Labor Relations Issues During COVID-19 Pandemic

Published: April 3, 2020

Note: Because this situation is rapidly evolving, the League encourages cities to work with their city attorney in implementing the new law and adapting any policies.

Thanks to Susan Hansen and Margaret Penland of Madden Galanter Hansen, LLP and Scott Lepak of Barna Guzy & Steffen, Ltd. for their assistance with these frequently asked questions.

Get answers to these frequently asked questions (FAQs) about city labor relations issues and COVID-19:

Q1: We are looking for alternatives to laying off employees, such as furloughs or limitations on work hours. How do we deal with these when employees are in a union?

Q2: What is a furlough, and how does a furlough differ from a layoff?

Q3: Do an employer’s managerial rights include the right to furlough employees or does a furlough trigger the seniority and layoff provisions of the contract?

Q4: What is a meet and confer process?

Q5: Won’t meeting with the union create a danger that I am waiving my management rights and turning them into negotiable subjects of bargaining?

Q6: How do past practices apply in an emergency situation like a pandemic?

Q7. Does an employer have additional managerial rights during times of emergency?

 

Q1: We are looking for alternatives to laying off employees, such as furloughs or limitations on work hours. How do we deal with these when employees are in a union?

A1: Management rights, unless negotiated away in a union collective bargaining agreement, generally provide broad city discretion to determine the size and composition of the workforce. Unless limited by the collective bargaining agreement, this includes the management right to reduce the work force. Collective bargaining agreements typically address lay-off procedures. While exceptions exist, they less commonly address options such as furloughs. Furloughs and other creative alternatives to laying off employees that are not specifically addressed in the collective bargaining agreement often involve areas that are covered in the collective bargaining agreement. For example, language in areas such as hours of work, change of schedules and seniority in assignments may need to be modified in order to get creative. If a city is contemplating alternatives to laying off employees in a bargaining unit, it should consider meeting and conferring with the exclusive representative of the bargaining unit.
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Q2: What is a furlough, and how does a furlough differ from a layoff?

A2: A furlough is a temporary leave of absence or reduction in work hours such that an employee is relieved of work duties and wages because of economic reasons, lack of work or other non-disciplinary reasons. Employees who are furloughed typically return to work. The term layoff generally refers to a permanent elimination of an employee’s position due to organizational changes, economic reasons, lack of work or other non-disciplinary reasons.
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Q3: Do an employer’s managerial rights include the right to furlough employees or does a furlough trigger the seniority and layoff provisions of the contract?

A3. It depends. An employer’s furlough of bargaining unit employees raises the question of whether the hours of work provision in the applicable collective bargaining agreement constitutes a guarantee of hours that restricts management’s rights to reduce employees’ work hours by furloughing employees, or whether management has the right to unilaterally furlough employees. Unions may oppose a furlough or reduction in the regular work hours claiming the employer is required instead to apply the seniority and layoff provisions of the contract which may impact junior employees dependent on the negotiated provisions. There is a split of arbitration decisions on whether a furlough or reduction in hours requires compliance with contractual seniority and layoff provisions.
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Q4: What is a meet and confer process?

A4: The meet and confer process is much different than the meet and negotiate process. A meet and confer at its most basic is simply an exchange of views and concerns between the city and an employee group. It is not a negotiation. Areas like furloughs typically fall between management rights, permissible subject of bargaining and mandatory subject of bargaining and may be flexibly addressed in these informal discussions. As an aside, it should be noted that under the state labor law, professional employees are permitted to meet and confer on policies and matters other than terms and conditions of employment. A number of public employers effectively utilized the meet and confer process in addressing furloughs that accompanied the 2007 recession.
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Q5: Won’t meeting with the union create a danger that I am waiving my management rights and turning them into negotiable subjects of bargaining?

A5: Waiver of management rights need to be established by clear and unmistakable language. Typically, a meeting with a city and union would be set up with the written understanding that it is a meet and confer process. This can be accomplished by an email exchange or more formally. If a meet and confer process produces some level of formal result, it is typically addressed in a Memorandum of Agreement or Memorandum of Understanding. Drafting such an agreement should include discussions with your City Attorney. Key provisions of such a document include a statement that it is addressing a unique and emergency issue, it does not operate as a waiver of management rights, is not precedent setting, does not operate as an interpretation of any provision in the collective bargaining agreement  and will automatically sunset at a date certain.
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Q6: How do past practices apply in an emergency situation like a pandemic?

A6: A binding past practice is generally defined as “a prior course of conduct which is consistently made in response to a recurring situation and regarded as a correct and required response under the circumstances.” Certain qualities distinguish a binding past practice from a course of conduct that has no particular evidentiary significance: (1) clarity and consistency; (2) longevity and repetition; 3) acceptability; (4) a consideration of the underlying circumstances; and (5) mutuality. Because of the unique and emergent nature of a pandemic, actions taken during this time should not create a past practice because the actions do not relate to a recurring situation. Conversely, existing past practices may not be binding where they run up against a need to do something differently in an emergency.
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Q7. Does an employer have additional managerial rights during times of emergency?

A7. Labor arbitration treatises provide that managerial freedom may be expanded and managerial obligations may be narrowed if management’s performance is affected by an emergency. A collective bargaining agreement may expressly provide for exceptions for these situations or an arbitrator may hold such exceptions to be inherent and necessarily implied. It is not uncommon for a Management Rights clause in a collective bargaining agreement to include language stating, “The EMPLOYER retains the full and unrestricted right to … take any and all actions necessary to carry out the operations of the Employer in situations involving a disaster or emergency consistent with the terms described in this Agreement to the extent practicable …” From a practical perspective, if a City needs to take actions due to the COVID-19 pandemic and the related national and state declaration of emergencies, in the event a grievance is filed, the Arbitrator is likely to view the City’s actions through the lens of this contract language if it exists, or the implied exception, as well as the surrounding circumstances. While this is by no means a blank check for a City, the City has more flexibility during times of emergency.
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