By Seyfarth Shaw LLP for lexology.com
Seyfarth Synopsis: Many employers have been dealing with threats of COVID-19 related work stoppages over the past several months. Whether such strike activity is subject to no-strike clauses under the National Labor Relations Act or to mandatory bargaining and dispute resolution procedures under the Railway Labor Act has been a question on unionized employers’ minds. On December 23, a federal district court answered that question affirmatively—at least under the RLA—issuing a temporary restraining order against the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters (BMWED) for a threatened strike when Union Pacific Railroad Company (Union Pacific) refused to agree to the Union’s COVID-19 related demands.
Union Pacific and the BMWED began Section 6 bargaining under the RLA in November 2019. BMWED served its Section 6 notice for increases in pay and additional paid time-off, among other things, on November 4, 2019. The parties currently remain in bargaining, on a national handling-level, and have not yet invoked National Mediation Board services.
The Company implemented extensive COVID-19 safety protocols at the workplace, following CDC guidelines. The railroad also granted its employees enhanced benefits providing 14 days of paid leave for those employees who were directed to quarantine due to workplace exposure to COVID-19. The BMWED, however, demanded more. Because Union Pacific had not ceded to all of its demands, the BMWED wrote to Union Pacific on December 17, 2020, stating that the Union “will declare a health and safety emergency because of the imminent threat to its members of serious injury or death, and will call for a cessation of work if UP does not take the necessary corrective actions.”
Specifically, BMWED demanded that: (1) Union Pacific pay employees absent from work for any COVID-19 related reason; (2) the Company provide access to COVID-19 testing on the job site and on Union Pacific time; (3) Union Pacific provide for temperature checks and if any employee’s temperature exceeded 100.4 degrees, the employee be prohibited from work until obtaining a negative COVID-19 test and that the employee be paid for work time missed; (4) any employee exposed to a person with COVID-19 in the workplace quarantine for at least 14 days, obtain a negative COVID-19 test before returning to work, and receive pay for missed work; (5) Union Pacific provide specific PPE to employees, not require employees to use a locker room, vehicle, or equipment that had not been sanitized within the last eight hours, and pay employees unable to work due to lack of the demanded PPE or sanitization; and (6) the Company require a six-feet social distancing rule under most circumstances.
Union Pacific filed suit in the United States District Court of Nebraska on December 17, 2020 to enjoin the threatened strike, seeking a temporary restraining order and declarative and injunctive relief. On December 23, 2020, the Court granted the Company’s motion for a temporary restraining order. See Union Pacific R.R. Co. v. Brotherhood of Maint. of Way Employees Div. of the Int’l Bhd. of Teamsters, Case No. 8:20-cv-516 (D.Neb. Dec. 23, 2020), 2020 WL 7443217.
The Company argued any work stoppage would violate Sections 2 and 6 of the RLA because BMWED was not exerting every reasonable effort to make and maintain its collective bargaining agreement and had not exhausted procedures before the NMB. While the NLRA does not include this statutory prohibition of striking in support of contract changes, many NLRA-covered employers have contracted with their respective unions for this protection with effective no-strike clauses in their CBAs.
In support of its motion, Union Pacific presented evidence showing that a strike would impact the transport of goods to critical industries and cause the Company severe and irreparable financial loss. Union Pacific also presented evidence of its extensive COVID-19 safety protocols and testimony from its Chief Medical Officer regarding the effectiveness of those measures.
The Union argued that the threatened job action constituted a protected refusal to work under the Federal Railroad Safety Act (FRSA) and that, under FRSA, a carrier “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee . . . for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties.” Although different, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and Section 502 of the Labor Management Relations Act (LMRA) have corollaries to FRSA for air carriers and NLRA employers, respectively, with respect to pandemic-related refusals to work.
The Court agreed with Union Pacific, finding that BMWED would violate that RLA if it engaged in the work stoppage and that the FRSA did not give the Union a free pass to engage in strike-related activity. Notably, the Court stated that even if FRSA could be read to apply to strikes, “the pandemic is not a work-specific safety concern for the BMWED employees under FRSA. Instead, the pandemic is unfortunately, a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life. Thus, it does not constitute a condition ‘related to the performance of employee’s duties’ for purposes of the FRSA.” The Court went on to say that, because Union Pacific had implemented certain safety measures that complied with CDC guidance, “a reasonable individual under the circumstances would not conclude that there is ‘an imminent danger of death or serious injury’ presented by the current situation.”
After considering the Norris-LaGuardia Act’s procedural requirements concerning labor dispute injunctions and the Eighth Circuit’s injunctive relief standards, the Court ruled that Union Pacific had met its burden to temporarily restrain its employees from striking. Injunction proceedings on the merits will follow.
The decision provides guidance to railroads that, at least under similar circumstances, unions may not encourage employees to walk off the job in support of COVID-19 related demands absent the complete exhaustion of mandatory bargaining procedures under the RLA. It provides the same guidance to airlines, provided that a court would treat a AIR21 defense the same way this Court treated the FRSA defense. It also offers at least a roadmap on how NLRA employers might be able to enforce their no-strike clauses in the face of LMRA Section 502 concerns.