October 28, 2020

Volume X, Number 302

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NLRB General Counsel: Pandemic Not a Reason to Bypass the National Labor Relations Act

On September 18, 2020, the National Labor Relations Board’s (NLRB) General Counsel (GC) issued a memorandum providing broad guidance reminding employers of their obligations under the National Labor Relations Act (Act), emphasizing that the conditions created by the COVID-19 Pandemic may not be used to override an employer’s legal obligations. In a detailed memorandum explaining his rational for issuing or refusing to issue a complaint in numerous cases, the GC stressed the need for employers to bargain over changes seemingly mandated by government orders, warned employers that he would examine such changes to determine whether the employer had seized on the pandemic to otherwise hide anti-union motives, and reminded employers of the longstanding requirements to provide requested information and include a union-representative during investigatory interviews (Weingarten rights). The GC’s memorandum provides timely and useful reminders of the scope of the Act.

Duty to Bargain Continues Notwithstanding the Pandemic

The GC examined the duty to bargain in three scenarios. First, the GC emphasized that the duty to meet (including by teleconference) and bargain (including via email) remains in place, even for those employers most impacted by the coronavirus pandemic, e.g., nursing homes. The GC stressed that the COVID-19 pandemic does not protect an employer’s refusal to bargain or failure to respond to union bargaining proposals. Also, the GC stated that it would examine whether an employer’s unilateral changes purportedly related to a decision necessitated by a government order were, in fact, reasonably related to the pandemic and whether those changes warranted bargaining. Finally, the GC noted that even though an employer may be experiencing significant financial pressure because of the pandemic, the circumstances may still require that the employer bargain before implementing changes unilaterally and without reaching impasse.

Protected Concerted Activity & Discrimination

Citing two different scenarios, the GC again reminded employers that employees have a federally- protected right to act together with other employees to address workplace concerns related to the pandemic. In one case, the GC determined that the employer coercively questioned an employee about how she became involved with a letter in which employees sought input about providing in-person therapy services during the pandemic. In another case, the GC indicated that it may seek injunctive relief after an employer discharged an employee who led a protest about the employer’s alleged failure to provide personal protective equipment (PPE). In other cases, the GC took issue with pandemic-related layoff and recall decisions that appeared to target union supporters.

Other NLRA Obligations: Weingarten & The Duty to Provide Information

Finally, the GC listed several other requirements of the Act that remain in place during the pandemic. Thus, an employer allegedly violated a bargaining unit employee’s Weingarten rights by continuing to question the employee about wearing a mask after the employee asserted his right to union representation. Also, the GC directed that a complaint be issued after an employer failed to provide information that a union requested about a COVID-related layoff.

These scenarios offer guidance for employers concerning how the GC will approach issues arising during the pandemic, even employment decisions made in the midst of and purportedly driven by the pandemic.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 266
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About this Author

Natale V. Di Natale Labor, Employment, Benefits & Immigration Attorney Robinson & Cole Hartford, CT
Partner

Natale Di Natale is a member of the firm’s Labor, Employment, Benefits + Immigration Group and is the chair of the firm’s Labor Relations and Union Avoidance Group. He counsels employers on all facets of employment law and has devoted his practice almost exclusively to management-side relations in the private sector. He has worked with numerous acute care hospitals, skilled nursing facilities, assisted living facilities, home care service providers, manufacturing, higher education, data, cultural, utility, and building services employers.

Collective Bargaining...

860.275.8329
Matthew Miklave Labor Employment Lawyer
Partner

Matthew Miklave has more than three decades of experience as a labor, employment, and civil rights attorney, and has served as a litigator, counselor, and contract negotiator throughout his career. He is a member of the firm’s Labor, Employment, Benefits + Immigration Group.

Labor, Employment, and Civil Rights

For more than 30 years, Matt has represented employers and management in all areas of employment, civil rights, and traditional labor law, including issues arising under federal and state anti-discrimination and anti-retaliation statutes; non-compete agreements and other post-employment restrictions; wage and hour investigations and litigation; multi-employer pension plan withdrawal liability and administration; collective-bargaining negotiations, administration and enforcement proceedings; corporate restructurings, reorganizations and plant closings; and employment practices and policies.

Among other precedential matters, Matt represented the NYNEX Corporation and New York Telephone Company before the New York Court of Appeals in a case establishing that a breach of contract action cannot be brought based on the breach of an employment handbook when that handbook contains a disclaimer (Lobosco v. NYNEX). He successfully defended the County of Westchester before the Southern District of New York and the Second Circuit Court of Appeals in a case involving Constitutional claims arising from the criminal arrest and “Perp Walk” of correction officers (Caldarola v. County of Westchester). Matt also successfully represented the Hertz Corporation and Hertz Equipment Rental Corporation in a lawsuit seeking to enforce the post-employment restrictions of its former employees, a case resulting in a six-figure settlement in favor of the plaintiff companies (Hertz Corp. and Hertz Equipment Rental Corp. v. Mummendey, Ercolano and Ahern Equipment Rental Corp.)

Labor and Employment Relations

Matt represents employers and management in labor relations matters. He serves as lead labor negotiator for a Fortune 50 corporation; defends employers before state and federal trial courts and administrative agencies; and advises employers on all aspects of employee relations and human resources matters.

Prior to joining Robinson+Cole, Matt was a partner with a national employment law firm based in New York City and Stamford, Connecticut. He also served as counsel to the National Labor Relations Board, in Washington, D.C.; as trial attorney to the NLRB's Regional Office in Brooklyn, New York; and as hearing officer in numerous union-management representation matters.

Matt regularly lectures nationally and internationally on a variety of employment, labor, and civil rights-related topics. Along with two other Robinson+Cole lawyers, he authors the Manufacturing Law Blog, one of the first blogs in the country to address legal issues facing manufacturers and distributors. He is on the adjunct faculty of LawLine.com, an online provider of continuing legal education programs.

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