New NLRB Advice Memos Tackle COVID-19 Questions

By Braden Campbell
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Law360 (July 16, 2020, 4:10 PM EDT) -- Employers can alter job conditions in an emergency without approval from their workers' union as long as they bargain over the changes later, a National Labor Relations Board attorney said in one of the agency's first guidance letters addressing the COVID-19 pandemic.

The letter, which an unidentified attorney in the agency's Division of Advice sent to regional officials last month, was one of a handful of internal guidance memos the agency released on Wednesday discussing novel issues tied to COVID-19.

The attorney told the agency's Detroit regional office not to bring an unfair labor practice case against Mercy Health General Campus, saying the hospital did not have a duty to bargain with a Service Employees International Union unit over changes to its work-from-home and attendance policies. Even assuming its unilateral actions violated the National Labor Relations Act, it was owed some leeway because of the pandemic, the attorney said.

"It is the General Counsel's view that an employer should be permitted to, at least initially, act unilaterally during emergencies such as COVID-19 so long as its actions are reasonably related to the emergency situation," the attorney said. But the employer must negotiate over the decision and its effects "within a reasonable time thereafter," the attorney added.

The NLRB periodically releases batches of "advice memos" detailing advisory attorneys' answers to novel legal questions posed by field officials. The agency published 16 memos on Wednesday, five of which addressed issues tied to COVID-19. These were the first publicly released memos from the advice office discussing the pandemic.

In another virus-related memo, an advisory attorney said contractor RS Electric Corp. did not violate the NLRA by refusing to admit International Brotherhood of Electrical Workers representatives to a job site.

The union had accused the contractor of failing to follow a collective bargaining agreement allowing the union to access job sites "at any reasonable time." But the attorney told the agency's St. Louis regional office not to bring a suit, saying the company reasonably applied the contract when it refused the union's request.

"The Board will not choose between two 'equally plausible' interpretations of a contract; here, it's not at all clear that the Union's demand for immediate unrestricted access was reasonable in light of the COVID-19 pandemic, and the Union did not seek to bargain about the Employer's view of reasonableness," the attorney said.

A third letter advised the agency's Fort Worth, Texas, office not to bring a retaliation case against a Lone Star State builder accused of firing a worker who asked to work from home during the pandemic. An attorney said the worker did not trigger retaliation protections by texting a colleague about safety concerns on a personal phone, assuming the colleague was a supervisor excluded from the NLRA's protection. And even if the colleague was a protected nonsupervisor, the texting worker was not protected because "the Employer was unaware of their texts and the employee's work-at-home request was individual in nature," the attorney said.

A fourth letter said the St. Louis office should not bring a case against the U.S. Postal Service for allegedly refusing a union access to its facility because the refusal was based on "an apparent misunderstanding." A fifth letter said a contractor that supplies nursing services to Washington, D.C., public schools did not break the law by offering testing and contract tracing work to union employees in lieu of layoffs.

Advisory attorneys touched on several more issues in the other 11 letters released on Wednesday, including the application of a 2019 NLRB decision giving employers more leeway to make unilateral changes to job conditions, and employer dress code policies blocking workers from wearing union insignia at work.

--Editing by Nicole Bleier.

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

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