Political activism, COVID-19, and labor law

This information could come in handy for employers.

The National Labor Relations Board has made public three Advice letters dealing with the two hottest topics of our times: Political activism, and COVID-19. In each case, a Board Region Office had asked the NLRB Advice division how to handle.

Political activism: What is and isn't protected

First up is a case that involved an employee of a local of the United Food and Commercial Workers union. The employee was discharged from his* position with the UFCW (allegedly) because he was also a Maryland state legislator who was "working on police transparency and accountability legislation." The employee was a union representative for "uniformed police officers" among others.

*The public version of the NLRB letter redacts the gender of the employee. To avoid having to say "he or she" throughout this discussion, I'm going to refer to the employee as a "he." But, just so you know, "they" might be a woman.

According to the Advice letter, political activity can be protected under the National Labor Relations Act, but only "if it relates in some demonstrable way to employee concerns over wages, hours, or working conditions." In other words, there must be "a nexus between what is being advocated and employee terms and conditions of employment."

In this case, the letter said, the employee's political activity had nothing to do with his employment. (In fact, it sounds to me like there may have been a conflict of interest, given his representation of police officers and his political activity -- and that may have been the reason he was discharged.) "Instead, the evidence shows that the [employee] acted in the interest of the community at large and in furtherance of [his] own political agenda . . .."

I blogged about a similar issue a while back (scroll down to letter from "I Beg to Differ"), using the example of employees who engage in peaceful protesting against systemic racism. If the protest has to do with alleged racism in the workplace, then the protesting might be protected under the NLRA and also, maybe, Title VII. But if the employees are protesting racism in society, then the activity may not be protected.

Duty to bargain over COVID-19 emergency measures

Another hot topic for the '20s! Does an employer have to bargain with the union before undertaking emergency measures to address COVID-19?

Not necessarily.

In a case involving a hospital employer who took measures to comply with COVID-related legal and safety requirements, the Advice division said the employer "should be permitted to, at least initially, act unilaterally during the pandemic so long as its actions are reasonably related to the emergency situation." Once that is done, the employer should begin bargaining over the decision and its effects "within a reasonable time thereafter." In this case, the employer did that, so the Advice division recommended dismissal of the unfair labor practice charge. 

The measures taken by the employer initially without bargaining included "[personal protective equipment], visitor restrictions, COVID-related paid leave and time away from work, delegation of [intensive care unit] nurse duties to others, travel reimbursement policy to implement social distancing, event reporting processing for COVID-related events, and assignments/safety protocols for immunocompromised or pregnant staff."

In another case involving an employer's adoption of COVID-related measures (allegedly) without bargaining, the Advice division found that the management-rights clause in the contract gave the employer discretion to take the action without bargaining. In any event, the employer had tried to bargain, but the union was bullheaded, which resulted in an impasse -- and which also gave the employer the right to take the actions unilaterally. 

Image Credits: From flickr, Creative Commons license. NLRB logo by Paul Swansen, Mona Lisa (2020 version) by FolsomNatural.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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