Analysis

Pandemic Tees Up Novel Legal Questions For NLRB

By Braden Campbell
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Law360 (June 29, 2020, 8:09 PM EDT) -- Does an employer violate federal labor law if it refuses to bargain with a union over Zoom? Do unions act unlawfully when they refuse to negotiate in person? The answers are anyone's guess until the National Labor Relations Board weighs in.

The National Labor Relations Act requires unions and businesses to negotiate terms and conditions of employment in good faith, including by meeting at reasonable times and places. Normally, this means businesses and employers must meet regularly in locations that make sense for both of them.

But it's unclear whether this means they must negotiate remotely in a pandemic that makes face-to-face meetings risky, and this uncertainty poses legal risks for parties that dig in one way or the other.

"As the push for virtual bargaining comes in, I'm getting a lot of pushback from my clients," said Davis Wright Tremaine LLP labor attorney Peter Finch, who represents a California hospital locked in a venue stalemate with a union. "It kind of sets up an interesting problem. … I find it fascinating, but I also find it a potential landmine."

The Rise of Remote Bargaining

The coronavirus pandemic has upended labor relations, delaying many in-person negotiations or forcing them onto Zoom or other videoconference platforms. This transition has been rocky.

"My clients have been saying, 'We don't want to do it by Zoom; it's clunky,'" said the Seattle-based Finch, who represents three employers whose labor negotiations have coincided with the pandemic.

Some concerns are technical. One client was unfamiliar with videoconferencing and raised concerns the union might be eavesdropping on its private channel, Finch said. Another client chafed at the often laborious practice of getting everyone to join the call.

Other issues are practical. It's harder to read the other side's reaction to a proposal over webcam than from across the table, and you can't tell when they're texting like you can when they're passing a note, Finch said.

Allyson Belovin, a partner with Manhattan labor-side firm Levy Ratner PC, said her clients have likewise felt some growing pains during the shift to remote bargaining.

It's harder to conduct the sort of marathon bargaining sessions that often precede deals in a pandemic, Belovin said. Zoom negotiations are generally shorter than in-person sessions because "you don't have the same kind of stamina," and there are more distractions at home than in the conference room. It's also harder to pull team members aside for a huddle, and video chat strips workers of the symbolic power of sitting across from their bosses as equals, Belovin said. Still, Zoom bargaining beats no bargaining.

"The union clients I represent have not wanted to put bargaining on hold in the hopes of avoiding remote bargaining and doing it in person," Belovin said.

'Reasonable' Times and Places

Employers have largely played ball with Belovin's clients, though one has refused to negotiate over video, and the union is considering its options, she said. Those options include filing an unfair labor practice charge with the NLRB, which could order the employer to the bargaining table.

The NLRA requires employers and unions to make "good faith" efforts to negotiate job terms and conditions. The board has read this provision to require that parties meet at "reasonable times and places."

This standard comes up most often in two situations, said Cozen O'Connor labor attorney Barry Kearney, who previously headed the NLRB office tasked with answering novel legal questions. In one common example, one party refuses to travel to the other party's chosen venue, claiming it would be too expensive. In the other, a party claims it has too much going on and doesn't have time to meet.

"In both of those cases, the board has found violations of the act," Kearney said. Whether the board will find a violation where a union or employer has dug in its heels during the pandemic will depend on that party's reasons, he said.

For example, if a union demands video bargaining and the employer refuses without offering a counterproposal, the board may see the union as the reasonable party, he said. On the other hand, "as long as you're conforming with what the rules are and there's plexiglass all over the place," an employer may have a case for insisting on in-person bargaining, Kearney said.

Reaching an Impasse

The labor board may soon weigh in on how the pandemic affects employers' duty to bargain.

Finch represents a California hospital that recently filed an unfair labor practice charge alleging a union violated the NLRA by refusing to bargain in person despite the hospital taking considerable precautions. The union has likewise accused Finch's client of breaking the law.

The parties' appeal to the NLRB comes after a long back-and-forth. Finch's client insisted on in-person bargaining, and the union responded with a list of safety demands, including that the hospital sanitize all surfaces before bargaining, provide adequate air filtration and ensure participants wash their hands and wear masks, Finch said. The company agreed to every condition, except a demand that Finch quarantine for two weeks after flying in from Seattle, he said.

The union sent its representative and one worker to bargaining, and had the rest of the bargaining committee take part over videoconference via a screen several feet from the hospital's agents. "After two sessions of this, we said we had enough," Finch said.

Finch is confident his side has the better argument. If an employer insists on bargaining in a closed office or refuses to provide masks or maintain social distance, that may not pass the board's test. But that's not the case for Finch's client — an open hospital that has met almost all the union's conditions, he said.

"In this fact scenario, I think that because we're meeting the requirements under the state law and the terms of the union," the hospital has been reasonable, Finch said.

But Belovin, the New York union attorney, said she thinks video bargaining is the reasonable course. As the pandemic continues to spread, it's clear refusing to meet remotely "is not good-faith bargaining," she said.

"I don't know what the Trump-appointed NLRB would do with that kind of charge — I don't have a whole lot of faith in them, frankly. I think under the language of the statute, it's absolutely a viable charge," she said.

--Editing by Kelly Duncan and Aaron Pelc.

For a reprint of this article, please contact reprints@law360.com.

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