The Practical NLRB Advisor: Summer 2020

Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the summer 2020 issue of the Practical NLRB Advisor. This issue offers insight into the new, and, oftentimes unanticipated, labor/management issues resulting from the coronavirus pandemic. While COVID-19 brought an abrupt halt to many aspects of daily life, it has had quite the opposite effect on labor relations: novel bargaining obligations arose, and new bargaining mechanics became necessary. These unexpected issues, coupled with an increase in employee concerted activity in response to the pandemic, have all tested the capacity of the parties and the law to adapt to unprecedented circumstances.

The ‘Restoring Balance in Alberta’s Workplaces Act’: Bill 32 Proposes Key Changes to Labour and Employment Legislation

On July 7, 2020, the Government of Alberta proposed important changes for workplaces through Bill 32, the Restoring Balance in Alberta’s Workplaces Act, 2020 (Bill 32). The stated purpose of Bill 32 is to increase investment in Alberta’s workforce and to reduce the administrative burden for employers. On July 29, 2020, Bill 32 received Royal Assent.

NLRB Disentangles Itself From Religious Education Institutions

On June 10, 2020, the National Labor Relations Board (NLRB) renounced jurisdiction over faculty employees at most religious educational institutions. The Bethany College case overruled the NLRB’s 2014 Pacific Lutheran University decision, through which many NLRB Regional Directors had ordered union elections at religiously-affiliated schools (such as a Catholic university in Seattle) In Bethany College, the NLRB adopted a new jurisdictional standard, adopted from a 2002 opinion from the U.S. Court of Appeals for the District of Columbia Circuit, University of Great Falls v. NLRB, under which it will not assert jurisdiction over an institution that: (a) holds itself out to the public as a religious institution, (b) is nonprofit, and (c) is religiously affiliated.

U.S. District Court Vacates Parts of New NLRB Election Rules and Remands Non-Vacated Parts for Reconsideration

In an abbreviated order issued on May 30, 2020, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia ruled that the National Labor Relations Board (NLRB) improperly implemented portions of the final rules on representation elections initially scheduled to take effect on April 16, 2020. The NLRB delayed implementation to May 31, 2020, due to the COVID-19 pandemic.

NLRB Continues to Apply Common-Sense Interpretations to Employer Rules

The current National Labor Relations Board (NLRB) continues to provide relief for employers whose workplace rules and policies were under attack from the Board during the Obama administration. Following the line of authority started with its decision in The Boeing Company, 365 NLRB No. 154 (2017), the NLRB continues to review handbook, code of conduct, and other employer rules with a more relaxed, common-sense approach.

Can Employees Refuse to Return to Work Because of COVID-19?

Parts of the country have begun the process of returning to work, in places where COVID-19 infection rates have flattened or shown a decline. But the risk of becoming infected with COVID-19 remains, and some employers may be faced with parts of their workforces refusing to return to work or to perform certain assignments, citing the health risk. What are employers’ options with respect to such employees? There are both legal and practical considerations.

Triaging Employee Refusals to Work Due to COVID-19: A Legal Update for Healthcare Employers

Employees—particularly healthcare employees—are increasingly refusing to work because of safety concerns and the need for accommodations related to COVID-19. In certain circumstances, these refusals may trigger protections afforded by the Occupational Safety and Health (OSH) Act, the Americans with Disabilities Act (ADA), and the National Labor Relations Act (NLRA), among others.

USMCA Preview: Alternative Methods of Dispute and Temporary Relief for Vehicle and Light Truck Producers

After more than two years of deliberation, the United States-Mexico-Canada Agreement [T-MAC in Mexico] will enter into force on July 1, 2020. The three-nation agreement includes a key element employers may want to take note of—employers and unions will be able to negotiate disputes through alternative methods of dispute resolution.

CARES Act Loans for Mid-Sized Employers and the Commitment to Union Neutrality: How Concerned Should Employers Be?

Over the course of the past few weeks, we have all asked and attempted to answer many questions about workplace law and the COVID-19 response, including questions arising under the new Coronavirus Aid, Relief, and Economic Security (CARES) Act. In the labor space, one question that continues to come up goes something like this: “We have heard that taking advantage of programs under the CARES Act may require an employer to remain neutral during any union organizing effort. Is that true and, if yes, what does it mean?”

What Virginia Employers May Have Missed While Managing COVID-19: The Silent Labor and Employment Law Revolution

Virginia has long billed itself as a business-friendly state with low taxes and commonsense employment regulations. But recent changes—largely adopted with little fanfare or scrutiny—are poised to revolutionize the labor and employment landscape in Virginia. These changes—compounded by the likely recession resulting from the COVID-19 pandemic—will present tremendous challenges for Virginia employers.

NLRA Issues for Employers Raised by the COVID-19 Pandemic

Every day media outlets are reporting on people’s concerns about how the COVID-19 pandemic is being handled: citizens are complaining about the government; politicians are complaining about each other; and workers are complaining about their employers. In addition, stories about protests, walkouts, or other employee-led work disruptions have become increasingly more common. Whether constructively sincere or mere venting, in the context of labor relations, it is imperative employers know and understand the legal parameters that govern their responses to such employee actions.

NLRB Finalizes Rules on Blocking Charges, Voluntary Recognition, and Section 9(a) Recognition

On August 9, 2019, we explained that the National Labor Relations Board (NLRB) would be publishing a notice of proposed rulemaking (NPRM) regarding certain proposed amendments to the National Labor Relations Board’s (NLRB) rules on “blocking charges,” a bar on voluntary recognitions, and Section 9(a) recognition in the construction industry. On March 31, 2020, the Board announced that it has finalized the proposed amendments, which it believes “better protect employees’ statutory right of free choice on questions concerning representation.” The final rules will be published in the Federal Register on April 1, 2020, and should take effect after May 31, 2020.

Contract Negotiations in the Midst of the COVID-19 Pandemic: What if Your Union Contract Expires on March 31, 2020?

As employers everywhere grapple with the COVID-19 crisis and its impact upon their employees and operations, questions have arisen regarding union contracts that expire on or about March 31, 2020. Although every labor contract and bargaining relationship is unique, established federal labor law principles can be applied to guide employers during this difficult time.

The Protecting the Right to Organize (PRO Act) of 2019: An Outline of its Proposed Labor Reforms

On February 6, 2020, the House of Representatives passed H.R. 2474, The Protecting the Right to Organize Act of 2019 (PRO Act). The PRO Act would fundamentally alter federal labor law by dramatically tilting the playing field in favor of labor unions at the expense of employers and employees.

USMCA Review: A New Deal for Labour in the ‘New NAFTA’

The United States–Mexico–Canada Agreement (USMCA) is a free-trade pact that was agreed to by U.S. President Donald Trump, then-president of Mexico Enrique Peña Nieto, and Canadian Prime Minister Justin Trudeau on November 30, 2018. This agreement changes the current rules governing North American trade contained in the North American Free Trade Agreement (NAFTA).

The NLRB’s Revised Representation Case Procedures, Part I: The New Pre-Election Procedures

On December 18, 2019, the NLRB published final rules changing and clarifying many of the representation case procedures established in the 2014 amendments. The rules, which will take effect April 16, 2020, state unequivocally that “the Board is not rescinding the 2014 Amendments in their entirety.” Rather, the 2019 rules address issues of fairness and statutory compliance the 2014 amendments altered or did not address.

Arbitration Decisions Matter: The NLRB Reverts to Prior Standards on Deferral to Arbitration and Pre-Arbitration Settlements

Arbitration is a strongly favored federal policy and generally can be relied on to resolve even statutory discrimination claims. This is not a novel concept in federal jurisprudence from the Supreme Court of the United States down (although California and the Obama-era National Labor Relations Board (NLRB) have and had a different view).