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2020 Report of Counsel obtain the testimony of former supervisors and agents in unfair labor practice investigations as well as how to handle audio recordings. If an employer's agent, such as a supervisor, is alleged to have engaged in unlawful conduct and is to testify against the employer about the unlawful conduct, the Regional Office must advise the employer and allow the employer to be present during the testimony. If the witness is only a fact witness and is not testifying against the employer, the Regional Office need not notify the employer or otherwise involve the employer in the proceeding. Regional Offices ar e discouraged from accepting recordings that were made in violation of the Federal Wiretap Act or in contravention of a lawful employer work rule or policy. They are encouraged to offer to play the recording for the employer during the unfair labor practice investigation and to advise the provider of the recording that this may happen. NLRB Division of Advice Memoranda In July, August, and September 2020, the NLRB's Division of Advice issued Advice Memoranda addressing questions posed by various Regional Offices resulting from unfair labor practice charge investigations covering COVID-19- related unilateral actions by employers, non-work political advocacy, and the legality of confidentiality pr ovisions in separation agreements. Advice Memoranda are binding only on the parties to the dispute at issue, but they are released to give the public an idea of how the NLRB might handle similar issues. One investigation found that an employee's individual decision not to work out of fear of being exposed to COVID-19 was not protected activity under the NLRA because she did not involve her co-workers or speak to management about her decision. Civility Returns to the Workplace In July 2020, the NLRB simplified its longstanding legal standard for determining whether an employer has violated the NLRA in disciplining an employee for abusive or offensive conduct. If an employee alleges unlawful discipline for such conduct, the NLRB must show in an adjudicatory proceeding that the employee engaged in protected activity, the employer knew of that activity, and the employer had animus toward that activity. If the NLRB makes that showing, then the burden of persuasion shifts to the employer who must prove that it would have taken the same disciplinary action against the employee if the abusive or offensive conduct had occurred outside the protected activity. The standard will be applied to all NLRB cases moving forward. PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION (PHMSA) Hazmat Training Deadline Extension As a result of the pandemic, maritime industry employers and training providers throughout the nation were unable to provide the required recurrent HAZMAT (3-year refresher) training. In late 2020, PHMSA suspended enforcement against any employer engaged in the maritime transportation of hazardous materials that was unable to provide recurrent training in a timely manner and provided a mechanism for employers to join in a special permitting process that allowed multiple employers to seek a further extension of time to provide the required recurrent HAZMAT training. All participants were required to submit a plan to the PHMSA that outlined how they intended to address their recurrent HAZMAT training backlog and come back into compliance with PHMSA regulations. PORT SECURITY/TRANSPORTATION WORKER IDENTIFICATION CREDENTIAL (TWIC) TWIC Enrollment/Expiration The Transportation Security Administration (TSA) continued to process TWIC applications despite COVID-19. TWIC vetting, adjudication, and card issuance were not impacted by the pandemic. As of December 2020, there were 6 million TWIC enrollments since inception in October 2007. There were 2.213 million active TWIC cards in use as of December 2020. The TSA implemented its OneVisit Enrollment Program in June 2014 to streamline the enrollment process and to eliminate the need for a second visit to an enrollment center to pick up a TWIC. As of December 2020, there were 2.369 million OneVisit enrollments (93% of all enrollments). In April 2020, the TSA published a notice of temporary exemption regarding the expiration of certain TWICs due to COVID-19. For TWICs that expired between March 1, 2020, and July 31, 2020, the exemption extended the validity of a TWIC for 180 days for an individual whose TWIC would have otherwise expired during the effective period of the exemption. TSA did not extend this exemption. TWIC holders with a security threat assessment that expired on or after August 1, 2020 must re-enroll. 22 USMX 2020 ANNUAL REPORT

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