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Under The Trump Administration, The NLRB Rulings ‘Tip Balance Toward Management’ Coping With Contagion In The Workplace

Published Thursday, July 23, 2020
by Bloomberg Law
Under The Trump Administration, The NLRB Rulings ‘Tip Balance Toward Management’ Coping With Contagion In The Workplace

(WASHINGTON, D.C.) - The National Labor Relations Board (NLRB) has taken a deregulatory approach to Labor Unions and Workplace Law under the Trump Administration, and the agency has largely stayed on that management-side course during the Coronavirus Pandemic.

The outbreak has presented novel legal issues under the National Labor Relations Act (NLRA), the central statute governing Workers’ and businesses’ rights concerning Unionization, which the NLRB is charged with enforcing, enmeshing it in disputes that can be hotly contested even when there’s no overarching crisis.

Among those disputes: Whether and how to conduct Union Elections and engage in Collective Bargaining with the contagion resurgent in the U.S. South and West, and as health authorities advise or mandate social distancing.

Even the NLRB itself has dealt with complications against that backdrop, resorting to bargaining with its own Employees’ Unions via teleconference, NLRB General Counsel Peter Robb said.

The pandemic also pushed to the fore questions of whether Unionized businesses are required to negotiate new workplace safety precautions or hazard pay for Workers deemed essential.

A handful of charges already have been filed alleging some companies put Workers’ safety at risk during the pandemic.

NLRB decisions in precedent-setting cases have delivered major policy wins for employers since the start of the pandemic, and even further back, said former Democratic NLRB chairwoman Wilma Liebman.

The NLRB is “apparently taking advantage of the pandemic to excuse employers from obligations they would otherwise have under the statute” and to “ease or discard norms that provide some measure of integrity to agency procedure,” she said.

Pro-business case rulings and moves from the NLRB and General Counsel since the beginning of the year include those that: Gave employers some legal basis to lay Workers off without bargaining with their Union, due to the unforeseen, extraordinary circumstances presented by the pandemic; Curtailed the agency’s own investigative and prosecutorial powers against employers; Allowed employers whose facilities are currently closed due to the pandemic to forgo a previously required electronic notification to Employees that the employer violated Labor Laws and explaining their rights under the NLRA; Affirmed employers who require arbitration of work-related disputes can also require confidentiality from Workers; and Relinquished the agency’s jurisdiction over Faculty organizing at certain religious universities and colleges.

There’s “only one outcome in their decision making - all decisions favor employers, a result inconceivable under a statute designed to protect Workers,” Liebman said.

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