August 9, 2020

Volume X, Number 222

August 07, 2020

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GC Memo Summarizes NLRB Decisions About Duty To Bargain in Emergency Situations

Peter B. Robb, the General Counsel (GC) of the National Labor Relations Board (NLRB) has issued a Memorandum setting forth summaries of NLRB decisions about unionized employers’ duty to bargain in emergency situations. The Memorandum was issued in light of the many issues that have arisen about the rights and obligations of employers and labor organizations because of the coronavirus. According to the GC, those issues have arisen “in light of responsive measures taken by employers to contain the virus. Sometimes these measures have been taken out of prudence; other times they have been required by state, local or federal orders.” Memorandum GC 20-04 “Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” (March 27, 2020).

Acknowledging that the virus presents “an unprecedented situation,” the Memorandum does not provide advice to unionized employers and unions. Instead, it is an attempt by the GC to educate them about NLRB decisions “in which the Board considered the duty to bargain during emergencies” that may be relevant to action they intend to take. The decisions involve both public emergencies and emergencies unique to a particular employer. The Memorandum covers only cases involving the duty to bargain. It does not deal with other NLRA issues that may arise in emergency situations.

The cases cited by the GC involved layoffs and/or facility closures arising out of, among other things, a flu prevention policy, weather emergencies, a sudden reduction in the employer’s business volume, materials (logs) shortages, and a credit line discontinuance. The decisions underscore that, in order to avoid a bargaining obligation, the employer must demonstrate that “economic exigencies compel[led] prompt action.” Bottom Line Enterprises, 302 NLRB 373, 374 (1991) and that the exception is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action” RBE Electronics of S.D., 320 NLRB 80, 81 (1995). In some of the included decisions, even where the NLRB decided that the failure to bargain was lawful, it also found the employer had violated the law by not offering to bargain over the effects of the decision.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 89


About this Author

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Richard F. Vitarelli Principal Jackson Lewis

Richard F. Vitarelli is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Part of the firm’s national labor practice, he has over two decades of experience representing employers nationally in strategic labor relations, collective bargaining, and union organizing, including in the context of mergers and acquisitions, corporate restructuring and contract administration. He serves as general labor and employment counsel for employers and multi-employer associations in various industries, including construction, manufacturing, health care and senior living, airline, commercial laundry, transportation and distribution, state and local government.

Mr. Vitarelli's practice includes handling sophisticated collective bargaining matters, including national, multi-employer and industry agreements.  His practice also includes representation of employers in multi-employer benefits matters, including multi-employer pension withdrawal liability and Taft-Hartley Fund collection matters. His labor relations practice includes representation of employers covered by the National Labor Relations Act and the Railway Labor Act.

He regularly represents and advises clients in preventive labor relations and counter-organizing. For several years, he served as a managing author of the "Employer’s Guide to Union Organizing Campaigns" (Wolters-Kluwer/Aspen Publishers).

Before joining Jackson Lewis, Mr. Vitarelli served as practice group leader for a major regional firm, overseeing the labor, employment, benefits and immigration practice. He also served as outside general counsel to the Waterbury Connecticut Financial Planning and Assistance Board, a state takeover board created to restructure finances, labor agreements and post-employment benefits. He was a Commissioner of the Connecticut State Ethics Commission from 1997 to 2004 and served as Vice-Chair and Chair-Elect from 2002 to 2004.

While attending law school, Mr. Vitarelli was a member of the Suffolk Transnational Law Review.

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented...