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NLRB Favoring Employers in Recent COVID Advice Memoranda

Earlier this month the Advice Division (Advice) for the National Labor Relations Board (the Board) released five new Advice Memoranda.  The advice showed strong support for employers who took action against employees in workplace disputes arising from the COVID-19 pandemic.  The advice covered topics ranging from employees being terminated after raising COVID safety concerns to employers refusing to engage with unions over COVID-19 related employment decisions.  In each instance, the General Counsel recommended dismissal of the Charges against the Employer.    This pro-employer stance in the face of the COVID-19 is a one of the few positives employers have had during the pandemic.

None of this advice creates new law.   Rather, it demonstrates the bent of a Trump Board (and General Counsel, the Board’s lead prosecutor).   The current Board finds no protection for employees who likely would have been protected under an Obama Board.  Consider the following examples.  

In one case, a New York based nursing home, Hornell Gardens, fired a nurse who had previously complained with two of her fellow nurses that they had not received adequate amounts of personal protective equipment to perform their jobs.  Advice found these complaints were not “concerted” activities under the National Labor Relations Act (the Act) because they failed to rise to a group complaint.  Advice found there was no evidence of “prior or contemporaneous discussion of the concern between or among members of the workforce.”  Rather, the complaints simply reflected individual griping, and that the complaints were not intended as an attempt to bring a group concern to the attention of the company’s management.  Advice reached this conclusion despite the fact the nurses tried to educate their coworkers on the risks associated with COVID, wrote letters to management, refused to work under such conditions, and attempted to hold a protest in the parking. 

In each instance, Advice found the nurses’ actions failed to raise to the level of concerted or group activity and they were all individual actions not warranting protection.  “The employees here never took their concerns to management as a group,” concluded the NLRB attorney issuing this Advice.  It is hard to imagine a Democratic Board reaching the same conclusion.  

In another case, Advice found the contract prohibited mid-term bargain involving issues related to COVID-19.  To reach this conclusion, Advice found the parties intended to waive such bargaining in the face of an unanticipated world-wide pandemic.   Again this is not new law but rather a more pro-management perspective than we have seen since the last Administration. 

This is the second set of pro-management Advice Memoranda issued regarding the COVID-19 pandemic.  It is our belief that more will follow.  As long as this Administration controls the White House, we expect more of the same.  Of course, who will be on the podium come inauguration day, is the $64,000 question.  By late this year, we believe we will all have an answer to this question and will know if this trend of Advice will continue.