Let’s say employees at your club are represented by a labor union, perhaps it’s the kitchen staff or the grounds crew. You’ll typically have a wide array of employment terms and work rules spelled out in a collective bargaining agreement. For example, wage classifications and rates, benefit packages, payroll practices, a variety of work rules, a no-strike clause and a grievance/arbitration procedure would be common.
The agreement would result from negotiations between club management and the applicable labor union. Most agreements are drafted to last three years for a variety of reasons. Such reasons include the ability of management and the union to maintain a stable working environment without labor disputes while ensuring that the agreed-upon terms reflect current conditions each side believes are fair and appropriate. Additionally, the law recognizes a three-year agreement is appropriate to ensure labor stability while enabling employees to petition, if they so desire, to revisit via election whether they want a union’s representation to continue.
Good Faith Efforts
Key to the success of a unionized operation, private club or otherwise, is acknowledgment and good faith effort to satisfy the legal bargaining duty under federal labor law (National Labor Relations Act Section 8(d)). Both unions and employers in this setting must bargain in good faith with each other over matters of wages, hours and a very broad concept called “terms and conditions of employment.” This bargaining duty also enables unions and employers to request information from the other regarding current wages, hours, working conditions, proposals to change current terms and conditions, etc. The underlying concept is informed discussion and each side’s ability to stay informed and on point with issues of concern in the workplace.
Across the country, we saw, in response to the pandemic, that clubs sought to resume operations as broadly and as safely as possible for employees and members when circumstances allowed. Many employers grappled with questions of whether to mandate employee vaccination both as a matter of legal compliance and employee relations. In the unionized environment, the bargaining relationship and duty to bargain in good faith have been especially noteworthy. Bargaining, itself, has changed in that safety concerns have converted a process historically driven by in-person meetings and negotiations into one which is driven by Zoom and other virtual communications to keep business running in a safe and time-efficient way.
The federal Equal Employment Opportunity Commission (EEOC) has issued guidance confirming that employers’ mandatory vaccination rules against COVID-19 are lawful provided they meet certain criteria and allow exemptions for health/disability and good faith religious belief. Where an employee seeks an exemption, the employer must engage in an interactive process to review the circumstances and whether there is appropriate accommodation for the employee in question.
“Unbargained” Mandates at Union Clubs
Taking unilateral action in a nonunion workplace may well be lawful, but having a union changes the chemistry and action plan. Labor practitioners have noted a National Labor Relations Board’s (NLRB’s) ruling in the Virginia Mason Hospital case, 357 NLRB 564 (2011), which addressed whether an employer could impose a vaccination requirement on union-represented employees. In Virginia Mason, a hospital-initiated vaccination and other measures against the flu without notice or bargaining with the employees’ union. In response to unfair labor practice charges, the NLRB determined that providing notice and an opportunity to bargain to employees’ union were essential to the employer’s compliance with labor law.
The Biden administration has expressed desire for vaccination and heightened safety requirements. The administration has also announced itself to be the “most pro-union administration” in U.S. history. Clubs should expect that the NLRB will have concern about management ordering unbargained requirements on unionized workers. This is regardless of whether OSHA’s Emergency Temporary Standard requiring vaccination of employees at employers of 100 or more is accepted or rejected by the courts, where it currently is enjoined. However, the NLRB guidance on the bargaining duty is relevant and should be considered by clubs before they embark on vaccination mandates affecting union-represented employees. This concern for bargaining relationships in the wake of an emergency temporary standard (ETS) issued by the OSHA led the NLRB to issue a guidance memorandum on how the ETS interplays with collective bargaining duties. The new guidance, in NLRB Operations-Management Memorandum OM 22-03 (November 10, 2021), acknowledges that even with a government-mandated vaccination program, there is significant flexibility on some issues for management to determine. Where management has potential flexibility and discretion, the NLRB will expect clubs and other employers to notify and bargain with a union before taking action. Where management has no flexibility or discretion in following some aspect of a vaccine mandate, management will be expected to notify the union and bargain over the effects of the decision. Failures to notify and bargain will be reviewed and likely prosecuted by the NLRB as unlawful refusals to bargain in good faith are in violation of Section 8(a)(5) of the National Labor Relations Act.
The safest course will be for unionized clubs and employers in other industries to provide notice to the applicable labor union(s) before taking action. With a proposed vaccine mandate, clubs should expect to inform the union what is intended, how it will be accomplished, and when. Clubs should expect a union to be able to consider, discuss and respond to the proposal. This process may include meeting virtually or, if safe to do so, in person with appropriate precautions to discuss the proposal. It may be that a union requests information on details of what is proposed. Clubs should consider such information requests carefully. If sensitive information warrants disclosure, the club may wish to agree to protective terms with the union to prevent disclosure except as required by law. Similarly, how exemptions are handled should be discussed to ensure that both the club and union are in sync, even if that accord is simply to comply with applicable legal standards.
Clubs in the unionized environment may find that some unions are more eager for? or opposed to vaccine mandates than others. Such positions may be driven by the nature of work they perform or by the feelings of specific members or union officials. Regardless, safety interests have reached a fever pitch in today’s workplace. Shortages of skilled workers have also motivated how parties to such discussions will proceed. The safest course will involve dialogue and careful consideration of the details to try, in good faith, to reach agreement on proposed terms.
Taking action without notice or bargaining, as with changes to wages, hours or other working conditions will continue to be a high-risk venture for clubs and other employers. Acting without notice or bargaining raises the potential that the NLRB could take interest in an unfair labor practice charge and subsequent investigation leading to possible prosecution.
Clubs should seek advice from labor counsel as they encounter and deal with these issues.
Thomas Lenz is a partner at Atkinson, Andelson, Loya, Ruud & Romo and a director of the National Club Association. He can be reached at [email protected].