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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. 

© 2020 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 Metal Workers, CWA, UFCW, UAW, IBEW, BTCGM, GMP and with trades such as carpenters, pipefitters and more. Notably, David’s interest in labor relations began in high school, having grown up next to several of the largest steel mills in the world and coming from a family that has members in human resources management and union leadership positions. These experiences have given him a foundational understanding as to how unions operate and what drives their decision-making process.

To maintain a well-rounded practice and offer a full range of labor and employment services to his clients, David also routinely defends employers in employment litigation matters – both in class/collective actions and individual cases – alleging wrongful discharge; discrimination; retaliation; harassment; wage-related claims; breach of contract; and claims regarding the classification of workers as independent contractors under various state and federal laws. In addition, David has defended clients in class actions and high stakes qui tam actions, which are often initiated by current or former disgruntled employees and brought under the False Claims Act by government agencies and the Department of Justice.

David also assists employers with proactive counseling, both in the employment and labor context. This portion of his practice involves reviewing and drafting employment policies; conducting training on issues spanning the labor and employment spectrum; and otherwise advising clients when daily, complex employee-relations issues arise.

317-231-6464