By Braden Campbell

Law360 (March 30, 2020, 4:53 PM EDT) -- With the novel coronavirus disrupting businesses around the country, the National Labor Relations Board's top attorney sent regional officials a letter to clarify employers' obligation to bargain with unions during crises, citing NLRB rulings dealing with the aftermath of 9/11, hurricanes and other emergencies.

General Counsel Peter Robb's Friday letter to leaders in the agency's field staff summarized nine board decisions concerning allegations employers illegally ditched their duties to bargain with unions in emergencies. The letter does not explicitly address employers' obligations during the current pandemic, however.

"Regardless of the reason for any given response to the spread of the virus, many parties are considering the impact on the duty to bargain," Robb wrote. "Although we are in an unprecedented situation, I wish to make the public aware of several cases in which the board considered the duty to bargain during emergencies."

Robb said he sent the letter in response to "many questions regarding the rights and obligations of both employers and labor organizers" in light of employers' various responses to the virus. These measures include voluntary and forced shutdowns and on-the-fly changes to safety precautions.

These examples don't directly align with those of employers in cases the board has decided, but some of those rulings may be instructive amid the crisis, Robb said.

The GC divided his memo into two categories: rulings on employers' duty to bargain during public emergencies, and rulings on employers' bargaining duties during emergencies that only affect their business.

For example, the board said Louisiana-based Port Printing & Specialties did not violate the National Labor Relations Act by unilaterally laying off several union-represented employees during Hurricane Rita's approach, but did break the law by using non-union workers to perform the laid-off employees' work after the storm dissipated.

The ruling examined two pieces of precedent on bargaining, which employers must generally undergo before enacting workplace changes: an exception for changes demanded by "economic exigencies," and another ruling limiting this exception to "extraordinary" and "unforeseen" events "requiring the company take immediate action." Under this precedent, the printer did not have to bargain over the layoffs because the hurricane-related evacuation forced its hand, the board said. But that did not excuse the company's failure to bargain over the use of non-union workers post-crisis, the board said.

In another ruling Robb highlighted, the board said K-Mart did not violate the NLRA by laying off workers after its business volume plunged following the Sept. 11 attacks and forced it into bankruptcy. In another case, the board said an employer illegally implemented new pay policies during a two-day power outage caused by a hurricane.

It also ruled that Gannett Rochester Newspapers broke the law when it paid non-union workers during an ice storm-related travel ban, but made union workers who were negotiating a new contract take personal days or go without pay. But other union workers whose active contract gave Gannett some leeway to make unilateral changes could be made to take unpaid time, the board said.

Robb also recapped several cases in which employers faced challenges unique to them. For example, the board said a mill violated the law by unilaterally laying off workers due to a log shortage it could have foreseen. In another ruling, the board said a different employer did not break the law by shutting down its mill because it gave its workers' two months notice and bargained over the effects of the shutdown.

--Editing by Adam LoBelia.

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