National Labor Relations Board: COVID-19 Does Not Excuse Violations

In response to the continuing global coronavirus pandemic, National Labor Relations Board (NLRB) General Council Peter Robb released guidance on the NLRB’s current stance on labor law violations. Issued on September 18th, 2020, General Council Memo 20-14 summarizes the types of COVID-related complaints that the agency has pursued since March 2020. In the vast majority of these cases, the NLRB makes it clear that traditional National Labor Relations Act (NLRA) rules apply, even during COVID-19. This guidance is similar to a September 2020 release from the Occupational Safety and Health Administration (OSHA). In that release, OSHA reported that they are citing employers for COVID-19 related safety complaints and violations.

Protected Concerted Activity

If employees express concerns about workplace safety with or on behalf of co-workers, protected concerted activity is in practice. Section 7 of the NLRA covers this topic. Memo 20-14 references two matters when employees spoke up about the employer’s response to COVID-19 and subsequently faced adverse action. Section 7 includes the following concept: if employees present concerns about terms and conditions of employment, it is unlawful for the employer to discipline them because of that activity. This includes circumstances related to COVID-19. It is also unlawful to coerce or threaten employees into ceasing such conduct. Requiring employees to discuss their concerns “one-on-one” rather than as a group is also in violation of the NLRA. Employers also need to remember that Section 7 applies in both union and non-union environments.

Discretionary Staffing Decisions

Memo 20-14 also includes two cases where the NLRB believes the employer used COVID-19-related layoffs to hide anti-union feelings. In one case, the employer laid off both members of a two-person bargaining unit, purportedly because of the pandemic. Other evidence, however, suggests the employer wanted to eliminate the unit. In another case, the employer recalled a portion of its previously laid off staff. The employer then appeared to grant preferential treatment to employees who did not support the union. If proven, the allegations in either case would violate the NLRA’s anti-discrimination provisions.

Collective Bargaining

The NLRB has stated that certain emergency situations may suspend or alter an employer’s duty to bargain with a union.  In Memo 20-14, however, the General Council discusses cases where government orders and economic stressors do not relieve bargaining obligations.

  • In one matter, a school operations employer switched to remote learning without bargaining because of a state order. The NLRB determined that initial change was appropriate. They also found that the employer had a duty to bargain over the decision within a reasonable period of time.
  • In another case, the General Counsel recommended allegations against an employer for eliminating employee health insurance and vacation leave balances. This was because, according to the employer, of uncertainty caused by the pandemic. The employer was also operating at a monthly loss and lost about 60% of its revenue. The General Council, however, still determined the employer had a duty to bargain over the changes.
  • Finally, in another case, an employer stopped bargaining over a collective bargaining agreement because of COVID-19. The memo suggested that the pandemic did not privilege the employer to stop bargaining. This includes situations when the sessions are on teleconference rather than in-person.

Employer Takeaways

Even though Memo 20-14 does not establish new laws, it is a good reminder of employer obligations during the pandemic. All affected employers should operate under the correct premise that COVID-19 has not changed any aspect of the NLRA. If an employer has questions regarding possible COVID-19 related compliance issues, they should consult legal counsel.

NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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