The State Board of Labor Relations (SBLR) recently addressed the issue of whether the pandemic and the federal, state, or local mandates imposed as a result of the pandemic dispense with an employer’s duty to bargain over a change in working conditions.
In a case decided on March 3, 2022, the SBLR found that, although the emergency doctrine invoked by the public employer permitted the employer to unilaterally close a police department’s gyms, locker rooms, restrooms, and day rooms at the beginning of the COVID-19 pandemic, the employer violated the Act by failing to bargain with the union within a reasonable time thereafter.
As a threshold matter, the SBLR found that providing employees access to locker rooms, a gym, and a day room was an established past practice and those facilities constituted “creature comforts”, which are mandatory subjects of bargaining, and therefore, any change to the use of those facilities required bargaining with the union. The employer in the case cited to the Governor’s Executive Order No. 7D stating that they were legally compelled to close these facilities and thus had no duty to bargain with the union over such closures. The SBLR rejected the City’s claim stating that Executive Order 7D pertained to indoor gyms and similar facilities (not the locker rooms or day room) and the employer waited a month after the issuance of 7D to close the locker rooms and day room and almost three months after 7D was rescinded to reopen them.
The SBLR held that while the unilateral decision to close these facilities was a reasonable measure to meet the public health emergency in its original stages, the fact the employer refused to bargain for the six month period the facilities were closed violated MERA. In reaching this conclusion, the Board cited to City of New Britain Decision No. 1975 (1981), which outlined the scope of the emergency doctrine:
“Emergencies are often of short duration. The only case in which we have found that an emergency justified unilateral change in substantial conditions of employment involved a strike of corridor monitors that lasted one week. Hartford Bd. of Ed., Dec. No. 1777 (1979). Those of us who recall the great depression and the second world war, however, … remember officially declared emergencies that lasted for years. We think that an emergency of such long duration should not suspend the duty to bargain for its entire span. Each case must be decided on its own facts and where bargaining would not seriously impede the meeting of the emergency and where the emergency situation would not frustrate or impede useful bargaining then the statutory duty should no longer be held in abeyance.”
The Board found that as the pandemic continued, the duty to bargain with the union over the closure of these facilities would not have impeded the employer’s ability to meet the emergency.
Public sector employers should be aware of two important aspects of this recent decision: (1) changes to employer provided creature comforts such as use of a day room or a gym, may require bargaining with the union, and (2) the invocation of the emergency doctrine, even in the case of a global pandemic, to avoid a duty to bargain provides limited mileage when the duration of the emergency condition goes on for a long period of time.
As always, it is best to consult with an experienced labor attorney when grappling with these unforeseen circumstances that impact a unionized workplace.