Private sector employers with unionized employees and even non-union employees must be especially careful when addressing certain workforce concerns connected with the coronavirus outbreak. Below, we will address common issues that may arise in union facilities during this crisis.
Analyze the Contract Before Making Changes to the Workforce
If there is a current collective bargaining agreement (CBA), it may provide the employer with the authority to make workplace changes, such as reducing schedules or laying off employees, to address the crisis. Even if the agreement does not expressly reference the right to reduce schedules or lay off employees, recent case law from the National Labor Relations Board (NLRB) allows for employer action if the contract generally covers the employer’s ability to take such action. Employers must also be prepared to satisfy any obligations attendant to taking actions such as layoffs, which could include payment of PTO or other benefits. In these situations, it is very important to review the entire collective bargaining agreement to be prepared for the consequences of drastic decisions.
What if the CBA restricts the employer’s ability to reduce schedules or lay off employees? Generally, an employer or union can refuse to even discuss modifications to contract provisions during the term of a CBA. This does not mean that an employer cannot propose changes to the agreement to avoid more drastic consequences such as complete shutdown or closure. Employers should engage with unions to attempt to achieve compromise if the CBA inhibits an employer’s ability to take necessary action.
If There Is no CBA, Changes to the Workforce Are Subject to Bargaining
If there is no CBA in place, or an existing contract does not cover the measures contemplated by the employer, any changes to the workforce would be subject to the duty to bargain. The National Labor Relations Act (NLRA) requires employers and unions to bargain over subjects including wages, hours and other terms and conditions of employment (often referred to as the “mandatory subjects of bargaining”), which would include many actions taken by employers in this crisis. These subjects would include negative measures such as layoffs, and would even include positive measures such as hazard pay for employees. Where the duty to bargain applies, the employer would need to reach agreement or impasse in negotiations with the union before making unilateral changes regarding mandatory subjects of bargaining.
Exigent Circumstances and the Duty to Bargain Over Effects
Government closures or current economic conditions may excuse bargaining due to exigent circumstances, but employers’ duty to participate in effects bargaining duty remains. NLRB case law allows for an exception to the duty to bargain in extreme circumstances where “economic exigencies … compel prompt action.” This exception has been construed extremely narrowly and is limited in duration, but in view of the current events, employers would be well-advised to closely examine whether this exception applies. If the “economic exigency” exception to the duty to bargain applies, an employer would not need to bargain with a union over the decision to close a facility or take some drastic action to comply with government orders or survive economically in these trying times.
Where there is a CBA in place, there may be provisions that address the manner in which employees are treated in terms of pay and benefits when they are put out of work due to a closure. For example, if employees are laid off as a result of the closure, then the CBA’s provisions governing layoffs would dictate the outcome.
But, where there is no CBA in place, or the CBA does not address the relevant issues related to the closure, the duty to bargain continues. The duty to bargain embraces not just decisions made by employers, but the effects of an employer’s actions, even if an employer lawfully made a decision regarding a mandatory subject without bargaining regarding that subject. Therefore, even if “exigent circumstances” would permit an employer to act without bargaining – such as when it is ordered to shut down operations by government authorities – a union could demand to bargain over the effects of that decision, including severance pay, extension of benefits or rights of employees to return to work after the order is lifted.
Be Prepared for Strikes, Refusals to Work, or Other Protected Concerted Activity
The NLRA guarantees all employees, not just employees represented by unions, the right to strike or to collectively refuse to work. However unionized employees are more likely to strike than others.
Most CBAs contain no-strike clauses, which prohibit the employees from striking. Those provisions prevent strikes, unless the conditions at the work location are “abnormally dangerous,” which could arise under the current circumstances, on a case-by-case basis, depending on many factors such as the presence of coronavirus in the workplace and the nature of the workplace (e.g. hospital or office building).
If there is no CBA – or even if employees are not represented by a union – employees could strike, refuse to work or engage in other forms of protected activity to pressure employers to change working conditions during the crisis or to attempt to extract benefits from employers following layoffs or reductions in schedules. In addition, employees may be protected under federal labor law if they refuse to work in a concerted manner due to fear of coronavirus in the workplace.
Employers Are Obligated to Pay Federal Paid Sick Leave
Recently enacted federal laws obligating employers to paid up to 80 hours of paid sick leave and expanded paid Family and Medical Leave Act (FMLA) leave are not negated or affected by existing CBAs. Unionized employers will be required to provide these new benefits in addition to benefits like paid leave that are contained in their union contracts.
Carefully Evaluate When to Act, When to Negotiate, and When to do Both – or Neither
Managing union represented workforce can be challenging at the best of times. The coronavirus and the accompanying economic circumstances do not make it any easier. For employers with union relationships, the best way through this crisis may often, but not always, be to work with unions to try to arrive at a negotiated agreement regarding modified terms which respond to the crisis with an outcome that balances the well-being of the business and the interests of employees in these trying times.
Each employer will need to review the issues we have discussed with a mind to the particular industry in which it operates and the tenor of the relationship with the union at its facilities.
Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.
Robert Nagle is a partner in the firm’s Labor and Employment Department, resident in its Blue Bell, PA office.
Robert Castle is a partner in the firm’s Labor and Employment Department, resident in its Minneapolis office.