The NLRB General Counsel has provided guidelines for the handling of in-person elections. The protocols were developed collaboratively with Regional Directors, the NLRB Division of Operations-Management, the NLRB COVID-19 Task Force, and the internal union representing NLRB employees. Although the memo promotes the guidelines as “suggestions,” expect Regional Directors to hold manual elections based on these health and safety protocols.
As was expected, unions, along with several Democrat allies, are using the pandemic to renew their push for electronic elections. A House bill that mirrors the electronic system used by the National Mediation Board currently has 45 sponsors.
OSHA has published guidance on maintaining safe workplaces relative to Covid-19, recommending face masks but not mandating them, and distinguishing PPE that meet OSHA workplace requirements from pandemic facemasks.
In the recent Care One decision, the NLRB reversed a 2016 decision that required employers to bargain with a newly-certified union prior to imposing “serious discipline” before the employer and union reached an initial collective-bargaining agreement. The decision returns to employers the ability to impose discipline on newly unionized employees not yet subject to a CBA without first notifying and bargaining with the union, including discipline that may involve managerial discretion.
The NLRB General Counsel has taken another step to make unions accountable for violating their duty of fair representation of members. In prior memos (2018 and 2019) GC Peter Robb made clear that unions should have in place a grievance tracking mechanism to protect against meritorious fair representation claims. This latest memo announces that he intends to ask the NLRB to overrule its current standard for proving an individual’s entitlement to make whole relief against a union, creating a more lenient make-whole damages standard.
The NLRB recently cited workplace safety and proper use issues in upholding work rules reinforcing an employer’s right to monitor and/or search personal vehicles or property on company premises, including company-provided electronic devices.
It may seem like semantics, but the D.C. Circuit Court reminded the NLRB that a proper Weingarten request must contain an actual “request.” In Circus Circus Casinos, Inc., the NLRB charged the employer of violating the NLRA upon an alleged statement from an employee that he “called the Union three times [and] nobody showed up, I’m here without representation.” Although the NLRB found that the employer violated the Act by denying Weingarten representation, the court said this would not be considered a request for such representation.
