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NLRB’s guidance on COVID-19 policies for unionized employers

Over the past seven months, businesses throughout the country have dealt with ever-changing difficulties arising from COVID-19.

These new circumstances will continue to change in response to health concerns for employees and customers, government mandates and business necessity. Owners of businesses of all sizes and in all industries have learned how important it is to make prudent decisions about complex issues within a short frame of time. And with an end to the pandemic remaining uncertain, businesses will be required to continue making important decisions quickly amid uncertainty for the foreseeable future.

For businesses with unionized employees, decisive action involving working conditions can be difficult. The need to balance the ability to comply with government mandates and adapt to changing public-health regulations with the duty to bargain provides an additional layer of complexity in unionized workplaces.

The duty to bargain

Under the National Labor Relations Act, an employer is obliged to bargain with a union representing its employees about changes in mandatory subjects of bargaining. These subjects include wages, hours and working conditions. These broad categories cover matters such as layoffs, reductions in hours, sick and emergency leave, furloughs, safety protocols and health screenings, to name only a few. This means that under normal circumstances, employers may not take unilateral action regarding mandatory subjects without first bargaining with the union.

But these are not normal times. The speed with which the pandemic has changed the workplace over the last seven months, owing primarily to safety concerns and government mandates, has made bargaining over necessary changes difficult, if not impossible in some cases. In other words, the unprecedented nature of the pandemic has given rise to a storm of conflicting obligations.

Advice memoranda: A port in the storm

Although many businesses probably now feel adrift in a sea of changing regulations and safety concerns, the National Labor Relations Board has been placing lighthouses along the shore through its advice memoranda. Both the NLRB’s general counsel and its division of advice have been providing much-needed advice on labor matter related to the ongoing pandemic. The seas are likely to remain rough for some time, but employers that stay abreast of the NLRB’s advice will have a navigational aid to stay on course and avoid the rocks of grievances and complaints of unfair labor practices.

Advice memoranda typically deal with a specific sort of dispute that might arise between an employer and union, and thus are only binding on the parties to the dispute. But the NLRB releases these memoranda to the public to provide guidance about how it might handle such matters in the future; doing this can provide employers with guidance on how they can act prudently in similar circumstances. The advice memoranda released during the past several months have taken up issues such as the duty to bargain in an emergency, layoffs, political activities outside the workplace and unilateral changes to safety protocols.

Employers may take unilateral action

Last month, the NLRB’s Division of Advice published a memorandum dealing with what has become a nearly universal issue during the pandemic: necessary changes to COVID-19 safety protocols and policies.

In the specific discussed in the memorandum, Mercy Health, a health care system, carried out changes to its COVID-19 safety protocols and benefits without first notifying and bargaining with the union. Specifically, the employer carried out changes related to the use of personal protective equipment, paid leave for COVID-19, visitation, ICU nurse duties, travel pay to support social distancing, reporting for COVID-related events and safety protocols for at-risk employees.

The memorandum concluded that a complaint of an unfair labor practices had been properly dismissed because the employer’s changes were either required by state government, or reasonably related to COVID-19. However, the memorandum also noted that employers still have a duty to bargain over the effects of unilateral changes, and that the employer did so in this case.

Charting a path forward

The pandemic is likely to continue causing rough seas for the foreseeable future. Although the NLRB’s advice memoranda provide much-needed guidance, they are neither binding nor likely to provide an answer to every question that arises in the unionized workplace. Thus, unionized employers can ensure smooth sailing by taking into account these considerations when making any change to a mandatory subject:

  • Bookmark and check the NLRB’s website where it publishes advice memoranda. It’s at: https://www.nlrb.gov/guidance/memos-research/advice-memos/recently-released-advice-memos.
  • Learn whether a decision implicates a mandatory subject of bargaining.
  • Learn whether the collective-bargaining agreement allows for the employer to take unilateral action.

If the current public health emergency or a mandate from the local, state or federal government requires immediate action without bargaining, employers should notify unions of the change as soon as possible. Early communications can help avoid later disputes (this applies to non-unionized employers as well).

Remember that even when the duty to bargain is excused by an event like the current pandemic, there is still a duty to bargain with unions over the effects of the unilateral change after the fact. When you have doubts, you should consult a labor and employment attorney before taking action.

Trevor Caldwell is an attorney at Barran Liebman LLP in Portland. He represents employers in labor and employment matters. Call him at 503-276-2117 or write to him at tcaldwell@barran.com.

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