Whether and how to respond to union proposals and requests to bargain are among the important questions employers face when confronting the many health, safety and economic threats posed by the COVID-19 pandemic. Ultimately, these are business decisions that involve a number of considerations with economic, operational, labor and customer relations components. Understanding the duty to bargain imposed by the National Labor Relations Act ("Act"), however, provides a structure for fashioning appropriate responses.
During the term of a collective bargaining agreement, most questions about whether an employer must bargain in response to union requests, or may undertake unilateral action, can be answered by referencing the contract's terms. Union proposals and requests to bargain typically involve one of three general categories: (1) those that require a modification to the contract; (2) those that involve subjects that are not addressed by the contract at all; and (3) those that involve subjects that are covered by a term or terms authorizing unilateral employer action. Each scenario is discussed in turn below.
There is no legal duty to bargain in response to a union's proposed mid-term modification of the parties' contract. Section 8(d) of the Act makes clear that the duty to bargain does not require any party "to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract."
For example, if a contract provides that employees will be paid $15 per hour and the union requests to bargain over a temporary $2 per hour wage increase for all hours worked during the COVD-19 pandemic, the employer has no legal duty to discuss the proposal, let alone bargain over or agree to it. Section 8(d) includes subjects specifically included in the agreement as well as those that were specifically excluded. For instance, when the parties "agree to disagree" and a subject is excluded, no party cannot insist on bargaining during the agreement to restore it.
Recently, employers have reported a wide range of union requests to provide incentives to employees or enhance their work flexibility in ways that appear to conflict with current contract terms. These include proposals to eliminate wage progressions; grant additional paid leave; suspend attendance requirements; halt disciplinary action under engineered productivity standards; reduce work eligibility requirements for participation in benefits programs; extend recall rights for laid-off employees; and waive timelines in the parties' grievance and arbitration procedures. When these proposals involve the elimination or modification of an existing term of a collective bargaining agreement, no duty to bargain arises. Employers may agree to such proposals or decline to discuss them.
Subjects Not "Covered By" the Contract
In general, there may be a duty to bargain over (but not agree to) union demands concerning employment terms that are not covered by and would not result in a modification of the parties' agreement. For example, an employer may be required to bargain over union demands for on-site COVID-19 testing or new facilities for handwashing if these subjects are not covered by, and would not result in, a modification of any term of the parties' current agreement.
Bargaining may not be required, however, in situations where the union has waived bargaining. For instance, the National Labor Relations Board ("Board") has found that a well drafted "zipper clause" may waive the duty to bargain over subjects not dealt with in the agreement during its term. In one case, the Board concluded that a clause stating the agreement was "complete in writing and excludes all matters from further negotiation for the duration of this Agreement, whether or not previously mentioned" waived the right to bargain over the mid-term implementation of a new voluntary retirement incentive.
Subjects "Covered By" the Contract
While case law in this area is developing, union demands regarding matters that are "covered by" a contract provision authorizing the employer to act unilaterally during the agreement should not create a duty to bargain because the bargaining obligation already has been satisfied. Under the Board's very recent decision in MV Transportation, an employer has no duty to bargain over its decision to make changes in terms and conditions of employment where that decision is within the scope or compass of a contract provision granting the employer the unilateral right to act. Importantly, the issue is not whether there has been a waiver of the right to bargain. As the Board has explained, the "union may exercise its right to bargain about a particular subject by negotiating for a provision in a collective bargaining contract that fixes the parties' rights and forecloses further mandatory bargaining as to that subject." Contract coverage simply applies the results of the parties' bargaining to the subjects that arise during its term. By the same token, a union should not be able to compel an employer to bargain over whether it will exercise rights accorded to the employer under the contract.
Practical and Other Considerations
Importantly, employers may decide that it is in their interests to meet with and discuss a union's proposals even when it is clear no bargaining obligation exists. Meeting does not inadvertently create a duty to bargain where none existed under Section 8(d), so frequently there is little downside to doing so. A meeting can be used to help clarify and communicate the parties' various concerns and objectives. Some employers have reported that participating in such discussions, even when agreements were not reached, helped avoid disputes, and has been an important part of their efforts to maintain positive employee relations during this critical time.
Of course, many employers have not waited around for unions to make proposals and have simply taken steps of their own to address the workplace consequences of COVID-19. This includes enhanced safety training, changing working conditions and protocols to maximize social distancing, requiring face coverings, providing pay premiums or bonuses for essential workers, expanding access to paid sick leave or other leave entitlements, changing methods of pay distribution to enable employees to access their pay faster, and prioritizing work opportunities for existing employees consistent with seniority provisions. While a duty to bargain over such decisions will not be found when the decision is "covered by" the parties' agreement under MV Transportation, a union may still be entitled to bargain with the employer over the impact the decision has on employees.
Employers should also keep in mind that one significant outcome of MV Transportation is that questions regarding the duty to bargain over subjects that are covered by the agreement will become much less important than the underlying issue about whether the parties' agreement has been applied properly. In evaluating these claims, labor arbitrators are bound by the agreements they are interpreting. Nevertheless, even when applying provisions that reserve discretionary rights to management, some arbitrators stray from the plain language and infer a requirement of reasonableness. At minimum, evidence concerning meetings held to discuss union proposals may provide assurance to an arbitrator that management's responses, and the action they take to address the pandemic, ultimately do not violate the contract under all the circumstances.
Employers with questions about whether and how to respond to union proposals and requests to bargain about COVID-19-related issues should consult counsel.
Originally published May 4, 2020.
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