First, I want to say that we are here to help. COVID-19 has created some real challenges and never before seen issues. Here is some background as well as a few observations.

National Labor Relations Board

As of now, all NLRB offices are closed to the public. The NLRB is operational but most employees are working remotely. NLRB functions such as processing petitions and unfair labor practice charges are functional but the process is cumbersome because the Board personnel are working remotely. All of this has created some nightmare situations. Wessels Sherman represented a client in a long-running battle with Operating Engineers Local 150. We filed an RM petition, which is a petition filed by management where they have a good faith doubt that the Union continues to represent a majority. We were right up to the date of the election in March when the Board in Washington stopped all in-person elections. This thrust us into a painful waiting period. When elections resumed, they were done by mail ballot only. Then the nightmare started. The mail ballots went out but US Postal Service disruptions caused only a small percentage to be returned. We then endured a series of extensions and a clumsy process of mailing out duplicate ballots. The ballots were not counted until June, and all of this had to be handled remotely. We used Zoom for the ballot count. Thankfully, our client won the election, but all of us vowed we never wanted to go through that process again. Mail ballots are a nightmare.

Federal Mediation and Conciliation Service

I spoke with one of the FMCS Mediators recently to find out what is going on there. All FMCS offices are closed. Mediators are instructed to work remotely only. There is no travel permitted. Where needed, they are using Zoom. In my discussions, I was told that it is pretty much a mixed bag as far as negotiations are concerned. A large percentage of negotiations are put on hold with an extension agreement. Some extensions have been for a specific period of time, and other various formats, but frequently a month to month extension. Only a few negotiations have been completed during COVID-19 and in a recent case the union and the company concluded the negotiations with a face to face meeting, but with the mediator participating remotely. Needless to say, it was a bit of a clumsy process, but it all worked out.

Collective Bargaining

Our experience here at Wessels Sherman has been that all labor negotiations have been put on hold. We have used a format of month to month extension agreements, subject to at least ten days written notice prior to the end of any extension period to terminate the extension. All extensions have continued. The reason, of course, is that there is so much uncertainty it would be next to impossible to make the kind of informed decisions that are necessary in collective bargaining. In reality, this applies to both parties, so an extension seems to be the only reasonable course. We have a template for an extension that we regularly use and would be glad to share that with any of our Client Update readers. The template we use has no commitment to retroactivity.

COVID-19 specific issues

We have been dealing with a broad variety of COVID-19 specific issues involving unions. A common issue is union requests for information regarding health and safety protocols as well as demands for hazard duty pay. A frequent area of concern involves individual bargaining unit employees and their requests for leave, permission to work remotely, etc. These, of course, have to be handled on a case-by-case basis subject to the unique facts of each case. Here too we have some templates we would be happy to share.

Again, we are here to help. Give us a call.

Questions? Contact attorney Richard Wessels in our St. Charles office at (630) 377-1554 or by email at riwessels@wesselssherman.com