By Braden Campbell

Law360 (October 23, 2020, 9:54 PM EDT) -- With the COVID-19 crisis dragging on into its eighth month in the U.S., testy union negotiations have been devolving into strikes as workers' demands for safety and financial security crash against employers' economic anxiety.

Safety concerns and demands for hazard pay are compounding the wage and benefits issues that typically drive conflicts at the bargaining table, while employers have been hesitant to make concessions amid a business environment as uncertain as any they've ever faced.

"The stakes probably are about as high as they've ever been, in terms of negotiating new contracts," said David Barron, a Cozen O'Connor attorney in Houston who advises employers on labor relations.

The strike represents the union's ultimate weapon, and one of employers' greatest concerns: Workers withholding their collective labor to force concessions, such as pay raises or job protections. The early months of the COVID-19 pandemic saw an uptick in strikes by nonunion workers seeking safety guarantees or hazard pay, but they were marked by relative peace between businesses and unions with established bargaining relationships. But that peace has started to break, and more workers are declaring or threatening strikes.

The last several weeks have seen numerous strikes or strike threats involving thousands of workers around the country. Nurses in California, Minnesota and Connecticut walked off the job to push their employers at the bargaining table, and California grocery truck drivers reached a new deal after floating a strike.

It's no coincidence that these strikes have arisen around contract talks. Because collective bargaining agreements typically include "no-strike clauses" barring workers from walking off the job during the terms of their deals, the majority of strikes in unionized workplaces occur around contract negotiations.

That's also why strikes are ticking up now, Barron said. When the pandemic exploded in March, many businesses and unions that were in the thick of contract negotiations shelved talks to avoid overlapping crises. But those talks are back in full swing, and other contracts have come up for renegotiation.

Negotiating during a pandemic poses "a perfect storm of potential conflict scenarios for the parties," said Steve Bernstein, the Tampa-based co-chair of management-side firm Fisher Phillips' labor relations practice. Workers are concerned about losing their jobs and staying safe at work, and may feel alienated from management with whom they've had little face-to-face interaction in recent months, he said.

And economic uncertainty has clouded contract talks, even for employers that so far haven't taken a hit, Barron said. Typically, parties to CBA talks base their bargaining positions on forecasts for the next few years, he said. But it's hard to look ahead with any certainty now.

"No one knows what the next three years are going to look like if no one knows what the next three months are going to look like," Barron said. "It makes it very difficult to negotiate a three-year contract."

The recent labor unrest has been especially pronounced in the heavily unionized health care industry, where workers face some of the highest safety risks. These workers have been emboldened by a pandemic that has shone a light on the "essential" nature of their work, said Ken Haney, a local Service Employees International Union official.

"Ever since March of 2020, the nation and the health care industry overall has been put on the front line," said Haney, the executive vice president of SEIU Healthcare Michigan.

Last week, SEIU Healthcare Michigan-backed workers at Four Seasons Rehabilitation and Nursing secured a new contract following two years of bargaining. The union went on strike Oct. 19 after contract talks fizzled over the weekend; on Tuesday night, they reached a tentative deal that includes substantial raises for unit members.

The strike was the first by an SEIU Healthcare Michigan unit in two decades, Haney said. After talks with nursing home chain Advantage Living Centers recently broke down, it may not be the last, he added.

"We're waiting on them to respond with some final proposals … to see what direction we move in," Haney said.

A similar dynamic has played out in Rhode Island, where SEIU 1199 New England represents workers at six nursing homes whose contracts expired at the height of the pandemic last spring.

The workers had been negotiating new deals since last year but tabled contract talks when cases rose, pushing for and securing hazard pay apart from their CBAs. Meanwhile, the pandemic sharpened their demands for heightened staffing as it ravaged their workplaces.

"Staffing is very closely tied to infection controls," said Adanjensus Marin, the lead organizer for SEIU1199's nursing home members. "Workers are being told and want to follow all of these infection protocols, but how do you do that when you have 16 residents and you have to get to all of them?"

The resumed contract talks had broken down by July and workers at five homes announced plans to strike, but stood down at Gov. Gina Raimondo's request. The workers made progress with some homes but talks stalled at the Bannister Center for Rehabilitation and Nursing in Providence, where workers staged a three-day strike earlier this month — the first for a Rhode Island nursing home in 17 years, Marin said.

"Before we went on strike, the owner … said that he would 'never, ever, ever' agree to staffing language in his contracts," Marin said. "The week after, we found out how long 'never, ever, ever' is."

On Oct. 20, the Bannister workers ratified a deal that includes staffing minimums and guarantees that workers see raises when the state increases reimbursement payments to nursing homes, Marin said. The union has reached or come close to similar deals with the other homes, he added. 

This trend holds for hospitals, too. Donald Schroeder, a partner at Foley & Lardner LLP in Boston who represents health care employers in contract negotiations, said clients have increasingly turned to mediators for help as talks stall over big asks by nurses' unions.

These unions have demanded higher staffing and guarantees that they won't be laid off — commitments health networks are hard-pressed to make amid postponements of money-making elective surgeries and uncertainty about federal reimbursements, Schroeder said.

"They are also engaging in more significant efforts at attempting to drum up community support," he said. "Whether that's a function of the pandemic, it seems to be that they are attempting to sway public support in their favor."

That tensions are high between businesses and unions is no surprise, Fisher Phillips' Bernstein said. The collective bargaining framework set out in the National Labor Relations Act is inherently adversarial, and the virus has only amplified that dynamic by putting both sides on edge.

Some negotiating partners may be better equipped to navigate this climate, notably businesses and unions with long bargaining histories, Bernstein said. Newer partners will have a comparably tough time, but few will have it easy.

"These are unprecedented times, for sure," Bernstein said.

--Editing by Emily Kokoll.

Correction: An earlier version of this story misidentified the union representing the Rhode Island workers. The error has been corrected.

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