On November 10, 2021, the Acting Associate General Counsel for the National Labor Relations Board (“NLRB” or “Board”) issued a guidance memorandum responding to inquiries regarding employer bargaining obligations under the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”). The memo provides a legal framework to the Board’s Information Officers who field and answer general questions, but it also offers insight into the Board’s enforcement posture should an unfair labor practice be filed against an employer alleging a violation of the duty to bargain.
An official version of the ETS was published in the Federal Register on November 5, 2021. The following day, the U.S. Court of Appeals for the Fifth Circuit Court granted the petitioners’ emergency motion to stay the enforcement of the ETS. B.S.T. Holdings, L.L.C. et al. v. OSHA et al., No. 21-60845.
The ETS covers private sector employers with 100 or more workers. Covered employers must decide whether to implement a policy that either (a) requires workers to be vaccinated for COVID-19 (mandatory vaccine policy); or (b) permits workers to choose between a vaccination or weekly testing for COVID-19 and masking indoors (alternate policy).
Recall there are two types of bargaining obligations: decisional and effects. Decisional bargaining is bargaining that is required when an employer’s decision impacts the terms and conditions of workers’ employment. For example, a decision might be how to structure wages for a particular plant. Effects bargaining is bargaining not over an employer’s decision, but over the impact, or affect, an employer’s decision has on its workers. For example, an effects bargaining obligation arises when an employer decides to close a plant (which is a reserved management right). The impact that plant closure has on workers—whether severance will be paid, how the wind-down of operations will impact segments of the workforce, and what exit dates will be established—are subject to effects bargaining.
In her memo, Acting Associate General Counsel, Joan Sullivan, laid out a legal framework for bargaining obligations under the ETS’ requirements. Specifically, she stated that “the ETS clearly affects terms and conditions of employment—including the potential to affect the continued employment of employees who become subject to it—and gives covered employers discretion in implementing certain of its requirements.” Memorandum OM 22-03.
Generally, if a statute or regulation provides an employer with choices for implementation, an employer has decisional bargaining obligations regarding aspects of the statute or regulation affecting terms and conditions of employment. For example, in a prior Board case, an employer argued that an OSHA regulation requiring workers to use respirators justified its refusal to bargain over which type of respirators workers could use. Hanes Corp., 260 NLRB 557 (1982). The Board disagreed and ordered the employer to bargain over the type of respirators that could be used. Id. Ultimately, the Board held that the regulation allowed for “significant flexibility and latitude in implementing steps necessary for compliance[.]” Id. at 562.
By contrast, where a statute or regulation does not provide discretion for how to implement its requirements—for example, the CMS vaccine mandate that covers healthcare facilities receiving Medicare and Medicaid—an employer is not obligated to bargain over implementation. In such a scenario, the only bargaining requirement is over the effects of such implementation.
The memo is silent on the fact that an existing labor agreement may contain management rights or workplace safety language which may allow employer discretion in implementation of workplace health and safety rules. Such language could potentially negate a decisional bargaining obligation.
Employers with a unionized workforce need to consider employer bargaining obligations as they come into compliance with the ETS. The timing of bargaining is a factor given the compressed timelines of what employers must implement by December 5, 2021, and January 4, 2022. We suspect unionized employers will receive bargaining requests from their unions shortly if they have not already. Some employers may welcome input from employees and unions alike regarding the threshold question of whether to implement a mandatory vaccine policy or an alternate policy. However, we suspect most parties will favor the alternate policy. Certainly, some effects resulting from implementation of whichever policy is chosen will require bargaining.
The bargaining approach, the subjects to be bargained, the timing, the process, and the desired outcomes are all matters for which an employer must strategize and plan for. Given the number of variables at play, we encourage our clients to contact your MB relationship attorney or one of the authors of this alert for guidance.