Many workers who are part of a bargaining unit are finding themselves being impacted by employer actions during COVID-19. Employers are relying on management rights clauses to justify taking unilateral actions, but unions still have the ability to have a say at the table. COVID-19 has not suspended the duty to bargain in good faith over mandatory subjects of bargaining under the National Labor Relations Act (“NLRA”) and Michigan’s Public Employee Relations Act (“PERA”). Unions also have a lot of political power to combat unfair employment policies, including strikes, picketing, and use of the media.
The over-reliance on management rights provisions only goes so far. Unions have the ability to demand the right to bargain over certain terms and conditions of employment, and, even where a collective bargaining agreement otherwise covers a dispute, a union can demand to bargain over the impact or effect of an employer’s unilateral action. For example, if an employer declares financial exigency and decides to layoff numerous workers, the union can still demand to bargain over the impact or effect of the layoff, even if the CBA contains a layoff provision. This could include negotiating over retirement incentives, severance policies, or even renegotiating economic terms to impact fewer workers. Union also have the right to make formal Requests for Information (“RFIs”) to force management to provide any information that could be related to union duties, including bargaining and grievances. Thus, unions can request the employer provide financial or other information to force employers to provide the justifications for their unilateral decisions. If the employer refuses to provide such information, the union may file an Unfair Labor Practice charge (“ULP”) to get an order to make the employer provide the information.
During the COVID-19 pandemic, unions can demand to bargain over COVID policies, including testing policies, social distancing protocols, the type of Personal Protective Equipment (“PPE”) provided, etc. Unions can also try to re-open contracts or otherwise sign Memoranda of Understanding (“MOUs”) to negotiate COVID-related policies with employers. If employers refuse to come to the bargaining table, unions may be able to file ULPs for failure to bargain over mandatory subjects of bargaining. The ability to do so, however, may depend on whether the subject of bargaining (health and safety, etc.) is already covered by the CBA.
If efforts to bargain are unsuccessful, unions still have great power to voice dissent through strikes, picketing, and the media. Recently, numerous teachers’ unions and others have had great success affecting policy change through these routes. Whether these actions are protected activity under various labor laws depends on the circumstances. We advise seeking legal counsel from experienced labor lawyers, including CTM, before taking action.