By Anne Cullen

Law360 (August 14, 2020, 4:47 PM EDT ) The latest stack of National Labor Relations Board guidance letters released Thursday overwhelmingly support employer positions in virus-related workplace disputes, shutting down cases over pink slips handed to workers who voiced safety concerns and backing companies' refusals to engage with unions over COVID-19 actions.

In all five of the memos addressing the coronavirus pandemic, attorneys from the board's Division of Advice directed field officers to dismiss each one.

In one letter that NLRB associate general counsel Richard A. Bock sent in July, the attorney found that a former Marek Bros. Drywall Co. employee was fired after engaging in protected activity — speaking up during a meeting about the lack of hand-sanitizing resources on-site — but he said there wasn't enough evidence to move the case along.
  
Although the worker "raised serious concerns over the lack of available water and hand sanitizer for all employees on the jobsite," Bock found there was "insufficient evidence of knowledge or animus on this record" and told the field officer to close the case.

The advisory attorneys' letters are binding on the case they're issued on, and the other four virus-related letters published Thursday — which each had the author's name redacted — also called for dismissal.

In another July memo, a board attorney concluded that New York nursing home Hornell Gardens didn't break labor laws when it fired a trio of nurses who raised concerns that they weren't given enough protective gear or adequate access to sinks of hand sanitizer.

The grievances that the nurses raised weren't protected activity because they reflected individual gripes, not an attempt to bring a group concern to management's attention, according to the letter. 

The series of actions the nurses took to elevate their complaints — writing letters to management, educating co-workers about COVID-19 risks, refusing to work without protective gear and trying to start a protest in the parking lot — were all done individually, not as a group, according to the letter.

"The employees here never took their concerns to management as a group," the attorney said.

Although one nurse considered starting a union over her concerns, her termination wasn't related to this effort, according to the letter. That case was dismissed this month.

In the other three memos, also sent in July, NLRB attorneys found two Illinois employers and a Louisiana concrete producer were not required to consult with the union over layoffs or paid sick leave and hazard pay.

The Crowne Plaza Chicago O'Hare Hotel's decision not to negotiate with a staff union before laying off the entire workforce and closing up shop was on the up-and-up, an NLRB attorney said, because the move was prompted by financial struggles, a situation that doesn't trigger bargaining requirements.

"The employer's action was driven solely by the significant decrease in hotel guests caused by the pandemic rather than an intention to lower the labor costs associated with its bellmen and airport shuttle drivers," the attorney said.

Facilities management company ABM Business and Industry didn't run afoul of labor code when it refused to hand a staff union more details about a COVID-19 layoff, according to another letter, because the information wasn't relevant to bargaining. 

An attorney also found that Memphis Ready Mix was within its rights to refuse to bargain with a union over paid sick leave and hazard pay amid the pandemic, as they said the standing contract with the union makes clear that midterm negotiations aren't allowed. 

The five missives unveiled Thursday represent the latest guidance the Division of Advice has issued addressing the pandemic since NLRB's first batch of memos relating to the virus was published in mid-July.

--Additional reporting by Braden Campbell. Editing by Orlando Lorenzo.

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