May 11, 2021

Volume XI, Number 131

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May 11, 2021

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May 10, 2021

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Cal/OSHA COVID-19–Related Citations May Provide Leverage to Labor Unions and Their Members

A February 2021 California Division of Occupational Safety and Health (Cal/OSHA) press release trumpeted the agency’s enforcement efforts and its recently issued citations for COVID-19–related violations. Cal/OSHA continues to aggressively issue “serious” classification citations to California employers. For example, Cal/OSHA issued “serious” and “willful-serious” citations with hundreds of thousands of dollars in penalties against a sister agency, the California Department of Corrections and Rehabilitation dba San Quentin State Prison, for COVID-19–related violations.

With Cal/OSHA’s continued hard-hitting enforcement efforts across the state and the agency’s issuance of “serious” and “willful-serious” COVID-19–based citations, California employers may be blindsided when organized labor uses workplace safety citations to declare an otherwise illegal strike or walkout as legal.

Here’s how it works. Section 502 of the Labor Management Relations Act of 1947, 29 U.S.C. § 143, provides that employees choosing to withhold their labor will not be deemed to be engaging in an unlawful strike if the reason for their refusal to work is based on a good-faith belief that “abnormally dangerous conditions” exist at their place of employment. Some labor unions have recently taken the position that Cal/OSHA citations support the rights of their members to leave work, refuse to work, or call a strike, even though a collective bargaining agreement and its no-strike clause are in effect at the worksite.

However, in the healthcare industry, the National Labor Relations Act requires labor organizations to provide notice “not less than ten days” before engaging in a strike, picketing, or other concerted refusals to work. Consequently, while organized labor may be able to target employers outside the healthcare industry by attempting to use these citations as a means to call a strike mid-contract, healthcare employers will have the benefit of a 10-day period to abate the hazardous condition. This is an important caveat for California healthcare employers that may be facing this tactic in 2021.

Cal/OSHA citations do not simply represent penalties with monetary impact. Instead, the impact of COVID-19–based citations can reach far beyond a business’s financials to include the labor problems described above, insurance premiums, business reputation, labor relations, contracting with other businesses, and state licensing. Employers may want to take a proactive management approach to all Cal/OSHA investigations, communications, and responses during these COVID-19 enforcement efforts.

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© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 50
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Maria Anastas Labor Lawyer Ogletree Deakins Law Firm
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Maria Anastas is a traditional labor law expert and former NLRB attorney. The overwhelming majority of her practice is focused on representing employers before the NLRB and during union organizing drives, corporate campaigns and collective bargaining. She has earned a national reputation for handling hundreds of union organizing drives. Maria has a broad range of experience handling traditional labor law matters in virtually every industry, including healthcare, manufacturing, warehousing, retail, hospitality, service sector, maritime, trucking and higher education.

Maria is a...

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Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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