April 22, 2021

Volume XI, Number 112

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Can You Conduct Collective Bargaining By Phone or Teleconference In the Age of Coronavirus?

The coronavirus has dramatically altered the lives of Americans and impacted every aspect of our society. This includes labor relations issues like collective bargaining, which has rich tradition in face-to-face bargaining across the table. 

As companies and unions both adjust to the new normal, both sides have been proposing tele-bargaining, which has raised questions as to what employers can control or propose related to the logistics of negotiations. 

While the coronavirus situation is unique, labor law does provide us with a framework with which to analyze this question. Labor law draws a distinction between mandatory and permissive subjects of bargaining. Parties can bargain and reach agreements over either, but parties are only required to bargain over mandatory subjects. Thus, if a party refuses to bargain over a mandatory subject of bargaining, it violates the law. But if a party refused to bargain over a permissive subject of bargaining, it does not violate the law. 

The National Labor Relations Board routinely finds that technical preconditions on the bargaining process are permissive, for example: whether a stenographer is present, whether the bargaining session is videotaped, whether an agenda is provided, or whether a mediator is present. The Board has also said that face-to-face meetings are the “bargaining norm,” so mediation (where the parties are separated into different rooms), is permissive. 

For this same reason, requiring that the parties bargain by phone or videoconference is permissive, which means employers cannot make it a precondition to bargaining. While there may be some flexibility by the Board on this issue, given the CDC’s recommendations on social distancing, employers should be careful not to make tele-bargaining an ultimatum to bargaining.

Employers can, however, propose that bargaining be conducted by phone or some other technological means, and explain to the union why that is the best course of action during the coronavirus pandemic. 

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© 2021 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 86
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About this Author

Thomas Payne Labor and Employment Attorney Barnes Thornburg Law Firm Indianapolis
Associate

Thomas Payne is an associate in the Indianapolis office of Barnes & Thornburg, where he is a member of the Labor and Employment Department.

Prior to joining Barnes & Thornburg full time, Thomas served as a summer associate in the firm’s Indianapolis office. He also gained experience as a pro bono law clerk for the Indiana Office of the Attorney General and for the Honorable Lance Hamner of the Johnson County Superior Court.

With an eye toward becoming a lawyer, Thomas began his education at Purdue University,...

317-261-7852
David J. Pryzbylski, Barnes Thornburg Law Firm, Indianapolis, Labor Law Attorney
Partner

David concentrates a large portion of his practice on assisting employers with traditional labor matters. His deep experience includes collective bargaining, work stoppages, arbitrations, union avoidance training and strategies, union representation elections, unfair labor practice charges, contract administration, and various other labor relations issues.

David has helped companies secure favorable outcomes with labor issues around the country. He has experience with numerous labor unions, including the Steelworkers, Teamsters, Laborers, Sheet...

317-231-6464
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