The National Labor Relations Act and COVID-19

One law that has not received much attention in the midst of COVID-19 is the National Labor Relations Act (NLRA). The NLRA is a federal law that governs labor relations for most private sector employers in the United States. The statute is enforced and interpreted by the National Labor Relations Board (NLRB), which is headquartered in Washington, DC and has regional offices throughout the country. The NLRA provides employees with various rights, including the right to engage in protected concerted activity, the right to join and to refrain from joining a labor union, and the right to have a union collectively bargain their terms and conditions of their employment. As recent developments demonstrate, both union and non-union employers should keep the NLRA in mind when conducting their workforce planning.

Protected Concerted Activity

The NLRA protects employees who engage in protected concerted activity. Generally speaking, this means that employees have the right to band together to demand better working conditions with or without a union. Concerns that employees raise about health and safety issues at work, which very well may include COVID-19-related concerns, could constitute protected concerted activity entitling employees to protection. See, e.g., Contemporary Cars, Inc. v. NLRB, 814 F.3d 859 (7th Cir. 2016) (concern employees raised with manager about coworker’s failure to wash hands before leaving restroom constituted protected concerted activity and discipline issued to employee for outburst during group meeting related to complaint unlawful). In an era of increased teleworking arrangements, it also is worth noting that the right to engage in protected concerted activity can be exercised by employees electronically, including through social media. In this regard, employees have successfully sought protection under the NLRA in the past for “liking” coworkers’ social media posts containing workplace complaints. See, e.g., Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB 308 (2014). It would be prudent for employers to consult with labor counsel now so they are prepared to effectively and lawfully address workplace protests stemming from COVID-19 concerns that inevitably will arise if they have not already.

Union Elections

The NLRB is once again holding union elections after a two-week hiatus from March 19 through April 3, 2020 due to COVID-19. However, it is not business as usual on the election front, and there is a handful of reasons employers who are not prepared for union elections during the pandemic may be easy prey for unions that are looking to bolster their memberships.

• For starters, the NLRB recently announced that it was pushing back the effective date of changes to election rules that would better protect employer rights (as well as employee rights) during union elections than the current union-friendly “quickie” election rules. (One set of changes has been postponed from April 16, 2020 until May 31, 2020, and another set has been postponed from May 31, 2020 until July 31, 2020.)
• In addition, regional offices throughout the country are showing a strong preference for holding elections by mail during the pandemic, despite the agency’s longstanding preference for manual voting and employer concerns that mail voting can be tainted by union coercion. See, e.g., Baker Commodities, Inc., Case No. 28-RC-259125 (Apr. 29, 2020); Millennium Tower Residences, Case No. 02-RC-258153 (Apr. 29, 2020); Victory Wine Group, LLC, Case No. 16-RC-257874 (Apr. 23, 2020); Flynn Architectural Finishes, Inc., Case No. 05-RC-258064 (Apr. 22, 2020); Atlas Specific Engineering Company, Case No. 27-RC-258742 (Apr. 20, 2020); Citizen 360 Condominium, Case No. 02-RC-257691 (Apr. 17, 2020); Phoenix New Times, LLC, Case No. 28-RC-254936 (Apr. 15, 2020).
• There also has been at least one case where a regional director ordered an election despite the fact that the employees voting in the election currently are laid off due to COVID-19. Hyatt Place Chicago O’Hare Airport, Case No. 13-RC-258090 (Apr. 28, 2020).
• And, to add insult to injury for some employers, there is a provision in the Coronavirus Aid, Relief, and Economic Security (CARES) Act that requires “mid-sized businesses” with between 500 and 10,000 employees who receive loans under the Emergency Relief and Taxpayer Protections section of the CARES Act to remain neutral for the terms of their loans during union organizing drives.

The current COVID-19 situation is making it especially difficult for employers to ensure employees voting in union elections cast informed ballots free from undue pressure. It would be prudent for employers to have in place now plans addressing union organizing, before it is too late.

Collective Bargaining

In light of the COVID-19 crisis, the NLRB’s General Counsel issued a memorandum addressing unionized employers’ collective bargaining obligations in emergency situations. The memorandum highlights that employers facing emergent situations due to COVID-19 may have the right to unilaterally make changes to terms and conditions of employment, such as laying off employees, without first bargaining over these decisions—although any such right does not excuse an obligation to bargain over the effects of the decision.

The recent NLRB General Counsel memo should be considered in connection with two other recent decisions, namely, MV Transportation, Inc., 368 NLRB No. 66 (2019), and Nexstar Broadcasting, Inc. d/b/a KOIN TV, 369 NLRB. No. 61 (2020). In MV Transportation, the NLRB decided that broadly worded language in a collective-bargaining agreement (CBA) may allow an employer to take certain unilateral actions during the term of the CBA whether or not there is an emergency. In Nexstar, which the NLRB issued just a few days ago, the agency noted its decision in MV Transportation generally does not apply once a CBA expires.

If there were not enough to consider already, there is additional language in the CARES Act that may prohibit mid-sized companies who receive loans under the Emergency Relief and Taxpayer Protections section from taking unilateral action even if permissible under the NLRA. More specifically, the CARES Act says such companies cannot “abrogate” existing CBAs for the terms of the loans (up to five years) and two years after completing repayment, but does nothing to explain what would constitute an abrogation.

Unionized employers may be able to take unilateral action in response to COVID-19 and should consult with labor counsel about their options now.

Conclusion

There is no shortage of legal issues for employers to keep their eyes on these days. But one law they should not lose sight of is the NLRA.