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New Common Ground For Unions And Employers: Safety First

By Kevin Stawicki · May 26, 2021, 5:00 PM EDT

Workplace health and safety issues have been a central focus for employers and labor unions during the pandemic, and they could translate into a new area for common ground in the often contentious labor relations landscape as the nation continues to plan for post-pandemic life, labor experts said.

While some unions have battled their employers over safety issues and even challenged the Centers for Disease Control and Prevention's advice that people fully vaccinated against COVID-19 can eschew mask and social distancing requirements, labor attorneys told Law360 that unions and employers have largely been on the same page on safety matters.

"Even though the circumstances of the pandemic have been constantly changing, it has been a marriage between employers and unions in going over the issues and how things need to be handled on safety," said Thomas Lenz, an Atkinson Andelson Loya Ruud & Romo PLC attorney who advises employers on labor issues.

Duncan Crabtree-Ireland, SAG-AFTRA's chief operating officer and general counsel, said health and safety have been the top priority for the union over the last year and that the pandemic has only highlighted the prospects for future collaboration.

At the height of the pandemic, multiple entertainment industry unions worked together to negotiate joint agreements with the major studios, networks and streaming services about how to return to work with proper testing protocols and other safety measures, as well as sick leave and quarantine pay issues, Crabtree-Ireland said. Having a common focus on the health and safety of employees was the motivating factor for the parties that may usually find themselves at odds, he said.

"Employers have stepped up in a lot of ways to make sure our members are safe," Crabtree-Ireland said. "I was pleased that the employers and unions worked together so well as it relates to COVID safety. There have been no disputes or arbitrations on COVID related matters."

With only about 40% of the American population fully vaccinated against COVID-19, according to CDC data, concerns about vaccination policies, masking and testing continue to be priorities for both employers and unions, experts said. While employers may be naturally driven to quickly work through those issues, they have largely been done in coordination with unions during the pandemic, Lenz said.

"There's a tendency for some employers to leap into action, and certainly the safety sensitivities and public health awareness that has increased is important, but in the unionized environment it has been important to work in sync," Lenz said.

Jenn Betts, an attorney at management-side firm Ogletree Deakins Nash Smoak & Stewart PC, who handles traditional labor and other employment matters, said she hasn't observed significant pushback from unions about COVID-related issues either.

Instead, she said, health and safety issues have enhanced working relationships between employers and unions, although how they work together will vary depending on what industry they're in and the terms of any collective bargaining agreements that may be in place.

"Management and labor unions have been able to talk through health and safety issues," Betts said. "Both labor unions and employers agree that maintaining a safe workplace is their No. 1 priority. I also think both employers and unions agree that business continuity, including preserving employee livelihoods, are, too, issues of paramount importance."

Union-side attorneys agreed that health and safety issues have brought labor and management closer together in some respects, but that tensions continue to exist around the extent to which employers can make changes without bargaining with the union.

"Labor and management have been bargaining over health and safety for a while now and there are definitely some agreements that have been reached," said Andrew Midgen, an attorney at union-side firm Pitta LLP. "Everyone can get on the same page on some key health and safety issues."

Social distancing and mask requirements are just two examples of where unions and employers have found common ground, Midgen said. While issues related to mandatory vaccination policies might raise some areas of disagreement between labor and management, most employers haven't tried to pursue those types of policies, he added.

But while the pandemic may have contributed to some newfound synergies between employers and unions on health and safety issues, it may have also shed a light on the significance of a recent decision by the National Labor Relations Board that let employers make unilateral changes without bargaining with a union, Midgen said.

The NLRB's 2019 decision in MV Transportation shifted the board's test for whether a contract allows employers to make a given change to working conditions. Historically, the board had applied the "clear and unmistakable waiver" standard, which required employers to show that unions had clearly and unmistakably given up their rights to bargain over a contract term before the employer could change it. The MV Transportation majority substituted the "contract coverage" standard, which examines whether the change is generally in line with the contract's management rights provision, without requiring a specific waiver.

Employers couldn't previously make changes just because they had general language in their management rights clauses, but they are able to do so now, Midgen said, noting that the MV Transportation decision "takes on additional importance right now with health and safety issues."

"If there's some vague language in a management rights clause, employers may take action on health and safety even though prior to MV Transportation they would have had to bargain on those topics," he said. "This will cause unions to rethink management rights clauses and see them as a bigger issue than they previously were understood to be, which takes on greater importance in light of COVID."

--Editing by Haylee Pearl.

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