Labor Relations Update

NLRB: Changes in Workplace Policies Not Applicable to Union Employees do not Constitute a Unilateral Action by the Employer

As the NLRB continues to navigate the uncertainty in the work landscape during the ongoing COVID-19 pandemic, it seems to have stayed largely on course, regularly issuing decisions touching on a number of important topics under the Act. One such important topic that the Board has devoted recent attention to has been the issue of unionized employers’ unilateral actions.  We have discussed previously how the Board abandoned the “clear and unmistakable” waiver standard in favor of the “contract coverage standard.

The Board recently addressed the issue of whether a unilateral change actually occurred in Huron Valley-Sinai Hospital, 369 NLRB No. 64 (April 28, 2020).

Factual Background

The union was certified as the exclusive bargaining representative for all full-time and regular part-time registered nurses at the employer’s acute care hospital in 2016. The union and the employer engaged in collective bargaining starting in 2016 and reached a collective bargaining agreement in 2018. During this period of collective bargaining, the union filed a number of unfair labor practice charges against the employer.

One allegation was that the employer changed its meal and break program. The nature of the allegation stemmed from a request by the union to see the break policy.  The human resources representative mistakenly sent a corporate policy that stated violations of the policy could subject employees to discipline or discharge.  The actual policy in place at the facility contained no such language about discipline. The human resources representative immediately realized a mistake had been made and sent the union an email stating there was a mistake and attaching the correct policy. The human resources representative also followed up with additional emails when she did not hear back from the union.

Despite this background, the NLRB Region issued a complaint asserting that the employer implemented a new break policy.

After a hearing on the charges, the Administrative Law Judge found that the employer engaged in several unfair labor practices, a number of which stemmed from the employer’s unilateral actions impacting terms and conditions of employment without first giving the union notice and an opportunity to bargain.  As part of the case, the ALJ found that the employer had implemented a new break policy without bargaining with the union.

Specifically, the ALJ found that the employer’s parent company developed and implemented a new meal and rest break policy, without first notifying and discussing with the union, while the employer and the union were in negotiations for their first collective bargaining agreement. The policy included provisions that resembled the policy the employer had in place since 2014, but it added a provision announcing the possibility of discipline for the repeated missing of meals without prior approval by the department manager. The ALJ found that the parent company’s new meal and rest break policy applied to unit bargaining employees and thereby constituted a unilateral change in terms and conditions of employment in violation of the Act.

The employer appealed.

Analysis

On review, the Board found that the parent company’s meal and rest break policy did not apply to unit employees because the union was informed in writing by the employer that no changes had been made to the break policy governing unit employees. Uncontroverted testimonial and documentary evidence presented at the hearing, yet apparently not considered at trial, showed that the employer’s chief human resources officer accidentally sent the union a copy of the parent company’s new meal and rest break policy when the union requested a copy of the employer’s current break policy. After the mistake was noticed, the human resources officer followed up with the union via email noting her mistake and sending the 2014 policy, which she clarified was still in effect for unit employees. Receiving no response from the union, the employer sent a few follow up emails assuring the union that no changes had been made to the status quo for the unit employees, that the parent company’s 2018 policy applied to non-union employees only, and that the employer was continuing to apply its 2014 break policy to the union employees.

Reviewing this documentary evidence and citing the lack of evidence that the employer had implemented or applied the parent company’s 2018 break policy to bargaining unit employees, the Board held that the employer did not unilaterally change its meal and rest break policy in violation of the Act. The human resources officer’s error in sending the union the wrong policy did not effect a change in the employer’s policy for its union employees, especially where the officer corrected her error promptly. Finding that the employer did not unilaterally change the unit employees’ terms and conditions of employment, the Board dismissed this allegation.

Takeaways

This is one of those cases that is not likely to repeat itself often. The evidence apparently was undisputed: no change to employee terms and conditions had occurred. While the union was sent the wrong policy – one that looked like a change had occurred – the mistake was corrected immediately and in writing.  Despite this, the union filed a charge over the issue and a violation was found on only part of the story.

It is scary that a violation of the law can be found when there exists evidence that completely refutes it.  The fact that the employer had been under scrutiny for its dealings with the union likely did not help.

The main takeaway here is that it is always good practice to document, document, document, all interactions that have potential legal ramifications.  Here, the employer was responding to an information request from the union.  The union took the information (the mistaken policy) and used it to support an unfair labor practice allegation.  The employer ultimately was able to defeat the allegation by showing documents that refuted the allegation. Had the human resources representative not corrected the mistake in writing, then the issue would be one of credibility; it would have been much more difficult to defeat the charge without documentation.  Also, the fact that the human resources representative followed up with additional emails when the union did not acknowledge the mistake had been corrected was very helpful.  This is not a sweeping legal decision but it does reinforce the notion that good practices, such as documentation and recordkeeping, can go a long way in avoiding legal disputes.

NLRB Reaffirms Limitations on Employers’ Ability to Solicit Employee Assistance in Anti-Union Campaigning and Confidentiality Restrictions

In maintaining business as usual as best it can amidst the ongoing COVID-19 crisis, the Board recently decided an issue concerning limitations on employer campaign tactics, and an employer’s limits in restricting discussions with employees related to terms and conditions of employment.

In First American Enterprises d/b/a Heritage Lakeside, 369 NLRB No. 54 (2020), the Board was presented with, among other issues, the question of whether an employer could encourage employees to convince coworkers to vote “no” in representation elections. The Board reaffirmed that an employer may solicit employees to convince others to vote “no” in an upcoming union election, only if the request is publicly made to a broad swath of employees, not on an individual basis, and preferably in written form, which is “indirect” and “impersonal.”

The Board also restated its recent decision that employer-imposed confidentiality limitations on employees’ discussion of terms and conditions of employment is purposefully limited to ongoing employer investigations; otherwise such restrictions violate the Act.

Factual Background

After consolidating the staff and patients at its two separate nursing homes into one facility, the employer withdrew recognition from the Union that represented employees from one of its facilities under the argument that the Union no longer had majority support in the new, combined workforce. The Union filed a representation petition, an election was held, and the vote count split right down the middle, meaning the Union did not attain majority support.  The Union filed a number of objections, including with respect to a statement made by a supervisor to her subordinate on the morning of the election, alleging that the statement constituted unlawful interference in violation of Section 8(a)(1). The supervisor told the employee that she had to help her “work on” another employee to get that employee to vote “no” in the election. The Administrative Law Judge ruled this conduct to be lawful.

Analysis

The Board overruled the ALJ and concluded that the employer’s conduct violated the Act.  The Board acknowledged that an employer may lawfully seek the assistance of its employees in convincing other employees to vote against union representation, but only under certain circumstances.  Citing decades-old precedent, the Board reaffirmed the principle that such requests for assistance may be made only if such request is “generally made to all employees through [an] indirect and rather impersonal medium . . . rather than directly to selected employees by their supervisors.”  The rationale for this limitation is fairly straightforward.  Supervisors can exert extensive pressure on their subordinates, particularly during an organizing campaign, and the Board’s rule here seeks to level the balance of power.  The Board’s guidance that such an appeal should be made in an “indirect and rather impersonal medium” suggests that a written, rather than verbal, appeal is preferred—presumably because it is less likely written campaign material can be deemed coercive than an in-person meeting.

The facts in Heritage Lakeside did not fall within the limited exception.  Here, the supervisor directly approached an individual employee and asked for her assistance in persuading a fellow coworker to vote “no”. The Board found that the direct solicitation by an employee’s supervisor had a reasonable tendency to coerce and interfere with the employee’s protected rights under the Act.

Limits on Employer Confidentiality Restrictions

The Board also took the opportunity to reaffirm Board precedent as to employer confidentiality limitations on an employee’s right to discuss terms and conditions of employment with other employees.

Here, a supervisor approached a subordinate employee and asked her if she had told another employee that she would be fired unless she joined the union. After the employee denied making the statement, the supervisor told the employee he believed her and then asked her to keep their conversation confidential.  Based on the totality of the circumstances surrounding the interaction between the supervisor and the employee, the Board found that the conversation did not amount to an unlawful interrogation into the employee’s union activity.

However, the Board held that the supervisor’s instruction that the employee keep the conversation confidential was unlawful because it violated the employee’s Section 7 right to discuss terms and conditions of employment with other employees. Citing to its recent 2019 decision in Apogee Retail LLC d/b/a Unique Thrift Store, the Board reiterated that “employees not involved in a disciplinary investigation are free to discuss discipline or incidents that could result in discipline without a confidentiality limitation, and employees who are involved may also discuss them, provided they do not disclose information that they either learned or provided in the course of the investigation.” Accordingly,  the employee had a right to discuss the conversation with other employees because the conversation concerned union activity and terms and conditions of employment, and the employee was not the subject of or a participant in a disciplinary investigation.

Takeaways

Many Board decisions fail to offer bright-line guidance, as myriad NLRA principles are fact-intensive and the outcomes swing based on the political predilections of the Board majority at the time the issue is presented.  Heritage Lakeside is generally no different, except for providing clarity as to what employers may not do.  Employers cannot attempt to use employees as advocates during a union campaign to convince their colleagues to vote “no” if the method for garnering such support is based on individual conversations between supervisors and employees.

Public appeals to a mass audiences, preferably in written form, likely would be permitted. The question then becomes whether the mode of communication is sufficiently “indirect and…impersonal.”  On the spectrum, campaign flyers or letters distributed to a group of employees reasonably should be permitted, whereas an in-person captive audience speech may not be—depending on the size of the audience, the speaker and what is said during the meeting.

The Board also underscored its recent decision in Apogee Retail LLC (discussed here) that employer confidentiality policies must be limited to ongoing disciplinary investigations to avoid conflicting with employees’ exercise of Section 7 rights.

Update: NLRB Delays Implementation of Final Election Rule Changes to July 31, 2020

As we reported here, on April 1, 2020, the NLRB published its final rule making three amendments to its rules and regulations governing union elections (relating to the Board’s blocking charge policy; timing and notice requirements attendant to voluntary recognition; and 9(a) recognition in the construction industry).  The rule was expected to be effective as of May 1, 2020.

As a result of the ongoing national emergency caused by COVID-19, the NLRB announced on April 8, 2020 that the new effective date for the final rule is July 31, 2020 — an extension of 60 days.  The effective date of these new rules is important because one of the key changes from the original rule published in August 2019 and the final rule published earlier this month, is that the changes to the voluntary recognition requirements and 9(a) recognition in the construction industry apply only from the effective date and thereafter.  Unlike other NLRB rules and NLRB decisions that may apply to retroactively, the three final election rules will not.

NLRB: Employee’s Profanity and Threatening Comments Insufficient to Forfeit Protections of the Act

In the past, we frequently have discussed protected activity and how an employee’s profane outburst or deliberate conduct may render otherwise protected activity, “unprotected.”  However, as this recently issued decision reinforces, the Board is usually quite tolerant of impulsive behavior and outbursts in response to legitimate grievances over the terms and conditions of employment.

Plant Worker Refuses to Sign Dues-Checkoff Form

In Alle Processing Corp. 369 NLRB No. 52 (2020), the employer, a manufacturer and packager of kosher food products for hospitals, entered into a bargaining relationship with a local union.  The parties’ CBA contained a union-security clause requiring that all bargaining unit employees become members of the union and that the union could request the employer to fire employees who failed to pay dues and initiation fees.  The contract also contained a checkoff clause authorizing the employer to deduct dues from employee paychecks and remit the money directly to the union.  Dues deductions are voluntary and the each employee must voluntarily execute a checkoff authorization form.

On multiple occasions, union representatives came to talk with employees to get them to sign dues deduction authorization forms.  Though their efforts succeeded with nearly all employees, a few refused to sign.  As a result, the plant’s manager held individual meetings with the reluctant individuals, and soon only a lone holdout remained.  In an attempt to convince the employee, the employer held two additional meetings in the manager’s office.

Though the employee calmly declined to sign during the first meeting, events escalated in the second.  After the employee was eventually convinced to sign the form, a provocative comment from management caused him to raise his middle finger at the plant manager, who immediately threatened him with termination.  The employee responded, “I can get to you whenever I want…whenever I want I can find you…this is how I work, I’m a streets guy.”  The employee then grabbed a small carousel containing coffee accessories, motioning as if to throw it, but was stopped and left the meeting.  He was terminated and left the plant without further incident.

Refusing to Sign Dues-Checkoff Form is Protected Activity

Citing numerous Board precedents, the administrative law judge found that it is well settled that “the Act guarantees to each employee the right to determine for himself, free from coercion, whether he shall sign a checkoff authorization or not.”  Thus, the employee’s repeated refusals to sign the dues-checkoff authorization, both prior to and during the meetings with employer representatives, constituted protected activity.

Employee’s Outburst Did Not Forfeit the NLRA’s Protections

The administrative law judge applied the following four factor set forth in Atlantic Steel Co., 245 NLRB 814, 816 (1979) to determine whether the employee’s conduct forfeited the protections of the Act: 1) the place of the discussion; 2) the discussion’s subject matter; 3) the nature of the outburst on the part of the employee; and 4) whether the outburst was provoked by the employer’s unfair labor practices.  On review, the Board affirmed the ALJ’s conclusion that all four factors favored a determination that the employee’s conduct retained the protection of the Act.

The Place of the Act

The meeting where the outburst took place occurred within the plant manager’s office as opposed to a work area.  Only managers or supervisors were present, and there is no evidence that any employees saw or heard anything that occurred within.  In fact, they worked in an entirely separate building.  In other words, the employee’s acts of defiance did not occur in front of other employees which would be more difficult for the employer to tolerate.

The Subject Matter of the Discussion

The employer admitted that the subject matter of the meeting was to discuss the employee’s refusal to sign the dues-checkoff form.  The employee long had been an opponent of the union, refused to sign the form on prior occasions, and therefore, his conduct occurred during his “attempted assertion of a fundamental right under the Act.”

The Nature of the Outburst

The Board upheld the ALJ’s credibility determinations regarding competing accounts of the employee’s conduct, noting that credibility determinations could not be overruled unless “the clear preponderance of all the relevant evidence convinces us that they are incorrect.”  While the Board did not “condone” the employee’s use of an obscene gesture and profanity, it emphasized that the employer had no policy against profanity, and previously tolerated profanity by employees, even if directed at supervisors.  The Board further found that the employee’s statement that he was a “streets guy” was too vague to constitute a threat.  Therefore, the nature of the employee’s conduct did not militate against a finding that it remained protected under the Act.

Whether the Outburst was Provoked

The Board affirmed the ALJ’s finding that the employee’s conduct occurred in response to coercive conduct by the employer.  Numerous precedents hold that attempts to coerce employees to execute dues-checkoff authorizations or leading employees to believe such dues are mandatory clearly violate Section (8)(a)(1) of the Act.

Takeaways

Taken in isolation, the employee’s outburst of profanity and perceived threats of physical harm may appear too egregious to remain protected under the Act.  However, this case cautions that such actions must be considered in the context of the regular practices at the employee’s workplace.  Particularly where the outburst occurs away from the eyes of uninvolved employees and in response to clearly unlawful action, the Board may find such conduct retains protection under the Act.

BREAKING: NLRB Announces Representation Elections Will Resume April 6, 2020

On March 19, 2020, the NLRB announced that it was suspending all representation elections through April 3, 2020.  The Board stated that the suspension was necessary to ensure the safety of its own employees, as well as those members of the public involved in the elections.

Today, the Board announced that it will not extend the temporary suspension past April 3, 2020, and elections will resume beginning Monday, April 6, 2020.  In a short statement, the Board indicated that over the last two weeks, the General Counsel had developed solutions to the logistics problems caused by the closure of several Regional Offices and limited staffing at others.

The Board concluded that going forward, elections will resume in a “safe and effective manner, which will be determined by the Regional Directors.”  Though the announcement provided no further information on what procedures will be required, additional guidance is sure to come.  Early indications from Regional Offices suggest that mail ballot elections may become standard until the pandemic has passed.

We will keep you updated on any new developments.

NLRB Issues Final Rule Reworking Union Election Procedures

Although, like everyone else, the personnel at the NLRB have been consumed with the impact of the COVID-19 pandemic on daily operations, including the ability of its Regional Offices to function and serve the public, the Board nevertheless continues moving forward on non-COVID-19 matters as well.

On March 31, 2020, the NLRB announced it had finalized three amendments to its rules and regulations regarding union election and recognition procedures.  The rule was finalized on April 1, 2020, and will take effect on May 31, 2020.

The Board implemented the final rules with minor modifications from the proposed rules published on August 12, 2019 (which we reported on here) based on the 80 comments it received.  The rules are intended to “better protect employees’ statutory right of free choice on questions concerning representation.”

The Board also published a fact sheet that provides a helpful summary of the final rules and the differences from the originally-proposed rules.

The key takeaways from each of the three final rules are discussed below, including the changes from the original notices of proposed rulemaking from last year.

Replacing the Blocking Charge Policy to Expedite the Election by Implementing Vote-and-Impound or Vote-and-Count

A major criticism of the current election rules has been the ability of (mostly) the petitioning union to block, sometimes for months or years, an election based on the filing of charges alleging that the employer committed unfair labor practices.  The process for investigation and resolution of the charges could leave employees in limbo as to a decision.

Now, the final rule eliminates the ability of a party to block an election merely by filing charges.  Despite a pending ULP charge, the election will proceed as scheduled, and the votes will either be impounded (i.e., not counted) or counted, depending on the nature of the alleged unfair labor practice:

  • Vote-and-Impound: Where the party alleges a violation of 8(a)(1) and (2) or 8(b)(1)(A) that challenges the circumstances surrounding the petition or the showing of interest submitted in support of the petition; or where an employer has allegedly dominated a union in violation of 8(a)(2) in order to disestablish a bargaining relationship.
  • Voteand-Count: All other unfair labor practice charges.

Importantly, regardless of the nature of the charge, the certification of results, including, where appropriate, a certification of representative, will not issue until the ULPs are finally disposed of, and the effect on the election is determined.

Changes from Proposed Rule in Final Rule:  The August 2019 proposed rule established the vote-and-impound procedure for all ULPs, whereas now, only those ULPs that address the very legitimacy of the election process necessitate a vote-and-impound procedure.  As a result, for most ULP charges, the election results will be publicized to all interested parties, and even though the election results will not be certified until the ULPs are resolved, the union will know whether it was acting “with the support of or in the teeth of employee’ wishes,” which the Board hopes will facilitate settlement between the parties.

Reinstating Dana Corp. Challenges to Voluntary Recognition

In Lamons Gasket, Co., 357 NLRB 739 (2011), the Board, overruling Dana Corp., 351 NLRB 434 (2007), established that an employer’s voluntary recognition of a union immediately barred the filing of an election petition for between 6 months to one year after the parties’ first bargaining session.

Now, the Board has overruled Lamons and reinstated Dana Corp., providing that where an employer voluntarily recognizes a union pursuant to NLRA Section 9(a), it must post a notice to its employees reflecting the same, and employees may challenge such recognition if they petition for a secret-ballot election within 45 days thereafter.  If no petition is filed during the 45-day notice period, the voluntary recognition bar would operate for “a reasonable period of time” afterwards.

Changes from Proposed Rule in Final Rule:  Unlike in the proposed rule from August 2019, the final rule:

  • Applies only to an employer’s voluntary recognition on or after the effective date of the rule, and only to the first collective bargaining agreement reached after such voluntary recognition;
  • Permits either the employer or the union to notify the NLRB Regional Office that recognition has been granted (the prior rule required both parties to do so);
  • Specifies the employer’s notice to employees advising them of the 45-day notice period must be posted “in conspicuous places, including all places where notices to employees are customarily posted”;
  • Eliminates the rule’s specific reference in the notice as to the right to file a “decertification or rival-union petition” and just refers to a “petition”;
  • Requires an employer to distribute the notice to unit employees electronically if the employer customarily communicates with its employees by such means; and
  • Provides the wording of the notice to employees.

For Construction Industry Employers, Requiring Evidence of Majority Employee Support for Section 9(a) Recognition in Addition to Contractual Language

In the construction industry, NLRA Section 8(f) allows employers and unions to form a collective bargaining relationship through what are often called “pre-hire” agreements, even absent the support of a majority of employees.  8(f) relationships last as long as the term of the contract, unless the parties agree to extend.  All other employer/union relationships, which are formed pursuant to NLRA Section 9(a), last indefinitely, even after the CBA term expires, unless the union no longer maintains majority support of the workforce.

Under Staunton Fuel, 335 NLRB 717 (2001), a union could convert a Section 8(f) agreement with a construction industry employer to a “full” Section 9(a) agreement through contract language alone – e.g., by including language in the CBA that agreement was subject to Section 9(a) of the NLRA and the union has majority support of the bargaining unit.  Indeed, many unions have insisted on such language in construction industry agreements to maintain their foothold on the relationship.

The Board’s final rule overrules Staunton, and conditions Section 9(a) status on “positive evidence” that the union demanded recognition, which was accepted by the employer and supported by a majority of the employees.  The Board clarified that the required “positive evidence” would be the same showing necessary for unions in non-construction industries to establish recognition.  In other words, contract language alone is insufficient.

Changes from Proposed Rule in Final Rule:  Importantly, like the voluntary recognition bar amendment, the Board clarified that this rule applies only to voluntary recognition extended or any CBA entered into on or after the effective date of the rule, as the Board hoped to minimize the impact on longstanding bargaining relationships.  As a result, construction industry employers with existing CBAs referencing NLRA Section 9(a) cannot rely on this final rule to transform their collective bargaining relationship with the union to 8(f).

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The Board’s finalization of these rules addressing union election procedures continues its mission of adopting the principles set out in its ambitious rule making agenda from May 2019.

Already, the Board has updated the representation-case procedures that are expected to go into effect on May 31, 2020; and announced a proposed rule regarding the “employee” status of students, and accepted all comments as of February 28, 2020.  All that is left from the May 2019 agenda is a proposed rule regarding the standards for access to an employer’s private property.

As always, we will continue to monitor any developments and keep you updated.

CARES ACT Relief for Mid-Size Businesses Comes with Important Union Related Conditions

Mid-sized businesses (defined as 500 to 10,000 employees) impacted by the Coronavirus may be able to obtain relief loans under the COVID-19 stimulus law, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), but only if non-union employers agree not to oppose the unionization of their workforce for the term of the loan, and if unionized employers agree not to “abrogate” existing collective bargaining agreements for the term of the loan and 2 years following loan repayment.

First, for the entire term of a Treasury Department loan, an employer must agree to “remain neutral in any union organizing effort.”  In other words, if a union comes knocking, those businesses cannot oppose unionization.  The bill does not define or elaborate on the concept of employer neutrality or how such obligations would be enforced (although future regulations may provide more detail).  Importantly, it does not require “card check” agreement – allowing an employer to insist on a secret ballot election at the National Labor Relations Board.

Second, for the entire term of the loan and 2 years following loan repayment, businesses must certify that they “will not abrogate existing collective bargaining agreements.”  The word “abrogate” is not defined in the statute, there has been no regulatory guidance to date as to its scope (or how it will be enforced) and it is not clear whether the statute imposes additional obligations beyond those that are imposed under the National Labor Relations Act.

For more information on the Coronavirus, visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

NLRB General Counsel Issues Guidance on the Duty to Bargain During Emergencies

On March 27, 2020, NLRB General Counsel Peter Robb issued Memorandum GC-20-04 to provide guidance to NLRB regional offices and the general public.

Acknowledging that “we are [currently] in an unprecedented situation,” the General Counsel provided summaries of several NLRB decisions discussing how, if at all, an employer’s duty to bargain under  NLRA Section 8(d) may be affected by emergencies impacting the public at large and a particular employer.

GCM-20-04 is limited to the duty to bargain.  It does not address other NLRA issues that may arise during an emergency and should not be relied on for other purposes.  Additional guidance may be provided in the coming weeks.

The Economic Exigency Exception to the Duty to Bargain

During times of economic hardship, employers often consider layoffs and reductions of working hours.  Unless permitted by the management rights clause or other provisions of a collective bargaining agreement, such decisions affecting unionized employees are mandatory subjects of bargaining, meaning that an employer must bargain to a good-faith impasse before implementation.  Ordinarily, this bargaining obligation extends to both the decision to lay off and its effects on the employees.

Citing recent cases applying the principles set forth in Bottom Line Enterprises, 302 NLRB 373, 374 (1991) and RBE Electronics of S.D., 320 NLR 80, 81 (1995), the General Counsel noted that  an exception to the general rule may exist if the employer can demonstrate that “economic exigencies compel[led] prompt action,” emphasizing that the exception is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” Port Printing & Specialties, 351 NLRB 1269 (2007).

Broadly speaking, the cases teach that the employer must be able to demonstrate that the exigency was caused by external events beyond its control or were not reasonably foreseeable.  The analysis is very fact-specific, with particular attention given to the exigent circumstances and whether bargaining over the employer’s decision was possible or would be fruitful.  Even if decision bargaining would be excused, “effects” bargaining will be required. However, when time is of the essence, negotiations “need not be protracted” to discharge the employer’s duty.  RBE Electronics of S.D., 320 NLRB at 82.

What Qualifies as an Economic Exigency Sufficient to Excuse the Duty to Bargain

As already noted, the Board has generally taken a narrow approach in applying the economic exigency exception to an employer’s decision bargaining obligation.

At one end of the spectrum, where an employer experienced acute financial difficulties that had been building over time the Board held that the duty to bargain over the layoffs was not excused.  Thus, in Hankins Lumber Co., 316 NLRB 837 (1995), the Board found that the employer violated its duty to bargain by unilaterally laying off employees at a lumber mill due to a months-long log shortage.  Critical to that finding was that there was no “precipitate worsening” of the problem that required immediate action.

However, and possibly most on-point for the present circumstances, the Board found economic exigencies sufficient to create a “dire financial emergency” excusing the employer’s duty to engage in decision bargaining in the context of a public emergency similar to the COVID-19 pandemic.  In the aftermath of 9/11, the Board held, in K-Mart Corp., 341 NLRB 702 (2004), that the precipitating, unforeseen business impact on the retailer excused its duty to bargain over  the resulting layoffs.  In this case, the retailer experienced a 60% drop in business at one facility and overall losses so devastating that it was forced to file for bankruptcy by the start of 2002.  The ALJ held that these circumstances were sufficient to excuse K-Mart’s failure to bargain over its decision to lay off employees under the Bottom Line test.  The Board adopted the judge’s findings and conclusions.

Notwithstanding Economic Exigencies, Employers Must Still Engage in Effects Bargaining

Even where the Board has held that exigent circumstances may justify an employer’s unilateral action to implement a layoff, the duty to bargain regarding the effects of the layoff remains.  This distinction, highlighted by several cases analyzed in GCM-20-04, is due to the fact that while a decision to lay-off employees may be required to stem losses due to an imminent emergency, there is often ample time to discuss a layoff‘s effects after the emergency has been addressed.

The distinction between the duty to bargain over the decision to lay off and its effects has been emphasized in cases involving public emergencies.  In Port Printing & Specialties, 351 NLRB 1269 (2007), the employer closed operations and laid-off all employees in response to a mandatory evacuation due to Hurricane Rita. The Board found that the evacuation order compelled the employer’s layoffs, but did not excuse it from failing to bargain over the effects of the layoff after the hurricane, including the employer’s use of non-unit personnel to resume operations after the storm had passed.

The same holds true in situations where the economic exigency is specific to the employer, e.g., the inability to secure financing necessary to continue operations.  See Cyclone Fence, Inc., 330 NLRB 1354 (2000); Raskin Packing Company, 246 NLRB 78 (1979).

The rationale of these cases is that even if exigent economic circumstances compel lay-offs or other unilateral action, the obligation to engage in effects bargaining is not extinguished.

Unilaterally Implementing Health-Related Policies

One case discussed in GCM-20-04 addresses the employer’s ability to unilaterally implement health and safety policies in an emergency, which seems to bear particular relevance to the current challenging circumstances attendant to the COVID-19 pandemic.

In Virginia Mason Hospital, 357 NLRB 564 (2011), the hospital implemented a policy requiring both union and non-union nurses who had not received a flu shot to either take antiviral medication or wear a protective mask. The ALJ found that the employer’s policy was excused by an exception to the duty to bargain set forth in Peerless Publications 283 NLRB 334 (1987) because the employer’s policy (1) went directly to its core purpose of protecting patients’ health; (2) was narrowly tailored to achieve the aim of reducing the spread of influenza; and (3) was limited to registered nurses who declined other flu-prevention options.  Although the ALJ found that the Peerless exception was satisfied here, the Board reversed, noting that the Peerless exception is limited to the facts of that case, which involved a newspaper’s implementation of a code of ethics that related to First Amendment concerns, and should be narrowly applied given the constitutional issues in that case.

The General Counsel’s inclusion of this decision is noteworthy, as is his reference to Member Hayes’ dissenting opinion that the Peerless exception is designed to protect decisions related to the “core purpose of its enterprise,” as here, and in this case the policy related to protecting patients and was narrowly tailored.  This could foretell how a Republican Board may deal with a similar issue if presented today.

An additional limiting factor in Virginia Mason Hospital was that while the flu has always been a challenging healthcare issue, particularly in the hospital setting, it pales in comparison to the current COVID-19 pandemic; the dangers that exist if employees fail to take proper healthcare precautions; and the presence of federal, state and local guidelines that may require employers to take health-related precautions, mooting any bargaining obligation.

Takeaways

Though the Board traditionally has applied the “economic exigency” exception to the duty to bargain narrowly, it has been satisfied where unforeseen events caused a major economic effect on the employer, such as a hurricane, 9/11, major sudden downturn in business, or loss of credit.  Reading between the lines of GCM-20-04, the General Counsel appears to have signaled that the current pandemic may satisfy this standard, having referred to the coronavirus as an “unprecedented situation.”  Nevertheless, each employer’s obligation will depend on the impact of the pandemic and related federal, state and local orders affecting its particular business operations.

Even if the exception applies, employers must still provide notice and an opportunity to bargain over the effects of the employer’s decisions, but such bargaining need not be protracted.

Employers should carefully evaluate whether they may implement health and safety policies without bargaining.  GCM-20-04 highlights a decision where a hospital was found to have violated the Act by refusing to bargain over certain requirements imposed on nurses to prevent the spread of the flu.  But the present circumstances may be far more exigent than in Virginia Mason Hospital, given the potential dangers of the spread of COVID-19 and employer obligations to implement health and safety requirements based on governing law.

Finally, employers must evaluate their bargaining obligations in the context of the governing CBAs for union employees, and any handbooks and past practices applicable to nonunion employees, to avoid the risk of disparate treatment claims based on union membership.   Employers who act consistent with their written policies, CBAs and past practices will be more likely to prevail on such discrimination claims.

For more information on the Coronavirus, visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

NLRB Decides to Assert Jurisdiction Over Charter Schools On A Case By Case Basis

The NLRB continues to operate during the novel coronavirus crisis. Regional offices are largely working remotely as is the rest of the country.  The Board itself continues to issue decisions, albeit at a slower pace than usual.  On February 4, 2019, the NLRB invited interested parties to file briefs addressing whether the agency should decline to assert jurisdiction “as a class” to charter schools, which are private educational institutions granted a “charter” to operate pursuant to state public education law.  Generally speaking, unions do not like the NLRB to assert jurisdiction over charter schools because under federal law employees are entitled to a secret ballot election on the question of union representation; many state public education laws only require a “card check” to establish recognition.

On Wednesday, March 25, 2020 the NLRB affirmed a decision by the Regional Director which held that a New York charter school fell under Board jurisdiction.  KIPP Academy Charter School, 368 NLRB No. 48 (2020).  The union appealed the decision, arguing that under Section 14(c)(1) of the NLRA, charter schools should be exempt from Board jurisdiction as a class, because they are statutorily-exempt public entities.  This appeal led to the NLRB’s request for briefs.  Board law in this area contains cases where the Board asserts jurisdiction and cases where the Board declines to assert jurisdiction.

In a short decision, the NLRB held that, after consideration of all arguments made by parties it would not decline jurisdiction over charter schools as a class.  Beyond its ruling, the NLRB provided no explanation for its decision.

So, for the time being, the Board will continue to decide whether to assert jurisdiction over charter schools using its analysis of Section 14 of the Act on a case by case basis.

NLRB Suspends Representation Elections through April 3, 2020 due to COVID-19 Pandemic

The NLRB announced today in a press release that “[d]ue to the extraordinary circumstances related to the COVID-19 pandemic,” all representation elections, including mail ballot elections, will be suspended for the next two weeks, through and including April 3, 2020.  This means that any representation elections previously scheduled from now through April 3, 2020 will be postponed until a future date that will be determined by the Regional Director upon consultation with the parties.  The NLRB noted that it is continuing to monitor this situation and will determine whether an additional extension may be necessary.

The NLRB undertook the extraordinary but necessary step of postponing currently-scheduled elections to ensure the health and safety of its employees and the members of the public who are involved in the election process.  In recent days, the NLRB temporarily closed its Regional Offices in Cleveland and New Orleans, as well as Manhattan, Detroit and Chicago due to possible COVID-19 exposures, and announced an agency-wide telework policy through at least April 1, 2020.  Pursuant to the Board’s telework policy, the Agency’s Regional Offices will continue to handle incoming and outgoing mail, Agency employees will continue to perform work remotely, and Information Officer duties will be completed by telephone or electronic means.

We will continue to keep you posted as new guidance is issued.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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