COVID-19 is continuing to spread across the United States, and the consequences for workers are coming into devastating focus. Employees have gotten sick and died after contracting COVID at work. Nearly forty-three million workers have filed for unemployment benefits. And many essential workers who are still employed are risking their and their families’ lives and health because their workplaces are missing both adequate personal protective equipment (PPE) and the structural modifications necessary to more reliably prevent COVID-19 from spreading, such as plexiglass barriers or reconfigured work areas to allow distancing. No doubt, many of these essential workers would prefer not to run these risks—but they know that refusing to work means a different kind of existential threat in some states, in the form of job termination and ineligibility for unemployment insurance.
The disastrous consequences that workers face right now are underscoring and even exacerbating individual workers’ lack of bargaining power. With so few jobs to go around right now, and a social safety net that has been hollowed out by decades of conservative assault, employers may feel that they have workers over a barrel—emboldened to tell them to take it or leave it, and that they’re lucky to have a job at all. This message is particularly troubling for essential workers who are women, people of color, older, disabled, or likely to face discrimination in hiring for another reason, especially in states where unemployment insurance is both inadequate and difficult to access.
This pandemic is highlighting how a lack of workplace power can make employees, their families, and their communities less safe, but it is also showing how unions can make a real difference when times are tough. Unions help shift power back to workers—to demand safer workplaces and fairer compensation, to hold employers to their own promises and to legal requirements, and to be a voice for workers at their jobs and beyond. They are helping workers survive the pandemic by negotiating safety standards, pay improvements, and contract provisions that help blunt the effects of layoffs, as well as serving as a powerful voice in local, state, and national conversations about workplace issues.
How Unions Improve Safety in Essential Workplaces
In workplaces that are still operating, health and safety issues are now paramount. Unionized workforces have several advantages over non-unionized ones when it comes to securing safety and health improvements. First, the default rule for employers that run unionized workplaces is that they are under an ongoing duty to bargain over changes to working conditions, including the introduction of new health and safety measures. To facilitate bargaining, unions have the right to request relevant information from the employer; in addition, many unions have developed expertise in occupational health and safety that they can bring to bear during bargaining.
All this means that in unionized workplaces, safety protocols are developed with workers, not imposed on them. Across essential workplaces, unions have negotiated safer working conditions and higher pay in response to the pandemic, such as this impressive list of improvements (assembled by Professor John Logan) negotiated by unions representing grocery workers. Additionally, unions representing Verizon workers negotiated an extensive paid leave program; and the Teamsters union representing UPS drivers in Northern California not only pressed for adequate PPE and social distancing for drivers, but also arranged daily calls with management to maintain an ongoing dialogue about worker safety and work to nip problems in the bud.
Negotiated safety practices won’t be worth much, however, if employers do not implement them, or if they are implemented in ways that pressure employees to cut corners. But if this happens, unionized workers have recourse. First, unions have authority to enforce the contracts they negotiate, typically through a grievance process that they also negotiate with the employer. Importantly, on the worker side, this process leaves contract enforcement responsibility with the union instead of placing that burden individual workers. Unions generally have the time and expertise required to monitor employers’ compliance and undertake enforcement, and they also give workers some personal insulation. In essence, grievances raised by members of a bargaining unit “belong” to the union, so that even though employees often serve as witnesses in—and beneficiaries of—the work a union does when bringing a grievance, no employee has to risk employer retaliation on their own. In addition, “for cause” protections from termination—another common union-negotiated protection—increase workers’ confidence that they won’t lose their jobs for speaking out if something goes wrong in the workplace.
While a union grievance typically is a response to something that has already happened, workers also have labor law protections when they are asked to do something that they perceive as unsafe. All workers who are covered by the National Labor Relations Act—unionized or not—are protected when they take collective action over working conditions, including workplace safety. (The foundational Supreme Court case on this topic involved non-union workers who stopped work because their workplace was freezing cold; the Court agreed that the employer could not fire the workers for their strike.) Further, a unionized worker who reasonably believes they are being asked to do something in violation of their collective bargaining agreement is protected when they stand on the negotiated agreement and refuse the task. One important context where this rule comes into play is when workers are asked to do unsafe things; for example, in the Supreme Court case that affirmed the rule, the Court agreed that an employer violated labor law by firing a worker who refused to drive a truck that he believed had faulty brakes.
As states start to allow restaurants and retail stores to reopen, the value of collective bargaining rights and protections will no doubt become even more apparent. Responsible reopening will necessarily involve new social distancing protocols, among other changes. Where these protocols are developed without workers’ input, employers may end up designing complicated plans that workers cannot realistically execute. Worse, workers who are left on their own to enforce employer policies for customers regarding social distancing or mask-wearing may bear the brunt of customer hostility. These challenging scenarios call for an ongoing dialogue between management and workers on topics such as appropriate staffing levels, or the need for physical barriers to enforce social distancing. Especially with OSHA asleep at the wheel, this dialogue is unlikely to take place where workers lack collective representation and the ability to compel their employers to sit down at the bargaining table; if it occurs at all, it will be on the boss’s terms.
Bargaining in the Shadow of Economic Catastrophe
Where workplaces have reduced their operations or closed entirely, unions have a different role to play, to try to mitigate the harm workers feel. This could mean bargaining with the employer over alternative arrangements that respond to economic exigency while preserving jobs—as the Los Angeles Times News Guild successfully did when it averted eighty layoffs by negotiating a reduced work-week schedule instead.
In more extreme situations, labor law allows employers to make certain emergency decisions—such as decisions to shut down operations—without bargaining with unions. In these situations, unions may not be able to avert employers’ decisions to lay off or furlough employees. However, they would still have a right to bargain over the effects on workers of the employer’s decision. During this “effects bargaining,” a union might negotiate severance benefits or an extension of workers’ health insurance. Union-negotiated seniority protections could also be important in this scenario—otherwise, the employer might use layoffs and subsequent recalls as an excuse to purge highly paid or activist employees, or to discriminate based on prohibited characteristics or the employer’s own arbitrary whims.
Even if all else fails, a union can still be a source of social and economic support and solidarity. For example, a Teamsters local union in Chicago voted to use a portion of its strike fund to continue health and welfare benefits for members who were laid off during the pandemic. Other unions have organized food banks for workers who have been laid off, and have helped workers navigate the process of applying for unemployment insurance. And still others have created portals for members to help their union brothers and sisters directly with tasks like grocery shopping or picking up prescriptions.
Unions Beyond Workplaces
Finally, unions have been the strongest voice representing workers’ interests in local, state, and national conversations during the pandemic. They have worked to call attention to bad employers and employment practices, including by making the case that their members would be better off not working than working in dangerous conditions. They have also pressured federal, state, and local governments to take action to implement meaningful safety standards—for example, successfully calling on California governor Gavin Newsom to issue an order requiring large companies in the food service sector to offer paid sick leave in the same amount as is required of smaller companies by the federal Families First Coronavirus Response Act. And unions have also sought to protect workers through the courts, including a nurses union that sued for adequate PPE in New York hospitals, or a machinists union suing over United Airlines’ decision to cut airport workers to part-time even after accepting federal funds.
In workers’ ongoing struggle to unionize, employers often resort to a tired anti-union trope, that rigid collective bargaining agreements prevent companies from pivoting to respond to new developments. These employers argue that companies can be trusted to respond nimbly to market pressures, to the ultimate benefit of their workforces. Workers’ experiences during the coronavirus pandemic should put an end to this line of argument once and for all. The pandemic has shown in horrifying real time that, when left unchecked by workers’ collective power—and especially in the absence of meaningful government oversight—far too many employers will do the wrong thing. For workers, there is no better time to have a union.
header photo: One of 500 beds in Hall C Unit 1 of the COVID-19 alternate site at McCormick Place on Friday, April 3, 2020 in Chicago, Illinois. Gov. Source Chris Sweda-Pool/Getty Images