The NLRB retains the current GOP majority as Marvin Kaplan and Lauren McFerran are confirmed to the board. Kaplan’s new term will expire in August 2025 and McFerran’s in December 2024.
The DOL and the NLRB have both issued separate rules defining joint employer status. Both make it harder to find a business to be the joint employer of another business’s employee. It is expected that the Equal Employment Opportunity Commission (EEOC) will issue its own rule soon defining joint employment under federal anti-discrimination statutes like Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).
In Nicholson Terminal, the NLRB found that an employer policy against “calling, participating in or encouraging others to call or participate in an illegal slowdown, strike (including a sympathy strike) or walkout,” was lawful. The decision reversed an Administrative Law Judge, citing The Boeing Company “reasonable employee” standard.
In another possible “new normal” ruling, the NLRB upheld an administrative law judge’s ruling directing that an unfair labor practice trial be conducted by videoconference because of the pandemic. The William Beaumont decision will mean that more ULP trials will likely be held via video until the pandemic subsides, but it may also mean videoconferencing could become an accepted method post-pandemic.
The NLRB provided additional clarification of a successor employer’s duty to bargain in a supplemental decision issued in late July. The question presented was whether and to what extent the successor could take further unilateral action, free of the duty to bargain with the union. The board clarified that, in the context of unilaterally imposed terms and conditions of employment, a successor employer is free to take actions that are reasonably encompassed by the unilaterally implemented terms and conditions without first bargaining with the union. To follow the board’s logic, read the details here.
The NLRB also announced a proposed rule to return to the Excelsior requirement of pre-Ambush Election Rule standards, eliminating the need to provide personal and cell phone numbers and email addresses. A second proposed rule allows for absentee ballots for those employees on military leave.
In the Covid response arena, the NLRB released five advice memoranda on August 13th providing guidance to Regional offices (see Insight article above). The instructions included:
- An employer is not obligated to engage in midterm bargaining regarding Union proposals for paid sick leave and hazard pay because of the ongoing pandemic.
- Without independent evidence of retaliatory animus, an employee cannot link an adverse employment action to complaints over COVID-19-related safety measures (or lack thereof) in a safety meeting on behalf of others, despite the fact that they could otherwise be considered protected concerted activity.
- Expression of individualized concerns over COVID-19 safety measures do not rise to the level of protected concerted activity.
- In the absence of an explanation as to relevance, an employer may refuse to furnish the union with information requested in connection with a pending grievance over COVID-related lay-offs without violating its obligation to bargain in good faith.
- An employer need not turn its financial records over to the union in the context of a temporary closure unless it asserts that the move was driven by a lack of assets.
- An employer is not operating under a mandatory duty to bargain over a decision (as opposed to the effects of that decision) to close temporarily due to significant business downturn caused by the pandemic.
- To the extent that they are an “inevitable consequence” of the decision to temporarily close because of the pandemic as set forth above, an employer is not obligated to bargain over the effects of that decision either.
