NLRB Releases Employer-Friendly Advice on COVID-19 Related Issues

Since the beginning of the COVID-19 pandemic, employers have grappled with a surge of workplace disputes stemming from the pandemic. Recently, the National Labor Relations Board (Board) Division of Advice released five advice memoranda addressing pandemic-specific issues including protected concerted activity related to employee safety concerns, mid-term bargaining over hazard and sick pay, and union information requests concerning COVID-related layoffs. In each of the five cases, the Board’s Division of Advice directed that the unfair labor practice (ULP) charges be dismissed. While the cases concerning mid-term bargaining and information requests will be of particular interest to employers with unionized workplaces, the cases involving protected concerted activity are germane to all employers covered by the National Labor Relations Act (NLRA).

Midterm Bargaining Over Hazard Pay and Paid Sick Leave
 
In Memphis Ready Mix, an employer refused to engage in mid-term bargaining over the union’s proposals for paid sick leave and hazard pay in response to the COVID-19 pandemic. The Division of Advice concluded the employer did not violate the NLRA and was within its right to refuse to bargain since the parties’ collective bargaining agreement (CBA) was still in force and covered leaves of absence, wages, and management rights. Additionally, the CBA’s zipper clause constituted a clear and unmistakable waiver of the union’s right to demand bargaining over matters not otherwise covered during the CBA’s term.
 
Protected Concerted Activity
 
In Marek Bros. Drywall Co., an employee raised concerns during a group safety meeting regarding the lack of available resources for employees to wash or sanitize their hands and was subsequently discharged. The Division of Advice determined that the employee’s comment was protected concerted activity, primarily because the meeting was the appropriate place to voice such concerns. Nonetheless, the Division ultimately concluded the case should be dismissed due to a lack of evidence that the employer’s animus against the protected activity was a motivating factor in the discharge.
 
On the other hand, the Division determined that two health care facility employees were not engaged in protected concerted activity when they refused to work in response to COVID-19 related concerns. In Hornell Gardens, LLC, an employee refused to share gowns due to personal disgust and fear for that individual and his family’s safety. Another employee refused to work a scheduled shift because the employee was self-quarantining based on a potential COVID-19 exposure. Consequently, the employer discharged them for refusing to work. The Division concluded the employees were not engaged in protected concerted activity because their actions were not concerted or for mutual aid or protection, rather they were only raising individual concerns. Specifically, there was no evidence the employees ever induced or prepared for group action regarding their workplace concerns.
 
Information Requests
 
In Crowne Plaza O’Hare, an employer temporarily closed its hotel and laid off its entire staff due to COVID-19. The Division of Advice determined the employer did not violate the NLRA by refusing to provide information requested by the union in support of its grievance challenging the layoff. The Division found the employer’s decision to temporarily close the hotel due to the loss of business caused by the pandemic was an entrepreneurial business decision not subject to mandatory bargaining because the employer’s action was driven solely by the significant decrease in hotel guests due to the pandemic rather than an intention to lower its labor costs. The Division further concluded that the union was not entitled to the financial information it requested, including funding the employer sought under the CARES Act because the employer cited “loss of business” as the reason for the layoffs and not a lack of sufficient assets to continue paying its employees. Therefore, the union’s request for the financial information was not relevant.
 
Similarly in ABM Business and Industry, the Division of Advice concluded that the employer did not violate the NLRA by failing to provide certain information requested by the union related to a pending grievance over COVID-19-related layoffs. The Division found that the union’s request for communications between the employer and clients that supported the employer’s layoff decision and the employer’s document retention policy were not presumptively relevant, because they did not relate to the employees’ terms and conditions of employment.
 
Advice memoranda are not binding precedent from the NLRB and thus do not have the force of law. However, in the absence of Board decisions, the memoranda provide useful insight and guidance on the NLRB’s likely approach to similar COVID-related fact patterns. We will continue to monitor NLRB decisions and guidance for critical updates on the application of the NLRA during the COVID-19 pandemic. If you have questions about this article, please contact Joana Ampofo, Manolis Boulukos or any member of Ice Miller’s Labor, Employment and Immigration Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.