Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Employers Take Note: Covid-19-Related Actions that Will Get the Attention of the NLRB

Posted in Employee Discipline, Negotiations, NLRB

This blog previously discussed the NLRB’s dismissal of virus-related charges.  The NLRB General Counsel, however, recently released a new memorandum summarizing cases related to Covid-19 where the NLRB found the virus-related issues had merit and pursued litigation.

Because the cases are still in active litigation, the memo merely summarizes the facts of the cases.  It does not identify the employers involved.  The memo covers six different issues.  It is important to note that the employer’s actions are what the GC is alleging to be unlawful.

Protected Concerted Activity

First, the memo summarizes two protected concerted activity cases, both of which involve employees protesting how the employer was handling Covid-19 safety measures. One case resulted in an employer allegedly violating Section 8(a)(1) by improperly threatening an employee.  The employer allegedly told the employee to follow the employer’s directives on in-person therapy sessions or she would effectively be resigning from her position. The GC is considering pursuing an injunction in federal court against the employer.

The other case involved a group of employees protesting a food delivery establishment’s alleged failure to provide PPE.  The protesting employees took a voluntary leave of absence.  The employer allegedly permitted all of them to return to work, except for two, one of whom was the leader of the protest.  A complaint issued alleging Section 8(a)(1) violations.  Injunctive relief is also being considered.

Weingarten Rights

In another case, an employee was denied his Weingarten rights (which guarantee an employee the right to union representation during an investigatory interview), when his employer unlawfully questioned him about whether he would agree to only wear a mask when required by work duties.  The GC asserts that the employer suspended the employee for the remainder of the day and issued discipline for “uncooperativeness” during the investigative interview.

Discriminatory Layoff

During Covid-19-related layoffs, an employer allegedly admitted to selecting the recently-certified, two-person bargaining unit for layoff as an attempt to erode their bargaining unit.  In response, the General Counsel instructed the Region to issue a complaint against the employer for an alleged discriminatory layoff in violation of Section 8(a)(3).

Discriminatory Recall

Also following a Covid-19-related layoff, a complaint was issued against an employer where the employer withheld recall rights from 20 unit employees, most of whom were union supporters.  Yet, it is alleged, the employer offered recall rights to 12 other employees, the majority of whom were known to not support the union.  Once again, the GC believed the actions were so egregious that it is considering seeking an injunction against the employer.

Bargaining

The three bargaining cases listed in the GC’s memo remind employers of the following:

(1) the pandemic does not give employers a right to refuse to hold bargaining sessions;

(2) although employers can initially act unilaterally in response to emergency situations when reasonably necessary, employers may still need to negotiate over the decision and its effects within a reasonable time thereafter; and

(3) just because a decision is Covid-19-related, does not mean the employer can automatically take unilateral actions.

The regional offices involved in these cases were given the authority to continue pursuing allegations that employers acted inconsistently with these requirements.

Refusal to Provide Information

The GC also approved issuing a complaint where, during a Covid-19-related layoff, the employer failed to provide information to affected employees.  The information requested included a seniority list, paid time off accruals, communications to the bargaining unit members about the layoff decision, information about the expected return date, information relied upon in making the layoff decision, and communications with clients that supported the need for layoffs.

All these cases are a reminder to employers that just because Covid-19 poses extraordinary challenges, this does not mean that employers are given extraordinary leeway from the NLRB’s GC.

Unionization in Unusual Places: Political Campaigns

Posted in Union Organizing

If you think unions only organize manufacturing plants and construction sites, think again.

With the 2020 election year in full swing, unions continue to form among Democratic political campaign staffers.  These political staffers are using their party’s pro-union stance as an opportunity to unionize their own campaigns.

Sen. Bernie Sanders (I) became the first presidential campaign to unionize, with every serious Democratic presidential campaign following his lead.  Field organizers for Joe Biden approved their first union contract earlier this year.  With campaign jobs being known as low paying, long hour jobs, the union contracts focus on better pay and more manageable hours for campaign staffers.

The Campaign Workers Guild is a union that formed in 2017 to specifically cater to the unionization of political campaigns.  And as of the end of August, the Campaign Workers Guild has negotiated dozens of union contracts, and is in negotiations for many more, according to the union’s website.  Nevertheless, many of the unions organizing political campaign staff are more recognized names.  For example, the union that organized the Sanders’ campaign staff was affiliated with United Food and Commercial Workers Local 400, in Washington D.C.  Sen. Elizabeth Warren’s (D) staffers went with the International Brotherhood of Electrical Workers Local 2320, in New Hampshire.

This unionization of political campaigns is a good reminder to employers of all types that unions can be formed almost anywhere.  The NLRA guarantees most of America’s workers the right to form a union, only excluding a handful of employees from its protections, like railroad employees (which have a separate, federal law permitting union organizing), farm workers, and independent contractors.  Thus, employers concerned about the possibility of a union representing their employees should be proactive in addressing the issue and seek out qualified labor law counsel for guidance.

Remote Hearings are New Default for Unfair Labor Practice Complaints

Posted in NLRB

The regional offices no longer need approval from the NLRB headquarters to schedule remote hearings for most unfair labor practice complaints.  Last week, the Office of the General Counsel released a memorandum instructing the regional offices to hold remote hearings for most ULP matters.  The memorandum also indicated that, effective immediately, any pending requests for remote hearings are granted.

The General Counsel’s action comes on the heels of two NLRB decisions in which a party challenged a remote hearing arrangement.  In William Beaumont Hospital and XPO Cartage, Inc., the NLRB affirmed decisions to hold unfair labor practice complaint hearings remotely.  Relying upon those decisions, and citing the continuing COVID-19 pandemic and the large number of unfair labor practice complaints, the General Counsel instructed the regional offices to move forward in scheduling remote unfair labor practice hearings.

However, a remote hearing is only permitted if neither of the following apply:

  • The Region believes that unusual aspects of the contemplated trial make video hearing unfeasible; or
  • There are witnesses the General Counsel wishes to call who do not have access to equipment that will enable a connection to the video technology platform the Agency is using for remote hearings.

If either of these factors are present, the regional office is instructed to consult with the Division of Operations-Management before scheduling a remote hearing.

Labor professionals with pending cases should take note of this development, as well as the NLRB’s intention to continue advancing ULP complaints notwithstanding the pandemic.

A Series of Dismissals Occur in Virus-Related NLRB Charges Against Employers

Posted in Employee Discipline, Negotiations, NLRB

In a positive series of events for employers, the General Counsel’s Division of Advice called for the dismissal of five different coronavirus-related charges against employers.  The GC’s office sent memos to regional NLRB offices directing them to dismiss specific cases, all of which were labor disputes sparked by the pandemic.  All charges were either dismissed or withdrawn, giving employers helpful insight into the agency’s view on coronavirus-related disputes.

The following five charges were dismissed:

  • A charge alleging an employer wrongfully refused to bargain over paid sick leave and hazard pay due to Covid-19. The GC’s office concluded that the employer did not have an obligation to engage in midterm bargaining over the union’s proposals.
  • A charge alleging discriminatory lay off of the charging party in retaliation for Covid-19-related safety comments. Although the GC’s office concluded that the employee ultimately engaged in protected activity when he raised concerns about the lack of available sanitation resources, the GC’s office concluded that there was insufficient evidence of knowledge of that activity or employer animus on the record to establish a prima facie case.
  • A charge alleging unlawful discharge of and threats to workers stemming from disputes related to Covid-19 safety issues. The GC and the Region agreed that the Charging Party’s refusal to work with shared isolation gowns and refusal to work a scheduled shift was not protected activity.  Thus, the termination was lawful.
  • A charge alleging failure to provide a union information connected to a grievance over pandemic-related layoffs. The GC concluded that the union failed to articulate how the information was relevant and failed to explain why it considered the employer’s response to be incomplete.
  • A charge alleging failure to provide a union information connected to a grievance over pandemic-related layoffs. The GC concluded that the employer sufficiently provided relevant information and any other information sought by the union was irrelevant.

For the labor professional, these dismissals suggests that the NLRB is giving employers at least some room to respond to the unprecedented nature of the Covid-19 pandemic.  Employers remain well advised, however, to consult with qualified labor counsel in dealing with these types of issues.  Allegations of protected, concerted activity or union information requests can be very fact intensive.  Even seemingly slight changes in the facts and overall context could change the outcome.

NLRB Gives Employers Greater Ability to Discipline Abusive Conduct

Posted in Employee Discipline

Employees probably just lost the ability to tell their boss to f*** off.  When considering an employee’s protected activity, the NLRB recently changed its tune on how it analyzes employer discipline—and an employee engaging in abusive conduct does not have the same protections the employee once did.

The NLRB announced this change of tune in last Tuesday’s General Motors decision.  Before General Motors, the NLRB held in numerous cases that an employer could violate the NLRA for disciplining an employee for abusive conduct that occurred while the employee was also engaged in protected activity, even when the discipline was for the abusive conduct and not the protected activity.  Some of the more notable decisions in this genre involved discipline of employees for hurling profanity at an owner, posting insulting social media messages about a manager, and yelling racist remarks at a replacement worker.

Moving forward, though, the NLRB has decided to give employers a greater ability to discipline abusive conduct, regardless if it is connected with an employee’s protected activity.  In General Motors, the NLRB adopted the Wright Line standard to analyze employer discipline related to protected activity.  Under the Wright Line standard, the General Counsel can still allege an NLRA violation when an employer disciplines an employee engaged in protected activity.  But now, employers have a more defined ability to rebut this allegation.  Employers only need to show that the discipline for an employee’s abusive conduct would be the same under any circumstances, even if the employee was not engaged in a protected activity.

Previously, the NLRB applied a patchwork of setting-specific standards—whether an employer could punish abusive conduct may have depended on whether the employee was negotiating compensation, discussing union representation, or picketing.  Now, though, the Wright Line standard applies in all cases.  And where these previous standards meant employers often had little recourse—even when an employee was disloyal or used profane, racist, or sexist language—the Wright Line standard gives employers a greater ability to discipline abusive conduct.

For the labor professional, the General Motors decision brings good news—an employer can more readily maintain a civil workspace.  Now, an employer can discipline an employee’s abusive conduct with less fear of violating the NLRA.  Additionally, the NLRB also plans to apply retroactively the Wright Line standard to all pending cases.

At the same time it gives employers a greater ability to discipline abusive conduct, the NLRB’s decision also highlights an employer’s responsibilities related to any abusive conduct.  Equal employment opportunity law requires an employer to take prompt corrective action against any discriminatory or harassing conduct.  With this in mind, an employer should be mindful of enforcing existing prohibitions against abusive, harassing, or discriminatory conduct.  Employers will not have the NLRB to blame for inaction on this front in the future.

*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.

NLRB Suggests Safety Protocols for In-Person Union Elections

Posted in Elections

After the COVID-19 pandemic caused a temporary suspension of both in-person and mail ballot labor union elections, the NLRB permitted elections to resume in early April.  On Tuesday, July 6, the General Counsel issued guidance addressing suggested safety protocols for conducting manual elections.  As the COVID-19 pandemic continues to evolve, the General Counsel acknowledged the pandemic’s varying impact on different localities.  With this in mind, the General Counsel empowered Regional Directors to make election decisions on a case-by-case basis.

Even while acknowledging the unpredictability of these unprecedented times, the General Counsel still suggests specific safety protocols for manual elections.  Many of these suggestions are consistent with precautions being encouraged for everyday activities⁠—social distancing, enhanced cleaning, plexiglass barriers, and masks.  Also, for the polling facility, the General Counsel suggests arrangements such as a spacious polling area, separate entrance and exit doors, floor markings for social distancing, and disposable supplies.

In addition to these safety protocols, the General Counsel suggests employer record keeping before and during a manual election.  Before an election, the employer would be required to certify how many individuals who have been present in the polling facility (during the 14 days prior to the election) tested positive for COVID-19, are awaiting COVID-19 test results, exhibited COVID-19 symptoms, or had direct contact with someone who tested positive for COVID-19.  The employer should record the same information for individuals present in the polling facility on the day of the election.  The General Counsel’s guidance includes forms that employers would use to provide the certifications.

For the labor professional, the General Counsel’s suggestions are worth an employer’s attention.  In-person elections are an important tool to ensure the exercise of free employee choice on the question of union representation.  To maximize the ability to utilize that tool, therefore, an employer may want to proactively establish systems that would allow it to implement the suggested safety protocols, particularly if union organizing is a significant concern for the employer.

It is important to note, as the General Counsel acknowledged in the guidance, that the NLRB itself has the “ultimate authority” to decide when, how, and in what manner manual elections are conducted.  So, any employer (or union for that matter) in a representation proceeding that has concerns with the way in which a regional office conducted the election will want to consult with qualified labor counsel to determine whether objections should be filed so as to, ultimately, bring those questions to the NLRB’s attention.

*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.

NLRB Affirms that Employers May Prohibit Employees from Discussing Ongoing Investigations

Posted in Employee Discipline

Hard to believe these days, but non-Covid-19-related developments do still pop up from time-to-time.  Last week, the NLRB gave us one on an issue the employer community has closely watched:  whether an employer can instruct employees to keep an open internal investigation confidential.

The NLRB answered with a clear “yes” in Securitas Security Services USA.  The decision is one of the first in which the NLRB has applied the revised standard for confidentiality rules for ongoing investigations articulated in December 2019 in Apogee Retail LLC, 369 N.L.R.B. No. 144 (2019). Continue Reading

Covid-19 and the NLRB: Effective Date of New “Election Protection” Rule Postponed

Posted in Elections, Rulemaking

Labor professionals waiting for the new rule on certain employee free choice issues to go into effect will have to wait a little longer.  The NLRB announced on Wednesday that it is delaying the effective date of this rule for 60 days, until July 31, 2020, due to the COVID-19 pandemic.

The NLRB published the election rule on April 1, 2020.  The rule was originally scheduled to go into effect on June 1, 2020.  As we previously explained, the election rule will eliminate the longstanding practice that a ULP charge will “block” the election (that is, prevent it from going forward).  The rule will also require employers who voluntarily recognize a labor union to notify employees of the recognition and will change the standard for recognizing unions in the construction industry.  The NLRB has stated that it believes that these amendments would better protect employees’ statutory right of free choice concerning union representation.

The two-month delay in implementing the election rule provides just one more example of how the COVID-19 pandemic has disrupted the NLRB’s operations.  In addition to delaying the election rule, the pandemic caused the NLRB to close or partially close regional offices and to suspend union elections for two weeks.

NLRB Resuming Union Elections on Monday

Posted in Elections, Union Organizing

It’s back to business for the NLRB, at least when it comes to representation elections.  The NLRB announced today that it would not extend its temporary suspension of elections past this Friday, April 3, 2020.  The NLRB will resume conducting elections on Monday.

The NLRB had temporarily suspended NLRB elections on March 19, 2020 due to the COVID-19 pandemic.  The suspension applied to both in person and mail-in elections.  The NLRB stated that suspending elections was necessary to ensure the health and safety of its employees, as well as the health and safety of the members of the public involved in elections.  Additionally, when this order was released, several regional offices were closed while employees at other locations were teleworking— causing the NLRB to believe that it was impossible to effectively conduct elections.

The NLRB’s decision to freeze union elections was not without criticism.  Congressman Bobby Scott (D – Va.), a member of the Education and Labor Committee, sent a letter to Chairman John Ring (R) urging the NLRB to reverse the suspension of election procedures.  Scott explained that the COVID-19 pandemic had imposed an extraordinary strain on labor relations.  Scott also asserted that the NLRB had failed to protect workers’ rights of association and self-organization by suspending election procedures.

With regards to resuming election procedures on Monday, Chairman Ring explained that the two-week closure had allowed the NLRB’s General Counsel, Peter Robb, to review the existing logistics of the election procedures in light of COVID-19.  Based on this review, the General Counsel had determined that measures are available that will ensure that elections may resume in a safe and effective manner.  Chairman Ring did not explain what these “measures” will be but noted that they would be implemented by the Regional Directors.

For labor professionals, the NLRB’s decision to resume elections may be a welcome return to normalcy—or could be another strain on business.  Regardless, labor professionals should be aware that elections procedures likely will be altered to prevent the spread of COVID-19 and that the NLRB is attempting make the elections as safe as possible.

Covid-19 and the NLRB: Update No.3 – Rulemaking Continues

Posted in Elections, Rulemaking

While Covid-19 has slowed down certain things at the NLRB, it hasn’t stopped the agency from functioning.  The NLRB announced today that it will publish its final rule on certain employee free choice issues tomorrow, April 1.

The rules will address three major issues:

  1. The NLRB’s “Blocking Charge” Policy.  The term comes from the NLRB’s long-standing rule that if a union filed a ULP charge while an election proceeding was pending, it would usually serve to “block” the election – i.e., prevent it from going forward.  The ULP charge would then need to be resolved before the regional office could hold the election.  The rule is expected to replace the blocking charge with a “vote-and-count” or “vote-and-impound” procedure.
  2. Voluntary Recognition Bar.  The rule is expected to return to the holding in Dana Corporation, a 2007 NLRB decision.  It would apply when an employer, as is its right, voluntarily chooses to recognize a labor union.  In that situation, employees in the voluntarily recognized bargaining unit must receive notification of the recognition and be given a 45-day open period in which to file an election petition.
  3. Section 9(a) Recognition in the Construction Industry.  Employers in the construction industry are subject to some unique rules regarding recognition of unions.  One such rule is the ability to enter into what is known as a “pre-hire” agreement – where the employer and union agree to recognition before a single employee has even been hired.  Where this has occurred, the NLRB’s new rule will require positive evidence of majority support for the union, and not merely union contract language reciting same, before the NLRB will bar a petition for an NLRB-supervised election.  The rule will overturn a 2001 decision holding to the contrary.

Labor professionals should certainly review the rule in full when it is published, particularly if the employer is considering, or a union has requested, voluntary recognition, or there is a pending election petition.  Likewise, labor professionals in the construction industry will need to familiarize themselves with the NLRB’s new standards.