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Coming Into Focus: Labor Board Issues Some NLRA Pandemic Guidance For Employers

Collective bargaining agreements and the duty to bargain imposed by the National Labor Relations Act (NLRA) are often impediments to swift, decisive company action – a fact unionized employers know all too well. The COVID-19 pandemic, however, has already required employers to take quick but necessary action with substantial impact on their workforces. Many other employers will likely face the prospect of having to make these tough decisions in the very near future.

How should employers of unionized workforces approach this situation – that may very well require swift action on little notice – when they are under an obligation to bargain with a union with regard to their employees’ wages, hours, and other terms and conditions of employment?

memorandum issued by the National Labor Relations Board’s general counsel on March 27, 2020, provides a summary of cases the NLRB has decided over the years in which the duty to bargain has been relaxed or has been required to bend to accommodate emergent situations.

Employers must always remember, though, that the NLRA is but one source of their obligations to their employees and the union. The specifics of each employer’s collective bargaining agreement are likely to govern the employer’s ability or non-ability to act quickly and unilaterally when needed. As detailed in this blog last week, the language of collective bargaining agreements must be consulted to determine the extent of the employer’s right to act unilaterally in a given situation.

However, for unionized employers operating without a collective bargaining agreement – or operating with an agreement that does not speak to the contemplated unilateral action – the general counsel’s memorandum is a useful guide to the Board’s historical holdings when confronted with how the duty to bargain operates in unprecedented crisis situations. Subjects such as layoffs, reductions in hours, and the imposition of more stringent health and safety rules for employees ordinarily are subject to the duty to bargain, but may be relaxed if the employer can demonstrate that “economic exigencies compelled prompt action.” As detailed in the memo, the Board has granted leeway for employers to act decisively in situations caused by hurricanes, the 9/11 terrorist attacks, and ice storms where local governments prohibited non-essential travel.

It must be noted, however, that in each situation the employer was required to demonstrate why the specific action they took unilaterally, for instance, layoffs, was compelled by the circumstances. Moreover, employers are always required to bargain with the union about the effects of any decision, even if the bargaining obligation as to the decision itself is relaxed due to the circumstances.

Making difficult decisions in unprecedented times of crisis always presents some risk. However, as set forth in the NLRB general counsel’s memo, unionized employers are not left without ammunition to make compelling arguments for crucial unilateral action in the face of the COVID-19 pandemic to protect their employees, the public, and the viability of their businesses.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 94


About this Author

Anthony Glenn Employment lawyer Barnes Thornburg

Anthony K. Glenn is an associate in Barnes & Thornburg's Indianapolis office and is a member of the Labor and Employment Law Department.

Anthony has experience counseling clients on a number of issues concerning both traditional labor and employment law, such as termination decisions, medical leave management, disability accommodation, workplace discrimination, and wage and hour issues, as well as union avoidance and management of a collective bargaining relationship. He also has experience with the litigation process in federal and state employment agencies...

David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet Metal Workers, CWA, UFCW, UAW, IBEW, BTCGM, GMP and with trades such as carpenters, pipefitters and more. Notably, David’s interest in labor relations began in high school, having grown up next to several of the largest steel mills in the world and coming from a family that has members in human resources management and union leadership positions. These experiences have given him a foundational understanding as to how unions operate and what drives their decision-making process.

To maintain a well-rounded practice and offer a full range of labor and employment services to his clients, David also routinely defends employers in employment litigation matters – both in class/collective actions and individual cases – alleging wrongful discharge; discrimination; retaliation; harassment; wage-related claims; breach of contract; and claims regarding the classification of workers as independent contractors under various state and federal laws. In addition, David has defended clients in class actions and high stakes qui tam actions, which are often initiated by current or former disgruntled employees and brought under the False Claims Act by government agencies and the Department of Justice.

David also assists employers with proactive counseling, both in the employment and labor context. This portion of his practice involves reviewing and drafting employment policies; conducting training on issues spanning the labor and employment spectrum; and otherwise advising clients when daily, complex employee-relations issues arise.