How best to represent your company on mandatory vaccinations with a division of labor between hourly and salaried workers? in the terms it may impose for its contractors, would vaccine requirements designed to reach a public health goal be beyond its authority? It’s a different analysis and it has led to differing conclusions. If I’m a federal contractor subject to the mandate, I am clear that my contractors and I are going to have to comply, because without federal contracts, we’re not in business. So you have a way to get a little bit more traction if you’re a federal government employer with a mandate. What are some other COVID-19 concerns for employers with unionized shops? The primary concern is the bargaining obligation imposed by the National Labor Relations Act for the effects of an imposed rule or an action. And that bargaining obligation is being viewed quite expansively by the current National Labor Relations Board. The NLRB’s general counsel has issued a memoranda clearly communicating to the employment community that the board will expect employers to come to the table on a host of issues, from discipline, job security and safety to leave for obtaining the vaccination, costs of testing—a very hot topic—and procedures for testing the unvaccinated. It’s just a surface description of the types of issues that a union would likely raise. Bottom line: Employers have far less flexibility when dealing with a bargaining unit than with a non-organized workforce. You want to make sure that you follow the process to a T, or you will end up with an unfair labor practice charge for failing to appropriately deal or bargain with a union over COVID-19 issues. As you look at COVID-19 concerns, you need to appropriately assess the risk as well as how far you can push, and what
leverage you have over, the union. We talked about leverage earlier for all private employers, but there are other leverage points specific to union shops, including how strong it is, how likely it can lead, and your internal consistency and alignment as a management group on some of these key bargainable issues. You may recall that Tyson Foods, which ended up on the front page of the Wall Street Journal, is an example of a company that was able to successfully negotiate the implementation of its mandatory vaccine policy with its various unions. You do not want to get over your skis and act before you’ve met all of the appropriate standards under the NLRA. You’ve had a long and distinctive career in traditional labor law. What is different now about union negotiations vs. when you began? And what is the same? I started doing this back in the early ’80s and coming out of the ’70s there was a great deal of labor-management warfare, with strong ideological lines being drawn. Many of the most important, heavily unionized employers were in urban areas or in areas where unions had held sway over many years. There was a very us vs. them approach to negotiations and unioncompany relationships. Unions at that time had a greater percentage of the workforce and a lot more leverage than today. At one point, unions represented more than 20 percent of the workforce in some states. Today, on a national basis, privatesector unions represent only 6 percent of the workforce. Today, the relationships between the unions and companies I work with are much better. The parties do not start off assuming there will be war, but rather looking for ways to find solutions and common areas where they can reach agreement. Certainly, wages and legacy benefits, such as pension and retiree health, remain strongly contested at the bargaining table. But the discussion is driven more by economics than ideology; and cost and capability, as opposed to moral obligation, which makes it a little easier for the parties to have a rational debate. There are positives to take away from both eras, but on balance, the management-labor relations are more cooperative than they were in the past.
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