Vol. 2 | No. 1
A Worker’s COVID-19
COLLECTIVE BARGAINING AGREEMENT ACQUIRIN G INFORMA TION
Introduction Workplace Leader launched in 2020 and was deemed a bright spot for workers and the labor movement in an otherwise tough year. Throughout the year we have shared tools for understanding the legal rights and organizing powers of workers and union leaders. Additionally, we have provided information on how to run a digital organizing campaign, push for workplace protections against COVID-19, and understand the nuances of labor laws as they pertain to the industry in which you work. As the COVID-19 pandemic has ravaged the global economy, with the death toll in the United States surpassing 400,000 lives lost, many workers continue to struggle to stay above water as politicians are slow to enact unemployment and direct payment measures. Here at Workplace Leader our platform has evolved to help you adjust to these new economic realities. We have already heard that workers at Google, Amazon, and Instacart are meeting resistance against their organizing efforts as a new generation of workers fights for the right to join a union. In 2021 our publication will continue to deliver relevant and timely information about how to advocate and protect yourself, and your co-workers, in the workplace. Additionally, we will be providing updated news about how the organized labor movement is evolving to meet challenges workers are facing.
A Worker’s COVID-19
ACTION PLAN MEMBER
FORGING ALLIANCES, USING OUTSIDE RESOURCES
ealth and safety concerns have always been high on the agenda of labor unions. But with the current pandemic, the role of unions in protecting workers is more important than ever before. Here’s a checklist of possible responses to health hazards, keeping in mind that protections can be won with action both inside and outside the workplace. Your Collective Bargaining Agreement: The first place to look for enforceable rights is your current contract, which almost certainly has valuable provisions on health and safety. Check for any specific language, of course, that can apply to COVID-19. But it might be that the tool at your disposal will be some broad language on the employer’s obligation to “provide conditions free from known health or safety hazards”, or some such. Many union contracts establish formal mechanisms for regular employer-union communication on a range of issues. And specifically, it’s common to have a joint health and safety committee. These can be forums both for obtaining information and for holding the employer accountable. A Worker’s COVID-19 Action Plan continues >
And what if you learn that there are rights that you don’t have but wish you had in your current contract? Two pieces of advice:
“The greater the scope of collective action, the more powerful it can be.”
Keep in mind that contracts set a floor, not a ceiling. Perhaps you have the right to trigger reopener bargaining. But even if not, there’s never anything that prevents the parties from beefing up what’s in a collective bargaining agreement. So, a little pressure may need to be applied to get your employer agreeable to that.
Think ahead and take some notes on how your contract could be strengthened as ideas for the bargaining agenda for the next round of negotiations!
Legal Protections: Significant workplace protections are found in the Occupational Safety and Health Act (OSHA), enforced by the U.S. Department of Labor, and/or your state equivalent of this law. OSHA and its regulations cover all aspects of working conditions, including personal protective equipment (PPE) needed to deal with COVID-19 dangers (see osha.gov for more COVID-19 guidance). Extremely useful is the Section 5(a)(1) General Duty Clause, which covers any hazards for which there’s no specific standard currently on the books. OSHA also provides for workplace inspections, including union participation in these.
Acquiring Information: Information is power, so take advantage of the multiple sources of information available to unions. Your union contract gives you rights to information, particularly in connection with grievances being considered or already underway. And whatever public or private sector bargaining law you operate under will also create an employer obligation to furnish relevant information. In addition, there are external sources of information. The OSHA Form 300 Log, for example, is a public record of all reported injuries and illnesses in workplaces with more than 10 employees.
Direct Action: Look for ways to mobilize members. If a grievance is to be filed, for example, it can be a group grievance to give it a bit more heft. Or the union can use the tactic of filing lots and lots of individual grievances, each requiring an employer response and multiple time-consuming meetings. This can be used as a means of getting across to the employer that it can’t run and hide. And there’s an additional, powerful tool available in the COVID-19 context. Normally workplace dissatisfactions must
be addressed through the grievance procedure, not by taking a job action. But under OSHA and other labor laws (like the National Labor Relations Act), if there’s an imminent danger of death or serious injury, workers have the right to refuse to keep working. While the decision to take such action must be very carefully thought out, nothing says “deal with it, and now!” like a work stoppage.
Forging Alliances, Using Outside Resources: The greater the scope of collective action, the more powerful it can be. Look for ways to join forces with other unions in your workplace and in your geographic area, and with community groups. In particular, the National Council for Occupational Safety and Health (COSH) coordinates a network of state and local nonprofits. They unite workers with labor, community, legal and health allies, and also are a valuable source of information on legal rights (including in Spanish and some other languages). Lots of information at: www.coshnetwork.org/coronavirus
Member Education: If members don’t know what rights they have or how to enforce those rights, they won’t seek the help they need from the union. An important component of union work around COVID-19 is to provide education around worker rights in this pandemic. Overall, it’s a pretty big toolkit. Effective union representation flows from surveying all the possible courses of action, and then pursuing the most powerful ones. z –M ichael Mauer is a labor attorney, and author of The Union Member’s Complete Guide (2nd Edition, Updated and Revised) and the Welcome to the Union pamphlet (Hard Ball Press, hardballpress.com/index.html)
SOCIALLY DISTANCED Work
s a union steward or workplace leader, you must be ready to deal with changes in your workplace and their impact on the members you represent. Often it’s a simple concern, like a change in working hours or job assignments. Now we are faced with a whole new world, provoked by the COVID-19 pandemic. One big issue is that the workplaces we have known for so long have been drastically changed and may be permanently gone. Many workers are teleworking, so they have lost their community and can feel isolated, no longer having face-to-face contact every day. Even in industries that are not all office work, the shift has been noticeable. At one major telephone company, the outside techs are now “home garaging” — taking their trucks home and going directly to their first assignment the next morning, rather than reporting to a central garage. A steward or workplace leader who used to be able to chat with members at the garage before work, or at the end of the day when they brought the trucks back, must now make a significant adjustment. When the clerical workers for that same company were ordered to start teleworking, the company demanded that they all be “monitored visually” to make sure no one skipped out of work.
How to Fight Back Every steward and workplace leader must deal with these new situations proactively. Look at this crisis as an opportunity to build your union or worker organization. Set up a strong communications network with every member — by e-mail, by text, on social media, and even Zoom, so that you can “talk” with them and they can hear from you. This is a good way to build new relationships if your employer has multiple work sites because members from different areas can be on group calls. If you have some older members
who are not comfortable with all this new technology, you can be a computer skills instructor. As you share new information, it is also a good time to try to sign up some of your non-members as well. Be on top of any changes in work arrangements so that your members hear it first from you and not from the boss. Stress to your members that any change in your work arrangements must be negotiated. We have vivid examples of this power when we see teachers’ unions fighting the unilateral decisions to reopen public schools without making sure that teachers and students are protected. As a leader, you are often an informal counsellor about personal problems that your members are experiencing. Teleworking intensifies problems — workers must work, take care of children, deal with a partner who’s also working from home. Make sure your members know that you are there to listen and can provide resources to help troubled co-workers get through. Get your officers to set up a website and keep it up to date with these resources, as well as news of any changes that the boss is talking about. It is also essential to include a section on labor history — how your members got what they have — not out of the generosity of some employer but through the struggle and determination of the members before you. You should also schedule regular meetings — every week if possible. If you do a Zoom meeting, it’s easy because no one has to travel to share.
These meetings are especially important if your employer has more than one work site — or is even a national employer. One local union has accelerated the process, especially because there are a lot of new and inexperienced stewards. The officers set up weekly meetings and opened them up to all the members, so that stewards from different locations and departments, who seldom met in real life, are now involved even if all of the buildings are closed. Enforcing “past practices,” like set hours of work, have become essential because management now figures you should sleep with your computer on so that you can be contacted 24-hours a day. As a bright example of how this organizing can pay off, the members of one union found that management had received bonuses for working in these tough times while the union members got nothing. So the stewards created a group grievance and had every worker who files an expense report include half the cost of their home internet connection. It’s a work necessity that the company usually pays for. Grievances like this are examples of new approaches and ideas that unions need to grow. z –B ill Barry is a retired organizer and labor educator and the author of Organizing in the Time of The Pandemic (free download from www.laborsbookstore.com)
YOU’RE THE ARBITRATOR:
REFUSING an ORDER Due to Fear of Getting the Virus (Note: This is a hypothetical case involving the discharge of a waitress for refusing to work for fear of getting the COVID-19 virus.)
mily has been employed as a fulltime waitress for six years at a popular restaurant-bar. She is a single mother with a 12-year-old son and her sole income is from her tips and the meager minimum wage (in some states as low as $2.13 an hour for some service industry employees). She also cares for an ailing mother who lives with her. Despite the pandemic, the restaurant-bar remained open. The employer has been judicious to do all the measures possible to protect against spreading the virus. Emily felt safe in her workplace until she was ordered to serve a catered banquet. Arriving to work at the banquet, she was shocked to find a room packed with a crowd of mainly young people, most without masks, gathered tightly together, totally disregarding social distancing practices. The thought of entering the crowded room scared her; she felt almost certain she’d pick up the horrible virus. “I can’t work that room,” she told her employer, and said she was going home. Her employer pleaded with her to stay, telling her he was short-staffed and the catering event was important in that it would provide him with enough new revenue to remain open. “I can’t afford to offend this group,” he told Emily. “You have to stay, and if you don’t, I’ll fire you.” “I’m sorry,” Emily said and left the restaurant. The next day she was informed she was fired. Fortunately, she had a union. She contacted her representative for advice.
The best option, the rep says, is to file a grievance, and hope the employer will reconsider. If the boss doesn’t agree, the case goes to arbitration, which is provided for under the labor contract. Let’s see how an arbitrator might rule in Emily’s case after reviewing the arguments of both sides.
The Employer’s Position Is: Emily was given a direct order and she refused to accept it, choosing instead to walk off the job. She was given fair warning that she’d be fired. Furthermore, in most cases an employee must follow a boss’ order and grieve later, something Emily failed to do. Also, the employer said he spoke to the leader of the party group to try to get the group to practice social distancing, but the crowd failed to heed the warning. The employer said he had to please the group because the revenue was important to remaining in business. Otherwise, the owner had explained to Emily, the restaurant would be forced to close, leaving her jobless. The employer further argued that Emily faced no imminent danger. Emily was
given the best available mask and a shield to protect herself. Also, he argued she may never get the virus, and if she did, it doubtless would not be serious since she was a healthy, relatively young person.
The Union’s Position Is: While Emily failed to follow the general rule that a worker must obey an order from a superior and grieve later, her situation was an exception to the rule. Emily had good reason to believe that in obeying the order she would have placed herself in danger of becoming seriously ill from contracting the coronavirus and, further, infecting her ailing mother and her son. Emily’s case should rest upon previous decisions in which workers refused an order because of fear of death, injury or illness. In the past, arbitrators have considered cases based upon principles used by OSHA to determine if a refusal to work was based on an “imminent danger,” in that any “reasonable person” would agree that the worker’s fear of death, injury or illness was justified. Certainly, any “reasonable person” would consider the prospect of mixing in the midst of unmasked persons would constitute “imminent danger” in possibly contracting the virus. In addition, the arbitrator must consider Emily’s six years with an unblemished work record and question whether her offense was serious enough for her to be discharged. Arbitration Report continues >
YOU’RE THE ARBITRATOR:
Refusing an Order Due to Fear of Getting the Virus ▼ continued
The Arbitrator’s Discussion: Two questions need to be resolved in deciding whether Emily was justifiably fired. First, was her decision to walk off the job and refuse a direct order based on a justifiable belief that she faced an
“imminent danger” of contracting the virus. Based upon a consensus of medical opinion presented by the Union and well understood generally, Emily was acting in good faith in refusing the order to work. It’s true of course that she might have worked that day and escaped
COVID-19 Strategy for Non-Union Workers Workers can file a confidential safety and health complaint with OSHA, the Occupational Safety and Health Administration. They may request an inspection of their workplace if they believe there is a serious hazard or the employer is not following OSHA standards. While the law specifically states that an employer cannot retaliate against a worker for filing a complaint with OSHA, the agency can take some time to rule. Alternatively, a worker and/or several co-workers can take matters into their own hands and refuse to work as a group for the good and sufficient reason that their health may be endangered. Such actions are permitted under Sec. 5 of the National Labor Relations Act, under a clause that says that a group of workers — or even a single worker — has a right to engage in a concerted action to enforce a perceived wrong. However, the downside for workers is that this is a time-consuming process. And remember, when non-union workers take actions their employers don’t like, there is a risk of retribution at a later date.
becoming ill or becoming a carrier of the virus, but the risk was great enough to make her refusal justifiable. Second, her discharge was too harsh a penalty. Emily had an unblemished record in her six years on the job and the employer presented no evidence that Emily was anything other than an adequate employee; there was no previous record of discipline presented. This is a case where the progressive discipline principle might have warranted a written warning or, at most, a short suspension.
The Arbitrator’s Decision: The grievance is sustained. The worker is to be returned to her previous position and paid all back pay and benefits. (Note: This arbitration decision is hypothetical. The reasoning is based upon the writer’s more than 30 years of experience as a union official and his long experience in reviewing such cases. Comments may be addressed to email@example.com.) z
Workplace Leader is published six times a year by UnionBase. Contents ©2021 UnionBase. Reproduction in whole or in part electronically, by photocopy, or any other means without the written consent of UnionBase is prohibited. | Cover art produced by Billy Buntin of BBDigital Media. Layout & Design by Chadick+Kimball.
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