By Braden Campbell

Law360 (March 3, 2021, 4:06 PM EST) -- Concerns about workplace safety may give unions a foothold for organizing new shops and provide existing units more leverage — and more cause to strike — if businesses don't follow heightened rules for protecting workers from COVID-19, attorneys say.

Not only can the perception that employers are dropping the ball drive workers to unions or enable them to bring public pressure to support their demands, but the failure to mitigate serious hazards may empower workers to strike, even if their contracts otherwise block work stoppages.

"Unions have always been familiar with the concept of worker safety and [the Occupational Safety and Health Administration]," said Steve Bernstein, a Fisher Phillips attorney who represents businesses. "This has simply put a magnifying glass on it."

While it's not typically seen as a key driver of union organizing, workplace safety has emerged as a key concern for workers during the COVID-19 crisis.

Ogletree Deakins Nash Smoak & Stewart PC attorney Maria Anastas said she's handled hundreds of organizing drives in her more than two decades of counseling businesses on labor relations. In most of these, workers organized because they felt disrespected or voiceless, she said. But safety and related concerns have lately taken center stage.

"When I look back on the organizing drives that I was involved in during 2020, I can't think of one where there wasn't a safety issue at the core," Anastas said.

Heightened safety rules currently in the works at the U.S. Department of Labor may drive that trend even further, to the extent employers don't follow them, said Jonathan Segal, a management-side employment attorney with Duane Morris LLP.

The Trump administration resisted calls from worker advocates to enact a rule setting specific, enforceable standards for protecting workers from COVID-19, and instead leaned on general rules and reams of guidance.

OSHA has already issued more stringent guidance under Principal Deputy Assistant Secretary of Labor for OSHA Jim Frederick, an organized labor veteran. The Biden administration is expected to soon issue a formal rule requiring employers to meet coronavirus-specific standards or face fines, following the lead of state safety enforcers in California, Virginia and a handful of other states.

"We can anticipate that unions will monitor closely an employer's compliance with any standards," Segal said.

Employers that fail to follow these standards may also invite strikes or other union actions, even if their workers are otherwise blocked from engaging in work stoppages.

Employers and unions typically agree to "no-strike" clauses that block workers from going on strike while their collective bargaining agreements are active. But these clauses may not apply when businesses fail to protect workers from COVID-19.

Section 502 of the Labor Management Relations Act allows workers to strike over "abnormally dangerous" safety concerns, superseding contractual bars to work stoppages. Fisher Phillips' Bernstein noted this provision is relatively untested, so it's unclear how it might apply to the COVID-19 crisis.

"It stands to reason that if organized labor is interested in pressuring employers, this is one potential avenue of attack," Bernstein said.

One of Anastas' clients recently had a close brush with a potential midcontract strike after a Teamsters unit representing its workers went to the California Division of Occupational Safety and Health in what Anastas inferred was an attempt to invoke Section 502. The attempt fell flat after Cal/OSHA doled out what amounted to a "slap on the wrist," but other unions may fare better, Anastas said.

"I think it depends on the nature of the citation," she said. A more serious violation that goes uncorrected may give a union leeway to strike, while employers can ward off worker action by quickly fixing their failures, she said. 

An impending shift in political control at the National Labor Relations Board — which could decide whether a given union legally invoked Section 502 — may strengthen labor's hand, Anastas added. The board may have a more labor-friendly Democratic majority as soon as August.

"The new board will likely take a much more liberal approach if they're ever in a position to determine what constitutes an abnormally dangerous working condition," she said.

Even if they don't trigger protections under Section 502, real or perceived safety concerns can give unions leverage over businesses. Another Anastas client was recently covered in its local newspaper following an outbreak in its store and suspects its workers' union was the source of the tip, she said. Unionized workers may also apply pressure by passing out leaflets critical of their employers, she said.

While employers can't control what their workers do, there are a few ways they can mitigate the risk that workers take action over safety concerns.

Because any failure to follow the rules gives unions an easy rallying point for organizing, employers would do well to follow OSHA's heightened guidance to the letter, Duane Morris' Segal said. Ditto for the impending rule.

"It's not unusual for a union in an organizing drive to ask employees to ask [their employers] certain questions designed to lead to the conclusion that when your employer can't answer them, you need a union," he said.

Karen Tynan, a colleague of Anastas' at Ogletree who focuses on OSHA, said she has seen "a ton" of complaints from workers who are concerned that colleagues have contracted COVID-19. Navigating this situation is tricky because it forces employers to balance their duty to protect workers' privacy and the risk that workers will feel unsafe if kept in the dark, Tynan said.

"It's critical for your HR team and your safety team and, many times, your corporate counsel to collaborate and find communications solutions that can assure co-workers they're receiving the right amount of information," Tynan said.

This dovetails with the general principle that open communication is key to smooth relations with workers, Anastas said.

"The most important thing is to communicate effectively with your employees, and then they won't feel like they need to pull out their pitchforks," she said.

--Editing by Abbie Sarfo and Vincent Sherry. 

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