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In response to an Emergency Temporary Standard (ETS) to protect workers from coronavirus that was issued earlier this month by OSHA, National Labor Relations Board General Counsel Jennifer Abruzzo issued a memo to all field offices concerning COVID vaccine mandates and collectively bargained worker protections. As General Counsel, Abruzzo is responsible for enforcing the National Labor Relations Act’s provisions.

In the memo, General Counsel Abruzzo indicated that while situations on work properties vary on a case-by-case basis, “employers covered under the National Labor Relations Act (NLRA) have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment-to the extent the ETS provides employers with choices regarding implementation.”

OSHA’s ETS, implemented Nov. 5, ordered employers of 100 or more employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”

A U.S Court of Appeals for the 5th Circuit has since issued a temporary stay on the ETS, asking for further briefing by the parties. The General Counsel’s memo indicates that she favors a nuanced and bargained approach between labor and employers in implementing COVID policies rather than a unilateral approach on the part of employers.

“The employer also has an obligation to bargain over the effects of this policy,” Abruzzo said in the memo.

The memo’s guidance would mainly affect TD members on bus and some transit properties.

Below is a press release from the NLRB General Counsel and a link to the memo that was released.

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November 12, 2021

In a memo issued on November 10th, Acting Associate General Counsel for the National Labor Relations Board Joan Sullivan provided information to all field offices on the recent Department of Labor Emergency Temporary Standard to Protect Workers from Coronavirus (ETS).

The memo explains that although General Counsel Jennifer Abruzzo does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that employers covered by the National Labor Relations Act have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.

Although an employer is not obligated to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally when it has some discretion in implementing those requirements. To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.

“The ETS clearly affects terms and conditions of employment—including the potential to affect the continued employment of workers who become subject to it—and gives covered employers discretion in implementing certain of its requirements. In those circumstances, a decisional bargaining obligation is required. The employer also has an obligation to bargain over the effects of this policy,” said General Counsel Jennifer Abruzzo. “While our country recovers from COVID-19, workers should know they have the right to a safe workplace and to have their voices heard.”

NLRB Logo; National Labor Relations BoardIn the 80 years since the National Labor Relations Act was enacted, the workplace has changed in ways that President Roosevelt never could have imagined when he declared that the goal of the law was “common justice and economic advance” for all. Yet his signature so long ago guaranteed that one thing would and has remained the same — democracy has a rightful place in the workplace.

Enacted in midst of the Great Depression, the National Labor Relations Act gave workers an avenue to join together to improve their wages and working conditions. The ability to organize and bargain collectively put more money in the pockets of workers while helping build – and maintain – the middle-class.  

Through good times and bad, the Act has offered workers a voice in their workplace and promoted industrial peace. Our country and workplaces have changed over the last eight decades, but the need for the Act has remained a constant.

Today, the law continues to protect employees who seek to improve their working conditions by joining together, with or without a labor union. It protects the union member seeking to improve conditions at their plant just the same as it does the single-mom in a non-union workplace working the night shift who speaks with coworkers about their pay and work hours. And through collective bargaining, unions and employers can resolve their differences and devise solutions to meet the challenges of our ever-changing economy.

While there is little doubt that the workplace will bear little resemblance in 80 years to what we know today, there is even less doubt that workers will deserve and demand a voice in it.  As long as there is the NLRA, that voice will be protected.  

President Franklin Delano Roosevelt signed the National Labor Relations Act on July 5, 1935, which among other things established a new independent agency tasked with enforcing the Act, the National Labor Relations Board. 

WASHINGTON — Employers, including union and non-union bus companies, covered by the National Labor Relations Act must now post notices on bulletin boards informing employees they have a right under federal law to organize and be represented by a labor union.

The National Labor Relations Board (NLRB) issued that final ruling last week after concluding many workers are not aware of their rights under the National Labor Relations Act.

If employers communicate with employees regarding personnel issues via the Internet or an internal company Intranet, they must also post the notice on those sites, ruled the NLRB.

The New York Times reported that this is the first time, since passage of the National Labor Relations Act in 1935, that employers have been ordered to post notices about employee rights to organize.

“This rule ensures that workers’ rights are effectively communicated in the workplace,” said AFL-CIO President Rich Trumka. “It is necessary in the face of widespread misunderstanding about the law and many workers’ justified fear of exercising their rights under it.”

The ruling does not affect railroads or airlines as they are covered by the Railway Labor Act, which is administered by a separate federal agency, the National Mediation Board.

By UTU International President Mike Futhey

The right of workers to join a labor union and bargain collectively with employers over wages, benefits and working conditions is the foundation of workplace democracy.

Brave and dedicated trade unionists before us risked their lives, freedom and economic security fighting for collective bargaining rights, achieving victory first in 1926 with passage of the Railway Labor Act, and then the National Labor Relations Act in 1935.

For public-sector workers, the struggle took longer. Wisconsin was the first state to grant its workforce a right of collective bargaining in 1959. Federal workers gained a collective bargaining right in 1962.

It is ironic that Wisconsin was the first state to sanction public-employee collective bargaining because it is Wisconsin’s governor who this month invited massive civil unrest in his state by attempting to revoke that right.

Similar legislative efforts are underway in Ohio and Tennessee, and the movement to curtail public-employee collective bargaining rights could spread.

If the effort is successful, private-sector workers could then find their own collective-bargaining rights under attack. We are witnessing in Congress and in many state legislatures an anti-union animus stronger than it has been in decades.

To close our eyes to the struggle of state workers in Wisconsin, Ohio or elsewhere is to wake up finding our own collective bargaining rights gone.

That is why union members from across America — many from the United Transportation Union — have been participating in rallies, telephone and email communications efforts, petition drives and other activities in support of public employees whose collective bargaining rights are under attack.

Wisconsin State Legislative Director Tim Deneen and Ohio State Legislative Director Glenn Newsom are coordinating joint action with the targeted public-employee unions.

As a member of the AFL-CIO Executive Committee, I am working with the federation’s Transportation Trades Department to identify additional actions that might be taken to assist in fighting state attempts to restrict or eliminate public-employee collective bargaining.

The outrage is not that public employees must participate — with all segments of society — to close massive budget shortfalls.

The outrage is that Wisconsin Gov. Scott Walker wants to revoke the right of public employees to bargain over health care, pensions and working conditions, plus Scott wants to impose significant costs on workers and their unions by requiring annual representational elections and cancelling the state’s collection of union dues through payroll deduction.

This is all about union busting and not about closing budget shortfalls.

In fact, Christopher Policano, an official with the American Federation of State, County and Municipal Employees, said the union is willing to negotiate concessions with Gov. Walker, “but he wants to throw out the bargaining table.”

Wisconsin is not the only state with a big budget deficit. By contrast, in California, Michigan, New York and Pennsylvania, governors are collectively bargaining with state employees to find the least painful alternatives to balance state budgets.

In Pennsylvania, a spokesperson for Gov. Tom Corbett, a Republican, told The New York Times, “We’ll begin negotiations with the public-sector unions and anticipate we’ll conduct those in good faith.”

Many UTU members have inquired how they might join in solidarity with public employees under siege.

Begin with an AFL-CIO sponsored website, “States of Denial,” which provides opportunities for different levels of involvement. Click below to link to the “States of Denial” website:

www.aflcio.org/issues/states/

Click on the following link to see how you might help in Ohio:

https://www.smart-union.org/news/help-preserve-collective-bargaining-in-ohio/

And certainly consider joining, or increasing your contribution to, the UTU PAC, which works to elect union-friendly lawmakers to state legislatures and Congress.