By Jack Toner and Jeff Berman

Seyfarth Synopsis: During the COVID-19 crisis, the NLRB (for the most part) has truncated its operations to those operations and functions that can proceed without threatening the health of its employees or the  public. In a sense, and as we have seen over the last few months, “neither snow, nor rain, nor heat”, nor pandemic stays the NLRB from “the swift completion of most of its appointed rounds.” Below, we detail the developments at the Board during this time of the crisis, which demonstrates the NLRB’s desire to move forward where this reasonably can occur.

Like many companies and government agencies, and for the safety of NLRB employees and the public,  the National Labor Relations Board (“NLRB”) has cut back on its operations in response to the COVID-19 pandemic. Offices were closed and, for the most part, agency employees performed their duties via teleworking unless critically essential. The NLRB also suspended all representation elections scheduled through April 3, 2020.[1]

The NLRB delayed implementation of the new rule designed to modify the NLRB’s representation case procedures by allowing a fairer and more efficient election process.  According to the NLRB’s press release, the delay was designed to facilitate the resolution of legal challenges against the rule.

NLRB Moving Forward

But, even during these trying times, the NLRB continued to complete its “appointed rounds.” On February 26, it released its long-awaited joint-employer final rule. The rule making process had commenced on September 14, 2018, when the NLRB issued its Notice of Proposed Rule Making. A little over a month after issuing the joint-employer rule, the NLRB issued a new rule designed to better protect employee free choice in connection with its election process. This new rule is discussed in greater detail below.

Guidance on Bargaining During the Pandemic

Not to be outdone by the NLRB, its General Counsel issued a Memorandum designed to summarize cases pertaining to the duty to bargain in emergency situations. GC Memo 20-04. Case Summaries Pertaining to the Duty to Bargain in Emergency Situations The Memorandum was designed to bring the prior decisions of the NLRB into a single place.

Approval of Savings Clause for Otherwise Invalid Policies

During the period that the NLRB curtailed some of its activates, it proceeded to issue decisions.  One of the more important decisions issued during this period is Maine Coast Regional Health Facilities369 NLRB No. 51 (2020). This case involved a media policy that the Board found to be unlawful because it was overly broad, even under the NLRB’s recent Boeing, Inc. analysis. According to the NLRB, the policy improperly prohibited employees from communicating about work-related disputes to third parties, including the media.

However, disagreeing with the Administrative Law Judge, the NLRB concluded that a subsequent amendment to the media policy rendered the revised policy lawful.  Although Maine Coast did not change the prohibitory language in its media policy, it added a “savings clause” that told employees that the policy did not apply to issues covered by the National Labor Relations Act.

Specifically, the savings clause stated that the policy did not apply to employee communications “concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.” Since the days of the Obama Board, employers have wondered what types of savings clauses would be useful in the context of common employment policies that raised legal issues under the Act. They now have their answer.

Employee Free Choice Rules

As noted above, on April 1, 2020, the NLRB issued a final rule intended to better protect the free choice of employees regarding questions of union representation. The new rule will:

  1. Prevent or at least substantially minimize the use of so called “blocking” charges to delay the processing of petitions for elections
  2. Provide employees with notice and ability to challenge an employer’s decision to voluntarily  recognize a union as the representative of the employees without providing the employees an opportunity to have a secret ballot election regarding the issue, and
  3. Require unions in the construction industry to demonstrate that they represent a majority of employees in order to block an election petition by either a rival union or by employees challenging the union’s status as the representative of the employees.

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For guidance on these and other traditional labor topics, please contact the authors or your Seyfarth attorney in the Labor Management Relations practice group.


[1] Pending at this time is an apparent NLRB effort to restart elections as early as April 6, 2020, but many are questioning the propriety of this.  (See our alert here.)