By Nelson Cary and Amanda Kuehner
In a positive series of events for employers, the General Counsel’s Division of Advice called for the dismissal of five different coronavirus-related charges against employers. The GC’s office sent memos to regional NLRB offices directing them to dismiss specific cases, all of which were labor disputes sparked by the pandemic. All charges were either dismissed or withdrawn, giving employers helpful insight into the agency’s view on coronavirus-related disputes.
The following five charges were dismissed:
- A charge alleging an employer wrongfully refused to bargain over paid sick leave and hazard pay due to Covid-19. The GC’s office concluded that the employer did not have an obligation to engage in midterm bargaining over the union’s proposals.
- A charge alleging discriminatory lay off of the charging party in retaliation for Covid-19-related safety comments. Although the GC’s office concluded that the employee ultimately engaged in protected activity when he raised concerns about the lack of available sanitation resources, the GC’s office concluded that there was insufficient evidence of knowledge of that activity or employer animus on the record to establish a prima facie case.
- A charge alleging unlawful discharge of and threats to workers stemming from disputes related to Covid-19 safety issues. The GC and the Region agreed that the Charging Party’s refusal to work with shared isolation gowns and refusal to work a scheduled shift was not protected activity. Thus, the termination was lawful.
- A charge alleging failure to provide a union information connected to a grievance over pandemic-related layoffs. The GC concluded that the union failed to articulate how the information was relevant and failed to explain why it considered the employer’s response to be incomplete.
- A charge alleging failure to provide a union information connected to a grievance over pandemic-related layoffs. The GC concluded that the employer sufficiently provided relevant information and any other information sought by the union was irrelevant.
For the labor professional, these dismissals suggests that the NLRB is giving employers at least some room to respond to the unprecedented nature of the Covid-19 pandemic. Employers remain well advised, however, to consult with qualified labor counsel in dealing with these types of issues. Allegations of protected, concerted activity or union information requests can be very fact intensive. Even seemingly slight changes in the facts and overall context could change the outcome.