We have been tracking the NLRB responses to the pandemic, and maintaining a list of how each region has been handling elections and related issues, based on the experiences of the attorneys and our clients.  You can review that web page here.  Please email us any details from your own experience that would be helpful - we’ll keep the details confidential.

After its original postponement of elections, the board is working hard to maintain “business as usual.” Case in point, an acute care hospital that asked to stay the election due to “an extraordinary circumstance” and the expectation of a “huge influx of sick patients in the coming days and weeks,” was denied the appeal. It is possible that more definitive data would have persuaded the board, but the general argument of “current circumstances” wasn’t enough to trump the board’s obligation “to maintain operations to the extent that it is safe and feasible to do so.”

Although the regional directors have been opting to hold hearings via phone, the board ruled that in cases where witness testimony was involved, such hearings must be conducted by videoconference instead of phone.

Unfair labor practice hearings are set to resume on June 1.  The board has stated that both in-person and virtual options will be used, and the Division of Judges has acquired equipment and licenses to handle the virtual cases. Motions or objections with respect to holding an in-person or online hearing – or taking witness testimony by videoconference – will be decided by the designated ALJ.

The rules for conducting mail ballot elections - specifically the vote counting process - received clarification in Providence Health & Services – Oregon d/b/a Providence Portland Medical Center. Whereas prior to Providence, the agents counting votes were allowed to use discretion in attempting to interpret voter intent when there were marks in both the Yes and No box, the board provided a bright line rule that whenever a ballot “includes markings in more than one square or box, it is void.”

The notice posting requirements for employers who violate the NLRA have been modified during the pandemic, due to many companies either shutting down or working with reduced staff. The new guidelines state that the 14-day rule does not apply, and the 60 day time period for posting does not begin to run until a “substantial compliment” of workers has returned.

As employees are returning to work, the EEOC has provided guidance for handling high-risk employees, whether special accommodations are requested by the employees or not. Among the suggested strategies for mitigating risk to such individuals:

  • Providing additional or enhanced personal protective equipment, including gowns, masks, gloves or other protective equipment
  • Taking additional or enhanced protective measures, such as erecting physical barriers or increasing space between employees
  • Eliminating “marginal” job functions (i.e., less critical or incidental job duties as distinguished from the “essential” functions of a position)
  • Temporarily modifying work schedules to reduce contact with coworkers, or relocating the employee’s personal workspace to increase social distancing.
  • Identifying an effective accommodation depends on many factors, including the employee’s job duties and the design of the workspace. Consequently, the EEOC encourages employers to discuss with employees the listed examples as well as other possible accommodations.

In a case before the Ninth Circuit Court of Appeals, an employer made a statement during collective bargaining that was perceived by the union as an “inability to pay” the wage increase demands proposed by the union. The union therefore requested financial documents from the employer to substantiate the claim, which it has the right to do, but when the employer clarified that it was “unwilling,” not “unable,” the NLRB held that there was no obligation to surrender the documents. The Court upheld the NLRB decision.

If you are in the retail or service industries and pay certain employees a significant amount of their income via commissions, a new rule that relaxes the “retail service exemption” will be of interest. The rule removed two provisions from the department’s Wage and Hour Division regulations, providing greater simplicity and flexibility in qualifying for the exemption. You can read the rule in the Federal Register here.

OSHA has returned to a normal policy of physical inspections in areas where covid cases are dropping. There are still some variable approaches to high-risk workplaces, but in general you should expect business-as-usual if you are in a state or area where covid risk is declining.

As was expected, Big Labor has been attempting to twist the covid crisis to promote its own agenda.  As both businesses and government agencies have grappled with proper and balanced responses to the pandemic, The AFL-CIO’s Richard Trumka railed at DOL Secretary Eugene Scalia for a perceived failure of OSHA to step up safety enforcement, especially in light of covid risks.

Trumka, along with support from Democratic lawmakers, sued OSHA to issue an emergency temporary standard to protect workers from coronavirus. The D.C. Court of Appeals required OSHA to reply to the Trumka’s motion by May 29. Scalia has defended OSHA’s handling of the issue by saying the agency can bring enforcement actions under the Occupational Safety and Health Act’s “general duty” clause.

As we reported in last month’s issue of INK, unions have successfully used the pandemic relief bills to advance their agenda. They are now pushing for the implementation of electronic NLRB elections to be added to further relief packages. In a letter to lawmakers, Big Labor demanded “The next COVID-19 response bill must include funding and direction to implement the changes needed for the NLRB to adopt an electronic representation election process.”

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