On November 10, 2021, the National Labor Relations Board (NLRB or Board) issued a Memorandum outlining employers’ duty to bargain with unions over the implementation of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS).
The Memo provides that employers have 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 states that the ETS clearly affects terms and conditions of employment – including the potential to affect the continued employment of employees who become subject to it – and gives employers discretion in implementing certain requirements. For example, the ETS allows employers to choose between a mandatory vaccine policy and a vaccine-or-test policy.
The Memo states employers are relieved of their duty to bargain where a specific change in terms and conditions of employment is statutorily mandated. However, employers may not act unilaterally so long as there is some discretion in implementing a mandate.
According to the Board, even where employers do not have discretion to comply with a mandate and, therefore, there is no decisional bargaining obligation, employers nonetheless are obligated to bargain over the effects of the decision. For example, the Memo cites a decision wherein the Board held an employer failed to bargain with employees over the effects of a federal regulation prohibiting the consumption of food where specific chemicals were present.
Finally, the Memo states, when bargaining over effects, whether an employer may implement a mandatory regulation prior to valid impasse or agreement will depend on the facts of any given situation.
Notably, the Memo does not refer to the application of the “contract coverage” standard in relation to employers’ duty to bargain over implementation of the ETS. The “contract coverage” standard was adopted in MV Transportation, Inc., 368 NLRB No. 66 (2019), and provides that unilateral action is permitted if it falls within the compass or scope of certain contractual language in the bargaining agreement. This may be because the Board has shown an interest in revisiting the MV Transportation case, as reflected in the Board’s earlier Memorandum GC 21-04, wherein General Counsel Jennifer A. Abruzzo included MV Transportation on the list of issues requiring centralized review by the Board. If overturned, it seems likely the Board would return to the more restrictive “clear and unmistakable waiver” standard.