October 26, 2020

Volume X, Number 300


October 26, 2020

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October 23, 2020

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Top Five Labor Law Developments for September 2020

  1. National Labor Relations Board (NLRB) General Counsel Peter Robb has issued guidance addressing employer assistance in union organizing and decertification elections. In Memorandum GC 20-13 (Sept. 4, 2020), “Guidance Memorandum on Employer Assistance in Union Organizing,” Robb addressed what he viewed as “confusing and contradictory” NLRB decisions related to how much help employers can lawfully give to unions’ organizing campaigns or to employees seeking to withdraw recognition from a union. Employers violate the National Labor Relations Act (NLRA) by providing excessive support to a union attempting to organize its employees or to employees who wish to withdraw from a union. According to Robb, the rationale behind both types of violations is the same: employees are deprived of freedom of choice. However, as Robb observed, the NLRB has applied different legal standards when evaluating the lawfulness of each violation. With respect to employer support for a union’s organizing efforts, the NLRB uses “a totality of the circumstances” standard; but during a decertification campaign, an employer cannot give more than “ministerial aid.” Robb criticized the “totality of the circumstances” standard because it lacks clear guidelines as to what is lawful and unlawful conduct, stating his preference for the “more than ministerial aid” standard because it is stricter and less ambiguous as to whether conduct is lawful. Robb also noted that his office had “seen allegations of impermissible employer support of union organizing activities emerge in the context of pre-recognition neutrality agreements.” He said that lawful neutrality agreements are “truly neutral,” but that others “go beyond neutrality into the area of impermissible support … often contain[ing] provisions that sacrifice the statutory rights of employees for the commercial interests of unions and employers.” Because the standards for review of these agreements have been unclear, extant NLRB law has effectively permitted interference with employee free choice by not carefully examining the provisions of neutrality agreements to determine whether they, in fact, are neutral or provide support to the union. These provisions should be examined through the lens of whether they provide “more than ministerial support” to the union’s efforts to organize. With respect to those agreements, he asks the NLRB to adopt “a simple bright-line test that would find a violation of the Act whenever an employer and union enter into a pre-recognition agreement where: (1) the parties negotiate terms and conditions of employment prior to the union attaining majority status; (2) the parties agree to restrain employee access to Board processes and procedures; or (3) the parties agree to any provision that is inconsistent with the purposes and policies of the Act, such as by impacting Section 7 rights by providing support of the union’s organizing activities, rather than neutrality.”

  2. NLRB General Counsel Robb warned that employers cannot use COVID-19 as cover for violations of employees’ NLRA rights. In Memorandum GC 20-14 (Sept. 18, 2020), “Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues,” Robb outlined cases in which NLRB Regional offices issued complaints against employers for: refusing to bargain over pandemic-related changes to benefits; disciplining workers for raising safety concerns; and allegedly firing an employee who led a workplace protest over PPE. The following are examples of the unlawful conduct addressed in the memo:

  • Employer did not call back 20 known union supporters furloughed in mid-March. According to the General Counsel, the employer called back a dozen other employees who were known to be less enthusiastic about the union and expressed “anti-union animus” during a recent union campaign.

  • A fast food restaurant fired an employee who led a protest over lack of hand sanitizer, masks, and gloves. A group of employees chose to take unpaid leave during the dispute, Robb said, but only two employees — including the organizer of the protest — were told they no longer had jobs when they tried to come back.

  • A casino manager called a meeting to question an employee about wearing a mask in front of guests. After the employee requested a union representative, the manager continued the meeting without one and suspended the employee.

  • For two months, a nursing home operator refused to bargain over a successor agreement, including by teleconference. The employer also allegedly refused to discuss a proposal on hazard pay.

    Following the memorandum’s release, an NLRB spokesperson said the Board’s attorneys “have been aggressive and effective in ensuring that workers’ rights are being protected during this difficult time. Today’s memo summarizes just a handful of the many cases in which the Agency is actively protecting workers from discrimination during the pandemic.”

  1. The NLRB’s Division of Advice stated that political advocacy related to police reform is not NLRA-protected activity. UFCW 1994 MCGEO, 05-CA-261825 (Adv. Mem. Aug. 13, 2020, released Sept. 14, 2020). In an Advice Memorandum, the Division of Advice concluded the employer did not violate the NLRA by discharging an employee for testifying before a local county council to advocate for police transparency and accountability legislation. The employee worked as a union representative for a labor organization representing uniformed police officers, among others. Following the discharge, the union filed a grievance and an unfair labor practice charge. The Region submitted the case to the Division of Advice, asking whether the charge should be deferred (under Dubo Manufacturing Company) or dismissed. The Division of Advice agreed with the Regional Director that the charge should be dismissed because the employee’s activity, advocacy for police reform, had nothing to do with the terms and conditions of employment with the employer. Rather, the Division of Advice found the employee acted in the interest of the community at large. As a result, such activity was not protected under the NLRA.

  2. While election petitions filed with the NLRB have declined during the pandemic, unions assert that workers’ interest in forming unions has stayed steady amid rising unrest. The NLRB reported that 800 union election petitions have been filed since mid-March, which is down from the prior four years when the NLRB processed between 1,100 and 1,400 representation cases over the same period. The sharpest declines came early in the pandemic, but the numbers have steadied recently. In April, only 69 representation petitions were filed. and 125 were filed in May, compared to 213 and 201 in the same months last year, respectively. NLRB data show the agency handled 153 petitions in September, compared to 173 in September 2019 and 145 in September 2018. Meanwhile, some unions report they have maintained a steady organizing pace during the pandemic by adapting to online organizing.

  3. The NLRB found more than 16,000 professional interpreters and translators who were members of a professional association were not employees of the association. Registry of Interpreters for the Deaf, 370 NLRB No. 18 (Sept. 11, 2020). The NLRB found a professional association for deaf interpreters did not violate the NLRA by maintaining civility and anti-trust policies that restricted their members from sharing information about their wages, terms and conditions of employment, and views regarding unionization because the relationship with its members was not akin to an employment relationship. The policies applied only to the members, not to the association’s employees, although some members were also employees of an organization related to the association. Contrary to the administrative law judge, who found the policies implicated the NLRA Section 7 rights of the association’s members, the NLRB found the policies covering only members and specifying their rights as members did not violate the NLRA. The members were not employees of the association and therefore did not have Section 7 protections as to the association.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 290



About this Author

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...

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.

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 Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney

Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....