Over the last seven months, businesses in the Pacific Northwest and across the country have dealt with an ever-changing environment of challenges due to COVID-19. This new environment will continue to evolve due to health concerns for employees and customers, government mandates, and business necessity.

Owners of businesses of all sizes and across all industries have learned how important it is to make prudent decisions about complex issues within a short timeframe. And with an end to the pandemic remaining uncertain, businesses will be required to continue making important decisions quickly and amid uncertainty for the foreseeable future.

For businesses with unionized employees, decisive action involving working conditions can be a challenge. Balancing the ability to comply with government mandates and adapt to a changing public health environment with the duty to bargain creates an additional layer of complexity in the unionized workplace.

The duty to bargain

Under the National Labor Relations Act, an employer is obligated to bargain with a union representing its employees over changes in mandatory subjects of bargaining. Mandatory subjects include wages, hours and working conditions. These broad categories cover issues such as layoffs, reductions in hours, sick and emergency leave, furloughs, safety protocols and health screenings, to name only a few. This means that under normal circumstances, employers may not take unilateral action regarding mandatory subjects without first bargaining with the union.

But these are not normal times. The speed with which the pandemic has changed the workplace over the last seven months, due primarily to safety concerns and government mandates, has made bargaining over necessary changes difficult, if not impossible in some cases. In other words, the unprecedented nature of the pandemic has created the perfect storm of conflicting obligations.

Advice memoranda: a port in the storm

While many businesses probably feel adrift in a sea of changing regulations and safety concerns, the National Labor Relations Board (NLRB) has been emplacing lighthouses along the shore through its advice memoranda. Both the NLRB’s General Counsel and its Division of Advice have been proactive in providing much-needed advice on labor issues related to the ongoing pandemic. While the seas are likely to remain rough for some time, staying abreast of the NLRB’s advice will provide employers with a navigational aid to stay on course and off the rocks of grievances and unfair labor practice complaints.

Advice memoranda typically deal with a specific dispute between an employer and union, so they are only binding on the parties to the dispute. But the NLRB releases these memoranda to the public to provide guidance about how it might handle the issue in the future; this can inform a prudent approach for employers under similar circumstances. The advice memoranda released during the last several months have addressed issues such as the duty to bargain in an emergency, layoffs, political activities outside the workplace, and unilateral changes to safety protocols.

Employers may take unilateral action

Last month, the NLRB’s Division of Advice published a memorandum addressing a near-universal issue during the pandemic: necessary changes to COVID-19 safety protocols and policies.

In the case addressed by the memorandum, Mercy Health, a health care system, implemented changes to COVID-19 safety protocols and benefits without first notifying and bargaining with the union. Specifically, the employer implemented changes related to the use of personal protective equipment, paid leave for COVID-19, visitation, ICU nurse duties, travel pay to support social distancing, reporting for COVID-related events, and safety protocols for high-risk employees.

The memorandum concluded that an unfair labor practice complaint was properly dismissed because the employer’s changes were either required by state government, or reasonably related to COVID-19. However, the memorandum also noted that employers still have a duty to bargain over the effects of unilateral changes due to COVID-19, and that the employer did so in this case.

Charting a path forward

The pandemic is likely to continue causing rough seas for the foreseeable future. While the NLRB’s advice memoranda provide much-needed guidance, they are neither binding nor likely to provide an answer to every question that arises in the unionized workplace. Thus, unionized employers can ensure smooth sailing by considering the following when making any change to a mandatory subject:

Bookmark and check the NLRB’s website where it publishes advice memoranda. It’s at: https://www.nlrb.gov/guidance/memos-research/advice-memos/recently-released-advice-memos.

Determine whether a decision implicates a mandatory subject of bargaining.

Determine whether the collective bargaining agreement allows for the employer to take unilateral action.

If the current public health emergency or a mandate from the local, state or federal government requires immediate action without bargaining, provide notification to the union of the change as soon as possible. Early communication often alleviates a later dispute (this applies to nonunionized employers as well).

Remember that even when the duty to bargain is excused by the pandemic, there is still a duty to bargain with the union over the effects of the unilateral change after the fact.

When in doubt, discuss issues with a labor and employment attorney before taking action.

Trevor Caldwell is an attorney at Barran Liebman LLP in Portland, Oregon. He represents employers in traditional labor and employment matters. Contact him at 503-276-2117 or tcaldwell@barran.com.