Remote bargaining comes with its share of headaches, including connection troubles, crosstalk and more complicated prep, say labor attorneys who have done most or all of their bargaining over video chat for the last year. But the convenience of remote bargaining means the practice may continue in some cases, whether voluntarily or by a shift in National Labor Relations Board standards calling for in-person talks.
"I think remote bargaining is here to stay," said Allyson Belovin, a partner at Manhattan-side firm Levy Ratner PC who represents unions.
Frustrating, but Convenient
When the emergence of the COVID-19 pandemic last year made it unsafe to gather in person, unions and employers moved contract talks online. The shift was a rocky one, as bargaining partners struggled with challenges both technical and social, labor attorneys told Law360 last summer. Nearly a year later, the medium is still frustrating lawyers.
Peter Finch, a partner in Davis Wright Tremaine LLP's Seattle office who represents management, said Zoom bargaining has gotten easier as practitioners have gained experience with the technology, but frustrations remain. Finch said it's tougher to read bargaining partners via video conference than it is in person, especially because participants can turn off their cameras. Occasionally there are delays when participants have trouble logging on, and email and smartphones are tempting distractions, he said.
"You can look and people are doing their email," Finch said. "You can watch their eyes darting across. They're not looking right at the camera."
Belovin has found that remote bargaining needs more prep work. When they're there in person, the sides can more easily step aside to "caucus" and refine proposals. But Belovin has found it's more productive to exchange proposals ahead of time, moving more work before bargaining.
"A lot of the work that would normally be done in caucus during bargaining sessions is done in advance, ahead of time, in order to make the session run more smoothly," she said.
Rich McCracken, a partner at union-side McCracken Stemerman & Holsberry LLP, was short in his appraisal of remote bargaining.
"The consensus in our firm is that we don't like it and can hardly wait to get back to in-person bargaining," McCracken said in an email.
But the format has its charms, attorneys say. For some, these benefits far outweigh the negatives.
Maria Anastas, a shareholder at management-side Ogletree Deakins Nash Smoak & Stewart PC, said the switch to remote bargaining has been a blessing after close to 30 years of frequent travel. While most of Anastas' clients are in Southern California, odysseys through Los Angeles traffic and treks to the San Francisco Bay Area can quickly add up, she said. Now, Anastas can go from working out in her quarantine gym to remote bargaining in minutes.
"I can be on an island in Greece if I want to," said Maria Anastas, who spoke to Law360 after wrapping a remote bargaining session.
Anastas, who visits Greece every summer, said she has always envied writers who can work wherever they tote their laptops. "Now, I can do that too," she said.
Cutting travel out of the schedule has also allowed busy bargainers to cram more sessions into their days, said Finch, who is juggling negotiations for far-flung clients.
"Tomorrow I'm going to bargaining in Southern California and I'm going to bargaining in Utah on the same day," he told Law360 last week. "I can bargain for eight hours in California on Thursday, and then I will bargain in Utah for two and a half hours tomorrow evening."
"Reasonable" Meetings Post-COVID
While some attorneys might favor the shift to remote bargaining as the default, this clashes with the NLRB's clear preference for in-person votes.
The National Labor Relations Act requires parties to meet at "reasonable times" and makes the refusal to do so an unfair labor practice subject to agency prosecution. The NLRB has interpreted this language to require that parties bargain in person when one party requests it, and the agency sues employers or unions that refuse.
Finch said the board has adopted a de facto non-enforcement policy regarding this preference during the pandemic, for obvious reasons. But eventually, the board will entertain a suit alleging a party violated its good-faith bargaining duty by refusing to meet. When that day comes, the members will have to grapple with a year of experience showing remote bargaining works despite its quirks, Finch said.
"They're going to have to recognize this works, this is a viable alternative," said Finch, who would prefer that in-person negotiations remain the rule. "But again, just because we can do it, should we do it?"
Anastas said she'd love for the board to soften its preference for in-person bargaining, but doesn't expect it to. She noted that in-person sessions allow for more theatrics, which unions may prefer: Tearing up management's proposals will excite workers far more at the bargaining table than it would over Zoom. It's likely a majority-Democrat board will side with labor on this issue, she said.
But remote bargaining will likely continue through mutual agreement in many cases, especially where the parties are long-standing bargaining partners, Anastas added. She pointed to her work for nonprofits with mature union relationships. It usually takes just three or four sessions for her to hash out a contract with the union representative, who will likely prefer remote bargaining to driving three hours from Northern California, she said.
"I do think there will be a fair amount of bargaining that continues in a virtual way," Anastas said.
--Editing by Haylee Pearl and Tim Ruel.
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