As employers navigate through the myriad of local, state, and federal laws, government orders, and guidance dealing with COVID-19, it’s important that they don’t lose sight of their obligations under the National Labor Relations Act (NLRA). Although the NLRA typically applies in unionized settings, non-union employers should be aware that the NLRA may apply to them when employees act in a concerted manner for mutual aid and protection. Unionized employers should understand their rights and responsibilities regarding the obligation to bargain with their employees’ unions as well as the provisions in their collective bargaining agreements (CBAs) that may be implicated by workplace actions taken in response to the pandemic.
Non-Union Employers Beware
Non-union employers should be careful when responding to communications and actions by employees about their work conditions. In the current environment, employees may come forward with concerns about matters such as workplace safety or being required to physically report to work. Employees who raise concerns for their “mutual aid and protection” either as a group or through a spokesperson may be protected by Section 7 of the NLRA.
Section 7 protects the ability of both union and non-union employees to engage in protected concerted activity and prohibits employers from taking action against them for doing so. Accordingly, employers should ensure that any response is consistent with business reasons and not in retaliation against employees for coming forward with their concerns. Employers should also be aware that communications among employees or even to outsiders can also be protected by Section 7.
Bargaining With the Union
Under the NLRA, unionized employers are required to bargain regarding wages, hours, and other terms and conditions of employment. If an employer’s response to the pandemic causes changes regarding these “mandatory” subjects, the employer will generally be required to bargain with the union about its plans unless the CBA gives the employer the right to proceed unilaterally. For example, an employer may have the explicit right under the CBA to hire temporary workers, which it may decide to do to cover staffing fluctuations caused by COVID-19.
Don’t Ignore CBAs
CBAs typically contain a “management rights” clause that reserves an employer’s right to make certain managerial decisions and take defined actions in operating its business. Other provisions in the CBA—including those related to employee reassignment, paid time off, and layoffs—may also specifically address the employer’s ability to make workplace changes, including changes occasioned by emergency circumstances. Existing CBA language may, therefore, allow an employer to take certain steps in response to COVID-19 without first bargaining with the union, or it may restrict an employer’s ability to take action or subject an employer to potential liability for acting in a manner inconsistent with its obligations under a CBA with a union representing its employees.
Employers should also review their CBAs to determine if they contain a “force majeure” clause, which suspends contractual obligations in the time of crisis to give employers needed flexibility in conducting operations and may allow for unilateral workplace changes.
Emergency Exception
In circumstances such as a government-ordered closure or sudden loss of work, employers may be compelled to move very quickly to effectuate workplace changes that would otherwise require union bargaining. The National Labor Relations Board (NLRB) has recognized a very limited exception to the employer’s duty to bargain where certain emergency circumstances exist, with its general counsel issuing Memorandum GC 20-04 in response to COVID-19 to cover case law in this area. Employers should consult legal counsel when reviewing this guidance, as its application depends greatly on the underlying factual circumstances.
“Effects Bargaining”
Even if an employer believes it can take action under the emergency exception, it may still need to bargain with the union concerning the impact of workplace changes caused by its actions in response to COVID-19.
Following CBA Terms
Regardless of the bargaining analysis, employers implementing COVID-19 response plans must, unless otherwise agreed with the union, continue to follow the terms of their CBAs. For example, even where the employer has the right to make unilateral changes, many CBAs require the employer to give notice to the union within a certain time frame.
In addition, contract provisions typically provide specific steps that an employer must follow when taking certain actions. For example, most CBAs require that employee seniority be used to determine the order of schedule changes, reassignments, and layoffs.
Safety Strikes
In addition to being mindful of employees’ right to engage in protected concerted activity under Section 7 as discussed above, unionized employers should be aware that Section 502 of the NLRA protects a work stoppage when employees believe in good faith that their working conditions are “abnormally dangerous.” The NLRB has held that this belief must be supported by objective evidence that the perceived danger poses “an immediate threat of harm to employee health or safety.” Whether COVID-19 is valid grounds for a “safety strike” in a particular workplace will also be a fact-intensive inquiry.
If you have any questions regarding the content of this alert, please contact Dan Blake, partner, at dblake@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.
We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates on non-trademark-related COVID-19 matters and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.