As COVID-19 raises questions for employers over shutdowns and layoffs, a new memo from general counsel Peter Robb of the National Labor Relations Board offers some insights, but no clear guidance.

"The Coronavirus pandemic has prompted many questions regarding the rights and obligations of both employers and labor organizations, particularly in light of responsive measures taken to contain the virus. Sometimes these measures have been taken out of prudence; other times they have been required by state, local or federal orders," Robb's memo begins.

It continues, "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. 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, [and I] hope that these summaries prove useful to those considering this issue during these challenging times."

The March 27 memo includes four cases involving the duty to bargain during public emergencies, and five cases concerning the duty to bargain during emergencies particular to an individual employer.

It first summarizes four cases in which employers in emergency situations, such as hurricanes or the terrorist attack of Sept. 11, 2001, took unilateral action without bargaining with unions.

Basically, these cases show "if the government orders a shutdown of a plant, the employer doesn't have to bargain over the shutdown," said Lori Armstrong Halber, an employment law partner in the Philadelphia office of Reed Smith.

But Halber told Corporate Counsel the company and its general counsel would still have to bargain with its unions "over the effect of the shutdown, such as severance pay, layoff terms, and whether benefits would continue."

If the employer has any discretion, such as doing a partial shutdown, the company might have to bargain over how to proceed, she added.

The key point of the memo, she said, distinguishes between public emergency situations and those individual to an employer, such as loss of financial credit or shortage of raw resources.

Employment attorney Stephanie Gournis, a partner with Faegre Drinker Biddle & Reath in Chicago, said she was happy to see the memo, but she was hoping for more guidance. "I'm somewhat surprised that the general counsel didn't take the opportunity to take a position or offer guidance, but only to list cases," Gournis said.

The takeaway, she said, "is that this particular board will recognize a sort of exception for emergent situations when employers act unilaterally. The takeaway also is that this exception is limited, and one needs to be careful of using it too broadly."

Gournis said she found it interesting that general counsel Robb "spent so much time talking about the last case involving a hospital" and even quoted from the dissent in that case.

She was referring to a 2011 case during the Obama administration in which Virginia Mason Hospital in Seattle unilaterally imposed flu prevention policies, such as wearing masks, on 600 registered nurses without union notice. Of the nine cases listed, this one contained the longest summary.

The case strikes a chord in today's world of hospitals and their general counsel struggling to stay abreast of COVID-19.

In this case, the board held that the employer violated the National Labor Relations Act by acting unilaterally and not giving the union an opportunity to bargain over the policies. The new procedures were enacted to prevent the spread of flu within the hospital, though it was not a widespread pandemic situation.

Robb's summary notes that board member Brian Hayes dissented and said the board was reading previous case law too narrowly. Hayes argued that a company should be broadly protected "when an employer … unilaterally establish[es] rules that are designed to protect the 'core purpose of its enterprise.' "

The fact that Robb "spent more time on Hayes' dissent than on some of the majority opinions, to me, was an insight that this particular board at this time would likely look at the comment that Hayes made in the dissent, and be willing to expand the extenuating exigent circumstances exemption further," Gournis said.

In other words, Gournis believes a similar hospital case in today's COVID-19 environment and before a Trump administration board would likely find the employer, not the union, winning.