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NLRB Rulings Tip Balance Toward Management Coping With Contagion

July 17, 2020, 2:36 PM

The National Labor Relations Board has taken a deregulatory approach to labor and workplace law under the Trump administration, and the agency has largely stayed on that management-side course during the coronavirus pandemic.

The outbreak has presented novel legal issues under the National Labor Relations Act, the central statute governing workers’ and businesses’ rights concerning unionization, which the NLRB is charged with enforcing, enmeshing it in disputes that can be hotly contested even when there’s no overarching crisis.

Among those disputes: whether and how to conduct union elections and engage in collective bargaining with the contagion resurgent in the U.S. South and West, and as health authorities advise or mandate social distancing. Even the board itself has dealt with complications against that backdrop, resorting to bargaining with its own employees’ unions via teleconference, NLRB General Counsel Peter Robb said during a virtual meeting on issues related to the virus June 6.

The pandemic also pushed to the fore questions of whether unionized businesses are required to negotiate new workplace safety precautions or hazard pay for workers deemed essential. A handful of charges already have been filed alleging some companies put workers’ safety at risk during the pandemic.

Board decisions in precedent-setting cases have delivered major policy wins for employers since the start of the pandemic, and even further back, said former Democratic NLRB chairwoman Wilma Liebman.

The board is “apparently taking advantage of the pandemic to excuse employers from obligations they would otherwise have under the statute” and to “ease or discard norms that provide some measure of integrity to agency procedure,” she said.

Pro-business case rulings and moves from the board and general counsel since the beginning of the year include those that:

  • gave employers some legal basis to lay workers off without bargaining with their union, due to the unforeseen, extraordinary circumstances presented by the pandemic;
  • curtailed the agency’s own investigative and prosecutorial powers against employers;
  • allowed employers whose facilities are currently closed due to the pandemic to forgo a previously required electronic notification to employees that the employer violated labor laws and explaining their rights under the NLRA;
  • affirmed that employers who require arbitration of work-related disputes can also require confidentiality from workers;
  • and relinquished the agency’s jurisdiction over faculty organizing at certain religious universities and colleges.

There’s “only one outcome in their decision making—all decisions favor employers, a result inconceivable under a statute designed to protect workers,” Liebman said.

It’s not that clear-cut, countered former Republican NLRB General Counsel Jerry Hunter.

“A lot of times it’s not necessarily that Republican boards are just totally pro-employer, nor that Democratic boards are just pro-union,” Hunter said. “I don’t think this board, or anyone else, was looking at cases and thinking, ‘I’m going to rule for the employer.’ They don’t make up their minds based on the parties.”

Since the start of the year, the board’s general counsel also obtained a $76 million offer from CNN to settle a 16-year-old labor dispute with camera operators, and filed charges against Boeing for alleged union-busting at a South Carolina plant. The board also decided to retain jurisdiction over charter schools after inviting interested parties to weigh in on the issue.

The bulk of the federal regulations and precedent-setting decisions the agency has issued, though, have favored employers.

Hunter agreed that the board under President Donald Trump has taken a more conservative approach than many preceding boards, including during his tenure under President George H.W. Bush.

“It’s more about a conservative philosophy of labor law versus a more liberal view of what the law is, as well as what the role of the government should be in refereeing the relationships between unions and employers,” Hunter said.

The Trump-era board appears to be more conservative, he said, because members succeeded a Democratic-majority NLRB under President Barack Obama which had overturned many existing precedents and policies to favor unions and workers.

NLRB spokesman Edwin Egee declined to comment on the board’s work during the first half of the year.

New Policy on Union Recruiting

One of the most significant policy changes from the board this year came from a decision allowing employers to lawfully implement non-solicitation policies that cover most activities during work time to increase union support.

The decision in a case involving Wynn Las Vegas, LLC, redefines union “solicitation” to include any activity encouraging other workers to vote for or support a union, a departure from earlier policy limiting solicitation to efforts where an employee is urged to actually sign a union authorization card.

Another NLRB policy development has been regional officers’ labor-side decisions to allow most pending and new petitions for a unionization election to proceed via mail-in ballot.

While the board’s three Republican members themselves have affirmed almost all of those regional rulings on appeal, they’ve also included footnotes in many of those cases suggesting they may restrict the general circumstances under which the agency will use the mail ballot procedure. The board’s general counsel, Robb, has also issued suggested protocols for running in-person elections during the pandemic.

When the pandemic emerged, Robb initially paused all union elections unless both parties agreed to mail-in ballots—a policy that generally gave employers trying to avoid unionization an advantage by allowing them to simply refuse a mail ballot process even if a union wanted to move forward.

A day later, board members suspended all workplace union elections due to the pandemic, saying they didn’t believe it was possible to effectively conduct elections at the time. The agency lifted the election stay about two weeks later, returning to its prior policy of allowing regional directors discretion to decide whether and how to proceed with an election petition.

The NLRB also is considering knocking down another legal obstacle for employers who wish to oust an existing union, known as the contract bar doctrine. And in June, the NLRB moved to immediately implement the surviving portions of a rule that extends the time it takes to unionize after a federal judge struck down most of the major provisions.

Rush to Issue Decisions?

Liebman and Hunter agreed that the board has issued significant decisions so far this year and noted that member Marvin Kaplan’s term expires in August, soon depriving it of quorum, and adding pressure to issue rulings while it still can. The board needs at least three members to issue decisions.

Liebman said the upcoming presidential election is also a factor, causing the board to “rush to check off all the items on management law firms’ wish lists.”

In “matters of substance, procedure and integrity, they are continuing in a direction long in the making, but seemingly at an accelerating pace—obviously with the expiration of Member Kaplan’s term in view and, even more, with the November election fast approaching,” Liebman said by email.

“There’s some agencies where an upcoming election plays a bigger role, but in my experience that’s not necessarily true at the NLRB,” Hunter said. “In this situation, it’s more that Kaplan’s term is wrapping up, so they will try to get out every case that he’s already been working on, so they don’t have to duplicate efforts or start from scratch later.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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