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July 27, 2020

NLRB Advice Memos Suggest Employers’ Should be Given Leeway When Considering Unilateral Changes to Working Conditions During COVID-19 Pandemic

On July 15, 2020 the National Labor Relations Board’s (NLRB) General Counsel’s Office (GCO) published five “advice memos,” detailing advisory attorneys’ answers to novel legal questions regarding the COVID-19 pandemic posed by field offices.
Home » News » NLRB Advice Memos Suggest Employers’ Should be Given Leeway When Considering Unilateral Changes to Working Conditions During COVID-19 Pandemic

Mon, 07/27/2020

On July 15, 2020 the National Labor Relations Board’s (NLRB) General Counsel’s Office (GCO) published five “advice memos,” detailing advisory attorneys’ answers to novel legal questions regarding the COVID-19 pandemic posed by field offices. These memos suggest that because of the challenges related to the COVID-19 pandemic, employers will be given leeway when the GCO reviews any decisions that negatively impact workers.

In one letter, the Regional Office requested advice from the GCO as to whether the Employer violated the National Labor Relations Act (NLRA) by unilaterally changing its work-from-home and attendance policies. The GCO agreed with the Region’s recommendation to dismiss the charge because “an employer should be permitted to, at least initially, act unilaterally during emergencies such as COVID-19 so long as its actions are reasonably related to the emergency situation.” The GCO further advised that “the employer must negotiate over the decision (to the extent there is a decisional bargaining obligation) and its effects within a reasonable time thereafter.”

This advice effectively removes an employer’s obligation to bargain over a change in working conditions during an “emergency,” as long as the changes are “reasonably related” to the emergency and the employer bargains over the changes or the effects within a “reasonable time” after the unilateral implementation.

In another letter, a Regional Office sought advice on a case in which a union accused an employer of violating the collective bargaining agreement (CBA) allowing the union to access job sites “at any reasonable time,” when it refused to admit union representatives onto a worksite. The GCO agreed that the Region should dismiss the charge because “the Board will not choose between two ‘equally plausible’ interpretations of a contract,” and that “it’s not at all clear that the Union’s demand for immediate unrestricted access was reasonable in light of the COVID-19 pandemic.” The GCO’s position is that the company reasonably applied the contract when it refused the union’s request for immediate unrestricted access to the work site because of concerns related to the COVID-19 pandemic. Likewise, the GCO agreed that the Region should dismiss a charge against the U.S. Postal Service for denial of union access on a single occasion during the pandemic because it was “due to an apparent misunderstanding between the parties that was quickly resolved that same day.”

In a fourth letter, the Region sought advice as to whether an employer lawfully discharged an employee following a request to work at home due to COVID-19 in retaliation for texting a colleague about safety concerns related to the pandemic. The NLRA provides that a charge of retaliation must be connected to the employee’s “protected concerted activity,” which occurs when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. The GCO advised that the employee did not engage in protected activity because he texted a supervisor who is not covered by the NLRA, and that even if the colleague was a protected nonsupervisor, the texting worker was not protected because “the Employer was unaware of their texts and the employee’s work-at-home request was individual in nature,” (as opposed to terms and conditions of employment for all employees).

Finally, in a fifth letter, the GCO agreed with the Regional Office that an employer’s decision to lay off school nurses and offer testing and contract-tracing work in lieu of layoffs during COVID-19 school closures did not violate the NLRA because the CBA’s the management rights clause contained a general right to lay off employees and because the offer of alternative work did not constitute a unilateral change in working conditions. The GCO opined that “broad zipper clauses” in the contract relieved the employer of the duty to bargain over the layoffs and alternative work, and the effects thereof, because the CBA provided that any matter not specifically and expressly covered by the agreement was “within the sole right and discretion of the [employer.]” In the GCO’s view, the layoffs and alternative assignments caused by the COVID-19 pandemic fall under this provision.

Although addressing different aspects of the worker-employer relationship during, these advice letters make clear that the NLRB’s GCO will allow wide latitude to employers responding to the COVID-19 pandemic, even if their decisions violate employees’ rights.

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