National Labor Relations Board Issues Guidance on the Duty to Bargain in Emergency Situations

On March 27, 2020 Peter Robb – the General Counsel for the National Labor Relations Board (NLRB) – issued a memorandum providing guidance to unionized employers regarding the duty to bargain in emergency situations. General Counsel Robb acknowledged that the Coronavirus pandemic had prompted many questions regarding the rights and obligations of both employers and unions. To help aid employers and unions, General Counsel Robb provided a summary of relevant decisions from the NLRB regarding an employer’s duty to bargain during emergencies. In doing so, General Counsel Robb clarified that the summaries he was providing were limited solely to an employer’s duty to bargain and not other National Labor Relations Act issues that may arise during an emergency.

For ease, General Counsel Robb divided the memorandum into two sections. The first section focused on situations involving public emergencies effecting all employers in a geographic area (i.e. a hurricane) and the second section discussed emergencies specific to single employer (i.e. the loss of a credit facility).

The Duty to Bargain During a Public Emergency

Port Printing & Specialties, 351 NLRB 1269 (2007) (hurricane), enforced, 589 F.3d 812 (5th Cir. 2009).

  • This case involved the effects of Hurricane Rita on a Louisiana business. At the time of the hurricane, the employer and the union did not have an existing collective bargaining agreement (CBA) in place. On September 22, 2005, the mayor of Lake Charles, Louisiana, ordered a mandatory evacuation of the city in anticipation of the impending arrival of Hurricane Rita. The employer closed operations and laid off all employees, without affording the union notice or an opportunity to bargain. The NLRB found that this action was NOT a violation of the National Labor Relations Act (the Act) because there is an exception to the duty to bargain where the employer can demonstrate that “economic exigencies compel[led] prompt action.” Applying this rule, the Board found that the impending hurricane and the mandatory citywide evacuation were uniquely exigent circumstances that privileged the employer to lay off unit employees without bargaining with the union.
  • Notwithstanding that the employer was privileged to take this action without first bargaining with the union, the NLRB found that the employer did violate the Act by failing to bargain over the effects of the layoff after the hurricane. In addition, after the hurricane had passed, the company (without bargaining with the union) began using non-unit employees to fulfill orders. The Board explained, when the employer made these decisions, the exigency due to the hurricane had passed and thus the employer needed to bargain with the union.

K-Mart Corp., 341 NLRB 702, 720 (2004) (9/11):

  • Following the catastrophic events of September 11, 2001, a company’s anticipated business volume plummeted 60% causing the company to file for bankruptcy protection. An Administrative Law Judge found that the economic fallout resulted in “extraordinary unforeseen events having a major economic effect that required the employer to take immediate action.” The employer did, however, give adequate notice to the union and the union failed to request bargaining.

Gannet Rochester Newspapers, 319 NLRB 215 (1995) (ice storm):

  • This case involved an ice storm in New York, where in response, local officials banned non-essential travel. The company had three groups of employees: (1) non-represented employees; (2) union employees with a current CBA; and (3) union employees with an expired CBA. The company decided to pay its non-represented employees in accordance with its handbook for the time they missed. However, the company forced both groups of its represented employees to use PTO or go uncompensated.
  • The NLRB found that with respect to the represented employees with a current CBA, the company did not violate the act by paying non-represented employees in accordance with its handbook but refraining from doing so for represented employees. The NLRB reached this holding because the company had no past practice of paying represented employees for absences due to weather emergencies. The Board also concluded that the employer did not violate Section 8(a)(5) of the Act by requiring these represented employees to take personal days or go uncompensated, since the CBA in place did not address payment for absences due to weather emergencies and the CBA contained a clause which indicated the parties intent to allow the employer to take unilateral action on items uncovered by the agreement.
  • The NLRB did, however, find that the company violated the Act with respect to the union employees with an expired CBA. The Board observed that wages for lost time due to a weather emergency are a mandatory subject of bargaining, and given that those unit employees were currently working without a contract, the employer was obligated to afford the union notice and an opportunity to bargain prior to acting unilaterally regarding a mandatory subject of bargaining.

The Duty to Bargain During a Private Emergency

Cyclone Fence, Inc., 330 NLRB 1354 (2000) (lack of financial credit):

  • In this case, the company’s credit provider terminated the company’s line of credit. In response, the company unilaterally closed one if its facilities and terminated all employees working there. The NLRB found the company violated the Act because while the “emergency situation” the employer confronted might excuse its failure to bargain with respect to the decision to close its operations, it did not excuse the employer’s failure to bargain over the closing’s effects.

Virginia Mason Hospital, 357 NLRB 564 (2011):

  • The hospital in question had approximately 5,000 employees – 600 of which were registered nurses represented by a union. The hospital and the union were parties to an existing collective bargaining agreement. The hospital unilaterally implemented a flu-prevention policy, which required all nurses who had not received a flu immunization shot to either take antiviral medication or wear a protective mask. At first, the Administrative Law Judge (ALJ) found that the hospital’s actions were justified and that the hospital was excused from its duty to bargain. In reaching this conclusion, the ALJ relied on a 1987 NLRB decision called “Peerless Publications.” The ALJ applied the factors of Peerless Publications to find:
    1. the policy went directly to the employer’s core purpose: to protect patient’s health;
    2. the policy was narrowly tailored to prevent the spread of influenza; and
    3. the employer limited the requirement to nurses who refused to be immunized.
  • The case was appealed to the NLRB who reversed the ALJ’s decision. The NLRB explained that it had sharply limited Peerless Publications applicability outside of its specific factual context. Specifically the NLRB explained that Peerless Publications included a constitutional element (first amendment rights) that was simply missing in the health care context.
  • It is important to note that the NLRB’s decision was not unanimous. One member, Member Hayes, dissented and explained that he did not believe Peerless Publications “has been—or should be—limited to its facts[,]” and that the Peerless Publications test merely expressed in broad terms when an employer may unilaterally establish rules that are designed to protect the “core purpose of its enterprise.” In Member Hayes’ view, the employer’s flu-prevention policy satisfied this test.

Conclusion

These summaries provide a helpful window into the General Counsel’s view on an employer’s obligation to bargain with a union during an emergency. One major item that can be gleaned from these summaries is that while an emergency may allow the company to take immediate and decisive action, it will not excuse the company from bargaining over the effects of these decisions once the height of the emergency settles. Therefore, employers should be cognizant of both their duty to bargain over the decision itself and the effects of that decision.

Notably, there is no discussion of how bargaining can or should be structured in the current environment. In general, a party cannot compel telephonic or video conference bargaining. In these times, parties are understandably reluctant to meet in person. Unfortunately, employers and unions have many matters that require immediate negotiations. It remains to be seen whether or not the General Counsel will allow a party to compel telephonic or video conference bargaining.

If you have any questions concerning this Memorandum or your company’s obligation to bargain with the union during the Coronavirus pandemic, please contact Daniel Sobol, Brandon Shemtob or the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.

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