NLRB Advice Arm OKs McD's Suppression Of Fight Video

By Braden Campbell
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Law360 (December 14, 2020, 8:24 PM EST) -- A Chicago McDonald's did not violate federal labor law by telling workers to delete video of a fight between customers and workers over wait times and masking rules, a National Labor Relations Board attorney said in one of three new guidance letters tied to the COVID-19 pandemic.

The restaurant did not violate workers' rights by enforcing its rules against workplace video recordings because it did not suppress union activity when it did so, an attorney in the agency's advice division said in the Nov. 3 letter. The advice division directed the agency's Chicago office not to bring an unfair labor practice case against the restaurant.

"Although two employees engaged in this activity, there is no evidence that they coordinated their actions in any way," the advice division said. "Nor is there any evidence that any employees discussed workplace safety issues arising from the fight, much less sought to induce or encourage group action."

The NLRB periodically issues guidance letters from the advice division, a unit within the Office of the General Counsel that answers novel legal questions posed by officials in the agency's regional offices. In two other pandemic-related letters released Monday, the advice division said a pipe manufacturer did not violate federal law by refusing a union's request to bargain over hazard pay while their contract was active, and that a nurses' union did not bargain in bad faith when it declined some contract talks with a Philadelphia hospital.

In the McDonald's case, the agency's Chicago office asked how to handle a charge by the Service Employees International Union's fast food organizing arm accusing the restaurant of stifling workers' organizing rights.

In July, two workers recorded video of a fight between workers and customers and posted their recordings to social media, according to the letter. A manager later told them to turn the videos over to supervisors and delete the files and posts under company policies, but did not discipline the workers.

The advice division told the Chicago office not to bring a case because "there is no evidence the employees acted for mutual aid or protection," as the National Labor Relations Act empowers workers to do. Nor did the company give workers the impression that it meant to discourage organizing activity or would in the future, the division said.

In another letter, the advice division told the New Orleans office not to accuse an Arkansas pipe maker of violating its duty to bargain with a Teamsters local by refusing its request to negotiate over hazard pay.

NLRB case law holds that employers and unions are not obligated to bargain over issues covered in active contracts absent a "reopener provision" empowering parties to demand midterm negotiations. Additionally, parties often negotiate "zipper clauses" explicitly foreclosing talks over issues not covered by their contracts.

In this case, the parties' collective bargaining agreement addresses wages, the advice division said in the Nov. 13 letter. To the extent the wage provision arguably leaves open the subject of hazard pay, a zipper clause blocks talks, it said.

In the final pandemic-related letter, the advice division told the Philadelphia office not to bring a suit alleging the Pennsylvania Association of Staff Nurses and Allied Professionals stonewalled contract talks with Albert Einstein Hospital by refusing to bargain remotely. Though the union declined invitations to negotiate in March and May, it continued to bargain via email through August, when the parties resumed in-person talks, the advice division said in the Nov. 18 letter.

The agency also released a January 2013 letter by the advice division's then-leader Barry Kearney, saying Gamestop violated the NLRA by making workers give up their rights to file class actions. The U.S. Supreme Court has since said so-called class action waivers do not violate workers' labor rights.

Because the NLRB only releases advice memos after it closes the cases the letters address, it sometimes makes letters public long after they're sent.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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