With COVID-19 disrupting business, employers may be questioning whether the virus has an effect on the duty to bargain with labor organizations. On Friday, the NLRB’s General Counsel, Peter B. Robb, attempted to answer these questions, issuing a letter to regional officials clarifying employers’ duty to bargain during emergencies.
The General Counsel’s letter summarized nine NLRB decisions involving a variety of emergencies, including hurricanes, 9/11, ice storms, and credit shortages. The General Counsel explained that it was his “hope that these summaries prove useful to those considering this issue during these challenging times.” Notably, the letter did not summarize any cases involving shutdowns or closures due to illness or infectious disease. Nor did the letter provide any advice to employers specific to the current pandemic.
The General Counsel’s letter is divided into two sections. The first section summarizes cases that involving public emergencies. For example, the letter summarizes Port Print & Specialties, a case from 2007 in which the NLRB found that an employer did not violate Section 8(a)(5) of the NLRA when it laid off employees in anticipation of an impending hurricane. The NLRB explained that one exception to the duty to bargain with a labor organization is an “extraordinary event which [is] an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” The NLRB fit a hurricane into this category. The NLRB also found that the employer later violated Section 8(a)(5) by failing to bargain over the effects of the layoff and by using non-unit employees to perform unit work after the hurricane had passed. Continue Reading