Letter to Peter Robb, National Labor Relations Board's General Counsel - Jayapal, Pocan Urge National Labor Relations Board to Take Immediate Action to Protect Workers Punished for Pandemic-Related Organizing Activity

Letter

Dear General Counsel Robb:

During the COVID-19 pandemic, frontline workers who serve our communities at great
risk to their own safety are joining together to demand improved protections on the job. Too
often, these workers are reprimanded, punished or even fired by their employers for raising
concerns or asking for improvements to increase workplace safety. The National Labor Relations
Board (NLRB) must comply with its legislative mandate by taking immediate action to prioritize
the workers' exercise of their rights to organize to protect their safety and health. We ask that
you act decisively by swiftly pursuing injunctive relief to reinstate workers who were fired for
engaging in any organizing or other protected activities as a response to the COVID-19
pandemic.

Many workers face high risks of contracting COVID-19 on the job

Frontline workers are the most exposed and most vulnerable to COVID-19. An estimated 10
percent of U.S. workers are exposed to disease or infection once a week or more.i A substantial number of these workers are employed in low-pay, high risk professions.ii Women and people of color are especially vulnerable on the job. Seventy-three percent of health care providers
diagnosed with COVID-19 were women.iii People of color are also overrepresented in jobs with
high COVID-19 exposure risks.iv These frontline workers have paid a very high price,
experiencing disproportionately high rates of hospitalization and death from COVID-19.v As
some states lift stay-at-home orders, more and more workers will face the risk of COVID-19
exposure in their workplace.

Corporations are punishing and firing workers who join together and organize for safer
working conditions

Many frontline workers report that they are subject to high levels of COVID-19 exposure on the
job but are not being given adequate safety guidance, information about on-the-job infections or
equipment to help them stay safe. In a COVID-19 survey of nurses, fewer than half had been
briefed about COVID-19 by supervisors;vi and only 19 percent reported that their employer had a
policy to address employees with suspected or known exposure to novel coronavirus.vii Both
worker organizations and the former head of Occupational Safety and Health Administration
(OSHA) have raised concerns about inadequate COVID-19 worker safety standards for frontline
workers.viii

Workers have reported to your agency that they are being punished when they speak up about
unsafe working conditions. Examples include the following:

* Essential workers in the food supply chain in Yakima, WA report that when they asked
for improved safety provisions and other COVID-19 related improvements to their
working conditions, they were interrogated and threatened by their employer.ix
* Food service workers in Colorado report that they were fired after joining together to ask
for improved safety precautions prior to returning to work.x
* Poultry plant workers in Delaware report that their wages were reduced to fund payments
for personal protective equipment, and that they were forced to attend anti-union
meetings in small, cramped spaces -- leaving them especially vulnerable to COVID-19
transmission.xi
* Crawfish processing workers in Crowley, Louisiana report that after they developed
COVID-19 symptoms, their supervisor forbade them from leaving employer-owned
housing and then fired them for going to the hospital to seek medical attention.xii
* A fast food worker in Chicago, IL reports that he was fired for participating in a lawsuit
alleging unsafe working conditions, including inadequate PPE and failures to inform
workers when co-workers tested positive for COVID-19.xiii

Left with inadequate protections, workers have joined together to raise workplace safety
concerns -- despite facing chilling effects to organizing caused by high unemployment

Fortunately, the National Labor Relations Act (NLRA) protects the right to engage in concerted
activity,xiv and prohibits employers from interfering with employees' exercise of that right.xv As
noted on the NLRB website, this right includes "participating in a concerted refusal to work in
unsafe conditions."xvi But many of these workers have then been retaliated against or even fired
for their activities in violation of the NLRA. Workers who have been fired or punished by
employers after organizing for improved safety include warehouse workers,xvii healthcare
workers,xviii factory workers,xix veterinary workers and workers throughout the food supply
chain. Still more workers report that their employers are using the COVID-19 pandemic to send
them intimidating letters, hold captive audience meetings, or even fire and replace workers who
are organizing - all to discourage workers from raising safety concerns or organizing unions.xx
This is especially disturbing since research shows that more densely unionized workplaces have
a lower rate of workplace fatalitiesxxi -- something that should be the goal of every employer.
When corporations discipline or fire workers who organize in the midst of a pandemic, those
actions send a clear message: workers who speak up will be punished, and those who speak up
are expendable. The potential for employer retaliation to create a chilling effect is exacerbated
because U.S. unemployment is at unprecedented levels, with 20.5 million jobs lost in April, a
14.7 percent unemployment rate and millions more workers whose hours have been cut.xxii
Due to these Depression-era unemployment rates, workers are at an extreme disadvantage in terms of bargaining power.

Workers are vulnerable to both illness and to the dangers of being unable to find other
employment if they are fired, and any retaliation provides a stark reminder of that fact. During
this crisis, a single act of retaliation can so effectively chill an organizing drive that, by the time
the NLRB has finished the normally extensive and lengthy process of processing the case, the
drive would be irreparably destroyed. We expect the NLRB to safeguard workers' exercise of
their rights to the fullest extent possible.

The NLRB must use 10(j) petitions to seek injunctive relief for workers

As the NRLB's General Counsel, you have a strong tool at your disposal to address retaliation
against workers during COVID-19: the petition for injunctive relief under Section 10(j) of the
NLRA. After a worker has filed an unfair labor practice charge with the NLRB, the Board has
explicit authority to authorize the General Counsel to petition a United States district court for
injunctive relief to protect the employee while the case is pending before the NLRB.xxiii Courts
have found that such petitions are in the public interest to ensure that unfair labor practices do
not succeedxxiv and are also essential to address the chilling effects of anti-union activities.xxv

You have stated in a memo that "in certain cases, temporary injunctive relief under Section 10(j)
provides the only means of ensuring the protection of employees' Section 7 rights and the
NLRB's remedial processes."xxvi Cases that you identified as appropriate for 10(j) injunctive
relief include situations in which the employee faces "a threat of remedial failure" as they wait
for the NLRB to process their case. An employee who is suspended or fired for engaging in
COVID-19-related concerted activity would almost certainly face this threat of remedial failure
in cases where the General Counsel does not seek 10(j) relief.

However, according to the NLRB's website, only five 10(j) petitions have been authorized in
2020 -- only three of which were authorized since President Trump declared a national
emergency on March 13, 2020.xxvii The NLRB has the authority to file for temporary injunctive
relief, and the COVID-19 pandemic has created the circumstances in which this relief is
especially warranted.

Requests to the NLRB

We therefore request that you immediately take steps to work with the Regional Directors and
the Board to pursue 10(j) injunctions in every unfair labor practice case where there is reasonable
cause to believe that the charging party suffered retaliation for engaging in union organizing or
concerted activity in response to the COVID-19 pandemic. This is appropriate since your agency
has asserted that "[u]nfair labor practice charges continue to be accepted and investigated. There
has also been no change to priority of investigations or time targetsxxviii." In this dire moment, the
NLRB has a choice: either proactively act to ensure the nation's frontline workers are safe, or do
little or nothing--which is tantamount to condoning the use of scare tactics and retribution by
corporations, and which ensures that frontline workers will sicken and die in higher numbers.

In the interest of workers, consumers and the general public, we also request a detailed
explanation of the following by July 1, 2020:

1. Whether and how the NLRB is using 10(j) injunctions to comply with the agency's
statutory mandate to "protect[…] the exercise by workers of full freedom of
association, self-organization, and designation of representatives of their own
choosing" during the COVID-19 pandemic. Please provide specific examples.
2. Please provide a copy of any directives that the NLRB has issued asking Regional
Offices to:
a. Protect worker health and safety by prioritizing Unfair Labor Practice
charges involving health and safety issues.
b. Determine whether Unfair Labor Practice charges involving health and
safety issues could be appropriate for injunctive relief.
If the NLRB has not provided any such directives, please explain why not, and
what the agency is doing to ensure that Regional Offices are prioritizing Unfair
Labor Practice claims related to health and safety.
3. Please provide the following:
a. A list of cases where the charging party has requested injunctive relief
since March 12, 2020, and the status of that request.
b. A list of cases, by name and case number, in which the General Counsel
has requested approval from the Board to petition for a 10(j) injunction
since March 12, 2020. If the General Counsel has not sought injunctive
relief for employees over the course of the pandemic, please explain why.
c. A complete list of all 10(j) injunctions sought and/or received by the Board
since March 12, 2020, if there are any such cases not listed on the NLRB's
website.
d. A list of all cases settled prior to and following the NLRB's filing for 10(j)
in federal district court over the last four months.
e. A list of cases by name and number in which the Regional Office has
requested authorization to seek 10(j) relief and the list of cases in which the
General Counsel has requested approval from the Board to seek 10(j) relief.
f. A list of cases that the Regional Offices sua sponte flagged as potentially
meritorious of 10(j) injunctive relief since March 12, 2020, and the status
of each case.
g. A list of cases involving Section 8(a)(1) discharge cases and Section
8(a)(3) discharge cases filed since March 12, 2020; whether the party is
seeking 10(j) relief; whether the Region has otherwise made a
recommendation to the General Counsel that injunctive relief is
appropriate; and the status of the 10(j) authorization.

We look forward to working with you to ensure that the law is upheld, the National Labor
Relations Board properly carries out its mandate, and workers and the public are protected

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