As many states begin to relax or lift many of the restrictions that forced companies to cease operations during the COVID-19 outbreak, companies across the country are poised to resume business. A multitude of legal issues – including those relating to employees – will face employers if they strive for a “return to normal”. Companies that have a unionized workforce need to be aware of the specific National Labor Relations Act (NLRA) labor law issues that are likely to come into play. Let’s look at some of the potential big problems.
Negotiation obligations
Businesses generally have an obligation to negotiate changes they make to the terms and conditions of employment of unionized workers. This applies regardless of whether the change is beneficial or harmful for an employee. For example, if a company wishes to offer a bonus risk to unionized workers who work under certain conditions, but the work agreement does not contain a statement on the matter, the employer still has to technically negotiate with the union before introducing this enhanced benefit (i.e. change) . Similarly, a company generally needs to negotiate changes that adversely affect unionized workers, such as B. Wage cuts or layoffs.
Crucially, however, companies may have a contractual language or other union “waiver” of negotiation – for example, on previous practice – that would allow them to take unilateral action on these issues. A best practice is for companies to carefully weigh their potential negotiating obligations on the various aspects of a restart plan to ensure they are addressed in advance as this can help avoid costly and time-consuming complaints and unfair labor practices proceedings.
Information requests
Union requests for information have increased since the outbreak of the pandemic on a variety of issues, such as the implementation of measures in response to COVID-19. Don’t expect this trend to wear off anytime soon. When companies resume business they should anticipate requests from unions related to their plans, such as: B. Recall procedures, plans to comply with social distancing plans, plans for personal protective equipment, etc. Of course, employers in general must provide unions with information relating to matters that directly affect their members’ employment conditions. Failure to comply with the obligation to provide relevant information can have serious consequences for companies.
It becomes more complicated when it comes to certain nuanced requests for information from unions, e.g. B. Information about employees who tested positive for the virus and related questions. A best practice is to thoroughly evaluate the legal obligations associated with any request received from a union, prepare a response that complies with those obligations, and put the response in writing to ward off allegations that the employer is somehow unresponsive to Has.
Contract management
Often times, inconsistencies are a killer for employers when it comes to labor relations. For example, inconsistent enforcement of attendance policies can provide unions with an opportunity to argue before an arbitrator or the National Labor Relations Board that discreet dismissals for past unreasonable motivation were based on unreasonable motivations. Good or bad, many companies – including those with unions – relaxed their participation and other policies when the pandemic first hit. To the extent that companies are doing or have done something along these lines, it is a good practice to remind the union that it has been done on a one-off, unprecedented basis to serve employees in unprecedented times. This can potentially help soften “inconsistent enforcement arguments” in later proceedings.
These are just a few of the many labor law challenges that unionized employers may face when restarting their business. Non-union employers who wish to remain unionized also need to be aware of what many are predicting as the organizing onslaught. The COVID-19 pandemic has been unprecedented on myriad fronts, and industrial relations are no exception.
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