Unions Organize in Response to COVID-19 Safety Concerns

​Unions with resources to increase their membership ranks have had significant organizing opportunities during the pandemic as workers focus on safety concerns. Other unions, however, have seen their funds dry up in the recession.

"Some unions have been decimated by the coronavirus epidemic, with hundreds of thousands of their members laid off and not paying dues," said Mark Kisicki, an attorney with Ogletree Deakins in Phoenix. "Consequently, they are laying off staff and are unlikely to have the resources to mount large, successful organizing campaigns." He said UNITE-HERE, which represents many hotel and restaurant employees, has been hit particularly hard.

Of the millions of people filing for unemployment during the pandemic, more than half have been in the leisure and hospitality sector, said Jay Krupin, an attorney with BakerHostetler in Washington, D.C.

Other unions haven't been affected as much and are focusing on safety as a rallying cry to energize workers, Kisicki said. "Many have been aggressive in filing lawsuits and/or complaints with the Occupational Safety and Health Administration (OSHA) against employers for allegedly not taking appropriate steps and safety precautions to protect employees," he said. The AFL-CIO sued OSHA to compel the agency to immediately adopt an emergency standard specifically in response to the pandemic, he noted.

Some unions have achieved demonstrable results to improve the safety of their members' workplaces. In southern California, a union for retail clerks demanded that grocery retailers provide masks to employees the union represents and not discourage employees from wearing them.

"Now, in many of those stores, masks are required for employees and customers alike," he said. "These results provide unions compelling arguments that they can effectively protect members when employers do not champion that message themselves."

Rallying Around Safety

Ashley Cano, an attorney with Seyfarth in Chicago, said safety concerns may include whether employers are:

• Providing employees with hand sanitizer, masks and gloves.
• Regularly disinfecting high-touch areas.
• Doing everything they can in close work environments to maintain adequate social distancing among employees.

"COVID has exposed and exacerbated problems that have festered for years without redress," added Wilma Liebman, a National Labor Relations Board (NLRB) chairwoman under former President Barack Obama. "There is likely to be increased demand for a formal voice and role for workers on health and safety issues, especially those posed by COVID-19."

Unions have encouraged group communication and action by employees nationwide in response to the pandemic. Using online tools, including organizing platforms dedicated to help employees navigate the law and understand the process of organizing and concerted activity, unions have coordinated strikes, walkouts or "sick outs" during the pandemic, Kisicki said.

Although the number of employees participating in some walkouts has been less than unions had predicted, unions have persuaded some employees to protest together, he said. This provides "unions with newly invigorated and empowered workers who believe that concerted activity is a viable approach to improve their working terms and conditions."

Employers' Response

Kisicki said employers should do what good employers have done all along: put the health, safety and welfare of their employees first. "If at all economically possible, employers should implement protections for employees that are above and beyond CDC [U.S. Centers for Disease Control and Prevention] recommendations," he said.

Some of the national employers that unions targeted for May 1 protests demonstrated their commitment to employee safety, publicizing the fact that they were spending tens of millions of dollars to protect employees and provide enhanced pay and benefits during the lockdown months, he noted.

"While these measures impose meaningful costs during a time when companies' revenues are seriously depressed, they show employees that their health and safety matter," he said.

One response employers don't have at their disposal during the pandemic is all-employee meetings with management, said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis. "Social media, video messaging and other mediums may have to be considered as primary communications vehicles."

[SHRM members-only toolkit: Preparing for the Possibility of Union Organizing]

Prohibited Employer Actions

Kisicki urged HR professionals to act as if every day is a campaign for the hearts and minds of their employees. HR should have a good understanding of the National Labor Relations Act (NLRA) to help prevent their employers from unintentionally violating it, he added.

Employers need to understand that employees have the right to engage in concerted activities for mutual aid and benefit, such as walking off the job to demand better safety protections, he said. "Front-line managers and supervisors need to be trained to understand that they cannot threaten employees for having engaged, or planning to engage, in such actions or speech."

In addition to prohibiting employers from making threats, the NLRA bars employers from engaging in coercive interrogation, making promises or spying regarding union issues, noted Philip Miscimarra, an attorney with Morgan Lewis in Washington, D.C., and NLRB chairman under President Donald Trump.

Krupin said employers can meet with unions to reach an agreement on changing the terms of union contracts. For example, a contract provision requiring extra pay for part-time employees to encourage the employment of full-time employees might not make sense during the pandemic. More employees might want to return to work even if the employer can't yet afford to have them work at full hours, and the employer may not be able to afford extra pay for them during the recession.

HR should advocate on behalf of employees who raise legitimate concerns, Kisicki said. He noted, "If employees feel that there is no one at the company who will listen to and try to help them, they will turn to someone outside the company who will. Often, that someone is a union organizer."