Labor & Employment Law Daily Newly released NLRB advice memos recommend dismissal of five COVID-19 related charges
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Tuesday, August 18, 2020

Newly released NLRB advice memos recommend dismissal of five COVID-19 related charges

By Pamela Wolf, J.D.

The pandemic-related charges address bargaining over sick leave and hazard pay, safety-inspired employee conduct, bargaining over a layoff decision, retaliation for raising safety concerns, and the relevance of requested layoff information.

The National Labor Relations Board has released 11 memoranda issued by the Division of Advice dating as far back as 2015. Five of the seven memos issued in 2020 deal with COVID-19-related questions, all of which garnered recommendations to dismiss. Other issues raised by the Regions included unilateral submission to interest arbitration, in-store demonstrations by off-duty employees, unilateral layoff during first contract bargaining, unlawful discharge, bargaining over the effects of a cease operations decision, and joint employment.

Bargaining over pandemic sick leave and hazard pay. The question in the July 31, 2020, memo in Memphis Ready Mix (15-CA-259794) was whether a concrete producer and distributor violated Section 8(a)(5) by refusing to bargain over the union’s proposals for paid sick leave and hazard pay due to the COVID-19 pandemic. The Division found that because the employer had no obligation to engage in midterm bargaining over the union’s proposals, the charge should be dismissed.

COVID-19 safety-inspired employee conduct. In the July 31, 2020, memo in Hornell Gardens (03-CA-258740), the Division determined whether the employer in these COVID-19-related cases had discharged the charging parties due to protected concerted activity in violation of Section 8(a)(1); whether the discharge also violated Section 8(a)(3); and whether the employer threatened to blackball employees due to their Section 7 activity in a statement published in an online news site. Here the memo concluded that the charging parties did not engage in protected concerted activity and/or union activity, and their discharges were lawful. Further, the employer’s online statement was not a coercive threat. The charge should be dismissed.

Letter about gown sharing. Among other things, a charging party’s refusal to work with shared isolation gowns was neither concerted nor for the purpose of mutual aid and protection. Although the charging party discussed the gown issue with another charging party prior to drafting a letter to the employer, there was no evidence that the object of the conversation was initiating, inducing, or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. According to the Division, the letter was solely focused on “personal disgust at the notion of sharing gowns” and the fear of one’s own and one’s family’s safety, which was believed to be at risk.

Refusal to work. A charging party’s refusal to work a scheduled shift was not concerted or for the purpose of mutual aid and protection. While there was an attempt to educate coworkers on the dangers of COVID-19 after a worker was exposed to a patient who tested positive for the virus, there was no evidence that those conversations intended, referred to, or even contemplated group action as a result. The charging party’s refusal to work was based solely on the instructions of their full-time employer to quarantine following exposure at the employer’s facility.

Employer’s online statement. Finally, the employer’s online news post was not an unlawful threat. On its face and in context, the employer threatened to report the charging parties to the State of New York licensing authority for quitting without notice, clearly referencing their roles of providing patient care at the facility. The employer said that the charging parties could not get unemployment because they quit, not that they could not get employment someplace else. It was too speculative to construe the employer’s licensing warning as a blackballing threat against future employment in light of the investigation process and the documented factors considered by the New York State Education Department licensing board in deciding whether to revoke a nursing license for patient abandonment.

Bargaining over COVID-19 layoff decision. In Crowne Plaza O’Hare (13-CA-259749), the July 20, 2020, memo discussed whether an employer violated Section 8(a)(5) by refusing to provide information requested by the union and concluded that it did not, finding the charge should be dismissed. In mid-Mach 2020, the employer announced that because of COVID-19 and the effect on travel, it would temporarily close the hotel and lay off its entire staff. On March 20, the union filed a grievance over the employer’s failure to bargain over its decision to lay off the unit employees and the effects of that decision. In the email submitting the grievance, the union also requested that the employer bargain over the layoff decision and its effects. The employer thereafter gave each unit employee a letter stating that they were being laid off “due to business level” at the hotel.

Decision driven solely by pandemic. The union made a series of information requests ostensibly related to the employer’s layoff decision. Among other things, the Division found that the employer had no duty to provide some of that information because it was not relevant to the union’s statutory duties as the unit employees’ exclusive bargaining representative. The employer’s action had been solely driven by the significant decrease in hotel guests caused by the COVID-19 pandemic, rather than an intention to lower the labor costs associated with its bellmen and airport shuttle drivers. The employer had closed the entire hotel and did not seek to contract out only unit work to a lower-cost provider. Because the decision to temporarily close was not amenable to resolution through bargaining over the unit employees’ terms and conditions of employment, the employer did not violate Section 8(a)(5) by failing to bargain over that decision.

Retaliation for raising coronavirus safety concerns? The July 20, 2020, memo in Marek Brothers Drywall (16-CA-258507) addressed whether the employer violated Section 8(a)(1) by discriminatorily laying off the charging party in retaliation for comments at a group safety meeting, concluding that the charging party did engage in protected concerted activity when they raised concerns about the lack of available resources for employees to wash or sanitize their hands as a precaution against the growing COVID-19 pandemic. However, dismissal still was warranted because there was not enough evidence of knowledge or animus on the record.

Relevance of requested pandemic layoff information. In ABM Business (13-CA-259139), the July 9, 2020, memo considered whether the failure to provide certain information in furtherance of a pending grievance over COVID-related layoffs violated Section 8(a)(5). Here, dismissal was warranted given the union’s failure to articulate the relevance of some information and to explain why it considered another response incomplete.

Among other things, the Division found that as to a request for communications between the company and clients that supported the decision to lay off, dismissal was appropriate. The information was not presumptively relevant because it related to business communications rather than unit employees. Although a manager told a union business agent that a layoff was necessary because business was decreasing and clients were forcing the layoff for want of funds to pay employees, the employer was within its rights when it asserted that it did not understand how the information was relevant. In addition, the union failed to respond with an explanation. “Absent the interactive process, which could have obviated the need for the filing of a charge in the first place, we conclude complaint is not warranted,” the Division wrote.

In-store demonstrations by off-duty employees. The July 28, 2020, memo in Starbucks Coffee (04-CA-252338), addresses whether an “in-store” demonstration by off-duty employees about management practices lost the protection of the NLRA and whether the case was an appropriate vehicle to reconsider Wal-Mart Stores, Inc. (364 NLRB No. 118, Aug. 27, 2016). The Division found the case was not an appropriate vehicle for reconsidering Wal-Mart because it was properly analyzed under a different legal framework that the Board has long applied to determine whether off-duty employees’ conduct inside retail or restaurant establishments is protected (Restaurant Horikawa (260 NLRB 197 (1982), and its progeny). Under this standard, the conduct here was not protected.

Discharge not unlawful. In Cudd Energy Services (28-CA-240949), the July 8, 2020, memo addressed whether the charging party was unlawfully terminated due to a protected concerted Facebook post, or in the alternative, pursuant to unlawfully overbroad social media rules under Continental Group, Inc. (357 NLRB 409 (2011)) and Double Eagle Hotel & Casino (341 NLRB 112 (2004), enforced, 414 F.3d 1249 (10th Cir. 2005)). The post was neither concerted nor for mutual aid or protection, the discharge was lawful, and Continental Group and Double Eagle were not implicated, the Division concluded. Because the charge only alleged unlawful discharge and the Division found the discharge was lawful, it did not reach the legality of the social media policy.

Among other things, the Division found that the charging party’s “profane comment on Facebook,” even construed generously, expressed only a belief that there would be problems with new engines, that the charging party, rather than the supervisors, would be one of the only people capable of handling the problems, and that the charging party didn’t intend to help anyone until the charging party got a raise. The charging party’s opinion did not include a goal of improving employees’ shared working conditions; it only included a goal of securing a raise for the charging party. Thus, the comment was not for the goal of mutual aid or protection.

Unilateral submission to interest arbitration. The June 15, 2018, memo in SMART Local 36 (Bray Sheet Metal) (15-CB-205766) considered whether the union violated Section 8(b)(3) when it unilaterally submitted the parties’ unresolved 8(f) renewal to interest arbitration and refused to respond to the charging party employers’ proposals after the employers’ untimely attempt, following expiration of the 8(f) agreement, to withdraw from a multi-employer group and negotiate their own agreement. Here, the Division concluded that the union did not violate Section 8(b)(3) because the parties’ expired agreement provided for binding interest arbitration, the charging parties were at least arguably bound by the agreement, and there was no indication that the union submitted the dispute to evade its good-faith bargaining obligation.

Bargaining over effects of cease operations decision. In Transcendence Transit II (29-CA-182049), the June 6, 2018, memo addressed whether a successor employer’s failure to acquire a services contract amounted to exigent circumstances that allowed the employer to fail to pay employees’ wages for work performed without first providing notice and an opportunity to bargain with the union. Here, the Division concluded that because the employer ceased operations over the loss of the contract, the employer did not have an obligation to bargain over its decision to cease operations, but it did have an obligation to bargain over the decision’s effects, which included the employer’s failure to pay its employees.

Unilateral layoff during first contract bargaining. The November 8, 2017, memo in Triumph Aerostructures (16-CA-197912) considered whether an employer violated Section 8(a)(1) and (5) by unilaterally laying off 12 employees while the parties were engaged in first contract bargaining, and whether under Total Security Management (364 NLRB No. 106, Aug. 26, 2016), it was appropriate to seek back pay and reinstatement for two of the charging parties who had received discretionary discipline without pre-implementation bargaining prior to the 2017 layoffs.

Impermissibly broad ranking system. The Division concluded that, even assuming the parties were at a good-faith impasse over the layoff and implementation was not otherwise prohibited, the employer violated Section 8(a)(5) by exercising impermissibly broad discretion under its “RAS” ranking system to select employees for the 2017 bond shop layoff. Under the RAS, the employer assigned numerical rankings to each employee in an impacted classification by rating employees’ skills and abilities, and selected employees for layoff starting with the lowest ranked.

Among other problems, the employer’s RAS ranking sheet provided brief narrative descriptions of each category, but did not offer examples of particular employee conduct evaluated or how the employer would determine the appropriate rating for that conduct. The narrative descriptions of each performance rating also failed to describe clearly how the employer would decide what types of work performance under each criteria would deserve a higher or lower ranking. The employer had also adamantly rejected union proposals that would have added additional objectivity to the employer’s selection of employees for layoff, such as seniority, and that would have limited discretion in applying the RAS rankings by making the layoffs subject to grievance and arbitration.

Bargaining to impasse. Further, the Division found that no economic exigency existed that would excuse the employer from bargaining to impasse on the overall agreement before implementing the layoff, and that the union did not clearly and unmistakably waive its right to bargain to overall impasse, under Bottom Line Enterprises (302 NLRB 373 (1991)) and RBE Electronics of S.D. (320 NLRB 80 (1995)).

Discretionary discipline. Finally, the Region should seek make-whole remedies for the two charging parties issued discretionary discipline in violation of Total Security Management.

Joint employers. In Brooks Memorial Hospital (03-CA-148201), the November 3, 2015, memo addressed whether a hospital and the company that manages its onsite pharmacy are joint employers of the pharmacy technicians who work there; whether the union waived its right to bargain with the hospital when it entered into a CBA with the pharmacy management company; and whether it would effectuate the purposes of the Act to proceed against the hospital, given that the union has already reached a CBA with the pharmacy management company.

Here, the Division found that under BFI Newby Island Recyclery (362 NLRB No. 186, Aug. 27, 2015), the hospital and the pharmacy management company were joint employers of the pharmacy technicians. Among other things, the agreement between the entities granted the hospital the right to end the pharmacy technicians’ employment. Further, the union had not waived its right to bargain with the hospital about the pharmacy technicians merely because it had entered into a CBA with the pharmacy management company. Finally, issuing a complaint over the hospital’s general refusal to bargain over the pharmacy technicians would effectuate the policies and purposes of the Act.

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