By Vin Gurrieri

Law360 (November 13, 2020, 8:18 PM EST) -- A construction company doesn't have to face claims that it violated federal labor law when it laid off a worker amid a pandemic-related downturn in business and didn't bring the worker back at a later date, a National Labor Relations Board lawyer said in one of three guidance memos unveiled Thursday.

The advice memo from an unidentified supervisory attorney in the agency's Division of Advice was sent to regional officials last month. It recommended that El Sol Contracting and Construction shouldn't face unfair labor practice charges for laying off a worker during a "purported downturn in business" caused by the novel coronavirus pandemic and failing to recall that individual at a later time.

"We agree with the region's determination that the charge lacks merit for the reasons outlined in the submission and agenda minute," the attorney said in the short letter dated Oct. 8. "Further reinforcing this determination is the fact that the temporary assignment — for which the employer rehired a former employee to complete rather than recalling the charging party — ended in September 2020 and that other employee's employment did not continue thereafter."

The case was officially closed about a week after the memo was issued.

The advice division, which is part of the NLRB general counsel's office, issues advice memos to answer legal questions posed to it by officials in the agency's network of field offices when they come up in specific cases. The memos are published at the general counsel's discretion after the disputes they concern have ended.

The Advice Division on Thursday also made public two other memos, including one from February 2019 that recommended a complaint be issued against Chipotle Mexican Grill for maintaining an illegal workplace rule.

The rules at issue included one that encouraged workers to be "objective" in communications and another mandating that workers pass on "any inquiry, request for information, or subpoena" from government agencies to the company.

While the advice memo, which was penned by then-NLRB Division of Advice head Jayme Sophir, said the communications policy amounted to "a lawful civility rule," the policy pertaining to government investigations flouts the National Labor Relations Act "because employees would reasonably understand it to apply to requests or subpoenas for employees to participate in board or other government agency investigations/proceedings."

Sophir added that the "significant impact" the government investigations rule would have on workers' rights under Section 7 of the NLRA "is not outweighed by a legitimate employer interest" in maintaining the policy.

The legal framework Sophir used to evaluate Chipotle's workplace rules and reach those conclusions was adopted by the NLRB in a 2017 case called Boeing Co., which created a new test for analyzing the legality of employer handbook policies.

That test requires the board to figure out first whether a rule could interfere with workers' ability to engage in protected group activity under Section 7. If it could, the board gives businesses a chance to argue that "legitimate justifications" for the policy outweigh the potential interference.

The NLRB in Boeing also laid out three categories that employers' workplace rules could fall into. The first category consists of rules that are legal in all cases because they can't reasonably be interpreted to interfere with workers' rights or because any interference is outweighed by business interests. The second consists of rules that are legal in some cases depending on their application. And the third consists of rules that are always illegal because they interfere with workers' rights in a way not outweighed by business interests.

In the advice memo involving Chipotle, Sophie said the communications policy falls into the Category 1 bucket laid out by Boeing, while the government investigations rule belongs in Category 3 "because on its face it restricts employees from cooperating in board investigations." The case was closed last month with the case docket saying an informal settlement was struck.

In its third memo, the advice division recommended that a regional office dismiss an unfair labor practice charge brought by Service Employees International Union Local 2015 alleging that Portola Gardens, an assisted living facility, illegally refused to bargain over changes to wages and working conditions.

"We conclude the union's April 2019 charge should be dismissed as untimely, absent withdrawal, because the union knew, or should have known, that the employer was refusing to recognize and/or bargain with it by at least June 2018," the advice memo said.

The union had represented a bargaining unit of service and maintenance employees of the company that preceded Portola. But that company went bankrupt in 2017 and stopped remitting union dues, according to the Sept. 30 advice memo.

Portola started operating the facility in early 2018 and "made significant changes to employees' wages, benefits and other terms and conditions of employment," which spurred the union to file several grievances.

But the Sept. 30 memo said the employer's reaction to a grievance the union filed in April 2018 — it "incontrovertibly reject[ed] any obligation to deduct dues or participate in the grievance procedure, and claimed it wasn't a party to the collective bargaining agreement the union had with the bankrupt entity" — amounted to a "total repudiation of the predecessor's contract."

That "should have put the union on notice in April 2018 that the employer did not recognize the union as the collective bargaining representative of its employees, and that it did not intend to bargain with the union," the advice division said, while noting that the union nonetheless waited until the applicable time period to file a charge had expired.

The case was closed in early October.

--Editing by Stephen Berg.

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