With Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara counties beginning to loosen restrictions on the operation of certain businesses operating primarily outdoors, including resuming construction, effective on May 4, 2020, employers with collective bargaining agreements (CBA) and those without one should start preparing for a union’s response to the Coronavirus (COVID-19). If any of your employees are covered by a CBA, their union will be requesting information about what new policies and procedures you are implementing to ensure that the workplace is safe during this pandemic and post-pandemic. And, those policies will have an impact on the employees’ wages, hours and other terms and conditions of employment. Under the National Labor Relations Act (NLRA) those policies and procedures must be provided to the union and discussed with it. The union may even question whether or not you have the right to make those changes. Your CBA may give you that right, but if it doesn’t, you should be able to convince the union to negotiate over the changes in order to comply with government guidelines and regulations to provide a safe workplace.
For example, some possible topics that may need to be negotiated with the union include:
- If you will be providing personal protective equipment (PPE) to the employees? If so, what PPE will be provided?
- Compensation for the time that it takes to don (put on) and doff (remove) that PPE.
- Mandated testing (e.g., temperature screenings, testing for the presence of the COVID-19 virus).
- What happens if that employee has a fever or tests positive for the presence of the virus?
- Implementing staggered shifts, how are employees going to clock in and out, taking of rest and meal periods and performing their job duties and responsibilities while maintaining a safe distance.
- Enhanced cleaning and disinfecting of the workplace.
- Self-reporting to a supervisor if he/she is experiencing COVID-19 symptoms. What happens if they do, what if they don’t?
- What leave polices will apply to employees regarding the pandemic, illness, child care, care for someone who has the virus or is symptomatic?
While there may be a wide range of policies and procedures you are considering implementing that may need to be negotiated with the union, your policies and procedures should be guided by the federal, state and local agencies issuing guidelines and regulation regarding employees returning to work. For example, federal agencies include, but are not limited to, the Center for Disease Control, the Department of Labor, the EEOC, and OSHA. If you or the union do make any proposals regarding implementing policies and procedures for returning to work or otherwise maintaining a safe workplace, unless the union has waived its right to bargain, you should bargain over them in good faith – have business-related reasons for your proposals (e.g., government guidelines and regulations) and a reason for rejecting any union proposals.
A union may also demand that employees be paid additional compensation for working during the pandemic – hazard pay. This subject may be addressed in your CBA, but if not, you should determine whether or not the conditions your employees are subjected to while performing their job duties and responsibilities during this pandemic give rise to considering hazard pay. While it could be argued, depending upon the terms of your CBA, that you do not have the obligation to bargain over hazard pay, the most prudent course of action during this pandemic may be to interact with the union on all of these issues with the understanding that compromises will be in order. Even if it appears that the plain language of CBA does not require you to bargain regarding a certain policy or procedure, a union may dispute that conclusion on the basis of the parties’ bargaining history, which may have an impact on any unfair labor practice (ULP) charge filed with the National Labor Relations Board (NLRB).
Regardless of your efforts to cooperate with the union, you should also be prepared for either a strike or other work stoppage actions. Again, reference to the CBA is the first step to take as it almost certainly will contain a no-strike clause. Even with a no-strike clause, you should be prepared for this possible event, especially in the unprecedented times of COVID-19. You will need to evaluate whether or not you will continue to operate during a work stoppage. If so, among the issues that you will have to address are: who will perform the work; what wages, hours and other terms and conditions of employment will cover replacement employees; how you will respond to an employee’s unconditional offers to return to work; and what impact will that have on employees who wish to return to work.
Employers With Non-Unionized Workforces Also Need to be Prepared
Employers without any union-represented employees should also be prepared to respond to questions and demands from your employees regarding new policies and procedures related to this pandemic. That action could be considered protected activity under the NLRA so it could be a violation of the Act to discriminate against employees who engages in that activity. Although in the past unionized employees have engaged in work stoppages far more often than non-unionized employees, that may not be the case during this pandemic. So be prepared for that possibility.
If none of your employees are represented by a union, a union may attempt an organizing campaign to represent either some or all of your employees based on your responses to the workplace issues raised by this pandemic. The union will claim that if it represented the employees, they would have the ability to negotiate a more employee-friendly response. These organizing campaigns can be expected to take place in the workplace, on social media, and other digital tools, including mobile apps.
Your exposure to a successful organizing campaign will depend on employee dissatisfaction with management and the work environment. To avoid unionization, you should have effective avenues of communication with your employees from you to them and from them to you. You should have an equitable grievance procedure – open door policy. You should always be evaluating your compensation and benefit plans, which does not mean that you should match those of any unionized competitors in your geographic region, but they should be comparable. You should have good working conditions, recognition of your employees’ performances, and management that recognizes the importance of employee relations. Of course, the time and effort that you invest in hiring and promoting the best qualified employees is invaluable. Employees who are doing a good job and are rewarded for their efforts do not seek union representation anywhere near as often as those who underperform or those who believe that their good performance is not appreciated. You should also provide training, including the types of actions that can constitute concerted activity, to your supervisors because you can be held responsible for their actions if they violate the Act. Not only can training prevent you from violating the Act, it can also assist in keeping effective avenues of communication open, which can help defeat a potential organizing campaign or otherwise make your workplace a less fertile environment for employees to feel the need to be represented by an outside entity.
If you have a high turnover rate and those employees who leave your employment are accepting employment in your industry and geographic region, you should consider whether your compensation and benefit plans are appropriate. Other signs of potential union activity are employees interacting among themselves at work in an unusual manner – newly formed cliques, a new hire who seems to be the leader of the pack – supervisors mistreating employees, supervisors complaining about their compensation and benefits, and union campaigns being conducted in your industry (especially in your geographic location).
You need to evaluate your exposure to a successful union organizing campaign before one starts. A union may be able to conduct a campaign for months without you learning about it. When you finally learn about a campaign, it may be too late to convince your employees that they do not need to be represented by a union. Their minds will already be made-up and peer pressure is hard to combat. BE PREPARED.
Return to Work Post-Coronavirus Checklist
If you have employees returning to work, whether unionized or not, Cozen O’Connor’s Coronavirus Task Force has published a comprehensive, user-friendly Return To Work Post-Coronavirus Checklist. It lays out the issues that employers will face from planning a return to work to implementing the plan. You can stay abreast of these issues by clicking here. You are invited to register for upcoming Cozen O’Connor webinars that will discuss in detail the issues identified on the Checklist. Click here to learn more about our webinars.