On August 13, 2020, the National Labor Relations Board (NLRB) Division of Advice released five memoranda in which the General Counsel directed NLRB regional offices to dismiss pandemic-related charges filed by unions and individuals against employers. The General Counsel’s advice memoranda continue to set a lenient tone for employers and their pandemic-related decisions.
Advice related to protected concerted activity:
- A drywall company did not violate the Act where it discharged an employee for raising concerns about a lack of available hand sanitizer and handwashing resources for employees. See 16-CA-258057. Though Advice conceded that the employee was engaged in protected concerted activity when he raised these concerns, it nevertheless directed dismissal of the charge because there was no prima facie case of discrimination; in particular, there was insufficient evidence that the employer had knowledge of, or animus toward, the protected activity.
- A nursing home lawfully discharged a nurse who refused to work with shared isolation gowns. See 03-CA-258740 et al. Advice determined that the nurse’s refusal to work was not concerted; nor was it for the purpose of mutual aid and protection. Though there was evidence that nurses discussed the gown issue prior to one of them raising it with the employer, there was no evidence that they sought to initiate or prepare for group action as opposed to simply discussing the fact that the nurses had to share gowns. Further, the nurse’s letters were focused solely on that nurse’s personal disgust at the notion of sharing gowns and fear for her own safety and that of her family, which Advice determined was not concerted.
Advice related to collective bargaining:
- In a charge against a concrete company, the General Counsel said that the company lawfully refused to engage in midterm contract bargaining with a union over paid sick leave and hazard pay during the pandemic. See 15-CA-259794. Advice concluded that the contract’s zipper clause demonstrated the union’s clear and unmistakable waiver of its right to demand midterm bargaining concerning matters not otherwise covered by the contract. However, Advice noted that the employer may be required to bargain about sick and hazard pay—mandatory subjects of bargaining—at the appropriate time under a reopener clause.
Advice related to the duty to provide information:
- An airport hotel that temporarily closed the hotel and laid off its staff did not violate Section 8(a)(5) when it refused to provide a union with certain financial information. See 13-CA-259794. Advice concluded that the employer’s claim that the layoffs were due to “loss of business” was not an inability to pay claim, and so it was under no obligation to provide the requested financial information to the union. Advice also noted that the decision to close temporarily due to loss of business caused by the pandemic was an entrepreneurial decision not subject to bargaining.
- In 13-CA-259139, Advice concluded that the employer did not violate 8(a)(5) where the union failed to engage the employer in a dialogue about why the information was necessary and/or to advise the employer that the union believed the employer’s responses to be incomplete. Citing Day Automotive Group, 348 NLRB 1257, 1262-63 (2006) (finding no violation where the employer had reason to believe it had satisfied the union’s request for information and the union never said the information provided was insufficient).
Peter B. Robb—a Trump appointee—is the current General Counsel of the NLRB. Advice memoranda are a strong indicator of how the General Counsel and the NLRB’s regional offices will handle COVID-19 related ULP charges.
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