Social distancing and uncertainty about COVID-19 have altered many aspects of daily life, uprooted traditions, and redefined “normal.” Unions are seizing this opportunity in a push for electronic representation elections.  On May 6, a coalition of fourteen unions urged Nancy Pelosi, Mitch McConnell, Kevin McCarthy, and Chuck Schumer to fund and direct the NLRB to establish a system and procedures to facilitate electronic union representation elections.
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In a recent decision of first impression, the NLRB held that its contract coverage doctrine does not apply to changes to the terms and conditions of employment after the expiration of the parties’ collective bargaining agreement, unless the contract contained explicit language that the relevant provision would survive contract expiration. 
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Almost overnight, COVID-19 has radically altered the American workplace.  Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.
Such change may be accompanied by grievances, concerns, and fears.  And in some instances, employees will desire to communicate those anxieties to the greater public at large. 
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An employer’s duty to bargain may change during emergency situations, and the General Counsel for the National Labor Relations Board released a series of case summaries Friday to help employers navigate the exceptions. General Counsel Peter Robb summarized nine Board cases addressing both general public emergencies and emergencies particular to individual employers.  Robb did not make any declarations about how the COVID-19 outbreak and associated response might affect bargaining obligations, but the summarized cases provide good examples of bargaining exceptions that may or may not apply.
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Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.
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On February 26, 2020, the National Labor Relations Board (NLRB) finalized its rule governing joint employer status under the National Labor Relations Act. The final rule generally restores the “direct and immediate control” standard that the NLRB applied for decades prior to the 2015 Browning-Ferris decision, but provides additional guidance.
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The last few weeks of a National Labor Relations Board Member’s term can be a busy time.  This is especially true when a Member’s imminent departure will leave the Board without any Members from the minority political party.  The Board historically has avoided major shifts in precedent without the participation of both parties.  Last month was no different.  As the clock wound down on Democrat Lauren McFerran’s term this December, the Board issued a flurry of significant rules and opinions that pare back many of the most anti-employer precedents set during the Obama-era.
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Yesterday, the National Labor Relations Board published a final rule modifying its representation case procedures. The final rule takes effect April 17, 2020, and scales back—but does not completely undo—the changes to election regulations instituted by the Obama-era’s Board that have caused employers heartburn since 2015.
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