By Brian Alcala

Law360 (September 9, 2020, 12:09 PM EDT) --

Brian Alcala

The most recent National Labor Relations Board guidance documents demonstrate that the current administration is taking a strict approach in prosecuting COVID-19-related labor law violations against employers in these uncertain times.

In these cases, the NLRB's prosecutorial arm, the general counsel, is informing its prosecutors that suspicions, innuendos and presumptions are not enough to prosecute alleged employer wrongdoer cases when employers are attempting to run their businesses during the uncertain COVID-19 times. The following general counsel no-prosecution letters demonstrate this point.

In the Marek Bros. Drywall Co. letter, the general counsel found that even though an employee was terminated after he complained about lack of sanitizer at a group meeting — clearly protected conduct under the National Labor Relations Act — that timing alone (i.e., termination following protected activity) was not enough to warrant prosecution for wrongful termination; additional evidence was required to move forward. In other words, the general counsel wanted timing, plus additional evidence of bad faith animus on the part of the employer.

In another letter concerning Hornell Gardens, the general counsel found that employees coming together and "griping" about terms and conditions of employment, who were then subsequently fired, was also not enough to warrant prosecution.

In this case, the general counsel said that employees getting together and griping about the sharing of nursing gowns, followed by termination, was not enough evidence of a labor law violation. The general counsel wanted timing, plus additional evidence, of animus. And in this case, the additional evidence that the general counsel wanted to see in order to prosecute — i.e., a plan among the griping employees to take action — was not present. Again, timing alone was not enough.

In ABM Business and Industry letter, the union grieved COVID-19-related layoffs due to the employer's decreased business, and pursuant to the grievance process, the union requested information between the employer and its clients evidencing the employer's layoff decision. The employer objected claiming that such evidence was irrelevant. The union presumed such communications were relevant, but the general counsel disagreed.

Without an explanation from the union as to why it needed to see communications between the employer and its clients when protesting COVID-19-related layoffs, the general counsel would not presume relevance. So, here, the general counsel is saying that no presumptions exist in favor of providing unions with employer-related layoff information, absent a valid and specific explanation from the unions.

Also, in the Memphis Ready Mix letter, the union wanted to open up negotiations with the employer mid-contract over paid sick leave and hazard pay. The employer refused and the union wanted the general counsel to prosecute the case.

Yet, the general counsel refused because it found that the existing collective bargaining agreement contained a so-called zipper clause, indicating that no bargaining would take place mid-contract. Here, the general counsel is basically saying that it is reading the parties' agreement strictly and not finding vagueness or ambiguity where it doesn't exist. Per the general counsel, a zipper clause means no mid-contract bargaining, plain and simple.

These general counsel decisions are a departure from the prior administration, which certainly would have prosecuted many, if not all, of the above cases. The takeaway for employers is that the current NLRB administration is going to let employers run their businesses the best they can during these uncertain COVID-19 times, and will prosecute employers when their violations are clear and unmistakable.

Any doubts of employer wrongdoing appear to be decided in favor of the employer. Yet, as employers know all too well, when the administration changes, so will prosecutorial decisions. In the meantime, employers will likely benefit from the more lenient NLRB prosecutions and appear to have some runway to operate their businesses in these difficult times.

Despite the leniency that the general counsel appears to be providing employers for COVID-19-related workplace disputes, employers should never be overconfident. Instead, employers should remain mindful of labor law requirements and avoid close-call violations so as to save the time, costs and distraction required when defending the charges that employees or unions may bring, even if later dismissed by the NLRB.

Close-call violations may include terminating an employee for performance issues shortly after the employee sends an email to her supervisor complaining about COVID-19 safety issues, and in doing so, copying her co-workers. Another close call may be terminating an employee for misconduct shortly after the employee, together with her co-workers, jointly file an Occupational Safety and Health Administration workplace safety complaint.

 To that end, employers should keep the following in mind:

• Address all employee COVID-19 safety requests with urgency and compassion, and very importantly, listen to employee complaints.

• Document employee performance issues and misconduct — for all employees, and not just those who complain about their jobs — in case such documentation is needed to justify legitimate terminations.

• Discipline employees consistently to demonstrate that employees who complain about their jobs are not being picked on unfairly.

• Clearly document any loss in business/revenue when making COVID-19-related layoff decisions and the selection process in deciding who to layoff.

• Do not assume a union's request for information is always relevant; instead, push back when relevancy is not apparent and/or is intended to disrupt the employer's operations.

When the COVID-19 pandemic subsides, the general counsel's apparent leniency in prosecuting employers may subside as well. Remember, everything changes with time, especially the NLRB and its prosecutorial decisions.

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Brian V. Alcala is a partner and deputy leader of the labor and employment group at Nixon Peabody LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

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