John Bolesta (of Sheppard Mullin) posted the following:
On September 18, the Board’s GC issued GC Memo 20-14, entitled Summaries of Advice Merit Determinations Related to Coronavirus Disease 2019 Issues for the purpose of giving the public a better understanding of the GC’s approach to COVID-19 related issues.
What emerges is a clear message—while the pandemic can impact certain obligations under the National Labor Relations Act, the agency will not permit employers to use the pandemic as a sword to engage in unlawful conduct.
Under Agency guidelines, advice memos in such “go” cases cannot be released until the case is closed. Accordingly, rather than release actual advice memos, the GC’s September 18 memo contained a series of anonymous case summaries in which an employer’s actions relating to the virus were deemed unlawful.
The GC’s latest memo includes a list of these earlier advice memos in which an employer’s COVID-19 conduct was found lawful. What follows is a description of some of the issues and settings rendering these matters meritorious and therefore “go” cases.
Protected Concerted Activity (PCA) – Employee requests to management about working conditions, and in this case a letter requesting input on how to provide services to clients during the pandemic, qualify as PCA.
Accordingly, an employer’s interrogation of an employee about her involvement in the letter, its warning to the employee not to discuss her interactions with management with co-workers and to refrain from taking her work-related problems to co-workers, and its threat to fire the employee if he/she did not follow the employer’s instructions were found to be unlawful interrogation, threats of termination, surveillance and constructive discharge.
Discrimination Based on PCA – After a group of non-union employees briefly withheld services from a food delivery business in protest over its failure to provide them with personal protective equipment and to enforce social distancing guidelines, the employer returned all of the “protesters” to work except for two individuals, one of whom was the person who led the job action.
Because the job action was PCA, the GC authorized the issuance of complaint on the theory that the un-reinstated employee was discriminatorily singled out because he led the PCA.
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