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NLRB Division of Advice Releases Advice Emails Assessing Bargaining Obligations, Electronic Devices and Online Communications Policy Amid COVID-19 Pandemic
Practical Law Legal Update w-028-8672 (Approx. 4 pages)
NLRB Division of Advice Releases Advice Emails Assessing Bargaining Obligations, Electronic Devices and Online Communications Policy Amid COVID-19 Pandemic
by Practical Law Labor & Employment
| Published on 20 Dec 2020 • USA (National/Federal) |
The Division of Advice of the National Labor Relations Board's (NLRB) Office of the General Counsel (Advice) released three advice memoranda (in Forterra Pipe & Precast, LLC; PASNAP (Albert Einstein Hospital) and 2438 W. Cermak McDonald's) evaluating issues that have arisen due to COVID-19.
On December 14, 2020, the Division of Advice of the National Labor Relations Board's (NLRB) Office of the General Counsel (Advice) released three case-closing emails as advice memoranda in which it evaluated various issues that have arisen during the ongoing COVID-19 pandemic, including two memoranda concerning the obligation to bargain. In each case, Advice directed that the ULP charges be dismissed.
FORTERRA PIPE & PRECAST, LLC
In Forterra Pipe & Precast, LLC, Advice concluded that the employer did not violate Section 8(a)(5) of the NLRA by refusing the union's request to bargain over hazard pay due to the COVID-19 pandemic because the unambiguous language of the zipper clause contained in the parties' collective bargaining agreement (CBA) constituted a clear and unmistakable waiver of the union's right to demand mid-term bargaining over matters not otherwise covered by the CBA, and therefore the employer had no obligation to bargain.
PASNAP (ALBERT EINSTEIN HOSPITAL)
In PASNAP (Albert Einstein Hospital), Advice concluded that the union did not fail to bargain in good faith for a successor CBA after about March 2020 because, even though the union specifically declined to bargain remotely on several occasions due to concerns related to the impact of COVID-19, the parties nevertheless:
- Continuously bargained by email about both the original CBA and potential modifications to their agreement temporarily extending the CBA.
- Met at least once by telephone with a mediator.
- Resumed in-person negotiations for a successor agreement in August.
2438 W. CERMAK MCDONALD'S
In 2438 W. Cermak McDonald's, Advice concluded that the employer did not implement its electronic devices/online communications policy in violation of Section 8(a)(1) of the NLRA when it instructed two employees to:
- Send management their cell phone videos of an in-store fight between customers and employees regarding the store's masking policy and wait times.
- Delete the recordings from their cell phones.
- Remove Snapchat posts regarding the incident.
Specifically, Advice found that:
- There was no evidence indicating that the employees who recorded and posted about the incident:
- acted in a concerted manner or otherwise coordinated their actions;
- sought to induce or encourage group action; or
- acted for mutual aid or protection.
- The employer's action did not reasonably tend to restrain protected concerted activity as the employer did not:
- convey to the employees that it believed that they had engaged in protected concerted activity; or
- demonstrate any concern about preventing protected future activity, but instead acted out of concern for the safety and privacy of the employees involved in the altercation.