NLRB Advice Memos Offer COVID-19 Guidance to Employers

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The Office of General Counsel (OGC) of the National Labor Relations Board issued a slew of Advice Memoranda this month that offer some guidance to employers, both unionized and non-union. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues. Several of the memos addressed issues related to the COVID-19 pandemic, including the decision to permit telework and the obligation to bargain with an employees’ union concerning layoffs.

Mercy Health General Campus: The OGC first determined that the hospital-employer did not violate Section 8(a)(5) of the NLRA by expanding its work-from-home policy for non-bargaining unit employees but not bargaining unit employees. The unionized registered nurses (RNs) were never permitted to work from home due to their face-to-face patient care duties. Thus, the employer did not make any change to bargaining unit employees’ terms and conditions of employment. Nor was there any evidence of anti-union motive in the employer’s decision to expand the work-from-home policy for non-union employees. The OGC also determined that the employer did not violate Section 8(a)(5) by (1) unilaterally modifying the attendance policy to exclude absences resulting from potential risk of exposure to COVID-19 from discipline or other adverse consequences, and (2) pausing all attendance-related discipline.

It is the OGC’s view that in emergency situations employers should be permitted to act unilaterally provided the unilateral action is “reasonably related to the emergency situation.” However, after the unilateral decision is implemented, the employer “must negotiate over the decision (to the extent there is a decisional bargaining obligation and its effects within a reasonable time thereafter.” The Board found that the changes at issue here were reasonably related to the emergency circumstances presented during the early stages of the COVID-19 emergency. This Advice Memo is helpful to employers who must act expeditiously at the onset of emergency circumstances.

Larry Peel Co.: The employer discharged an employee soon after the employee’s request to work from home. The OGC determined that the employee was not engaged in protected concerted activity by texting with the employer’s controller regarding COVID-19 health and safety concerns, because the controller was a supervisor and not an employee. But even if the controller was an employee, the OGC concluded that the employer did not have knowledge of the protected concerted activity because it was unaware of the texts and the work-from-home request was individual in nature.

Children School Services: Here, the employer, which supplies nursing services in D.C. city schools, did not violate the NLRA when it unilaterally laid off employees in response to the citywide closure of schools due to COVID-19. The OGC determined that the employer’s actions were privileged by the CBA. Applying the recently-adopted “contract coverage” standard (which we wrote about here), the OGC concluded that the CBA included a broad management rights provision that permitted the employer a general right to lay off employees. Thus, the decision to lay off employees during the closure was “within the compass or scope” of the contractual provisions.

Additionally, the OGC held that the employer’s offer of temporary assignments related to COVID testing did not violate the NLRA. The OGC reasoned that the CBA’s broad zipper clause foreclosed any obligation to engage in effects bargaining with the union concerning the temporary assignments. Specifically, the zipper clause stated that “any matters not specifically and expressly covered by this [CBA] shall remain within the sole right and discretion of [the employer].” In any event, though, the OGC determined that the employer engaged in sufficient bargaining prior to implementation of the temporary assignments.

RS Electric Corp.: This case dealt with union representative access to the employer’s facility. The parties’ CBA provided the union with the right to access job sites “at any reasonable time.” At the onset of the COVID-19 emergency, the employer required that the union representatives provide one-hour notice of its intent to access employer jobsites to allow the employer to ensure adequate safety precautions. The union, however, demanded immediate and unrestricted access. The OGC concluded that it was not clear that the union’s demand was “reasonable,” and the Union did not seek to bargain over the employer’s view of reasonableness. Further, the OGC noted that the employer was privileged to require one hour advance notice under the “contract coverage” standard.