While all employers are facing an unprecedented whirlwind of rapidly changing circumstances as a result of the COVID-19 pandemic, employers with unionized workforces face additional challenges as they take action in response to the outbreak while trying to avoid running afoul of the requirements of their collective bargaining agreements and the National Labor Relations Act (NLRA). Here are a few suggestions for employers to consider as they navigate this new landscape.
1. Be proactive
Once you have determined the operational and staffing changes that you need to implement, determine whether and to what extent your collective bargaining agreement (CBA) imposes limits on your ability to make those changes unilaterally. Review the clauses of your CBA related to scheduling, staffing levels, assignment of work, leaves of absence, layoffs, and reductions in workforce. Do those clauses provide exceptions or special provisions for emergency situations or unforeseen circumstances? What about the management rights clause? Does it explicitly reserve your unilateral right to make any of the changes you are contemplating?
If any of the operational and/or staffing changes you plan to implement in response to COVID-19 are not covered by the CBA, or are covered but would violate its terms, do you have to bargain with the union before implementing those changes? Not necessarily. Under limited circumstances, an employer can take unilateral action related to wages, hours, working conditions, or other mandatory subjects of bargaining, such as where a union has waived its right to bargain over the change or where the employer is privileged to act unilaterally for another reason. One such reason is where economic exigencies compel prompt action. According to the NLRB and the federal courts, such exigencies are situations where extraordinary, unforeseen, external (i.e., beyond the employer’s control) events, which have a major economic effect, require the company to take immediate action. Even so, while you may not be required to bargain over, for example, the shutdown of part of your production line due to a government order, you may nevertheless have to bargain over the impact or effect of that shut down.
Here, COVID-19 is certainly an extraordinary, unforeseen, external event, so determining whether it suffices to allow you to take immediate unilateral action will require you to examine whether that action is necessary in response to the major economic effect(s) COVID-19 has on your business, which will vary with each employer.
2. Communicate with the union
If you intend to implement staffing or operational changes that would normally require bargaining with the union before they can be implemented, you may be able to avoid such bargaining if your business is faced with an economic exigency that compels you to act quickly. But even if there is an exigency that excepts you from having to bargain, it is still advisable to communicate your plans to the union at or before the time you implement them. Note that such communications are intended to provide notice to the union of the actions you are taking and, as such, they are not a request to bargain over the changes. This is an important distinction, as you should be consistent in your position that under the circumstances, bargaining is not required. However, regardless of whether you have a legal duty to bargain or not, it would be helpful to communicate your plans to the union promptly and clearly (preferably in writing), as such communications can lead to smoother implementation of the necessary changes.
3. Do not ignore information requests
You should also be prepared to answer information requests from the union. It is likely that the union will request information regarding your COVID-19 response plans. This type of information will likely be presumptively relevant to the extent that it relates to employees’ health and safety and other terms and conditions of employment.
4. Be prepared to alter your plans quickly
The advice from the medical community and the mandates from federal, state, and various local governments have developed and changed rapidly over the course of the last several weeks, and particularly over the last several days. It is likely that such rapid changes will continue, so you should be prepared to make changes to your own response plans on an ongoing basis. When such changes occur, decisive, prompt, and clear communication to your employees and their union representatives will help to minimize the uncertainty and friction that those additional changes may cause and help to prevent unfair labor practices.
If you would like to discuss these or any other labor and employment issues related to COVID-19, contact your Reed Smith attorney.