The Advisory Division of the National Labor Relations Board ("NLRB" or Board) (1) recently released five memos addressing issues related to the COVID-19 pandemic. In all five cases, the dismissal of the pending Unfair Labor Practices (“ULP”) charges ("ULP") against the employer was justified. These advisory notes follow a series of advisory notes issued by the Advisory Department in July and published in who have also been advised to dismiss COVID-19 charges against employers. Although these deliberative memoranda do not carry the weight of a Board decision, they do provide guidance on how regional offices can assess these matters in the future and can act as a roadmap for employers who will undoubtedly address similar issues in their business during the pandemic.

The advisory memorandum dealt with the following topics:

1. An employer's ability to refuse to negotiate COVID-19 related policies in the medium term: In Memphis Ready Mix, Case 15-CA-259794, the Counseling Division recommended dismissing a charge alleging the employer refused to negotiate the union's proposal for paid sick leave and risk payment during the pandemic. The recommendation first cited the general principle that parties to a collective agreement are not required to negotiate on issues covered by the CBA and suggested that no medium-term negotiations are required as the CBA already has related issues treated with absenteeism and paid leave. Even when it was found that the CBA did not cover sick leave and risk accounting, Advice found that no intermediate negotiations were required due to the comprehensive zipper clause (2), which waived the right of a party not to require medium-term negotiations on an issue covered by the CBA. In the consultation it was of course pointed out that the employer would be obliged to negotiate on paid sick leave and risk compensation if the contract can be reopened in the autumn, as these are mandatory items to be negotiated.

2. Requests for information in connection with the decision to dismiss employees: Two of the most recent advisory notes dealt with requests for information related to an employer's decision to lay off workers during the pandemic. The first memo, ABM Business and Industry, 13-CA-259139, reiterates the principle that a request for information does not directly deal with the terms and conditions of employment of negotiating unit employees (e.g. a request for communication between an employer and his or her employer) and customers supporting the dismissal decision), the union must demonstrate the relevance of the information requested – and the board expects the union to conduct an interactive process with the employer to explain why the information sought is relevant before filing a charge.

In the second recommendation, Crown Plaza O'Hare, Case 13-CA-259749, it was also stated that the employer, a hotel near Chicago O'Hare Airport, was under no obligation to continue on that Union request for information related to the decision to respond to vacation workers after submitting documents showing the decline in hotel occupancy following the pandemic. In particular, Advice found that the hotel's financial documents were not relevant as the employer did not claim the layoff was due to his inability to pay employees. As mentioned earlier, the delivery of bad business news by an employer at the negotiating table is not synonymous with a plea for poverty. Indeed, an employer can rely on external market conditions to justify a difficult negotiating position without opening his books to a union – provided, of course, that the employer does not also claim to be financially incapable of meeting a union's bargaining needs Meet An issue that many employers will undoubtedly grapple with over the next year: whether the union had the right to request information in connection with employer-submitted applications for emergency payroll. First, it found that the entrepreneurial business decision to temporarily close the hotel for loss of business was not subject to negotiation, as it was motivated by a decrease in hotel guests, rather than a desire to reduce the labor costs of bellboys represented and the airport transfer driver ; Therefore, the information requested was not relevant to the union's legal obligations as a bargaining agent.

The advice then examined whether the union was entitled to the information requested in order to carry out its duties while negotiating the implications of the decision to temporarily close the hotel (including the layoffs). After Advice found that the employer was "arguably" not required to negotiate the layoffs as it was an "inevitable consequence" of the decision to temporarily close the entire hotel, Advice also found that the union's requests for information did not were relevant to negotiating other implications of the closure because the hotel never claimed that its decision to close the hotel was motivated by its inability to pay staff.

3. Protected concerted activity during the pandemic: The remaining two advisory notes, Marek Bros. Drywall Co., 16-CA-258507, and Hornell Gardens, LLC, 03-CA-258740 & 03-CA-258966, addressed the issue of whether employees were being retaliated against for protected concerted activities have been dismissed (defined as measures taken by more than one employee for mutual help and / or protection). In Marek Bros. Drywall, the Board found that the prosecuting party, who at a security meeting raised concerns about employees' inability to wash or disinfect their hands while on the job, had engaged in protected concerted activities – however, the prosecution was dismissed Justified on Prosecution The party was unable to ascertain the other elements necessary to demonstrate that the worker’s dismissal was discriminatory (employer's knowledge of the sheltered concerted activity and union animation). However, at Hornell Gardens, Advice found that a nurse who raised concerns about the fact that nurses had to share clothes during the pandemic had not conducted protected concerted activities: although she had discussed her concerns with a staff member, Advice concluded that this was the case No Evidence The purpose of the conversation was to initiate, induce or prepare group actions in the interests of the employees.

We will continue to provide updates as Advice releases additional memos on COVID-19 related issues.

As you know, things change quickly and there is a lack of clear authority or rules to implement it. This article is not intended as a clear, uniform 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 federal orders issued in response to the COVID-19 pandemic, including, without limitation, the potential liability in the event that an employee becomes ill, Requirements related to family vacation or sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information about COVID-19 and its impact 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 Counseling Department within the NLRB General Counsel's Office provides guidance to the various Regional Offices on the merits of unfair labor charges involving novel legal issues.

(2) The Zipper Clause states: It is agreed that all matters which are deemed by the parties to be suitable subjects for collective bargaining between them will be incorporated into this Agreement; and during the term of this Agreement, including any renewal period, no further or other matters are subject to further collective bargaining.

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