Top NLRB Lawyer Warns of Employer Violations During Pandemic

The National Labor Relations Board’s top attorney signaled to employers that his office would press charges against those that use the Covid-19 pandemic as a cover to violate workers’ union rights.

In a four-page memo, NLRB General Counsel Peter Robb outlined nine recent cases in which labor board attorneys sought to punish employers for allegedly flouting workers’ rights, such as refusing to bargain over pandemic-related changes to benefits; disciplining workers who raised concerns about lack of social distancing; and allegedly firing a fast-food employee who led a workplace protest over hand sanitizer and personal protective equipment.

In the memo, the NLRB’s top prosecutor said he wanted to “convey a better understanding of my office’s approach” to weighing workers’ rights and legitimate business responses to the pandemic. The announcement indicates that Robb, who has favored employer-friendly policies under the Trump administration, will not uniformly defer to businesses in their response to Covid-19.

“COVID-19 has resulted in unprecedented challenges for employees, their employers and unions,” Robb wrote. “It is my hope that these summaries will offer readers an understanding of the contours of doctrinal law and its application to this unique situation.”

In one case Robb cited, board attorneys issued a complaint against an employer that allegedly refused to call back 20 employees furloughed in mid-March who were known union supporters. At the same time, Robb said, the employer called back a dozen other employees who were known to be less enthusiastic about the union. The employer was said to have expressed “anti-union animus” during a recent union campaign, Robb said.

Robb said his office didn’t publicize the names of businesses in the memo because the cases haven’t been resolved.

In another case, a fast food restaurant allegedly fired an employee who led a protest over lack of hand sanitizer, masks, and gloves. A group of employees chose to take unpaid leave during the dispute, Robb said, but only two employees—including the organizer of the protest—were told they no longer had jobs when they tried to come back.

In most cases, the charges from Robb’s office will either force companies to strike a settlement with workers or defend their actions before an administrative law judge and, eventually, the full NLRB.

NLRB spokesman Edwin Egee said in a statement that the board’s attorneys “have been aggressive and effective in ensuring that workers’ rights are being protected during this difficult time. Today’s memo summarizes just a handful of the many cases in which the Agency is actively protecting workers from discrimination during the pandemic.”

Robb also cited a casino manager who allegedly questioned an employee about wearing a mask in front of guests. The employee allegedly requested a union representative, but the inquiry continued without one. The employee was then suspended for the rest of the day and disciplined, Robb said, a violation of the worker’s rights under the 1975 Supreme Court decision in NLRB v. J. Weingarten Inc.

In another case Robb cited, a nursing home operator refused to bargain over a successor agreement, typically an issue when a company’s ownership changes hands. The pandemic didn’t give the employer license to refuse to bargain for two months, including over teleconference, Robb said. The employer also allegedly refused to discuss a proposal on hazard pay.