects" of a decision such as this, when the layoffs are an "inevitable consequence" of the closure, then effects bargaining will not be fruitful and is not required. Even if the employer had an effects bargaining obligation, the information requests were not relevant because the employer did not claim lack of assets resulted in the layoffs and closure. The union's failure to demonstrate relevance warranted dismissal of the charge.
- In ABM Business, the union sought information relating to COVID-19 layoffs in connection with a pending grievance, such as communications between the company and clients supporting the decision to layoff and the company's document retention policy. Advice dismissed the charge because the requests did not relate to employees' terms and conditions of employment, and the union failed to articulate how the information was relevant. Advice concluded that the union's failure to provide a sufficient explanation as to why it needed the information and engage in the interactive process with the employer over the requests resulted in a complaint not being warranted. Advice also found no merit to the charge that the employer failed to timely respond to the request for documents and information relied upon to make the layoff decisions. The employer responded, and the union failed to engage with the employer about what was missing.
Advice's recent Memoranda are instructive in evaluating how a Region may handle an unfair labor practice charge arising from labor-management relations during COVID-19. Although the cases are fact-specific and highly-dependent on the text of the operative collective bargaining agreements, the Memoranda reinforce several principles.
First, employers and unions must refer to the governing CBA terms, when one is in effect, to evaluate the parties' bargaining obligations-even during a pandemic. Voluntary negotiations to address unforeseen consequences in a CBA as a result of the pandemic are of course permissible, and sometimes encouraged, but if agreement cannot be reached, then the parties are left with the existing bargain as codified in the CBA to deal with the present circumstances, and neither the employer nor the union is required to bargain over those subjects.
Second, each instance of employee concern expressed about workplace safety needs to be evaluated in context to determine whether the conduct is protected by Section 7 of the Act. For instance, where the employee is not at all engaged in a group-effort, but instead is focused on the employee's individual concerns, while other employment laws may come into play, the NLRA likely will not because the conduct is not "concerted activity." In addition, employees who abandon their post do so at their own peril, even due to safety concerns during a pandemic; existing CBA no-strike clauses and licensure requirements in the patient care field should be considered.
Finally, as always, concomitant with the duty to bargain is the duty to furnish information but as we have detailed many times, not every request creates an obligation to provide it under the Act. Even when the employer has the right to make a decision unilaterally, as may be the case with layoffs if they are covered by a CBA or the result of a business shut down, the employer is typically required to engage in effects bargaining, which also entails the duty to respond to information requests. When a request concerns financial information and information outside of bargaining unit employees' terms and conditions of employment, however, the onus is on the requesting party to demonstrate relevance, unless relevance is "apparent" from the requests. Advice's determination that funding requests through outside loan sources, such as the CARES Act, and detailed financial information, are not relevant when the employer shut down its operation and laid off union staff due to lack of business because the employer did not trigger the relevance of the information sought by claiming "inability to pay."
We will continue to monitor Advice's guidance to the labor and management community, as well as Board cases on these important timely topics.
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