By Jim Cline

In our last newsletter, we addressed the subject of employer unilateral changes and how PERC viewed management’s ability to evade bargaining by claiming emergencies. In this article, we address the closely related subject of how emergencies impact your labor contract and how arbitrator’s view these defenses.

Given the operational issues and disruption caused by COVID-19 and related events, it’s very possible your employer may attempt to claim that one or more CBA provisions may be bypassed to address a perceived “emergency.”  We’ve carefully reviewed past arbitration decisions on the subject of “emergency” and summarize our evaluation here. For a more complete evaluation, our Associate Shanleigh Kennedy has prepared an excellent detailed summary of emergency defense arbitration case law. For this article, we’ll give you a summary of what that case law suggests.

Our review indicates that it’s hard to draw hard and fast conclusions about whether or how an employer can invoke an “emergency” claim to deviate from CBA terms.  What is clear is that arbitrators do recognize the existence of an emergency defense, as does PERC, which we discussed above. It is also fairly clear that arbitrators could find that COVID-19 created operational issues do give rise to a valid emergency claim. But what is unclear is how that may be invoked as to any particular provision in your CBA.

Arbitration case law suggests that emergencies include inclement weather (but not always), an unforeseen combination of circumstances which calls for immediate action, strikes, power outages, water main breaks/contamination (like the camp lejeune water contamination lawsuit), and in one case, slumping sales.  There are no cases covering pandemics but it’s a reasonable extension of these examples to conclude that a pandemic could be considered a bona fide emergency.  They fully expect that once this pandemic is over, they’ll see a series of cases on the topic, not really in time to provide clear guidance.

Once an emergency is identified, how broad of authority does that give management to override the terms of your existing CBA?  The leading arbitration treatise Elkouri and Elkouri on How Arbitration works explains:

Managerial freedom to act may be expanded and managerial obligations may be narrowed if management’s performance is affected by an emergency, an act of God, or a condition beyond the control of management. The collective bargaining agreement may expressly provide exceptions for these situations, or an arbitrator may hold such exceptions to be inherent and necessarily implied.

An overarching point is that actions taken by management to address an emergency should be related to the emergency, and context specific. Simply saying an emergency exists, does not given the employer the right to shred the contract. Instead, emergencies may expand management’s rights to make short term unilateral changes, but the contract always remains in force and can be applied to restrict management’s unilateral actions.

The case law seems to suggest that employers may have the greatest discretion in the area of changing job assignments, and perhaps even reassigning work across bargaining unit boundaries. As one decision held, “when a bona fide emergency occurs the Employer has the right to call out whichever employees it feels are necessary to correct the situation or to reschedule employees as it feels is necessary.”

Beyond reassigning duties, an emergency could be found to provide an employer with a window to change work schedules. As one decision held, “when a bona fide emergency occurs the Employer has the right to call out whichever employees it feels are necessary to correct the situation or to reschedule employees as it feels is necessary.”

It’s more than possible your employer may seek some change in your work schedule.  Whether they can do this unilaterally, is uncertain as the previous discussion suggests. Some other principles come into play, including an aversion by arbitrators to  allow changes that seem simply designed to avoid overtime.  And the obligations under the FLSA to pay time and one half the regular rate certainly cannot be evaded.

Many contracts contain provisions that allow for employers to cancel approved employee leave under certain circumstances, and the COVID-19 pandemic would likely qualify as such a circumstance. Most travel has been halted as it is, but this is still anticipated to be a major issue between bargaining units and employers as the required response to COVID-19, especially if the available employee pool dips at any point due to department-infection.

If the CBA (or practice) does not provide for the cancellation of established vacations, can the employer cancel? That remains an open question. An employer will assert the emergency defense but it’s unclear that, absent clear contract language to be revoked, that the employer can unilaterally cancel leave. The union argument against this is that if the shift can be covered by overtime, there’s no need to cancel leave. Another complication is that prescheduled vacation generally reflects seniority-based bidding and disruption of that time off interferes with the bidding process.

Most contracts have some sort of notice requirement related to policy changes. For example: “the Department will provide the Guild with notification of any planned changes within X days of the implementation of the desired change”.  It’s possible, in fact, probable, that COVD-19 will present operational issues leading your employer to want to change policies.  You will want to be mindful of your rights to negotiate those changes, and that will include following any provision in your CBA as to the duty to demand bargaining on a timely basis. Some contracts require notice on any policy change while other contracts limit the notice to only topics that involve mandatory subjects of bargaining. In the latter event, you’ll want to inform yourself of the broad scope of collective bargaining which our Subjects of Bargaining table identifies.

Assigning additional responsibilities to employees as a result of the COVID-19 pandemic likely requires advance notice and could open the duty to bargain the changes (or the effects thereof). It’s also possible the agency may seek to contract out some functions or assign them to other bargaining units. Either of these actions would if an employer is unwilling to do so, it opens up the employer to face a potential grievance (or ULP) if employee responsibilities are changed. Some contracts contain “emergency situations” language, but that may be a gray area and would not definitively prohibit the filing of a grievance. As discussed above, some arbitrators have found some significant authority for employers to reassign duties during an emergency. Again, everything is context specific.

This article isn’t able to indicate more clear-cut guidance because this situation simply isn’t clear-cut. It will depend on your CBA language, past practices, and, as we’ve stressed, the judgment has to be context specific.  If faced with emergency claims, it’s likely you’ll want to seek legal advice.