Washington – Peter B. Robb, who made his name as a union-busting attorney before he was appointed by President Donald Trump to the position of NLRB General Counsel, issued five memoranda in August dismissing pandemic-related actions against employers regarding protected activity, collective bargaining and the duty to provide information.
In two cases regarding protected concerted activity (activities employees may partake in without fear of employer retaliation), Robb issued two memoranda dismissing the complaints in favor of the employers.
- When a drywall company discharged an employee for raising concerns about a lack of available hand sanitizer and handwashing resources for employees, Robb said the company did not violate the National Labor Relations Act even though the employee was engaged in protected concerted activity when he raised these concerns. it nevertheless directed dismissal of the charge because there was no prima facie (obvious) case of discrimination. “In particular, there was insufficient evidence that the employer had knowledge of, or animus toward, the protected activity,” Robb wrote in the twisted, ignore-the-facts logic common to this administration.
- When a nursing home fired a nurse who refused to work with shared isolation gowns, Robb’s memoranda found that the nurse’s refusal was not protected or done so in the interest of protecting herself and other employees.
“Though there was evidence that nurses discussed the gown issue prior to one of them raising it with the employer, there was no evidence that they sought to initiate or prepare for group action as opposed to simply discussing the fact that the nurses had to share gowns,” Robb found. “The nurse’s letters were focused solely on that nurse’s personal disgust at the notion of sharing gowns and fear for her own safety and that of her family,” and that was not protected, Robb determined.
- In a charge against a concrete company, Robb said that the company lawfully refused to engage in midterm contract bargaining with a union over paid sick leave and hazard pay during the pandemic.
Robb concluded that the contract’s zipper clause demonstrated the union’s clear and unmistakable waiver of its right to demand midterm bargaining concerning matters not otherwise covered by the contract. However, Robb noted that the employer might be required to bargain about sick and hazard pay — mandatory subjects of bargaining — at the appropriate time under a reopener clause. In other words, the company might have to negotiate those issues long after the fact, when it is too late to do current employees any good.
DUTY TO PROVIDE INFORMATION
- An airport hotel temporarily closed and laid off its staff. Robb found the company did not violate its requirement to provide information when it refused to provide the union with financial information. Robb concluded that the employer’s claim that the layoffs were due to “loss of business” was not an inability to pay claim (a legal term generally referring to a business’s inability to pay a criminal fine or penalty), so it was under no obligation to provide financial information to the union. Robb advised that the decision to close temporarily due to loss of business caused by the pandemic was an entrepreneurial decision not subject to bargaining.
- Robb further advised that the employer did not violate the Labor Relations Act because, by his finding, the union failed to engage the employer in a dialogue about why the information was necessary or advise the employer that the union believed its responses to be incomplete.
In other words, Robb found the employer had no obligation to provide the union with the financial information related to its decision to lay off employees because the union didn’t ask the question in the right way.
(Information for this story from Labor 411 and JD Supra.)