NLRA “Recommendation” All Employers Ought to Contemplate in a COVID World

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Most employers who deal with labor law issues related to COVID-19 do not pay much attention to labor law issues arising from the pandemic. With most employers in the United States not unionized, many mistakenly believe that they are beyond the reach of the National Labor Relations Act (Act or NLRA) and do not have to deal with labor law compliance. However, the NLRA protects almost all private sector workers, regardless of whether they are unionized or not. Accordingly, unionized and non-union employers, with the exception of those who employ agricultural workers or workers who are covered by the Railway Labor Act, are subject to the NLRA and must adapt their human resources policies, practices and decisions to the law.

Issues of labor law related to COVID-19 are currently popping up on the left and right, and the National Labor Relations Board (Board or NLRB) has filed numerous pandemic-related accusations of unfair labor practices against union and non-union employers. The NLRB's General Counsel (1) and his advisory department (2) recently discussed several labor issues caused by the pandemic and / or the ULP indictment. Fortunately, some of the recent announcements are good news and good management advice to guide the way through the NLRA minefield.

A. Adverse Actions Due to Protected Concerted Activity (PCA) related to COVID

NLRA Section 7 guarantees all employees the right to participate in Protected Concerted Activities (PCA), which are generally defined as actions taken by more than one employee for their mutual help and / or common protection. This section gives all employees, including non-union employees, the right to associate and act to promote their common interests. NLRA Section 8 (a) (1) of the Act prohibits all employers, including non-union employers, from disrupting, restricting, or coercing workers to exercise their Section 7 rights. Here, non-union (as well as unionized) companies usually violate the NLRA.

Although the concerted pillar of PCA typically requires two or more employees to "concert" with each other, in some cases the behavior of a single worker can be classified as protected behavior because of concerns or because of the authority or advancement of other employees an employee tries to initiate or prepare concerted measures based on his individual behavior. Without this connection to the concerns and interests of others, the behavior, complaints and personal grips of an individual employee are not considered "concerted" for this employee and therefore not considered protected, even if they can relate to wages and working conditions. 3)

A recent case of COVID-19 related to unfair work practices (ULP) that demonstrates this point was recently discussed and dismissed in a advisory letter issued on June 15 in Larry Peel Co., Case No. 16-CA-259403 . An employee was dismissed because he had requested to work from home due to COVID-19 and did not report to work. The question was asked whether this application was classified as protected behavior, which made his dismissal a violation of Section 8 (a) (1). The NLRB said this was not a protected activity since the employee's request, although related to working conditions, was individual and did not address the interests or concerns of others. Accordingly, the employer's dismissal did not violate Section 8 (a) (1) (although it may have violated some other labor laws outside the NLRA).

The outcome of this case might have been different if the employee had formulated their request regarding the employee in general or if he and his employees had to work from home due to COVID-19, as this request may have been classified as "concerted" . ”Therefore, it is a fine line and a specific case for employers trying to separate concerted behavior from activities that are not“ concerted ”to ensure NLRA compliance when discipline for COVID-19-related behavior is observed . Such protected concerted behavior may include work stoppages due to health and safety concerns related to pandemics, economic issues such as paying dangers and employees who ask questions and conduct or request in-place examinations related to COVID-19 related workplace problems. The “concerted” border is often less than a bright line.

In addition to PCA issues, other COVID-19 issues that unions are often faced with include how lawful promulgation and enforcement of COVID-19 labor rules that may affect Section 7 rights and how lawful and possible union organization through the pandemic can be effectively addressed.

B. Make unilateral changes in working conditions due to COVID-19

Union-organized employers are required to recognize and negotiate with their workers' unions regarding their wages, hours, working conditions and other employment conditions. This negotiation obligation means that a union employer can only unilaterally change the working conditions of its union employees if the employer has fulfilled his or her negotiation obligation for the first time, the negotiation obligation is legally excused or mitigated or canceled. This negotiation obligation applies both to an employer's decision to change working conditions and to the impact of this change on the negotiating unit.

Sometimes these changes are made with caution, while sometimes required by state, local, or state orders. Regardless of the reason, the NLRA's call to maintain the status quo until negotiations are problematic for union employers who need to quickly implement time-sensitive changes in the workplace to avoid or mitigate COVID 19 risks. In recognition of these tensions, the GC published GC Memo 20-04 entitled "Case summaries related to the duty to negotiate in emergency situations issued on March 27". While not providing clear advice to employers on how to resolve urgent COVID problems, the GC recognized the existence of an exception to the negotiation requirement, where an employer can demonstrate that economic needs dictated immediate action, and stressed that these needs were based on exceptional Events were restricted, which are unforeseen events that have a significant economic impact and require immediate action from a company. When local governments order protective measures, shut down non-essential companies or use certain personal protective equipment, or in areas where COVID-19 outbreaks occur suddenly or particularly acute, this limited exception is likely to apply and allow an employer to make critical decisions without prior negotiation meet and implement. However, if this is the case and if further negotiations are not waived by contract or by inaction by a union, an employer is still obliged to negotiate the effects of this unilateral decision on the negotiating unit.

The terms of employment contracts can also give an employer the privilege of taking unilateral action without prior negotiation. For example, if an employment contract appears to sanction, cover, or anticipate the implementation of a particular measure, that measure may not count as a “change” and its implementation may not be considered “one-sided” because it has already been discussed and negotiated (contract coverage test). A recent case related to COVID-19 on June 30 that substantiates this point is Children Schools Services, Case No. 5-CA-258669, in which the counseling department refused to refuse ULP charges against a contractor The nursing staff provided care to public schools in DC, which gave their employees one-sided options to be released after the city-wide closure of schools due to COVID-19 or to be temporarily assigned to carry out COVID-19 tests. Referring to the parties' employment agreement, which included both a detailed layoff provision and a layoff approval clause for management, Advice concluded that the layoffs were within the “compass or scope” of the contract provision and granted the employer the right to dismiss the staff unilaterally. Referring to the agreement's extensive zipper clause, which refrained from further negotiations during the term of the agreement, Advice also concluded that the agreement was likely to exclude any obligation to conduct collective bargaining over layoffs or alternative jobs, ie COVID- 19 tests, instead of layoffs.

C. Union access related to COVID-19

The unions requested access to the employer's premises during the pandemic to monitor working conditions for virus risks and / or to ensure compliance with employment contracts. Access to the Union is generally a matter of state law and / or subject to the terms of an employment contract, as the NLRA is silent on the subject and does not give unions a positive right to enter an employer's property. However, when an employment contract gives a union a right of access, that right of access is an employment condition that the employer must comply with under the terms of this contract.

In normal times, access to unions may not be that big of a deal. However, given the ongoing pandemic, employers want to limit and control those who enter their premises to curb the spread of infections. Accordingly, employers view their contracts as a way to restrict and control unions' access to their premises, and to regulate their behavior on the premises. One case that demonstrates this point is RS Electric Corp., Case No. 14-CA-260142, in which Advice agreed to the dismissal of an indictment complaining of an employer being denied access. Here the contract of the parties gave the union the right to access construction sites "at any appropriate time", which gave the union a right to immediate and unrestricted access. The employer disagreed and, on the other hand, argued that this contractual reference gave him the right to fire an hour in advance to prepare for secure access. Given these competing readings of the employment contract, Advice concluded that the Board would not choose between two equally plausible interpretations of the contract because "it is not at all clear that the union's demand for immediate full access in the face of the Covid19 pandemic." In addition, the contractual limitation of access at "any reasonable time" gave the employer the right to request one hour's notice as part of the contract coverage test.

As you know, things change quickly and there is a lack of clear authority or clear rules for implementation. This article is not intended as a clear, unified guide, but represents our interpretation of the current and general state of affairs. This article does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID 19 pandemic, including, without limitation, potential liability for an employee's illness, family vacation requirements or pay sickness and other questions.

Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Find out about the legal implications of Sheppard Mullin's Coronavirus Insights portal, which now brings together the company's various COVID-19 blog posts on a wide range of topics.


(1) The General Counsel of the Board, Peter Robb, acts among other things as the top law enforcement officer of the NLRB. He acts through the agency's regional offices and is ultimately responsible for investigating and prosecuting the ULP indictment, which his office deems merit.

(2) The Advisory Department is a group located in the GC office, tasked with evaluating cases dealing with new types of legal issues and "advising" the Regional Office on the merits of pending fees.

(3) The Labor Relations Act in Section 502 contains a limited exception to the requirement that behavior must be coordinated to be protected. It even authorizes and protects individual employees who “refuse to work” due to unusually dangerous working conditions.


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