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NLRB General Counsel Issues Guidance On OSHA ETS Bargaining

Although the matter has been temporarily rendered moot, due to the issuance of an injunction by a federal court, the General Counsel of the NLRB recently issued a memo outlining her views with respect to collective bargaining regarding the implementation of the OSHA Emergency Temporary Standard (ETS).

The General Counsel for the NLRB is the single most important figure in that agency. The General Counsel has the authority to seek cases to bring to the Board to overturn precedent he or she does not agree with. This Memo, issued on November 12, 2021 (link here), goes beyond that traditional role and states the General Counsel's position with respect to whether bargaining must occur regarding the ETS. Stated briefly, she opined that although an employer may not have any discretion with respect to the implementation of a mandatory policy from a federal agency, such as OSHA, if it does have discretion regarding the implementation of that policy, such as whether employees will be placed on leave if they refuse the vaccine and/or testing, or face termination, since policies in that area will be mandatory subject to collective bargaining. In other words, an employer should not act unilaterally when it has some discretion and is obligated to bargain about the effects of the decision, even though the implementation of the policy is mandatory.

In determining what its legal obligations are, an employer's first stop should be the language of the collective bargaining agreement itself to determine whether the "management right's clause," or any other relevant provision, contains a waiver of the union's right to demand bargaining. Subsequently, the manner and form in which an employer contacts a union regarding policies such as the ETS may act to lessen the bargaining obligation. Employers with questions about such policies and approaches should contact an experienced labor attorney for advice.