The Duty to Bargain When Reopening

Our May 4, 2020 blog – Employers With Unionized Workforces Need to be Prepared – discussed how employers with collective bargaining agreements (CBA) should start preparing for a union’s response to the Coronavirus (COVID-19). Click here to view that blog. This blog discusses an employer’s duty to bargain with a union over the decision to implement new policies that are required by either federal, state, and/or local directives to reopen, and the duty to bargain over the effects of those policies on employees covered by a CBA.

When evaluating the obligation to bargain over the decision to implement new policies, an employer should first review the CBA currently in effect to determine whether or not the company has the right under a management rights clause, or in another section of the CBA, to create and enforce the new policy. If the CBA clearly states that right, an employer will still have a duty to bargain over the “effects” of the policies if the union requests those negotiations. In addition, while the decision to implement the policies may not be subject to the duty to bargain, the specific details of the policies might be because many public health directives from federal, state, and/or local authorities are stated in general, not specific, terms. For example, California has five guidelines that must be implemented before a business reopens. They are:

1. Perform a detailed risk assessment and implement a site-specific protection plan.
2. Train employees on how to limit the spread of COVID-19, including how to screen. themselves for symptoms and stay home if they have them.
3. Implement individual control measures and screenings.
4. Implement disinfecting protocols.
5. Implement physical distancing guidelines.

Thus, the decision to implement a policy requiring employees to self-screen for COVID-19 exposure or symptoms is likely permitted under the CBA’s management rights clause, but the specific details of how the policy is carried out and enforced may need to be negotiated with the union as part of the “effects” of the new policy.

The National Labor Relations Board has provided some guidance on this issue. On March 27, 2020, NLRB General Counsel, Peter B. Robb, published a memorandum: Case Summaries Pertaining to the Duty to Bargain in Emergency Situations. MEMORANDUM GC 20-04.  In his introduction, General Counsel Robb states the Coronavirus pandemic has prompted many questions regarding the rights and obligations of both employers and unions regarding COVID-19 policies required by federal, state, and/or local orders. At the end of the introduction, he states, “It is my hope that these summaries prove useful to those considering this issue during these challenging times.”

That Memorandum makes it clear that there is not a “bright-line test” to answer the questions regarding the duty to bargain over policies required by government orders to reopen. However, the general proposition in two of the summarized cases, which touched on the duty to bargain during public emergency situations, is that there is an exception to the duty to bargain where the employer can demonstrate that economic exigencies compel prompt legal action. Bottom Line Enterprises, 302 NLRB 373, 374 (1991). The NLRB has stressed that this exception is limited to “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” RBE Electronics of S.D., 320 NLRB 80, 81 (1995). The requirements to reopen during this pandemic seem to satisfy that exception. Remember, the exception addresses the duty to bargain over the decision to implement policies that meet those requirements, not their effects on employees covered by a CBA. MEMORANDUM GC 20-04 is available here.

Based on the general terms of some of the requirements for reopening and the absence of a bright-line test regarding the duty to bargain when reopening, an employer should provide the union with the specific terms of the policies that the employer intends to implement. This should be done with enough notice to allow the union to respond in a meaningful manner before the Company begins its reopening and the policy is placed into effect. The specific federal, state, and/or local directives that the policies follow should be stated in the notice. The notice should state the exact date that is currently scheduled for the reopening and that the policies will be effective on that date.

If the union fails to respond before the reopening date, the employer should implement the policies. In response to any unfair labor practice charges alleging that the employer failed to bargain over the decision to implement the policies, the employer will make clear that the notice was not an invitation to bargain – rather it was merely putting the union on notice of the policies – because under either the terms of the parties’ CBA and/or the NLRB’s emergency exception, the company did not have an duty to bargain over that decision. And even if it did, the union waived that duty to bargain by failing to respond to the notice in a timely manner. As stated in our May 4, 2020 blog, regardless of an employer’s efforts to cooperate with a union over a reopening, it should be prepared for either a strike or other work stoppage actions regardless of whether or not the relevant CBA prohibits that activity.

Although the employer should always maintain that it does not have a duty to bargain over the decision to implement the policies, it should have an open mind when considering any response from the union that addresses specific terms of the policies as opposed to the requirement to have them in the first place. The union may have already engaged in this process with other employers in the industry and, therefore, may have some valuable input.

In order to evaluate the duty to bargain when reopening, we encourage employers to obtain professional advice and Cozen O’Connor is ready to help. When reopening, employers can also refer to a Return to Work Post-Coronavirus Checklist published by the  Cozen O’Connor’s Coronavirus Task Force. And, employers can stay abreast of the labor and employment law issues raised by COVID-19 by clicking here. They can also register for upcoming Cozen O’Conner webinars that will discuss those issues in detail. Click here to learn more about our webinars.