On Friday, the General Counsel of the National Labor Relations Board released a memorandum outlining the law regarding collective bargaining obligations during emergency situations. Memorandum GC 20-04 (March 27, 2020) addresses “public emergency situations as well as emergencies unique to a particular employer.” Employers should review the memo and cases referenced before making any decisions regarding terms and conditions of employment for union-represented employees.
The crux of the Board’s review is the holding in Bottom Line Enterprises, 302 NLRB 373, 374 (1991), that “an exception to the duty to bargain exists where the employer can demonstrate that ‘economic exigencies compel[led] prompt action.’” This exception is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” Id., quoting RBE Electronics of S.D., 320 NLRB 80, 81 (1995).
The memo summarizes the application of facts and case holdings in a variety of factual scenarios potentially analogous to circumstances implicated by the current COVID-19 pandemic: hurricanes, the 9/11 terrorist attacks, ice storms, product shortages, bankruptcies, etc.
Of significant note, the Board stresses that the exception from the bargaining obligation is limited to the particular urgent circumstances. In many cases, an employer may still have an obligation to bargain over the effects of its unilateral decision—particularly once the exigency at issue has passed, for example, as when employees are recalled from an emergency layoff.