Labor & Employment Law Daily Five NLRB advice memoranda address COVID-19 labor issues; 11 others also released
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Tuesday, July 21, 2020

Five NLRB advice memoranda address COVID-19 labor issues; 11 others also released

By Pamela Wolf, J.D.

The COVID-19-related issues included layoffs and temporary assignment offers, reasonable access during the pandemic, discharge following a remote-work request, and unilateral work-from-home and attendance policy changes.

On July 15, the National Labor Relations Board released 16 advice memoranda, all but two of them issued in 2020. Five of those advice memos, written in June 2020, address COVID-19 related issues—all were answered by the Division of Advice in emails from unidentified individuals. According to one of those memos, an employer may unilaterally take reasonably related actions during a pandemic but must negotiate over the decision and its effects “within a reasonable time thereafter.”

COVID-19 issues. Generally, the pandemic-related advice memos addressed issues of COVID-19-related layoffs and temporary assignment offers to conduct testing or contact tracing; reasonable access during the pandemic; discharge following a request to work remotely due to COVID-19; and unilateral work-from-home and attendance policy changes related to the pandemic emergency.

Layoffs and offers of temporary assignment. In Children School Services (05-CA-258669), the June 30, 2020, memo addresses whether a government contractor that supplies nursing services within D.C. public schools acted unlawfully in response to the citywide closure of schools due to COVID-19, finding among other things that Section 8(a)(5) allegations concerning the employer’s layoff, and related offer of temporary work assignments in lieu of layoff, were without merit.

Layoffs. As to the layoffs, the Division concluded that the contractor’s actions were privileged by the collective-bargaining agreements under the Board’s 2019 MV Transportation, Inc. decision (368 NLRB No. 66). “Not only did the contract contain an entire article devoted to layoffs (which may or may not apply to these ‘temporary’ layoffs), but the management rights clauses also contained a general right to lay off,” the memo states. “Thus, the decision to lay off the nurses while school was out was within the compass or scope of contract provisions granting the Employer the right to act unilaterally.”

Temp assignment offers. Turning to the offer of temporary assignments in partnership with the D.C. government to perform COVID testing and/or contact tracing in lieu of layoff, the Division similarly concluded that the contractor’s action did not amount to a unilateral change. “Broad zipper clauses in the contracts likely foreclosed any obligation to engage in effects bargaining as to the layoffs or alternative work assignments in lieu of layoff,” the memo said. “The contracts state that ‘any matters not specifically and expressly covered by this Agreement shall remain within the sole right and discretion of [the Employer]’ and that the Union ‘voluntarily and unqualifiedly waives any further bargaining and agrees that [the Employer] will not be obligated to bargain . . . with respect to any subject or matter referred to or covered in this Agreement or with respect to any subject matter or matter not specifically referred to or covered in this Agreement.”

Even if the contractor did have an obligation to bargain, it engaged in pre-implementation bargaining over both issues, and the bargaining was sufficient to satisfy its obligations under the exigent circumstances present in this case, according to the memo.

Unrestricted reasonable access. The June 19, 2020, memo in RS Electric Corp. (14-CA-260142) deals with the interpretation of a contract that gives the union the right to access job sites “at any reasonable time.” Here, the Division reiterated that the Board will not choose between two “equally plausible” interpretations of a contract. In this case, it was not at all clear that the union’s demand for immediate unrestricted access was reasonable in light of the COVID-19 pandemic, and the union did not try to bargain about the company’s view of reasonableness—that it needed a one-hour advance notice in order to prepare for safe access.

Alternatively, the contractual limit on access to “any reasonable time” gave the employer the right under the contract coverage test to require one hour advance notice, the Division said, citing MV Transportation, Inc.

Access on a single day. In a June 3, 2020, memo in United States Postal Services (14-CA-258516), the Division recommended dismissal of a Section 8(a)(5) charge in which the denial of access on a single occasion during the pandemic was due to an apparent misunderstanding between the parties that was quickly resolved the same day.

Fired after work-at-home request. In Larry Peel Co. (16-CA-259403), the June 15, 2020, memo addressed whether the employer lawfully discharged an employee who had requested to work at home due to COVID-19. At the threshold, the Division agreed that the employee was not engaged in protected concerted activity by texting with the controller about pandemic-related health and safety concerns on their personal cell phone if the controller was, in fact, a supervisor or manager. Here, the memo cites the Board’s 1978 Capital Times Co. decision (234 NLRB 309) that held that an employee was lawfully disciplined for individually refusing to cross a picket line established by non-statutory employees—because concerted activity must involve more than one statutory employee.

But even if the controller was an “employee” under the Act, the charge still lacked merit. Knowledge of protected concerted activity could not be shown because the employer was not aware of the texts, and the employee’s work-at-home request was individual in nature. Moreover, there was insufficient evidence of animus, and the employer would likely be able to establish that the decision was made before the employee requested a change in work location.

Unilateral policy changes. In a June 10, 2020, memo, the Division addressed whether the hospital violated Section 8(a)(5) by unilaterally changing its work-from-home and attendance policies in Mercy Health General Campus (07-CA-258425). The unilaterally implemented, expanded work-from-home policy did not apply to the unit employees. The policy change applied only to non-unit employees who could “fulfill all of their duties at home” since RNs (and other patient-facing employees) were never permitted to telework in view of their face-to-face patient-care duties. Accordingly, there was no change to the unit employees’ working conditions.

Further, under a Section 8(a)(3) analysis, there was no evidence or assertion of an anti-union motive under Wright Line.

Union-proposed attendance policy change. Turning to the hospital’s attendance policy, the memo notes that on about March 12, at the very beginning of the COVID-19 pandemic emergency, the union proposed that “[a]bsences resulting from potential risk of exposure to COVID-19 shall not result in any disciplinary action or other adverse consequences.” Essentially agreeing, on March 15, the hospital issued a modified attendance policy, consistent with the union’s proposal, that would “temporarily pause all attendance and tardy-related penalties, including attendance and tardy-related corrective action.”

While it’s unusual that the employer responded by issuing a policy essentially adopting the proposal without having first responded to the union that it was agreeing to the proposal, the hospital’s “actions are understandable in these circumstances where, as an acute-care hospital, time was of the essence in dealing with the emergency pandemic situation,” the Division wrote.

Unilateral action during emergency. Even assuming that the hospital’s implementation of these two policies amounted to unilateral changes, “it is the General Counsel’s view that an employer should be permitted to, at least initially, act unilaterally during emergencies such as COVID-19 so long as its actions are reasonably related to the emergency situation,” the memo states. “However, in addition, the employer must negotiate over the decision (to the extent there is a decisional bargaining obligation) and its effects within a reasonable time thereafter.” Here, the hospital likely had no bargaining obligation in this situation, “where the unilateral changes appear to have been reasonably related to the pandemic emergency.”

Notably, the parties have continued to negotiate the effects of various pandemic-related proposals as they arise.

On July 15, the Board released 11 other memos:

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