By Nelson Cary and Amanda Kuehner
This blog previously discussed the NLRB’s dismissal of virus-related charges. The NLRB General Counsel, however, recently released a new memorandum summarizing cases related to Covid-19 where the NLRB found the virus-related issues had merit and pursued litigation.
Because the cases are still in active litigation, the memo merely summarizes the facts of the cases. It does not identify the employers involved. The memo covers six different issues. It is important to note that the employer’s actions are what the GC is alleging to be unlawful.
Protected Concerted Activity
First, the memo summarizes two protected concerted activity cases, both of which involve employees protesting how the employer was handling Covid-19 safety measures. One case resulted in an employer allegedly violating Section 8(a)(1) by improperly threatening an employee. The employer allegedly told the employee to follow the employer’s directives on in-person therapy sessions or she would effectively be resigning from her position. The GC is considering pursuing an injunction in federal court against the employer.
The other case involved a group of employees protesting a food delivery establishment’s alleged failure to provide PPE. The protesting employees took a voluntary leave of absence. The employer allegedly permitted all of them to return to work, except for two, one of whom was the leader of the protest. A complaint issued alleging Section 8(a)(1) violations. Injunctive relief is also being considered.
Weingarten Rights
In another case, an employee was denied his Weingarten rights (which guarantee an employee the right to union representation during an investigatory interview), when his employer unlawfully questioned him about whether he would agree to only wear a mask when required by work duties. The GC asserts that the employer suspended the employee for the remainder of the day and issued discipline for “uncooperativeness” during the investigative interview.
Discriminatory Layoff
During Covid-19-related layoffs, an employer allegedly admitted to selecting the recently-certified, two-person bargaining unit for layoff as an attempt to erode their bargaining unit. In response, the General Counsel instructed the Region to issue a complaint against the employer for an alleged discriminatory layoff in violation of Section 8(a)(3).
Discriminatory Recall
Also following a Covid-19-related layoff, a complaint was issued against an employer where the employer withheld recall rights from 20 unit employees, most of whom were union supporters. Yet, it is alleged, the employer offered recall rights to 12 other employees, the majority of whom were known to not support the union. Once again, the GC believed the actions were so egregious that it is considering seeking an injunction against the employer.
Bargaining
The three bargaining cases listed in the GC’s memo remind employers of the following:
(1) the pandemic does not give employers a right to refuse to hold bargaining sessions;
(2) although employers can initially act unilaterally in response to emergency situations when reasonably necessary, employers may still need to negotiate over the decision and its effects within a reasonable time thereafter; and
(3) just because a decision is Covid-19-related, does not mean the employer can automatically take unilateral actions.
The regional offices involved in these cases were given the authority to continue pursuing allegations that employers acted inconsistently with these requirements.
Refusal to Provide Information
The GC also approved issuing a complaint where, during a Covid-19-related layoff, the employer failed to provide information to affected employees. The information requested included a seniority list, paid time off accruals, communications to the bargaining unit members about the layoff decision, information about the expected return date, information relied upon in making the layoff decision, and communications with clients that supported the need for layoffs.
All these cases are a reminder to employers that just because Covid-19 poses extraordinary challenges, this does not mean that employers are given extraordinary leeway from the NLRB’s GC.