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As we all know by now, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to protect workers in businesses with more than 100 employees from the Coronavirus, and on November 6, 2021, the Fifth Circuit Court of Appeals stayed enforcement of the ETS. B.S.T. Holdings, LLC, et al. v OSHA, et al., No. 21-60845.
In anticipation and with the hope that the stay will be lifted at some point and that the ETS will go into effect, on November 10, 2021, the National Labor Relations Board’s (NLRB) Office of the General Counsel, Division of Operations Management, issued a Memo (the Memo) to the NLRB’s Regional Directors, Officers-in-Charge and Resident Officers regarding how to respond to inquiries the NLRB is receiving with respect to collective bargaining obligations under the ETS.
The Memo essentially states two things: 1) that an employer must bargain with a union that represents its employees about any requirements of the ETS where the employer has discretion as to their implementation; and 2) to the extent an employer does not have discretion as to the implementation of certain requirements of the ETS, it still must bargain with the union representing its employees as to the effect of those requirements.
More specifically, the Memo states that, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.” In other words, while OSHA may mandate certain requirements that must be followed by employers despite the existence of a collective bargaining agreement, to the extent the ETS provides employers with options as to how to implement some of the requirements of the ETS, an employer must bargain with the union representing its employees as to implementation of those requirements: “the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.”
The Memo goes on to state that where an employer does not have discretion over certain requirements of the ETS, it must nevertheless bargain with its employees’ union regarding the effect of those requirements: “To the extent elements of the ETS do not give covered employers discretion, leaving aside decisional bargaining obligations, the employer is nonetheless obligated to bargain about the effects of the decision.