MERC: CBA Covers COVID-19 Health and Safety Matters

The Michigan Employment Relations Commission (MERC) recently determined that a community college had no duty to bargain COVID-19 health and safety matters because those issues were covered by the applicable collective bargaining agreement (CBA). Wayne Co Cmty College Dist, MERC Case No. 20-I-1436-CE (2021). This decision serves as a reminder that employers should regularly review their CBAs to understand which subjects are already covered by the CBA.

The union demanded that the college bargain “all mandatory subjects of bargaining regarding the health and safe working conditions of the entire [union] membership . . . on every campus and college site, during this ongoing pandemic and beyond.” The college responded that health and safety were covered by the CBA, but it was willing to meet with the union to “discuss its concerns.” The parties did not meet, and the union filed an unfair labor practice charge asserting that the college violated the Public Employment Relations Act (PERA) by refusing to bargain in good faith.

PERA typically requires an employer to bargain in good faith with a union over mandatory bargaining subjects, which are wages, hours, and “other terms and conditions of employment.” Health and safety rules are considered “other terms and conditions of employ­ment.” Nonetheless, if a mandatory bargaining subject is “covered by” a CBA, and the CBA has a grievance procedure with final and binding arbitration, the employer has satisfied its bargaining obligation.

The CBA need not expressly mention a subject for that subject to be “covered by” the CBA. Instead, MERC has determined that the relevant analysis to determine if the CBA covers a subject is whether “the agreement contains provisions that can be reasonably relied on for the actions in dispute.”

The CBA at issue had a grievance procedure with final and binding arbitration and required the employer to “make reasonable provisions for the health, safety, and first aid of its employees during hours of employment.” The union argued that this language did not cover COVID-19 health and safety matters because it did not specifically mention COVID-19.

MERC rejected the union’s argument, concluding that the CBA covered COVID-19 health and safety. Accordingly, the college had no duty to bargain over COVID-19 health and safety issues as demanded by the union. MERC reasoned that the broad CBA language evinced a decision by both parties not to leave health and safety matters affecting employees open to future bargaining.

Whether an employer must bargain over a particu­lar employment term is a fact-specific analysis, often influenced by CBA language. To mitigate against a potential unfair labor practice charge, consult with legal counsel when faced with a demand to bargain sub­jects that may be covered by an existing CBA.