By Vin Gurrieri

Law360 (September 18, 2020, 12:13 PM EDT) -- National Labor Relations Board general counsel Peter Robb warned Friday that his office is pushing forward with complaints against businesses that try to use the coronavirus pandemic as an excuse to stamp out union drives or discipline employees who protest working conditions. 

In a memo issued Friday, Robb offered an outline of nine cases related to COVID-19 in which his office has directed regional offices to investigate or issue complaints, including one discriminatory layoff case in which an unnamed company that was forced to shutter its facility because of the pandemic picked two workers who were recently certified as a two-person bargaining unit to be laid off, while retaining numerous, less experienced employees below them in the company's hierarchy.

"The selection of the only two employees in the certified unit for layoff manifested an effort to erode their bargaining unit, an intention the employer made clear at the bargaining table," Robb said in describing the case.

As the NLRB's general counsel, Robb has the power to authorize complaints enforcing the National Labor Relations Act, which gives workers a right to band together for their mutual benefit and bars actions that interfere with those rights.

In another ongoing case, Robb said he recommended that a complaint be issued accusing a health care provider of "coercively" questioning an employee about her role in a letter she and her colleagues sent asking to have more input on how to provide in-person therapy services that the employer said would go on amid the pandemic.

Robb said the employer also "repeatedly admonished" the worker not to talk with rank-and-file workers about work-related problems and told her that not following those and other directions would signal she wanted out of the job. The NLRB's top lawyer said she was "given a 'Hobson's choice' of either keeping her job and agreeing not to engage in protected concerted activity or resigning," according to Robb's summation of the case. 

Although the approach of the general counsel's office in these and other cases is outlined in internal guidance memos that the board's Division of Advice sends in response to questions from field offices about how to approach certain cases that involve thorny legal issues, Robb noted that advice memos in which the board recommends issuing a complaint are kept under wraps until the case is completed.

But given the pressing nature of the pandemic, Robb issued Friday's general counsel memo summarizing a choice few of those open cases and investigations without directly identifying the participants "in order to convey a better understanding of my office's approach to these issues."  

"COVID-19 has resulted in unprecedented challenges for employees, their employers and unions," Robb said. "It is my hope that these summaries will offer readers an understanding of the contours of doctrinal law and its application to this unique situation."

The cases outlined in Robb's memo generally fell into various buckets of cases, including collective bargaining and so-called Weingarten rights.

Under the U.S. Supreme Court's 1975 decision in NLRB v. Weingarten Inc. , unionized employees have the right to request that a union representative be present during any investigatory interview that they believe could reasonably result in disciplinary action.

But in one ongoing case that arose early in the pandemic, Robb authorized a complaint against a casino alleging it unlawfully quizzed a union worker who was wearing a face mask in guest areas of the site if he would pull back on wearing it only when his job duties required him to do so.

After the worker subsequently asserted his Weingarten rights to have a representative present, his employer allegedly sent him home and disciplined him for being "uncooperative" during questioning, according to Robb's memo.

Other notable scenarios outlined in Robb's memo included a case against a hotel alleging it flouted the NLRA by using layoffs to weed out union supporters while recalling to work those who were anti-union, and another case accusing a "food delivery establishment" of refusing to allow back to work two people from unpaid leave who were part of a protest over the employer's alleged failure to provide personal protective equipment and to enforce social distancing guidelines while welcoming other individuals who were similarly on unpaid leave back into the fold.

Additionally, Robb described a case against a "cultural institution" that eliminated furloughed workers' health insurance and accrued vacation time amid restrictions on its ability to reopen. Despite the fact that the institution's monthly revenues nosedived, Robb said it still incurred health insurance costs for three weeks after deciding to eliminate them and that it had "ample time" to bargain with a union over the changes.

"Although the pandemic and related government orders may have created significant financial pressure for this employer ... those conditions did not preclude it from engaging in pre-implementation bargaining, nor did the economic concerns rise to the level of an exigency that would excuse it from bargaining," Robb said in his memo.

--Editing by Katherine Rautenberg.

Update: This story has been updated with additional details from the general counsel's memo.

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