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NLRB General Counsel Offers Welcome Guidance On Duty To Bargain During The Unprecedented COVID-19 Era

4.1.20

In a welcome relief to employers, National Labor Relations Board General Counsel Peter Robb has issued guidance on the duty to bargain in emergency situations. As addressed in our COVID-19 Guidance And FAQs For Unionized Employers, the Board has held the duty to bargain over changes in contractual terms may be suspended where “compelling economic exigencies” compel prompt action. Under such circumstances, an employer may unilaterally implement changes without providing the union notice and the opportunity to bargain, which would otherwise violate Section 8(a)(5) of the National Labor Relations Act (NLRA). Unionized employers, struggling to balance their statutory obligation against their operational response to the ongoing COVID-19 pandemic, have therefore been questioning when such “compelling economic exigencies” exist.

To shed some light on the issue, the March 27 memo titled “Memorandum GC 20-04: Case Summaries Pertaining to the Duty to Bargain in Emergency Situations” summarizes nine cases from previous “emergencies,” ranging from natural disasters and bankruptcy to the attacks on September 11, 2001. General Counsel Robb divides them into two categories: the duty to bargain during public emergencies and the duty to bargain during employer-specific emergencies.

Key Themes In The Summarized Cases

In the cases summarized in the memo, the duty to bargain attached in three circumstances: layoff, plant closure, and policy implementation.

Layoffs

The Board found the following circumstances constituted “compelling economic exigencies” such that the employer had no obligation to bargain with the union prior to layoffs:  

However, the Board ruled no such “compelling economic exigencies” existed when a lumber mill was required to close following a log shortage, as the shortage had been a chronic problem with no “precipitate worsening” requiring immediate action. Hankins Lumber Co., 316 NLRB 837 (1995).

Plant Closure

The Board found the following circumstances created no obligation to bargain with the union prior to plant closure: 

Policy Implementation

The Board found the employer must bargain prior to unilaterally implementing policies under the following circumstances:

What Does This Mean For Employers?

Following publication of this memo, employers should feel more confident in evaluating whether “compelling economic exigencies” exist because of COVID-19. On its face, the COVID-19 obviously seems to meet this threshold. However, the actual effects of the pandemic will be different for every employer and will therefore require a fact-specific analysis. 

Unions will undoubtedly file unfair labor practice charges (ULPs) against employers for failing to bargain, in violation of Section 8(a)(5), during this period of upheaval. This memo offers insight as to how the NLRB may adjudicate such ULPs. The General Counsel has flagged these specific cases as ones which “may prove useful to those considering these issue during these challenging times.” The Regions are likely therefore rely on them when evaluating the merits of any COVID-19-related ULPs alleging a failure to bargain. 

As General Counsel Robb notes, we are “in an unprecedented situation” and circumstances are constantly changing. We will continue to monitor the rapidly developing COVID-19 situation and provide updates as appropriate. Make sure you are subscribed to Fisher Phillips’ Alert System to get the most up-to-date information. For further information, contact your Fisher Phillips attorney, any attorney in our Labor Relations Practice Group, or any member of our COVID-19 Taskforce. You can also review our nationwide Comprehensive and Updated FAQs for Employers on the COVID-19 Coronavirus, our COVID-19 Guidance And FAQs For Unionized Employers, and our FP Resource Center For Employers, maintained by our Taskforce.


This Legal Alert provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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