iFlintville Plastics Inc. is slowly resuming operations at the Michigan plant where it manufactures plastic components for automobiles. The coronavirus pandemic hit the region particularly hard, and the Flintville facility was mostly shuttered. However, the state’s restrictive business closure and shelter-at-home orders were now being lifted, and Flintville was eager to meet its customers’ inventory needs as they began to ramp up production.
During the shutdown, the United Auto Workers (UAW) successfully negotiated partial pay for bargaining unit members who were furloughed for six weeks. Flintville management was in close contact with the UAW local throughout the shutdown, touching base about the changing state of the public health crisis, the impact of federal legislation and state restrictions, and the wellbeing of its workforce.
As it prepared to reopen, management notified the local’s safety committee chair about the modifications it was making to ensure social distancing and other protections—one of which was to stagger the shifts for the three assembly lines: 7 a.m. to 3 p.m.; 8 a.m. to 4 p.m.; and 9 a.m. to 5 p.m. This would ensure that employees could be temperature-tested at the entrance without creating a logjam; it would also allow for better social distancing in locker rooms pre- and post- shift. But the bargaining unit members were not happy with the schedule change and argued that the strategy wouldn’t do anything to help maintain social distancing on the individual lines. The union wanted to negotiate. Management said it was willing to discuss additional safety measures on the lines but was adamant about the staggered shifts—prompting the union to threaten filing refusal-to-bargain charges.
Meanwhile, Flintville was contending with a mutiny by some of the financial services staff. Payroll, accounting, and purchasing employees worked full-time at home throughout the shutdown and now were being brought back to the office in stages. But news had spread that someone in accounts payable had fallen quite ill from the virus and was hospitalized for a number of weeks. Several employees insisted it was still unsafe to work in the facility’s open office set-up, and one particularly vocal purchasing associate, speaking on behalf of her colleagues, told human resources (HR) they would refuse to work on-site until the department configuration was changed to provide private offices. There was talk of a walkout, she said. Additionally, all of the administrative employees were miffed that the plant workers “got six weeks off with pay” while they had to work. “Maybe we should go union too!,” a number of them had suggested.
The coronavirus pandemic has shaken the U.S. workplace in innumerable ways, leaving companies dealing with difficult employee relations issues while simultaneously struggling with the challenges of reopening safely and efficiently in the midst of a sudden, crippling economic downturn. For unionized employers, collective bargaining obligations have added considerably to these complexities.
Brian E. Hayes, C. Thomas Davis, and Ruthie L. Goodboe, chairs of Ogletree Deakins’ Traditional Labor Practice Group, discuss how the National Labor Relations Act (NLRA) affects the current state of affairs for both union and nonunion employers, and answer some of the most pressing questions regarding traditional labor law in the context of the unprecedented health crisis.
Employee rights in a pandemic
Fast-food employees, warehouse workers, “gig” employees, and others have walked off the job in recent months, engaging in work stoppages upon learning that coworkers have contracted COVID-19, and demanding paid sick leave, more protective equipment, and other concessions in light of the coronavirus pandemic. Most of the striking workers featured in mainstream media accounts are not union members. However, Section 7 of the National Labor Relations Act (NLRA) protects the right of all employees, unionized or not, to engage in “protected, concerted activity” for their mutual aid or protection without fear of discipline or discharge. These rights apply with equal force during a public health crisis, and extend to all employees, including to those deemed “essential workers.”
What “concerted activities” might employees engage in during a pandemic?
Regardless of whether they are represented by a union, employees are entitled under the NLRA to engage in concerted actions in an attempt to improve their working conditions. “Concerted activities” typically involve group activity, i.e., two or more employees. However, a single employee seeking to initiate group action, or an individual employee “bringing truly group complaints to the attention of management,” as with the purchasing department employee in our scenario above, are typically engaged in “concerted’ activity as well.
To be “concerted” may require that employees have engaged in “prior or contemporaneous discussion” about the subject of the complaint. However, the National Labor Relations Board (NLRB) has held that an individual who speaks up at a group meeting with management may be inferred to have a concerted objective based on the circumstances. For example, when the individual protests the effect of a new policy or policy change “on the work force generally or some portion of the work force,” and there has been no opportunity for employees to confer beforehand, the individually voiced complaint may, nonetheless, be concerted. This scenario is likely more common in the present circumstances, since social distancing or continued shutdowns have prevented employees from routinely interacting.
By contrast, actions that an individual undertakes without the actual or implied support of other employees, and actions that relate only to an individual’s personal interests, are generally not concerted, and thus are not protected under the NLRA. For example, if the purchasing associate in our hypothetical went to HR to insist that she had to work from home because she didn’t have childcare, that complaint would not be concerted, as her concerns were unique to her.
The fact that employees are engaged in collective action over safety concerns is likely sufficient to confer NLRA protection, even if the employer has complied with governmental and agency coronavirus safety directives, or otherwise believes it has taken the appropriate safety measures.
Is refusal to work due to COVID-19-related safety fears protected activity?
Among those activities entitled to protection under the NLRA is a refusal to work in conditions that the employees believe to be unsafe. Under Section 7, employees may refuse to work in conjunction with their coworkers, if their refusal is over a safety issue that affects all employees. Such a refusal is protected as long as the employees have a good-faith belief that working conditions pose a harm to health or safety—even if that belief is mistaken.
The right to refuse to work also applies even if employees work for an essential business, such as a hospital, grocery store, or other business deemed to be part of the essential infrastructure. This standard also applies to union-represented employees, if the union has not yet negotiated a first contract with the employer, or if they are working under an expired collective bargaining agreement (CBA).
No-strike clause. However, the analysis may differ when an employee is working under a current CBA with a no-strike clause. Even if bargaining-unit employees are precluded from striking by virtue of the union contract, they are nonetheless entitled to refuse to work due to concerns about unsafe working conditions.
Section 502 of the NLRA provides a safe harbor for employees engaged in a work stoppage predicated on unsafe working conditions. This provision excludes such work stoppages from the definition of a “strike,” so that an employee does not breach the no-strike clause in a CBA if the employee has a good-faith belief, supported by “objective” and “ascertainable” evidence, that the working conditions are “abnormally dangerous,” i.e., beyond the usual level of danger for an employee’s job, not merely because of the hazards that routinely exist at a particular worksite.
The burden of demonstrating that Section 502 applies, and that an abnormally dangerous working condition exists, rests with the party claiming the applicability of Section 502. Merely stating that the condition exists, or citing an unsubstantiated general fear, is insufficient to carry this burden. Ascertainable objective evidence must be presented before a union or employees may seek the safe harbor of Section 502.
Such evidence might include conditions that deviate from the norm or from a reasonable level of risk; safety equipment that is operating improperly or not at all; significant deviation from industry safety standards; the existence of Occupational Safety and Health Act (OSH Act) violations; or an employer’s failure to provide sufficient safety instructions. In the current climate, “ascertainable” and “objective” evidence may include violations of, or a failure to conform to, federal or state directives relating to the COVID-19 pandemic.
Conversely, the argument can be made that an employer’s compliance with COVID- 19-related directives, federal guidelines, and/or recommendations from the U.S. Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO) may serve to undermine any claim that a given work environment is abnormally dangerous.
Section 7 vs. Section 502. While there is a substantial degree of overlap between the two, there are notable differences between the protected refusal to work under Section 7 of the NLRA and the safe harbor provision of Section 502 of the NLRA. First, a refusal to work protected under Section 7 requires the element of “concertedness,” i.e., two or more people acting together or one person acting on the behalf of others. In contrast, Section 502 additionally, and expressly, covers work stoppages by a single employee without the requirement of “concerted” activity.
Second, under Section 7, an employee must have a good-faith belief that the workplace poses a risk. However, Section 502 sets the bar higher. In the case of Section 502, that good-faith belief must be objectively reasonable. According to the NLRB in TNS, Inc., “A purely subjective impression of danger will not suffice; nor will a speculative doubt about safety in general.” The employees or union must show, by a preponderance of the evidence, that “the employees believed in good-faith that their working conditions were abnormally dangerous; that their belief was a contributing cause of the work stoppage; that
the employees’ belief is supported by ascertainable, objective evidence; and that the perceived danger posed an immediate threat of harm to employee health or safety.”
Lastly, and perhaps most significantly, the case law under Section 7 suggests that the source of the employees’ concern must relate to a condition over which the employer has control in order for the stoppage to be protected. Section 502 appears to be devoid of any such requirement. As long as the predicate condition exists, it appears immaterial as to whether or not it is within the employer’s control. Of course, this particular requirement may serve as an important defense for employers grappling with a pandemic over which they have little control.
Limits to statutory protections. A refusal to work, even if grounded in safety issues, could be considered unprotected when the evidence demonstrates that the stoppage is part of a plan or pattern of intermittent action. A single, concerted refusal to work, such as a walkout, may constitute protected concerted activity, but may lose its protection if other intermittent refusals to work follow. However, to the extent that the subsequent work stoppages are attributed to different work-related complaints, the NLRB is generally reluctant to find that the work stoppages are part of a pattern or plan and thus unprotected.
Moreover, certain behaviors by employees who embark upon Section 7 activity can be so egregious or disloyal as to forfeit the protections of the NLRA. It remains to be seen whether the NLRB would display greater tolerance toward such conduct in light of the heightened emotional state brought on by the public health crisis and economic uncertainty.
Fixing the problem. Once an employer resolves the safety concern, unionized employees no longer can enjoy the safe harbor provided by Section 502, and the no-strike provision in the operative CBA is once again enforceable.
How is it determined when the safety concern is resolved? The circumstances surrounding COVID-19 are unique, in that an employer may be unable to fully remediate the exposure risk. However, given that an abnormally dangerous condition must be proven by ascertainable and objective evidence, an employer’s adherence to governmental safety directives and other health guidelines would likely undermine the union or employees from claiming ongoing protection under Section 502.
What can an employer do when employees refuse to work?
While an employer may not discharge striking employees, it may temporarily or permanently replace them in order to continue its operations. One caveat: if employees have engaged in a work stoppage based on allegations that the employer violated the NLRA in some way—also referred to as an “unfair labor practice strike”—then the striking employees may only be temporarily replaced. Thus, for example, if a unionized employer refused to bargain with a union over how best to resolve concerns over proper social distancing on an assembly line, a subsequent walkout would likely be deemed to be an unfair labor practice strike, thus insulating the participants from permanent replacement.
Other considerations. An employer does not have to pay employees who refuse to work. However, it cannot withhold accrued benefits from employees based on their participation in the strike. In addition, under the Patient Protection and Affordable Care Act, it is generally recommended that benefits continue during a limited strike in order to avoid any potential penalties. To the extent employees are still working and benefits are still available, striking employees still may be entitled to receive healthcare coverage. However, employers can require that employees pay their portion of the premiums, but must provide them with information about how to make such payments. In most instances, an employer does not have to allow employees to use vacation or paid time off (PTO) for days spent on strike; however, employees may be able to utilize vacation or PTO if they are absent for other reasons. An employer may also choose to allow employees to use vacation or PTO to deplete their leave banks while on strike.
Ending the work stoppage. If employees, or the union on behalf of represented employees, make an “unconditional” offer to return to work, the employer is required to let them return. In the context of a safety strike, that might be articulated by a simple statement that the employees are willing to return without any condition precedent or with acceptance of the employer’s COVID-19 response plan or safety precautions.
Bargaining during a pandemic
The country is facing an unprecedented public health crisis and the nation’s economy is in turmoil. Do these exigent circumstances excuse an employer from bargaining with an incumbent union or adhering to the terms of an extant CBA and instead permit an employer to take immediate, unilateral action to protect the company and its workforce? The short answer is no. CBAs remain in effect, pandemic notwithstanding, and must be honored for their duration. Moreover, an employer’s ongoing bargaining obligations continue intact.
During typical contract negotiations, the speed of the process may be largely immaterial. During a crisis situation, however, an employer may need to act quickly, before agreement or impasse is reached. It may need to immediately implement a new practice or policy in response to the pandemic, or revise a policy contained in the CBA. If that change is a mandatory subject of bargaining—such as paid leave, layoffs, or furloughs—an employer is not privileged to act unilaterally but must provide the union with notice and full opportunity to bargain.
There may, however, be circumstances where time is of the essence and protracted negotiations would be self- defeating. Under such circumstances, the employer still has a duty to bargain in good faith and can be faulted for unilateral action. Accordingly, in such an instance, the employer may want to notify the union of the term or condition at issue, the need for the change, and the need for exigency. An employer may also want to make it clear to the union that timing is of the essence, and why it is of the essence. The employer also may want to be aware—and acknowledge—that it still may need to bargain with the union after an emergency change is implemented.
Look to the CBA. Review the CBA’s existing terms to identify those provisions that may have bearing on the current crisis. Leaves of absence, paid time off, recall rights, and health and safety clauses all are likely to be relevant to operations during the pandemic, and can guide employers and unions alike on how to proceed under these unique circumstances.
Management rights. Where there is no express CBA provision on the issue at hand, employers may have the ability to make changes without bargaining. The extent of this right depends in part on the presence and scope of a management-rights clause, which gives employers the right to make unilateral changes to employment policies and work conditions not otherwise set forth in the contract.
The NLRB has adopted a more favorable standard for determining when the employer has retained the right generally under the contract to make unilateral changes without negotiating with the union. Prior to its 2019 decision in MV Transportation, Inc., an employer’s hands were tied, precluding unilateral action unless it could show that the union had “clearly and unmistakably” waived its right to bargain over a particular subject. However, the Board’s newly adopted “contract coverage” standard asks whether the proposed unilateral change involves a topic “within the compass or scope” of the contract. This framework gives employers greater leeway to act unilaterally where a CBA may be silent on a specific issue or application.
Even if it appears that the employer has the right to act unilaterally, employers considering such changes may want to be prepared to explain the need for the change, how long it might be expected to last, and to share relevant information with the union supporting the need for the change. As a practical matter, employers may want to notify the union before implementing a unilateral change even when bargaining is not required. A union may be amenable to the change, particularly in light of the crisis situation, and might in turn help facilitate employee buy-in.
Effects bargaining. Keep in mind that even when a robust management-rights clause and a more favorable Board standard afford the right to implement certain changes without first bargaining with the union, an employer still may need to bargain over the effects of those changes. Will workers be entitled to partial pay if idled? Will they receive severance in the event of a permanent shutdown? A union must be provided the opportunity to negotiate over “effects” such as these.
Conflict with legal directives. If a CBA has a savings clause, then the employer may be excused from complying with contract terms that would conflict with an executive order, new law, or other official declaration. The employer first must consider if and how it could both follow the governmental directive and also comply with the CBA. If it can do so, it must. But when a legal obligation makes it impossible for an employer to comply with the terms of the CBA, a contract breach is excused.
For example, if the state government mandates that an employer’s facility be shut down immediately, that employer would be unable to comply with a CBA clause requiring advance notice of layoffs. However, the CBA may also include provisions that deal with other terms of layoff, such as the order of recall. Since compliance with that portion of the clause does not conflict with the government mandate it must continue to be honored.
As a practical matter, if the government issues a directive requiring immediate action, an employer would be hard- pressed not to comply. The employer in this scenario might contact the union, inform it of the need for imminent action, and request the union’s expedited response, setting a clear deadline. The employer’s next course of action would be to comply with the directive, and bargain after the fact over the directive’s impact on the workers.
New realities, new contract proposals. Employers that are currently negotiating a contract, or negotiating a successor agreement, may wish to adjust pre-coronavirus bargaining proposals as they confront the unexpected economic effects of the pandemic and shutdown, or to revisit noneconomic proposals that are ill-suited to the current crisis. Given the present circumstances, employers that take this commonsense approach in the wake of such dramatically changed circumstances run little risk of being found to have engaged in impermissible “regressive bargaining” if they opt to revisit or revise relevant proposals.
Parties to a current CBA can always discuss and agree to mid-term modifications deemed necessary to maintain the continued viability of the business. For example, a union may be willing to relax contractual staffing levels, spread available work more evenly among bargaining unit employees, or agree to reductions in pay and benefits.
Negotiations are ongoing. If an employer has been in contract negotiations with the union for a first CBA or successor contract, those negotiations should continue, even though the practicalities of getting to the bargaining table are a challenge and the “dynamic status quo” is particularly volatile. Ongoing negotiations are required to satisfy bargaining obligations, regardless of whether the contract expires or the parties agree to extend it.
Although the general duty to negotiate a successor contract remains, employers may want to make it to clear to unions that the current situation is not business as usual. If members of the management team are quarantined or dealing with COVID-19 emergency response measures, how does that impact the duty to bargain a successor contract? Such exigencies certainly provide employers with some leeway but do not entirely excuse bargaining where a union is insistent. Many unions, however, are agreeing to extend labor agreements for between 30 to 90 days to de-escalate tensions and allow employers to assess the impact of changing conditions on their business.
What are the most pressing subjects of bargaining right now?
As expected, the pandemic has placed increased emphasis on such contract provisions as those that bear on scheduling and shift changes; location changes; work from home; hazard pay or return-to-work bonuses; sick leave/PTO; layoffs, furloughs, and reduced hours; as well as health and safety. Employers are now seeing in clear terms the necessity for adequate management-rights provisions; the wisdom of savings provisions; and similar provisions.
Common CBA provisions apply. Existing contract provisions that may be particularly applicable to the current crisis include clauses related to health and safety measures; layoff and recall; pay during furlough; quarantine or stay-at- home orders; leaves of absence; and paid time off.
Novel bargaining issues. Workplace issues surrounding COVID-19 center on employee health and safety in the context of a serious and readily communicable disease. These issues are not the typical fodder of labor/management bargaining. Thus, they include novel issues related to safety protocols, the sharing of health data, testing, and the like. The process is made even more challenging because so much about the virus, including its means of transmission, is not yet definitively understood.
Responding to union information requests
In the wake of the pandemic many employers have been inundated with union requests for information regarding the employer’s response to the COVID-19 outbreak. These requests run the gamut from information and data as to how the employer intends to mitigate health and safety concerns to how absences from work will be handled. Almost all of these issues directly affect wages, hours, and working conditions and are thus mandatory subjects of bargaining. Accordingly, most related information requests will likely be deemed to be presumptively relevant to a union’s representational duties, and an employer is therefore required to produce it.
That said, there are commonsense limitations. For example, an employer is only required to turn over information that already exists. Employers are not required to speculate or create information that they do not have. If the request involves specific questions, and a document or policy provides the answers, then providing the document or policy to the union satisfies the duty to respond. However, for information that remains in development, such as a policy relating to whether and/or how the employer plans to pay employees who cannot come to work due to an exposure or quarantine, there may be no immediate ability to respond, but there would be a continuing duty to provide the policy to the union once it becomes available.
Some information requests include a very fast turnaround time. However, there often is a tension between a fast response and a complete response. There are no hard and fast rules on how quickly employers must respond. Consider the reasonableness of any requested timing based on the circumstances, the amount of information requested, and the additional, competing responsibilities of those employees tasked with gathering the information. If a complete response is going to take time to provide, a prudent employer informs the union of this fact, delineates the reasons that additional time is necessary, and sets a realistic date for production.
Health records requests pose significant privacy problems for employers. For example, a union request to provide a list of employees who have been exposed to COVID-19 and/or who have tested positive is particularly problematic in the current circumstances. Individual employee medical information is confidential and laws may prohibit disclosure by an employer even in response to a union demand. A prudent employer will decline the request but offer to discuss and bargain over alternative means to provide the union with necessary information without compromising confidential health information. One possible accommodation would be to provide such information if employees execute releases.
Unfair labor practice charges
One bright spot in the current situation has been a sharp drop in the number of unfair labor practice filings. This is largely attributable to the fact that so many businesses are closed. However, some of the drop-off is also due to an initial “we’re all in this together” ethic that saw businesses and unions working more cooperatively and acting less confrontationally. Like all good things, however, this reprieve is likely coming to an end as the pandemic becomes the “new normal” or begins to subside. The likelihood is that unfair labor practice charge filings will likely pick up soon, as unions focus on litigating some of the issues that came up during the crisis and chaos. For example, in two recent cases employers have been charged with COVID-19-related unfair labor practices. In one instance, employees were discharged after they refused to return to work and sought to bargain over safety issues. In another case, employees claimed they were packed into a crowded, mandatory anti-union meeting and had their wages garnished to pay for required personal protective equipment (PPE).
Best practices are essential: Be mindful of contractual deadlines and timelines in your grievance procedures. Be responsive to union requests for information. Comply with notice requirements if there are CBAs approaching expiration. Also, keep in mind: the statute of limitations for charge-filing is 180 days, and nonunion employers also may file charges with the Board.
