Protecting Your Business in the COVID-19 World: NLRB General Counsel Addresses Bargaining Obligations During Times of Crisis

The COVID-19 crisis challenges unionized employers in unique ways. They are mandated under the National Labor Relations Act (NLRA) to bargain with unions over wages, hours, and working conditions, including schedule changes, safety protocols, furloughs and layoffs. They cannot act unilaterally to implement changes in these areas and instead must either reach an agreement, or reach an impasse, following good faith bargaining.

These unprecedented times demand greater flexibility in order to keep workers safe and businesses operating.  Both the rapid spread of COVID-19, as well as the onslaught of ever-changing legislation such as new paid leave requirements and government stay-at-home orders, are devastating workplaces. Employers need latitude to make immediate and substantial changes, including reduced hours, schedule changes, new safety protocols, furloughs, and layoffs.

How can unionized employers respond appropriately to this emergency situations while complying with the NLRA and its prohibition on unilateral changes?

On March 27, 2020, the National Labor Relations Board (“NLRB”) General Counsel issued a memorandum GC 20-40 addressing the issue. The memorandum discusses prior NLRB decisions regarding the duty to bargain during emergency situations, both public and employer specific.

In public emergencies (e.g., hurricanes and post-September 11, 2001 situations) as well as employer-specific crises, the Board has upheld the employer’s unilateral implementation of changes where “economic exigencies” resulted from “extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.” However, the employer must first notify the union of the changes and offer to bargain, even on an expedited basis.

Employers with unionized workforces who are impacted by the COVID-19 crisis are not without options as far as responding swiftly and in the best interest of their workers and their operations. Employers should not limit their COVID-19 response options based on the typical bargaining framework. But, carefully crafted communications with the union and the opportunity for expedited bargaining are critical. Our labor team can guide you through this process so you can avoid unfair labor practice charges, while making the best decisions to protect your company.