The National Labor Relations Act (“NLRA”) imposes on employers the duty to bargain in good faith over mandatory subjects of bargaining such as wages, hours, and terms and conditions of employment. Generally speaking, even in emergency situations, such as this one, employers are required to bargain with the union over unilateral changes concerning mandatory subjects of bargaining, unless your collective bargaining agreement provides otherwise.
Here are several questions that we have received.
Q: Are there any exceptions to the general duty to bargain in good faith prior to making unilateral change to a mandatory subject of bargaining?
A: The general duty to bargain over changes in contractual terms may be suspended where compelling economic exigencies compel prompt action. The law views “compelling economic exigencies” as extraordinary, unforeseen events having a major economic effect that requires the employer to take immediate action and make a unilateral change.
Although an outbreak like the COVID-19 coronavirus would seem to fit the description of a “compelling economic exigency,” realize that its effect will be different for every employer. That is, while it may suspend the duty to bargain for one employer whose only facility was infected, it will likely not suspend the duty for an employer that has lost significant accounts or contracts as a result of the outbreak. In practice, the safest course of action (and the one most likely to avoid future litigation) is to notify the union in all cases, even if you believe that your particular situation fits into the “compelling economic exigency” category. Please contact your attorney prior to relying upon this exception because it is rarely as straight forward as one may presume.
[Note: on March 27, 2020, the NLRB Office of General Counsel issued a memorandum related to compelling economic exigency, providing a case history as to its applicability. Please contact your attorney to discuss further if you believe this applies to your situation.]
Q: How much notice do I have to give the union before I make a change to my contract?
A: The law requires employers to give the union “adequate” notice of a proposed change to the collective bargaining agreement, so as to engage in meaningful bargaining over that change on request. There is no hard and fast rule as to how much notice is adequate. It depends on the circumstances of each situation.
Q: If a public health official (or the government) shuts down the facility, can I ignore the labor agreement?
A: In short, no. There may (and most likely are) steps that can be taken. You should first review the requirements in the labor agreement. You should then contact your attorney to see if there are additional steps that you may take. You should not though simply assume that the public official (or government) directive overrides your labor agreement.