Most employers wrestling with COVID-19 related employment law issues aren’t paying much attention to the labor law issues arising out of the pandemic.  Indeed, because most U.S. employers are non-union, many operate under the mistaken belief that they fall outside the reach of the National Labor Relations Act (Act or NLRA) and don’t have to concern themselves with labor law compliance.  However, the NLRA protects almost all private sector employees regardless of whether they are union-represented or not.  Accordingly, except for those employing agricultural employees or workers covered by the Railway Labor Act, both unionized and union-free employers are subject to the NLRA and must conform their personnel policies, practices and decision-making to the Act.

Currently, COVID-19 related labor law issues are cropping up left and right with many pandemic related unfair labor practice charges being filed with the National Labor Relations Board (Board or NLRB) against both union and non-union employers.  Recently, the NLRB General Counsel[1] and his Division of Advice[2] spoke on several of the labor issues occasioned by the pandemic and/or teed up in ULP charges.  Fortunately, several of the recent pronouncements are good news and offer good advice for management, showing the way through the minefield called the NLRA.

A. Adverse Action Based on Protected Concerted Activities (PCA) Relating to COVID

NLRA Section 7 guarantees to all employees the right to engage in protected concerted activities (PCA), generally defined as action taken by more than one employee for their mutual aid and/or common protection.  This section gives all employees — including non-union employees — the right to band together and act in furtherance of their common interests.  NLRA Section 8(a)(1) of the Act prohibits all employers — including non-union employers — from interfering, restraining or coercing employees in the exercise of their Section 7 rights.  It is here where non-union (as well as unionized) companies most typically run afoul of the NLRA.

Even though the concerted prong of PCA typically requires two or more employees to act in “concert” with one another, in some instances the conduct of a single worker may qualify as protected conduct because it is with the authority or in furtherance of other employees’ concerns or because by his/her individual conduct, an employee is seeking to initiate or prepare for concerted action.  However, absent that connection to the concerns and interests of others, an individual employee’s conduct, complaints and gripes personal to that employee are not considered “concerted” and, thus, not protected, even though they may relate to wages and working conditions.[3]

A recent COVID-19 related unfair labor practices (ULP) case demonstrating this point was recently discussed and dismissed in an advice memo in Larry Peel Co., Case No. 16-CA-259403, issued on June 15.  There, an employee was discharged for requesting that he be allowed to work from home due to COVID-19 and not report to work.  The question presented was whether that request qualified as protected conduct, rendering his discharge a violation of Section 8(a)(1).  The NLRB said this was not protected activity because the employee’s request, though related to working conditions, was individual and did not concern itself with the interest or concerns of others.  Accordingly, the employer’s discharge did not violate Section 8(a)(1) (though it may have violated some other employment laws outside the NLRA).

The outcome of this case might have been different had the employee couched his request in terms of employees, in general, or he and his coworkers needing to be allowed to work from home due to COVID-19 since that request might have been deemed “concerted.”  Thus, it is a fine line and case specific for employers trying to separate concerted conduct from activity that is not “concerted,” for the purpose of ensuring NLRA compliance when meting out discipline for COVID-19 related conduct.  Such protected concerted conduct may include work stoppages over pandemic related health and safety concerns, economic issues like hazard pay, and employees asking questions and engaging in or calling for workplace investigations related to COVID-19 related workplace issues.  Often, the “concerted” boundary is less than a bright line.

In addition to PCA questions, other COVID-19 issues commonly facing non-union employers include but are not limited to the following: how to lawfully promulgate and enforce COVID-19 work rules that may affect Section 7 rights and how to lawfully and effectively address possible union organizing spawned by the pandemic.

B. Making Unilateral Changes in Working Conditions Due to COVID-19

Unionized employers are under a duty to recognize and bargain with their workers’ union as to their wages, hours, working conditions, and other terms and conditions of employment.  This bargaining obligation means that a union employer may not make a unilateral change in the working conditions of its union employees unless the employer has first met its duty to bargain, its duty to bargain is excused or mitigated by operation of law or waived.  This bargaining obligation applies to both an employer’s decision to change working conditions, as well as the effects of that change on the bargaining unit.

Sometimes, these changes are made out of prudence while other times, they are mandated by state, local or federal orders.  But regardless of their reason, the NLRA’s requirement mandating maintenance of the status quo, pending bargaining, is problematic for union employers needing to quickly implement time-sensitive workplace changes in order to avoid or mitigate COVID-19 risks.  In recognition of this tension, the GC issued GC Memo 20-04 entitled Case Summaries Pertaining to the Duty to Bargain in Emergency Situations issued on March 27.  While offering employers no clear advice on how to address exigent COVID issues, the GC did recognize the existence of an exception to the duty to bargain where an employer can demonstrate that economic exigencies compelled prompt action, stressing that such exigencies were limited to extraordinary events that are unforeseen occurrences having a major economic effect and require a company to take immediate action.  Where local governments order sheltering in place, the shutdown of non-essential businesses or the use of certain personal protective equipment or in areas where COVID-19 outbreaks are sudden or particularly acute, this limited exception is likely to apply, thereby allowing an employer to make and implement critical decisions without prior bargaining.  However, where that is the case and unless further bargaining is waived by contract or by a union’s inaction, an employer will still be obligated to bargain concerning the effect said unilateral decision has on the bargaining unit.

The terms of labor contracts may also privilege an employer to take unilateral action without prior bargaining.  For instance, where a labor contract appears to sanction, cover or anticipate the making of a particular action, that action may not qualify as a “change” and its implementation may not be deemed “unilateral” because it has already been discussed and bargained over (Contract Coverage Test).  A recent COVID-19-related case, issued on June 30, demonstrating this point is Children School Services, Case No. 5-CA-258669, where the Division of Advice dismissed a refusal to bargain ULP charge against a contractor that supplied nursing staff to D.C. public schools who unilaterally gave its staff the choice of being laid off or being temporarily assigned to performing COVID-19 testing after the citywide shutdown of schools due to COVID-19.  Citing the parties’ Labor Agreement which contained both a detail provision addressing layoffs and a management rights clause authorizing layoffs, Advice concluded that the layoffs were within the “compass or scope” of the contract’s provision, granting the employer the right to lay off the staff unilaterally.  Likewise, citing the Agreement’s broad zipper clause waiving further bargaining during the term of the Agreement as to matters not referred to or covered by the Agreement, Advice concluded that the contract likely foreclosed any obligation to engage in effects bargaining as to the layoffs or alternative work assignments, i.e. COVID-19 testing, in lieu of layoff.

C. Union Access Relating to COVID-19

Unions have sought entry to employer’s premises during the pandemic for the purpose of monitoring working conditions in relation to virus risks and/or ensuring labor contract compliance.  Union access is generally a matter of state law and/or governed by the terms of a labor contract because the NLRA is silent on the issue and does not grant to unions an affirmative right to enter an employer’s property.  However, where a labor contract grants a union a right of access, that access right is a condition of employment which the employer must honor in accordance with the terms of that contract.

In ordinary times, union access may not be that big of a deal.  But with the ongoing pandemic, employers want to limit and control those entering their premises as a way of containing the spread of infection.  Accordingly, employers are looking to their contracts as a way of restricting and controlling union access to their premises as well as regulating their conduct while on the premises.  A case demonstrating this point is RS Electric Corp., Case No. 14-CA-260142, where Advice concurred with the dismissal of a charge complaining about an employer’s refusal to grant access.  Here, the parties’ contract gave the union the right to access job sites “at any reasonable time” which the union argued gave them a right to immediate and unrestricted access.  The employer disagreed, arguing on the other hand, that this contractual reference gave it a right to one hour’s advance notice to prepare for safe access.  Addressing these competing readings of the labor agreement, Advice concluded that the Board will not choose between two equally plausible interpretations of the contract for, “here, it is not at all clear that the union’s demand for immediate unrestricted access was reasonable in light of the COVID-19 pandemic.”  Additionally, the contractual limit on access to “any reasonable time” gave the employer the right under the Contract Coverage Test to require one-hour advance notice.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

FOOTNOTES

[1] Among other things, the Board’s General Counsel, Peter Robb, acts as the NLRB’s chief law enforcement official.  Acting through the Agency’s regional offices, he is ultimately responsible for ULP charge investigations and the prosecution of those charges his office believes to be meritorious.

[2] The Division of Advice is a group residing in the GC’s office charged with evaluating cases presenting novel issues of law and giving regional office “advice” as to merits of pending charges.

[3] Labor Management Relations Act Section 502 presents a limited exception to the requirement that conduct needs to be concerted in order to be protected.  It authorizes and protects even single employees who “refuse to work” because of abnormally dangerous workplace conditions.