NLRB General Counsel Details Employer Unfair Labor Practices During COVID-19 Pandemic

National Labor Relations Board (NLRB) General Counsel Peter Robb released GC Memo 20-14 summarizing unfair labor practice charges relating to the COVID-19 pandemic. The memo addresses cases sent to the Agency’s Division of Advice and which the Agency has issued a complaint or directed further investigation. Below are some of the key cases addressed by the memo, and takeaways for employers:

In recent months, we have summarized COVID-related advice memoranda released by the NLRB’s Division of Advice (here and here). Those advice memos addressed cases in which the General Counsel found no merit. (Because the cases referenced in GC 20-14 remain open, the advice memo setting forth the General Counsel’s determination will not be released until the case is closed.) To provide stakeholders “a better understanding of [the General Counsel’s] office’s approach” to critical issues arising in the wake of the COVID-19 pandemic, the GC issued this guidance.

Protected Concerted Activity: The memo addressed two cases at two non-union employers. First, employees working at a food delivery establishment protested their employer’s alleged failure to provide PPE and enforce social distancing guidelines. Days after several employees exercised their option to take leave without pay, the employees asked if they remained employed. The employer permitted all but two employees to return to work. One of the employees not allowed to return was the leader of the group protest. The General Counsel issued complaint alleging that the employer violated Section 8(a)(1) of the NLRA by unlawfully discharging the protest leader for engaging in protected concerted activities.

In the second case, employees of a health care provider wrote a letter to the employer requesting more input regarding how to provide services to clients during the pandemic. The employer coercively questioned an employee about her role in drafting the letter and her contributions to the letter. The employer further directed the employee not to share with coworkers her interactions with management, contact only management about work problems, and that taking problems to coworkers only made things worse. The employer then stated that failure to follow these directives would indicate that the employee did not want to continue working for the employer. The General Counsel issued complaint alleging, among other violations, unlawful interrogation, threats of discharge, and constructively discharging the employee by providing her a “Hobson’s Choice” of keeping her job and agreeing not to engage in protected activities, or resigning.

Takeaways: Employers should not discriminate against, threaten, or coercively question employees expressing group concerns about working conditions. Moreover, employers should not state or suggest to employees that engaging in protected activities is incompatible with continued employment.

Bargaining: In one case, the employer unilaterally eliminated furloughed (unionized) employees’ health insurance and vacation leave balances. The employer cited government restrictions on reopening and other uncertainty caused by the pandemic as reasons for its decision. The GC found that these conditions did not excuse the employer from its obligation to bargain prior to making the unilateral changes. Nor did the economic uncertainty caused by significantly reduced revenues constitute an “economic exigency” that would excuse pre-implementation bargaining. Because the employer continued paying for employees’ health insurance for three weeks after making its decisions, the GC determined that the employer had ample time to bargain over the changes at issue and issued a complaint alleging the employer violated Section 8(a)(5) of the NLRA.

In another case, the GC directed further investigation in a case involving a private school forced into a remote learning environment by state order. Generally, employers may, at least initially, act unilaterally during emergencies so long as its actions are reasonably related to the emergency. While the employer was not required to bargain over the state-mandated move to remote learning, the Regional office was directed to investigate (1) whether the changes related to the decision to move to remote learning were “reasonably related to the COVID-19 emergency,” and (2) whether the changes were “material, substantial, and significant” adjustments to employees’ pre-existing working conditions, thereby creating a bargaining obligation.

Takeaways: Very rarely will an employer be able to successfully assert that “economic exigency” excuses the employer from bargaining over a change to employee working conditions. Further, even where government mandates force changes upon a unionized employer, the employer may make unilateral changes only to those subjects “reasonably related” to the underlying emergency; the employer must notify and, upon request, bargain with the union regarding other proposed changes.

The memo also addresses discriminatory layoffs and recalls from layoff – hint: do not lay off or recall employees based on union sympathies or to rid your workplace of all unionized employees. We will keep you updated about the outcomes of these cases as we learn more.