Like several other retail chains, the grocer gave workers hazard pay reflecting the heightened risks they faced reporting to work in a once-in-a-century pandemic. The $2 per hour extra Johnson earned in the early days of the crisis offset his brother's lost income, he said, and helped him provide for his daughter and grandchildren.
Several months later, Johnson is no longer earning extra money, but the hazards remain, he said: Managers don't enforce mask mandates consistently, the company squelches virus talk when workers fall ill, and soap and other sanitary goods are often scarce in employee restrooms.
"From the time I walk into that building to the time I leave, I don't feel safe," Johnson said in a recent press call with Colorado grocery workers and advocates, including his union, United Food and Commercial Workers Union Local 7.
And Johnson is not alone. In the last several months, unions representing retail workers have implored Kroger, Albertsons and other chains to reinstate hazard pay, improve safety protocols and supply protective and sanitary products. But in many cases, employers have no obligation under federal labor law to heed these calls.
In mid-March, as the number of coronavirus cases spiked around the country and states ordered many businesses to shut down or scale back operations, the U.S. Department of Homeland Security included grocery workers on a list of "essential" personnel whose employers should stay open.
In the following weeks, numerous retail chains rolled out hazard pay or issued cash bonuses, including Kroger, Albertsons and Target. At the time, Kroger CEO Rodney McMullen said store associates "have displayed the true actions of a hero" through their continued work in the pandemic.
But for many workers, those bonuses have since lapsed, according to a recent report by the Brookings Institution analyzing the practices of the country's top retailers.
Home Depot, Best Buy and Target made their March increases permanent, and have each paid workers an average of more than $3,000 extra since the start of the pandemic, Brookings found. But most other major retailers, including Albertsons, Kroger and Amazon, stopped paying bonuses at midyear, even as their profits have surged in 2020 compared with the same periods last year, according to the think tank's report.
With the number of COVID-19 cases nationwide hitting new highs, retail unions are pushing employers to reinstate hazard pay. Those efforts have seen mixed success, in part because the National Labor Relations Board's top attorney has said employers don't have to meet unions' demands in many cases.
"It's a huge factor," said Barry Saltzman, an attorney at Pitta LLP who represents unions in labor relations.
While nonunion employers have no obligation to give workers a say on their policies, federal law requires that unionized employers bargain with their workers over most job terms and conditions, including pay and safety. But National Labor Relations Board case law holds that employers generally need not bargain over issues covered in active collective bargaining contracts absent a "reopener provision" empowering parties to demand midterm negotiations.
The NLRB office that prosecutes unfair labor practice charges before the agency's titular board recently issued guidance applying this precedent to coronavirus-related disputes, sharply limiting unions' power to demand hazard pay. In July, the Office of the General Counsel said a Tennessee concrete mixer did not have to bargain over hazard pay because its contract addresses wages and includes a "zipper clause" blocking midterm talks over job terms discussed in the CBA. Along with a 2019 labor board ruling prescribing an employer-friendly read of "management's rights" clauses limiting unions' power to demand bargaining, this guidance makes it hard for unions to force businesses to the bargaining table, Saltzman said.
"Any good management-side attorney can find good reasons to say 'Well, I don't have to bargain over hazard pay,'" he said.
Steve Suflas, a Ballard Spahr LLP attorney who represents businesses, said this policy means most employers with active contracts don't have to bargain over hazard pay. Still, unions may have some power to demand concessions on workplace safety, he said.
"If the contract says the parties agree management will provide a safe workplace … that then gives the union a lot of ways" to push for policy changes, Suflas said. For example, unions can push employers by filing grievances accusing them of failing to keep workers safe, he said.
That has borne out for UFCW Local 1500, which represents more than 20,000 grocery workers in and around New York City. Secretary-treasurer Aly Waddy told Law360 that the union hashed out deals for hazard pay early in the pandemic, but it was rescinded as the crisis wore on. The union may seek hazard pay provisions in future deals, but for now, its hands are tied.
"We negotiated during a time when things were very different," Waddy said. Still, the union has improved conditions for workers in other ways, including by persuading employers to install plexiglass barriers separating workers from customers, she said.
While NLRB policy relieves employers of their obligation to bargain in many cases, it does not strip unions of two key weapons: direct action and public pressure.
"Appeals to the public are very powerful, especially now, when people are sensitive to the fact that everyone is at risk, and somebody working at your local supermarket is at a higher risk," Suflas said.
In September, the United Food and Commercial Workers union launched a national campaign to pressure grocers to restore extra pay for their employees, and it has secured agreements covering more than 100,000 workers. The UFCW has reached deals with Stop & Shop and ShopRite to provide hazard pay for workers in the Northeast, and with California chain Stater Bros. to boost pay for its workers, the union said.
Locals like UFCW 7 in Colorado have also urged employers to reinstate hazard pay and in some cases taken action to secure it. This month, Local 7 penned a letter with UFCW Local 21 and Sen. Bernie Sanders, I-Vt., demanding that McMullen, whose chain owns King Soopers and other stores, provide extra pay. Local 7 has also demonstrated, parking billboard trucks outside Kroger stores and projecting images on the buildings calling on the company to reinstate hazard pay.
On Wednesday, the union organized a press conference with grocery workers, faith groups and employee advocates calling on Kroger and Albertsons to restore hazard pay for workers. The union is hopeful that its pleas hit home, political liaison Melissa McCollister said.
"We just want to sit down with the company and actually bargain for appreciation pay for the workers who are making all the money for them," she said.
A representative or King Soopers did not provide comment.
--Editing by Joyce Laskowski and Haylee Pearl.
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