NLRB Approves Video Hearing For Nurses Against Hospital’s Opposition – But It’s Not All Bad…

In an August 13 decision the National Labor Relations Board upheld an administrative law judge’s decision denying William Beaumont Hospital’s motion for an in-person hearing for an unfair labor practice charge. The charge was brought by the Michigan Nurses Association alleging “numerous Section 8(a)(3) and (1) violations during an organizing campaign.” The Board shot down the Hospital’s “list of sundry problems” which could potentially occur during a video hearing as speculative and premature, and found that in light of the Michigan Nurses Association’s claims of anti-union tactics the judge’s decision that the pandemic constituted “compelling circumstances” warranting a remote hearing was not an abuse of discretion. The decision can be found here.

Although the Board’s decision may usher in more frequent remote hearings in the future, it’s not all bad. The same day as the Board’s decision in William Beaumont Hospital, the NLRB’s Division of Advice published 5 new advisory memos addressing COVID-19 related questions posed by different Regional Offices. In each case, the Division applied established law and recommended dismissal. Although, each advisory memo was written in response to an individual unfair labor practice charge and the Division’s conclusions are binding only as to the parties involved in that particular case, they provide some insight as to how similar cases might be handled and make it clear that COVID-19 pandemic or not – the same rules apply.

Below is a summary of those advisory memos each of which recommended dismissal to the Regional Office:

Mid-Term Bargaining

  • Memphis Ready Mix, 15-CA-259794: The Region submitted this case for advice as to whether the Employer Memphis Ready Mix, a concrete producer and distributor, violated Section 8(a)(5) by refusing to bargain over the Union’s proposals for paid sick leave and hazard pay due to the COVID-19 pandemic. The Division found that Memphis Ready Mix was within its rights to refuse to bargain about these issues, where the CBA was still in force, it expressly covered leave of absence and wage issues, and included broad management rights and zipper clauses.
Protected Concerted Activity
  • Marek Bros. Drywall Co., 16-CA-258507: The Region submitted this case in relation to an employee who was fired after engaging in a protected activity – voicing concerns at a group meeting about the lack of hand sanitizer on the work site. Although the attorney writing for the Division noted that the charging party "raised serious concerns over the lack of available water and hand sanitizer for all employees on the jobsite," he ultimately found "insufficient evidence of knowledge or animus on this record.”
  • Hornell Gardens, LLC, 03-CA-258740 and 03-CA-258966: The Region submitted two COVID-19-related cases for advice. The first was whether Hornell Gardens, a healthcare facility, discharged two nurses because of alleged protected concerted activity in violation of Section 8(a)(1) of the Act. The two nurses at issue were terminated after one refused to work because of a policy requiring employees to share isolation gowns and the other refused to work because the employee was required by another employer to self-quarantine due to a potential exposure while at Hornell Gardens. The Division rejected the assertion that these employees’ actions or the issues they raised to Hornell Gardens constituted concerted activity for mutual aid and protection. The Division also found that the Employer’s comment to an online publication that it would report the nurses to the State of New York licensing authority for quitting without notice did not constitute a coercive threat.
Duty to Provide Information
  • Crowne Plaza O’Hare, Case 13-CA-259749: The Region submitted this case for advice about whether the Employer Crowne Plaza O’Hare, a hotel, violated Section 8(a)(5) by refusing to provide information requested by the Union about the hotel’s decision to temporarily close and layoff all staff as a result of the pandemic. The attorney writing for the Division agreed that the Employer did not violate Section 8(a)(5) by refusing to provide the requested financial information, which included information pertaining to CARES Act loans or financial assistance, because it was not presumptively relevant.
  • ABM Business and Industry, 13-CA-259139: The Regional submitted this case, stemming from a pending grievance over COVID-19 related layoffs, for advice as to whether the Employer’s failure to provide communications between the business and its clients related to the layoff violated Section 8(a)(5). The attorney writing for the Division found that there was no showing that the information, which did not have to do with the terms and conditions of employment, was presumptively relevant and recommended dismissal.
For more information on the Division’s advisory memos see here.