This post provides general information about issues of collective bargaining during the Covid-19 public health crisis in a broad range of workplaces. This information is based on the duty to bargain under the National Labor Relations Act (NLRA), which covers private-sector collective bargaining. Some aspects of the duty to bargain in public employment will differ under relevant state or federal laws. For questions about specific collective bargaining agreements, local union stewards and officers should consult their union staff members and union officers. This post does not provide legal advice. Union stewards, officers, and staff members should consult their union attorney for legal assistance.
Duty to bargain during the COVID-19 crisis
Employers have a duty to bargain with the union over wages, hours, and other terms and conditions of employment. The duty to bargain exists during collective bargaining for a collective bargaining agreement (CBA), and continues during the term of an existing CBA. New bargaining can be initiated by either the union or the employer over wages, hours, and other terms and conditions of employment (“mandatory subjects”) not contained in the CBA and not anticipated by the parties when they entered the CBA.
Examples of new provisions that the parties can bargain over include:
- Working conditions for employees working remotely
- Hazard pay for employees considered “essential” in the current COVID-19 crisis
- Employees’ right to refuse dangerous work
- Temporarily closing to sanitize the workplace
- Protocols for testing or screening employees for COVID-19
Union request to bargain.
The union should be careful to preserve its right to bargain. If the employer informs the union that the employer would like to make a change in the CBA or in other working conditions, the union should respond promptly with a request to bargain. Failure or a delay to do so could mean that the union has waived its right to bargain over the employer’s proposal.
Duty to bargain where there is no CBA.
If there is no CBA, the employer must bargain in good faith with the union until the parties reach either an agreement or an impasse. At the point of impasse – where the parties are bargaining in good faith, but are stuck – the employer may make unilateral changes consistent with the employer’s proposal at the point the parties reached an impasse.
Duty to bargain where there is a CBA.
Where the CBA does not contain a provision dealing with the employer’s proposed change (e.g. reducing hazard pay), the employer must bargain in good faith to the point of agreement or impasse.
Where the employer proposes a change in a term contained in the CBA (e.g. wages), the employer, generally, may not institute its proposed change in the CBA without the union’s agreement, even if the parties reach an impasse in bargaining.
“Effects” or “Impact” bargaining
Even if an employer has no duty to bargain over a decision (e.g. a decision to lay off employees), the employer does have a duty to bargain over the impact or effects of the decision. Because of this, unions should make a request to the employer to bargain over both the decision and the impact or effects of the decision. Effects or impact bargaining may cover a range of issues, such as the order of layoffs, severance pay, continued insurance coverage, and order of recalls. Some of these matters may already be covered in the CBA.
The right to request information
The union has the right to request information from the employer relevant to bargaining, including cases where the employer proposes making a change in the CBA or in the status quo of working conditions. The union also has the right to request information to ensure that the employer is following the CBA and to gather information relevant to grievances.
Where the union waives the right to bargain.
The employer may lawfully make unilateral changes (without bargaining with union) if the union has waived its right to bargain, including where:
- The employer tells the union that it is considering a change and the union fails to request that the employer bargain.
- The employer makes a change in the CBA without bargaining, but the union does not object to the change and does not request that the employer bargain.
- The CBA contains provisions that give the employer unilateral control over a mandatory subject, e.g. a management rights clause that gives the employer unilateral control over work rules. However, the union may still want to request that the employer bargain where the employer’s unilateral change arguably falls outside the scope of the CBA provision. Additionally, the employer may be willing to bargain with the union about the proposed change. The union may also file a grievance alleging that the employer’s unilateral action violated the CBA.
Enforcing the CBA: Grievance handling
Union stewards and union officials have an important role in areas that include:
- Identifying employer actions that do not follow the CBA or that otherwise constitute unilateral changes.
- Objecting to unilateral changes and requesting that the employer bargain over proposed or instituted changes.
- Filing grievances about the employer’s failure to follow the CBA.
- Filing unfair labor practice charges (ULPs) about employer refusals to bargain, unilateral changes, or other matters.
- Seeking to resolve grievances or conflicts promptly.
- Consulting with other union representatives and/or the union’s attorney.
Relationship of unfair labor practice charges and arbitration.
In cases alleging that the employer failed to follow the CBA or made other unilateral changes, the government agency (NLRB/private employees or state agency/public employees) may defer to the arbitration process.
Arbitrators may be more willing than the NLRB to uphold employer unilateral changes based on exigent circumstances.
Some useful references on these issues:
Lora Engdahl, Unions are giving workers a seat at the table when it comes to the coronavirus response, Economic Policy Institute Working Economics Blog (Mar. 31, 2020).
NLRB General Counsel Memorandum 20-04, Case Summaries Pertaining to the Duty to Bargain in Emergency Situations (Mar. 27, 2020).