Hunton Employment & Labor Perspectives

An employer’s duty to bargain may change during emergency situations, and the General Counsel for the National Labor Relations Board released a series of case summaries Friday to help employers navigate the exceptions.

General Counsel Peter Robb summarized nine Board cases addressing both general public emergencies and emergencies particular to individual employers.  Robb did not make any declarations about how the COVID-19 outbreak and associated response might affect bargaining obligations, but the summarized cases provide good examples of bargaining exceptions that may or may not apply.

Employers with collective bargaining agreements and union relationships know they generally cannot make unilateral changes to terms and conditions of employment.  But in an unprecedented emergency like the coronavirus (COVID-19) outbreak we are all facing, union bargaining obligations may be relaxed, either based on the terms of a collective bargaining agreement, or under National Labor Relations Board law.  As employers are forced to make ever more difficult operational decisions in the face of this emerging threat, here are some issues unionized businesses should consider when contemplating major workplace changes.

Consider Contract Terms First

 It goes without saying that employers with collective bargaining agreements should first examine the language of their contracts to determine whether they provide for any increased flexibility in decision-making during emergencies, such as a public health emergency.  If the terms of a company’s CBA specifically allow for increased operational flexibility during emergency situations, then the CBA should govern, and the employer should proceed accordingly.