Collective bargaining after September 11: what about job security and workplace security?

While relations between labor and management were relatively cordial after the September 11 attacks, the basic rules of collective bargaining still apply

The effects of the September 11,2001, terrorist attacks on the World Trade Center are far-reaching and, even now, are difficult to comprehend

fully. Several unionized industries were deeply affected by the destruction of the twin towers. For example, in addition to the deaths of 27 of its members, Local 32B-32J Service Employees International Union saw 1,200 members lose their jobs as building cleaners and guards at the World Trade Center. Additionally, four members of Local 94, International Union of Operating Engineers, were killed, and 150 members of Local 94 lost their jobs. The Hotel Employees and Restaurant Employees Union (H.E.RE.) reported 47 missing members and more than 3,000 lost jobs because of destroyed, closed, or damaged restaurants and hotels (including Windows on the World and the Marriott World Trade Center). Moreover, it is also well known that the Uniformed Firefighters Association and Police Benevolent Association suffered devastating losses, as did many other unions. Beyond the immediate destruction of the World Trade Center, many employers were forced to engage in significant, sometimes mass layoffs--the airline industry being a prime example--as the result of the direct and indirect economic effects of the tragedy. (1) This sudden loss of employment created an immediate labor crisis for the employees with whom the employers had collective-bargaining relationships.

The questions. Collective bargaining in an extraordinary context of this kind raises a host of issues. What issues must be negotiated with the unions, and when may employers act unilaterally? Which issues were in fact addressed in the immediate aftermath of the tragedy, and which issues may become relevant in the future? How have collective-bargaining partners balanced their legal rights and obligations with their moral obligations arising out of the 9/11 tragedy, and how will they do so in the future?

This paper examines those questions in some detail, contrasting an analysis of the legal issues against some of the actual responses to and agreements reached in the aftermath of September 11. (An outline of this paper is presented at right.)

Part I discusses the basic legal requirements, the backdrop against which collective bargaining occurred and continues to occur after September 11. Part II examines job-security issues, discussing both the agreements to ameliorate the loss of lobs and issues for future bargaining. Part III discusses issues related to workplace security, many of which are mandatory subjects for bargaining with existing unions prior to implementation. Part IV concludes with a brief overview of how the tragedy of September 11 has affected labor--management relations generally.

I. The Duty to Bargain over Post-September 11 Issues

A. Mandatory and Permissive Subjects

The basic framework for collective bargaining is generally no different in the aftermath of the September 11 tragedy than at any other time. Section 8(d) of the National Labor Relations Act (NLRA) provides that "to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." (2) Section 8(a)(5) of the NLRA declares it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." (3)

The duty to bargain is divided into mandatory and non-mandatory (or "permissive") subjects. (4) The Supreme Court analyzed the mandatory--permissive bargaining dichotomy in First Nat'1 Maintenance Corp. v. NLRB, (5) dividing "bargainable" subjects into three categories. In the first category are those management decisions that "have only an indirect and attenuated impact on the employment relationship, ...such as choice of advertising and promotion, product type and design, and financing arrangements." (6) In the second category, clearly mandatory subjects "such as the order of succession of layoffs and recalls, production quotas, and work rules, are almost exclusively 'an aspect of the relationship' between employer and employee." (7)

Between these two fairly well-defined categories lies a third category of managerial decisions that have as their focus the economic profitability of a company or enterprise, but still have a direct effect on employment. (8) With respect to this category, the U.S. Supreme Court held that "bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of business." (9) This balancing occurs because management "must be free from the constraints of the bargaining process to the extent essential for the running of a profitable business." (10)

The NLRA compels good-faith negotiations, but it does not requite that labor and management bargain until a deal is reached. (11) A party may therefore conclude that further discussions will not produce an agreement and can declare an impasse with respect to mandatory subjects of bargaining at that point. (12) When a good-faith impasse is reached, the duty to bargain further is temporarily satisfied and suspended. (13) The employer may then make unilateral changes in wages and other terms and conditions of employment reasonably consistent with the terms offered to the union during negotiations. (14)

B. Effects Bargaining

Even when a matter is not a mandatory subject of bargaining and the employer is therefore not obligated to bargain over the decision itself, there is generally an obligation under the NLRA to bargain over the effects of a managerial decision that has an effect on unit employees, unless that obligation has been waived by the union. (15) An integral part of the duty to bargain over the effects of a non-mandatory subject of bargaining is the duty to give the union timely notice of the decision. (16) In determining whether "timely notice" has been given, the NLRB and courts will seek to determine whether the notice allowed the parties an opportunity to bargain in a meaningful way over the effects of the decision. (17) The ability to provide "timely notice" of layoffs or subcontracting in the aftermath of a tragedy presents a serious challenge to employers.

C. Mid-term Bargaining

Terrorist attacks and other public crises do not wait for the expiration of collective-bargaining agreements, and parties may need to bargain, even to impasse and implementation, during a contract's term. Section 8(d) of the act provides, however, that the duty to bargain collectively "shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period." (18) In essence, Section 8(d) prohibits a party from modifying any term of the agreement for its duration without consent of the other party. The duty to bargain continues during the term of a collective-bargaining agreement, however, over matters "which were neither discussed nor embodied in the terms and conditions of the subsisting contract." (19)

In Milwaukee Spring Div. Of Illinois Coil Spring Co., (20) for example, the NLRB held that an employer may relocate unit work during the term of the collective-bargaining agreement, without violating Section 8(d), unless the right to relocate is expressly waived in the collective-bargaining agreement, or the agreement by its express terms otherwise preserves the work of unit employees for its duration. Moreover, the board adopted the Court of Appeals' analysis in Univ. of Chicago v. NLRB that "unless transfers are specifically prohibited by the bargaining agreement, an employer is free to transfer work out of the bargaining unit if: (1) the employer complies with Fibreboard Paper Products v. NLRB, 379 U.S. 203...(1964), by bargaining in good faith to impasse; and (2) the employer is not motivated by anti-union animus (see: Textile Workers v. Darlington Mfg. Co., 380 U.S. 263...1965)." (21)

The extent to which parties may be required to bargain during the term of an agreement can be restricted by a contractual "zipper clause." Because a zipper clause constitutes a limitation on the statutory right to negotiate over mandatory subjects of bargaining, however, the NLRB closely scrutinizes any claim that a party has waived its right to bargain. In Metropolitan Edison Co. v. NLRB, the U.S. Supreme Court held that statutory rights granted by the NLRA can not be waived by a collective-bargaining agreement unless such a waiver is "clear and unmistakable." (22) The NLRB has consistently applied the "clear and unmistakable" standard to claims that a party has waived its right to bargain over mandatory subjects during the term of a collective-bargaining agreement. As the board succinctly summarized in TCI of New York, "[t]he right to be consulted on changes in terms and conditions of employment is a statutory right; thus to establish that it has been waived the party asserting [the] waiver must show that t he right has been clearly and unmistakably relinquished [by the other party]." (23) It is therefore rare that a party can use a zipper clause as a sword to unilaterally implement changes in terms and conditions of employment mid-term without bargaining; (24) it is somewhat more common to use a zipper clause as a shield to prevent bargaining over issues that arise mid-term; but, again, only where the party seeking negotiations has clearly and unmistakably waived its right to bargain mid-term. (25)

D. Exceptions to the Duty to Bargain

There is a line of cases that has recognized, in the context of bargaining over a first-time contract, that requirement to bargain to impasse must sometimes be excused due to exigent circumstances. (26) Thus, the NLRB has suggested that compelling economic considerations, caused by unforeseen circumstances requiring immediate action, can relieve the duty to bargain to impasse with a union over mandatory subjects where a union has successfully been elected but there is no collective-bargaining agreement in place. Although this principle has been recognized by the NLRB, it has rarely been successful as a defense to unfair-labor-practice charges. The tragedy of September 11 or similar crises may fit into this exception, and may serve as the sort of extreme factual scenario that warrants an extension of this doctrine into an established, mid-term bargaining relationship as well.

The NLRB has stated that: Most layoffs are taken as a result of economic considerations. However, business necessity is not the equivalent of compelling considerations which excuse bargaining. Were that the case, a respondent faced with a gloomy economic outlook could take any unilateral action it wished or violate any of the terms of a contract which it had signed simply because it was being squeezed financially. (27)

"Compelling [economic] considerations" that excuse bargaining are limited to "those extraordinary events which are 'an unforeseen occurrence, having a major economic effect [requiring] the company to take immediate action. " (28) The NLRB has given, as an example of a situation that might constitute a "compelling economic consideration," the breakdown of a major piece of machinery necessitating immediate temporary layoffs for which there is no time to notify the union. (29)

Thus, when the situation is on the order of a "dire financial emergency," (30) an employer's duty to bargain over a decision that would in most situations constitute a mandatory subject may be excused entirely--although the duty to bargain over the effects of the decision is not similarly excused. (31) The logical conclusion to be drawn from this standard is that the events of September 11 would constitute this type of unforeseen, compelling economic consideration for employers that have to negotiate with recognized, certified unions. Indeed, the economic effect of that event was so sudden and so severe for certain companies that, were it raised as a defense to the failure to bargain over the many layoffs that occurred post-September 11, it would provide a reasonable and justifiable opportunity for the NLRB to apply the exception in a case where the parties are mid-term in their collective-bargaining agreement, or in the process of bargaining over a successor agreement.

There is a potential limitation to applying the rule in the latter situation--the prohibition against declaring impasse with respect to a single issue. Usually, an employer is not permitted to declare impasse on a single issue during bargaining over an open contract. Another exception to the general duty to bargain to impasse before implementing new or different terms and conditions of employment exists, however, when economic exigencies arise during negotiations that require prompt action for which bargaining is still appropriate, in which case the usual requirement for an overall impasse in bargaining does not apply. (32) In those situations, it is sufficient that the parties reach impasse on a single, substantial issue--such as layoffs, the need for which arise during bargaining--which the employer may then implement while continuing to bargain over the remaining open issues pertinent to settling the contract. The events of September 11 should fit easily into this exception.

Layoffs, transfers, relocations--all of which are reasonable and sometimes unavoidable consequences of an economic crisis--have been found to be mandatory subjects of bargaining when they result from a direct need or desire to reduce costs. But, notwithstanding the exceptions discussed above, perhaps the same rule should not apply to layoffs, transfers, and relocations directly or indirectly caused by an event as horrific and unexpected as a major terrorist attack. Rather, such decisions made in that context have more to do with making tough choices necessary to continue running a profitable business, where the immediate burden on the business of bargaining outweighs the benefit for labor-management relations and the collective bargaining process. (33) Arguably, the events of September 11 provide a singular example of the need for maximum employer flexibility to forgo bargaining over decisions having a direct effect on continuing employment that would ordinarily be mandatory subjects of bargaining.

II. Job-security Issues

Balanced against the needs of employers to exercise increased flexibility in the wake of a tragedy of the magnitude of September 11 is the moral imperative to do "the right thing" for one's employees. There are numerous examples of how moral obligations rise above economic considerations of profit and loss.

A. Industry Responses

Employers and unions in different industries responded to the 9/11 tragedy in different ways, depending on the nature of the effect on the particular industry. In any case, the loss of employment created an immediate crisis for many workers and employers. One company--American Building Maintenance, Inc.--employed over 800 of the 1,200 S.E.I.U. members who worked at the World Trade Center complex and nearby buildings that were closed indefinitely immediately after the attacks. Finding employment for those employees as quickly as possible became a major concern for both the union and the building-service industry.

In the aftermath of the tragedy, the Realty Advisory Board on Labor Relations, Inc., which represents over 4,000 building owners and property managers in Manhattan alone, and Local 32B-32J (S.E.I.U.) quickly negotiated an Emergency Preferential Hiring and Bumping Agreement, which modified the existing collective bargaining agreements with respect to employees' seniority rights. (34) This unusual agreement, born of extraordinary circumstances, provided for a special, industry-wide, preferential employment list from which the major cleaning contractors in New York City agreed to hire any new employees until the list was depleted. Any employee displaced by the attack whose building had not resumed normal operations by October 2, 2001, was placed on the list, as were any employees bumped from their jobs by such employees. Employees were placed on the list in order of their seniority in the industry, defined as their original date of hire working for an employer bound to Local 32B-32J by the Independent Contractor s Agreement or its predecessor agreements. On February 4, 2002, each employer with displaced employees implemented a bump of its own employees who were then remaining on the Preferential Hiring List (bumping those with less seniority out of employment and onto the now-revised PHL list for future openings).

The parties also negotiated enhanced employee benefits, including an early retirement benefit that added five years to both age and years of service, and an extension of health-coverage and supplemental unemployment benefits for up to six months for employees who remained unemployed as a result of September 11. (35)

In the hotel and restaurant industry, the parties also faced a similar issue of substantial loss of employment. To maximize the number of employees working, the Hotel Association of New York City, Inc., and the New York Hotel and Motel Trades Council, AFL-CIO, reached a work-sharing agreement two weeks after the tragedy whereby employees could voluntarily agree to work fewer days than they were otherwise scheduled to work to increase employment opportunities for employees on layoff or reduced workweeks as a result of September 11. (36) All such work was compensated at straight-time rates. The agreement was to last until December 1, 2001, or until revocation by either party (which occurred in mid-November 2001).

Another approach taken by bargaining partners was simply to postpone bargaining for a period of time. The National Association of Letter Carriers and management of the United States Postal Service extended their existing agreement, which was to expire on November 20, 2001. The president of the union stated that the extension was reached to give both sides a chance at negotiating a settlement as neither party had been able to devote its full energies to negotiations. (37)

Similarly, the collective-bargaining agreement between 1199 S.E.I.U. and the League of Voluntary Hospitals and Homes was set to expire on October 31, 2001. Because members of 1199 and their families were among the victims of the attack, and because of their crucial role in providing medical care during the rescue and recovery effort, the parties agreed that "collective bargaining negotiations at this time could distract them from their essential mission of rendering medical and health care in this time of crisis." (38)

The agreement, including all terms and conditions thereunder, was therefore extended to March 31, 2002, and the parties agreed not to begin negotiations until February 2002. (39)

New York's world-renowned entertainment industry, which relies heavily on tourism, was devastated. Within weeks of the terrorist attacks, four Broadway shows had closed, and others were struggling due to the combination of high production costs and dramatically reduced ticket sales. It was reported that the theater industry lost between $3 million and $5 million in just the first week following September 11. (40) In an effort to keep the remaining shows viable while weathering the storm, unions representing actors, musicians, press agents, stage managers, and stage hands agreed to accept temporary wage reductions of 25 percent on several musicals for a period of four weeks. (41) The cast and crew of Kiss Me Kate rejected the producer's proposal for a 50-percent wage cut to keep the show going for at least two additional weeks, but in a combination of self-interest and commitment to the industry, agreed to the 25-percent wage cur accepted at other shows, and also agreed to contribute an additional 25 percent t o buy tickets to the production. That novel arrangement was also approved by all the theatrical unions. (42)

B. Contract Provisions that May Receive Future Attention

1. "Acts of Terrorism or War" Provisos

When collective-bargaining agreements address layoffs, they frequently cover issues such as seniority rights (e.g., a requirement that layoffs occur in reverse order of seniority, or that more-senior employees may bump junior employees from positions for which they are also qualified) and notice requirements. Sometimes the parties agree that notice requirements in the agreement will be waived in the case of emergency, fires, floods, or force majeure--events that are outside the realm of predictability or employer's knowledge. In the aftermath of September 11, employers may propose such provisions if their contracts do not already contain them, or seek to clarify such provisions to include explicitly acts of war or terrorism as grounds for a waiver of layoff notice. In an extreme case, employers may even propose that any severance provided for under the agreement in the event of a layoff be waived as well if act of war or terrorism has a sufficiently extreme effect on the company.

For example, in the wake of the airline layoffs after September 11, both Northwest and American announced that their layoffs would be without severance, notwithstanding the $15-billion bailout from Congress, invoking the force majeure clauses of their respective collective-bargaining agreements. Union representatives responded that they intended to grieve the lack of severance once those layoffs went into effect. (43) Facing the angry reaction from employees and the unions, American and Northwest subsequently backed down and agreed to provide severance benefits. (44)

In contrast to Northwest and American, Delta successfully used the force majeure clause in its collective-bargaining agreement with the Airline Pilots Association to furlough 638 junior pilots. The collective-bargaining agreement forbids furloughs, but the force majeure clause allowed Delta to reduce jobs during a crisis that was beyond the airline's control. In a grievance contesting the furloughs, arbitrator Richard Bloch agreed with Delta that the events of September 11 justified the use of the force majeure clause to furlough the 638 junior pilots. (45) The arbitrator, however, did state that the furloughs should be reviewed in the future to determine whether there was still a sufficient connection between the September 11 attacks and the furloughs. (46)

On the other hand, there is anecdotal evidence that if an emergency situation rises to the magnitude of September 11, where feelings of ethical obligation, community spirit, and patriotism come into play on an overwhelming scale, employers may waive their right to exercise exactly the type of "unforeseen circumstances" provisions for which they have bargained. This occurred after 9/11. Continental Airlines, for example, opted not to exercise the force majeure clause in its collective-bargaining agreements (which would have allowed the airline to avoid paying severance to employees laid off due to the drop in business after September 11). Continental instead agreed to pay $60 million in severance during a period when its revenues were down sharply. (47)

2. Military Leave

Within days of the terrorist attacks, more than 10,000 reservists were activated for duty. (48) Two weeks after the tragedy, an additional 42,000 reservists were mobilized. (49) Military leave is governed by federal, state, and local statutes, and is generally--and appropriately--quite generous. (50) Many collective-bargaining agreements do not address military leave at all, or simply incorporate the statutory protections by reference. In a time of crisis--such as when a substantial military action occurs--leave provisions come to the fore, and bargaining occurs over enhanced military leave and related benefits above and beyond that provided for by statute.

For example, the collective-bargaining agreement between Navistar International Transit Corporation and the United Auto Workers provides for differential pay for employees with more than one year of tenure who are required to attend "training duty" for up to two weeks to maintain active-reserve status and for employees performing "emergency duty" for up to 30 days. (51) At Boeing, employees ordinarily entitled to the difference between their military pay and regular wage for a period of 90 days initially received an additional 90 days if they were called to duty in the aftermath of September 11. Boeing subsequently extended this enhanced benefit to a period of 60 months.(52)

In New York City, then-mayor Giuliani signed a personnel order that directed all mayoral agencies to grant differential pay to all city employees--most of whom are unionized--for the full duration of their military service. (53) During this time, employees maintain their active-pay status. That is, they receive their full NYC salary and sick-leave benefits in addition to their military pay. Upon their return to work, city employees are obligated to remit to the city an amount equal to their military pay for any time in excess of their statutory entitlement to 30 calendar days or 22 work days under the state's Military Law. (54)

New York State also extended supplemental military-leave benefits. On September 20, 2001, Governor George Pataki announced that the state had agreed with its public-employee unions to provide a temporary-leave category called supplemental military leave. (55) This provided for 30 calendar days or 22 work days of military leave at full pay, in addition to the 30 calendar days or 22 work days of paid military leave under state law. After military leave at full pay was exhausted (60 calendar days or 44 work days), employees were entitled to the difference between their regular state salary and their regular military pay for the duration of the memorandum of agreement (i.e., until September 10, 2002).

Those are examples of enhanced military-leave provisions that were bargained for in direct response. to the events of September 11. As collective-bargaining agreements come up for renewal, and as the U.S. war on terrorism continues, it is quite possible that proposals for enhanced or supplemental military leave and benefits will become a frequent element of unions' bargaining proposals.

III. Workplace-security Issues

In the aftermath of September 11, the prevention of future catastrophes is a pressing issue. The experience of September 11 has forced employers, employees, and unions to analyze various workplace-security issues to preserve lives and jobs. One of the primary concerns for employers is how to implement strict workplace-security measures without running afoul of the National Labor Relations Act.

A. Non-solicitation Policies

One obvious security precaution is to limit nonemployee access to the workplace. Nonemployees sometimes seek access to the workplace to engage in various types of solicitation, often charitable, and sometimes for unionorganizing purposes. While some employers may wish to allow some charities to solicit, they would nor want to waive their right to prevent nonemployee union organizers from entering the workplace. As the NLRB and the courts have attempted to balance an employer's property rights with Section-7 rights, it has long been held that "an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allowing other distribution." (56)

That proposition was affirmed by the U.S. Supreme Court in Lechmere, Inc. v. N.L.R.B., (57) as the court overruled a precedent that it deemed legally unsound. (58) Under Lechmere, an employer may prohibit nonemployee union organizers from soliciting or distributing union literature on its private property, unless the organizers do not have reasonable access to the employees by other means, such as mailings, phone calls, home visits, signs, or advertising.

Thus, Lechmere dictates that the NLRA does not supercede private-property rights. If, however, an employer allows other groups to solicit in the workplace, then it must allow unions to solicit on its premises as well. Generally, employers are advised to develop strict "no solicitation" policies to prevent the loss of property rights, both to union solicitors and outside solicitors, and to apply such policies consistently and uniformly to avoid accusations of discriminatory treatment toward union solicitation, which is a violation of Section 8(a)(1) of the act.

Charitable exception. Employers that maintain policies prohibiting solicitation in the workplace may still permit solicitation for a limited number of charitable organizations without concern about discriminating against union-organizing solicitations and becoming vulnerable to an unfair-labor-practice charge. The law is clear that, while employers may make exceptions for a limited number of charitable campaigns, the more exceptions made to a nonsolicitation policy, the greater the likelihood that an employer will be viewed as unlawfully discriminating in violation of federal labor law when it seeks to enforce the policy against a union. (59) In light of the events of the past year, however, many employers want to allow an increased number of charitable organizations--many of which have never existed before, such as those to benefit victims of the World Trade Center tragedy--to solicit its employees or, at least, to avoid seeming callous in barring such solicitors from the workplace.

Recognizing the possible implications and complications of increased charitable solicitation on otherwise valid no-solicitation policies, the NLRB's general counsel released a memorandum to the board's regional offices summarizing current board law and detailing how to respond to inquiries regarding solicitation post-September 11. (60) The general counsel acknowledged that determining whether allowing a limited number of solicitors on the employer's premises while enforcing a no-solicitation rule against unions violates the act has traditionally depended on the "quantum of...incidents" involved. (61) Without setting forth express guidelines as to the exact number or duration of incidents necessary before unlawful discrimination will be found, the memorandum notes that in some cases up to three incidents of an employer's allowing charitable solicitations has been permitted. On the other hand, where such solicitation occurred frequently or for a long period of time, the enforcement of a nonsolicitation policy a gainst a union was deemed discriminatory. (62) Observing that the circumstances of each case differ, the general counsel suggested that unfair-labor-practice charges raising this issue should continue to be evaluated on a case-by-case basis within the basic framework articulated in the memorandum. It therefore does not appear that the general counsel's 9/11 memo has created any special rules or exceptions in the number or duration of permissible charitable solicitations.

B. Employee-background Investigations

Another enhanced security measure widely considered after September 11 is to ensure that an employer does not employ someone who could be potentially dangerous. This is typically accomplished by conducting background investigations on applicants for employment, searching in particular for criminal records. The board has repeatedly held in a variety of contexts that background investigations of applicants for employment are permissive subjects of bargaining because the individuals, as applicants, are not yet "employees" under the NLRA. (63) The same reasoning should apply to background checks of criminal records or credit reports, either one of which could arguably raise the red flag about an applicant.

Several types of investigation, including blood and polygraph tests, when applied to current members of the bargaining unit, have been declared by the board to be mandatory subjects of bargaining. (64) This is a natural result of the disciplinary consequences that can flow from such investigations. More recently, the board has held that the waiver of employee rights under the Fair Credit Reporting Act is a mandatory subject of bargaining. (65) The Fair Credit Reporting Act sets forth guidelines under which employers, with the knowledge and consent of employees, may use a third-party investigator to conduct investigations of employees' credit and criminal backgrounds. Although it does not appear that the board has addressed the issue, it is likely that background checks performed by the employer itself, rather than through a third-parry investigator (and thus, outside the purview of the Fair Credit Reporting Act), would also constitute a mandatory subject of bargaining in light of the possibility that employee s would be terminated, or perhaps subjected to increased employer scrutiny, based on the results of the investigation.

C. Video Surveillance

Some employers have responded to the call for greater workplace security by seeking to install or increase the number of video cameras, both hidden and visible, in the employer's working and nonworking areas. Arguably, the installation of a camera itself as a security precaution against unauthorized intruders, aside from the disciplinary consequences that may result if a bargaining-unit employee is "caught on tape" engaging in a punishable offense, does not constitute a term or condition of employment. The board, however, has held that video surveillance in the workplace is a mandatory subject of bargaining. (66) Reasoning that the "installation of surveillance cameras is both germane to the working environment and outside the scope of managerial decisions lying at the core of entrepreneurial control," the board compared video surveillance to physical examinations, drug testing, and polygraph testing, all mandatory subjects of bargaining, and unequivocally stated that the existence and logistics of video surv eillance likewise must be negotiated with the union. (67)

In Colgate-Palmolive the NLRB alluded to the possible privacy implications presented by the use of video surveillance. (68) Recently, the board's concern became prophetic when the U.S. Supreme Court allowed to stand a decision of the Ninth Circuit that held that state-law claims relating to invasion of privacy resulting from concealed video- and audio-recording devices in workplace restrooms were not preempted by the Labor-Management Relations Act. In Cramer v. Consolidated Freightways, Inc., (69) the court held that claims based on concealed video- and audio-recording devices hidden in bathrooms--which were installed by the employer in an effort to crack down on drug-abusing drivers--were not covered by a broad collective-bargaining agreement, even though the agreement expressly permitted video surveillance in certain circumstances. Therefore, the claims were not preempted by labor law.

It is unlikely that an employer driven by legitimate security concerns in the aftermath of September 11, as opposed to concerns for workplace drug use, for example, would find it necessary to install cameras in employee bathrooms or locker rooms. Nevertheless, employers who decide to implement video surveillance face nor only charges of unfair labor practices if they fail to negotiate first with the union, but, depending on the scope and locations of the cameras, individual lawsuits as well.

D. Bio-terrorism Protections

While the source(s) of the post-September 11 anthrax-letter attacks has yet to be determined and the ultimate number of casualties was comparatively small (relative to the victim roster of September 11), employers justifiably wish to remain vigilant in preventing biohazards, such as anthrax, from entering the workplace. Most employers have expanded their security measures for monitoring and handling packages, and the United States Postal Service and OSHA have both created guidelines for handling suspicious packages or letters. (70) While there appears to be no board law explicitly addressing such issues, employers should be aware that, depending on the scope and invasiveness of such policies, those new rules and procedures may be considered mandatory subjects of bargaining. Certainly, mailroom employees covered by a collective-bargaining agreement who are required to handle incoming mail have a legitimate argument that the implementation of new safety measures constitutes a mandatory subject of bargaining. (7 1) Conversely, employers who seek to change the responsibilities of mailroom positions in ways that are material, substantial, or significant may have a duty to bargain before implementing such changes. (72)

E. Law-enforcement Investigations

Some employers have expressed concern about their rights and obligations in responding to information requests from the police or other law-enforcement groups (e.g., FBI), because of their reluctance to expose themselves to lawsuits for violating employees' privacy. (73) Guidance for dealing generally with such investigations, while maintaining a reasonable degree of privacy, are publicly available. (74)

One issue that police investigations raise in the context of traditional labor law is whether an interrogation of an employee by external law-enforcement personnel permitted by an employer in the workplace during working hours constitutes an investigatory interview for which an employee must be provided union representation upon request. Under the Supreme Court's well-known decision in N.L.R.B. v Weingarten, Inc., (75) a bargaining-unit employee is entitled, upon request, to have a union representative accompany him or her during an investigatory interview if the union member reasonably fears that disciplinary action may be imposed as a result of the interview. In Epilepsy Foundation of Northeast Ohio, the NLRB recently extended that so-called Weingarten right to nonunion employees who wish to bring a co-worker into an investigatory interview. (76)

It is not clear from those decisions whether an employer can be held liable under the NLRA for not providing a representative to accompany an employee into an interrogation in the workplace by external law-enforcement officers (and that question is beyond the scope of this paper). Realistically, however, the possibility of liability should be negligible. Assume for the sake of argument that the employer's cooperation with law-enforcement officials and its grant of permission to conduct an interrogation of an employee during work hours is deemed sufficient to place the interrogation within the scope of a Weingarten and Epilepsy Foundation investigatory interview. Upholding such a consideration is unlikely, notwithstanding that the employee may well be terminated depending on the results of the investigation. Our reasoning is that such an interview would not involve an employer-initiated investigation. Under the circumstances posed here, it is hard to imagine that an employee would waive the right to an attorne y but insist instead on the presence of a union representative or co-worker, the consequences for his or her personal liberty presumably being of greater importance than the potentially adverse effect on continued employment as a result of the interview.

Despite years of the courts' carving away at the Miranda doctrine, law-enforcement officials are still generally required to notify any suspect of his or her right to an attorney before being interrogated in an involuntary situation. (77) Thus, the employee will be advised of her right to have an attorney present. If she then requests one and an attorney is provided, the NLRB should find, if the issue ever arises, that the employee's Weingarten and Epilepsy Foundation rights have likewise been honored. (78) If the employee does not request an attorney under the circumstances, it is unlikely that she would think to request a union representative or fellow employee to accompany her, and thus, the Weingarten and Epilepsy Foundation right will not have been violated.

F. Physical Searches of Employees and Their Belongings

The implementation of a security search on entering the workplace is likely to be deemed to affect the terms and conditions of employment, and thus constitute a mandatory subject of bargaining. As noted above, several types of workplace "searches" that arguably constitute an invasion of an employee's privacy have been deemed to be mandatory subjects of bargaining. (79) The implementation of a new policy of searching employees' belongings has been found to be a mandatory subject of bargaining under both the National Labor Relations Act (80) and the Railway Labor Act. (81) However, de minimis changes in existing policies or practices with respect to searching employees' belongings, or tightening existing policies or practices that have been laxly enforced or applied, should not constitute a mandatory subject of bargaining. (82)

G. Evacuation Plans

Under OSHA standards and regulations (and certain state and city codes, including those of New York City), an employer may be required to prepare and maintain a fire-prevention plan and an Emergency Action Plan (EAP). Such regulations generally detail the organizational structure required for a secure evacuation and the specifics relating to employee drills and egress requirements. (83) An employer may be cited by OSHA and assessed monetary penalties for violations of the standards relating to a fire-prevention plan or EAP. Such violations may be characterized as repeat, serious (or "other than serious"), willful, and, on rare occasions, criminally willful. An employer may also incur additional liability for an inadequate evacuation plan or an inadequate implementation of the plan because of negligent conduct. (84) Further, any evacuation plan should include provisions for aiding disabled workers in case of an emergency. The Americans with Disabilities Act requires that employers modify their policies and pro cedures to accommodate individuals with disabilities. Therefore, employers must provide reasonable accommodation to disabled workers in need of assistance during an evacuation. The wisdom of such preparation will be immediately obvious during an actual emergency, and in any event failure to do so may result in liability for the employer. (85)

The existence of an evacuation plan, where it is required by law, is not a mandatory subject of bargaining. How the plan is implemented, however, to the extent that there are multiple lawful ways to implement the plan, may constitute a mandatory subject of bargaining. (86)

IV. Effect of 9/11 on Labor--Management Relations

As is evident in many of the examples discussed above, a sort of labor peace has come upon many industries, prompted by feelings of community, patriotism, and a moral obligation to do right by our fellow human beings. Management and unions alike recognized that during the months after 9/11 the public might not have looked favorably on strikes, lockouts, or prolonged labor negotiations. Indeed, there was a sense that any form of labor unrest during that difficult period could have been deemed "unpatriotic."

Employees in Minnesota and Illinois, for example, quickly discovered the lack of public support for striking employees in the aftermath of September 11. On September 30, 2001, 28,000 Minnesota state employees walked off their jobs and were immediately lambasted for doing so in such close proximity to September (87) Teachers in Granite City, Illinois, commenced a strike a mere five days after the attacks and were declared "selfish." (88)

Public sentiment criticizing work stoppages of any sort as unpatriotic may not cease even as we move further away from September 11, as long as the war on terrorism continues. (89) American history teaches that unions and employees have been criticized for striking during times of national crisis, including accusations by Presidents Harry S. Truman and Dwight D. Eisenhower of workers' being unpatriotic for striking during the Korean War and the Cold War. (90)

Further, labor unrest could carry dire consequences for New York City, as it may be difficult to convince companies to remain there if they have to cope with labor unrest in addition to other problems caused by September 11. The Realty Advisory Board and Local 32B-32J were aware of the fact that protracted negotiations and the possibility of a strike after September 11 might result in negative publicity and the permanent loss of tenants in the commercial buildings covered by the collective-bargaining agreement. With this devastating consequence in the minds of both management and labor, along with their dedication to the future of New York City, the parties concluded an agreement on November 13, 2001, that extended their collective-bargaining agreement governing commercial buildings. That amicable settlement was reached more than six weeks before the expiration of the extant agreement, which was set to expire on December 31, 2001. That early settlement was contrary to the bargaining history between these part ies, who traditionally negotiated down to the wire, in an industry that experienced strikes in the residential sector in 1991 and in the commercial sector in 1996. (91)

The horrific events of September 11, 2001, instilled a sense of unity and patriotism in Americans that has not been seen in at least a decade (since the Gulf War) and perhaps not for more than half a century (since World War II). The unity of purpose that pervaded much of the country also embraced labor-management relations to some extent, and rightfully so. It is evident that the moral obligations that both labor and management share can sometimes transcend the forces that push them apart. How long those effects of September 11 will be experienced is difficult to tell. Even if this sense of unity proves fleeting, however, it stands as a significant moment in the history of labor relations.

(1.) In the aftermath of September 11, as a result of drastically reduced air travel, airlines made initial layoff announcements that affected over 100,000 employees. For example, among the largest of the mass layoffs, American eliminated 20,000 jobs immediately; Delta, United, and US Airways announced plans to lay off 20,000, 13,000 and 11,000 employees, respectively; Continental initially announced 12,000 layoffs, which was later reduced to 11,000. Airplane manufacturer Boeing Co. announced that it would lay off up to 30,000 employees by the end of 2002 (see: www.npr.org/news/specials/response/economics/features/2001). The layoffs continued into January and February 2002. See: David Ehrlich, "A Digest of Corporate Downsizings Here and Abroad," The Daily Deal, Feb. 14, 2002; "Northwest Airlines Union Says 60 More Mechanics Served Layoff Notices," AFX-Asia, Jan. 15,2002; and "Reservations Workers Face Layoff at United; 899 to Lose Jobs: Airline Blames Reduced Traffic Following Attacks," National Post, Jan. 4, 2002, p. FP9. Only government intervention saved some of the airlines from going out of business altogether. See: Frank Swoboda and Martha McNeil Hamilton, "Congress Clears $15 Billion Bill to Aid Airlines; Bailout Has Grants, Loan Guarantees," The Washington Post, Sept. 23, 2001, p. A1.

(2.) 29 U.S.C. [section] 158(d).

(3.) 29 U.S.C. [section] 158(a)(5).

(4.) NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349 (1958).

(5.) 452 U.S. 666 (1981).

(6.) Id. at 676-77; see also: KIRO, Inc., 317 N.L.R.B. 1325, 1326-27 (1995).

(7.) Id. at 676-677 (quoting Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 178 [1971]); and see: KIRO, Inc., 317 N.L.R.B. at 1326: "It is well-established that Congress has limited the subjects of mandatory bargaining to those 'issues which settle an aspect of the relationship between the employer and the employees'" (quoting Pittsburgh Place Glass Co., 404 U.S. at 178).

(8.) First Nat'l Maintenance, 452 U.S. at 677.

(9.) Id. at 679; also see: Olivetti Office U.S.A., 926 F.2d at 185-186 (applying the First Nat'l Maintenance balancing test to any managerial decision affecting the profitability of a company).

(10.) First Nat'l Maintenance, 452 U.S. at 678-679.

(11.) "Section 8(d) provides that the duty to bargain "does not compel either party to agree to a proposal or require the making of a concession." 29 U.S.C. [section] 158(d).

(12.) AMF Bowling Co. v. NLRB, 63 F.3d 1293, 1299 (4th Cir. 1995) (citing Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete, 484 U.S. 539, 544 n.5 [1988]).

(13.) NLRB v. McClatchy Newspapers, Inc., 964 F.2d 1153, 1164 (D.C. Cir. 1992).

(14.) Shell Co., 313 N.L.R.B. 133 (1993).

(15.) See: First Nar'l Maintenance, 452 U.S. at 681-82; KIRO, Inc.. 317 N.L.R.B. 1325, 1327 (1995); and Holly Farms Corp., 311 N.L.R.B. 273, 278 (1993), enforced, 48 E3d 1360 (4th Cir. 1995). aff'd in part, 517 U.S. 392 (1996).

(16.) Daniel I. Burk Entrs., 313 N.L.R.B. 1263 (1994).

(17.) See: NLRB v. Emsing's Supermarket, 872 F.2d 1279 (7th Cir. 1989) (three-day notice inadequate); Penntech Papers v. NLRB, 706 F.2d 18 (5th Cir.) (one-day notice inadequate), cert. denied, 464 U.S. 892 (1983); and Riedel Int'l. 300 N.L.R.B. 282 (1990) (notifying union on the day of the sale inadequate).

(18.) 29 U.S.C. [section] 158(d).

(19.) Bloomsberg Craftsmen, 276 N.L.R.B. 400, 404 (1985); see also: NLRB v Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1952).

(20.) 268 N.L.R.B. 601 (1984), aff'd sub nom. Int'l Union, UAW v. NLRB, 765 F.2d 175 (D.C. Cit. 1985).

(21.) 514 F.2d 942, 949 (7th Cir. 1975).

(22.) 460 U.S. 693, 703 (1983).

(23.) 301 N.L.R.B. 822, 824 (1991).

(24.) Murphy Oil USA, Inc., 286 N.L.R.B. 1039, 1039 (1987) ("the normal function of such [zipper] clauses is to maintain the status quo, not to facilitate unilateral changes"); but see: Rockford Manor Intermediate Care Facility, 279 N.L.R.B. 1170 (1986) (permitting employer to make unilateral mid-term change in health benefits based on language of zipper clause).

(25.) See: Mead Corp., 318 N.L.R.B. 201 (1995); Michigan Bell Tel. Corp., 306 N.L.R.B. 281 (1992); and GTE Automatic Elec. Inc., 261 N.L.R.B. 1491 (1982).

(26.) See: Hankins Lumber Co., Inc., 316 NLRB 837 (1995); Farina Corp., 310 N.L.R.B. 318 (1993); Taino Paper Co., 290 N.L.R.B. 975 (1988); and Angelica Healthcare Servs. Group. Inc., 284 NLRB 844 (1987).

(27.) Farina Corp., 310 N.L.R.B. at 321.

(28.) Hankins Lumber Co., Inc., 316 NLRB 837, 838 (1995) (quoting Angelica Healthcare Servs. Group, Inc., 284 NLRB 844, 852-53 (1987)).

(29.) Taino Paper Co., 290 N.L.R.B. at 977; also see: Tylertown Wood Prods., 251 N.L.R.B. 515, 521 (1980) (employer permitted to lay off employees without prior notice to the union).

(30.) RBE Electronics, 320 N.L.R.B. 80, 81(1995).

(31.) Angelica Healthcare Servs., 284 N.L.R.B. at 853 n.4.

(32.) RBE Electronics, 320 N.L.R.B. at 81 (citing Dixon Distributing Co., 211 N.L.R.B. 241, 244 [1974]). In RBE Electronics, the employer announced that it would be closed on Fridays, and laid off bargaining-unit employees, during bargaining over an initial contract. The board made clear that the exception applies only when the unilateral action is compelled by exigencies not reasonably foreseeable or caused by external events and prompt action is required, and remanded to the ALJ for a determination whether the situation met that exception. Id. at 82.

(33.) First Nat'l, Maintenance, 452 U.S. at 679; also see: Olivetti Office U.S.A., 926 F.2d at 185-86 (applying the First Nat'l Maintenance balancing test to any managerial decision affecting the profitability of a company).

(34.) September 11, 2001, Emergency Preferential Hiring and Bumping Agreement between Local 32B-32J, S.E.I.U. and the RAB (Sept. 19, 2001). A separate agreement was negotiated between Local 32B-32J and American Building Maintenance to handle the resulting enormous amount of bumping in the least disruptive manner possible.

(35.) Collective Bargaining Bulletin (BNA), at 120 (Oct. 4, 2001).

(36.) Agreement between the Hotel Association of New York City, Inc., and the New York Hotel and Motel Trades Council, AFL-CIO (Sept. 25, 2001). For a more detailed discussion, see: David Sherwyn and Michael C. Sturman, "Job Sharing: A Potential Tool for Hotel Managers," on pages 84-91 of this Cornell Quarterly.

(37.) www.nalc.org/news/bargain.

(38.) Emergency Extension Agreement between 1199 SEIU and the League of Voluntary Hospitals and Homes (October 18, 2001).

(39.) In the interim, however, New York Governor George Pataki pushed through the stare legislature a health-care bill that provided $1.8 billion for salary increases for hospital workers and for recruiting efforts. See: James C. McKinley, Jr., "Albany Deal Would Raise Hospital Pay," New York Times, Jan. 16, 2002, p. B1. Just days earlier, counting on such aid, the League of Voluntary Hospitals reached an agreement with 1199 covering 55,000 health-care workers in 67 New York City hospitals and nursing homes, which included wage increases of slightly more than 13 percent over 42 months and protection against layoffs for employees hired before February 1, 1996, or about three-quarters of the bargaining unit. See: Steven Greenhouse, "Hospital Agreement Provides Stare-financed Raises," New York Times, Jan. 12, 2002, p. B4. With 20-20 hindsight, it would appear that the necessary time and attention required for the political process to play out, which ultimately resulted in a settlement, would not have been availa ble immediately post September 11, suggesting that the decision to delay had as much to do with self-interest as with generosity of spirit.

(40.) "Broadway Is in the War All the Way," New York Times, Sept. 21, 2001, p. E1.

(41.) See: "Broadway Unions Agree to a 25-percent Pay Cut for Five Struggling Shows," Associated Press, Sept. 20, 2001; "A New Stage for Broadway," USA Today, Sept. 28, 2001, p. 1E (the shows affected were "Les Miserables," "The Phantom of the Opera," "Chicago," "Rent," and "The Full Monty"); and "Broadway Unions Agree to Pay Cur," AP Online, Sept. 21, 2001. The unions approving the deal included Actors Equity Association, Local 802, American Federation of Musicians, United Scenic Artists 829, the Association of Theatrical Press Agents & Managers 18032, and several locals of the International Alliance of Theatrical Stage Employees. The agreement was negotiated with the League of American Theaters and Producers, a multi-employer bargaining association for on- and off-Broadway employers.

(42.) "Pay Cut Saves 'Kiss Me Kate,'" New York Times, Sept. 24, 2001, p. E5.

(43.) ABC News.Com, Sept. 26, 2002 (abcnews.go.com/secrions/business/ Daily News/airline_severances).

(44.) Steven Greenhouse, "Northwest and American to Pay Severance Benefits," New York Times, Sept. 29, 2001, P. C3.

(45.) "Arbitrator Upholds Delta Pilot Furloughs," Atlanta Journal - Constitution, April 25, 2002, p. E3.

(46.) Id.

(47.) Daniel A. Shaw, "Managing the Bad Times; Layoffs Are a Fixture in the Grim Economy. Lessons from Three Corporations," Legal Times, November 26, 2001, p. 11.

(48.) John H. Cushman, Jr., "Military on the Move as Bush Talks with Putin," New York Times, Sept. 23, 2001, p. B3.

(49.) David E. Sanger & Steven Lee Myers, "President Says U.S. is "in Hot Pursuit' of Terror Group," New York Times, Sept. 29, 2001, p. A1.

(50.) For a thorough discussion of federal military-leave statutes, see: Jeffrey S. Klein, Nicholas J. Pappas, and Matthew I. Herman, "The USERRA: Workers' Employment Rights Following Military Service," on pages 75-83 of this Cornell Quarterly.

(51.) See: 14:721 BNA Collective Bargaining Negotiations and Contracts.

(52.) www.boeing.com/companyoffices/empinfo/compensation/work_events/milita ry_leave.pdf.

(53.) Office of the Mayor of the City of New York, Personnel Order 2001/4 (Oct. 15, 2001).

(54.) N.Y. Military Law [section] 242 (2001).

(55.) "WTC Response Update: Governor Announces Supplemental Military Leave for State Employees on Active Duty" (release from press office, State of New York, Executive Chamber, Sept. 20, 2001).

(56.) N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

(57.) 502 U.S. 527 (1992).

(58.) See: Jean Country, 291 N.L.R.B. 11 (1988), abrogated by, Lechmere Inc., v. N.L.R.B. 502 U.S. 527 (1992). A different rule applies to employee solicitation. Employer prohibitions against employee solicitation during working hours ate presumptively valid, while prohibitions against employee solicitation during nonworking hours (e.g., lunch or rest periods) are presumptively invalid. See: Republic Aviation N.L.R.B., 324 U.S. 793 (1945).

(59.) See: Hammary Mfg. Corp., 265 N.L.R.B. 57(1982); and Lucile Salter Packard Children's Hosp. at Stanford, 318 N.L.R.B. 433 (1995), enforced 97 F.3d 583 (D.C. 1996).

(60.) "fundraising Following Recent Tragedy," N.L.R.B. G.C.M. 01-06, Sept. 28, 2001 (www.nlrb.gov/gcmemo/gc01-06.html).

(61.) Citing: Hammary Mfg. Corp, supra; and Be-Lo Stores, 318 N.L.R.B. 1,11 (1995), aff'd in part, reversed in part, 126 F.3d 268 (4th Cir. 1997).

(62.) See, for example: Serv-Air, Inc., 175 N.L.R.B. 801, 801-802 (1969) (three incidents of charitable solicitation permitted without finding of discrimination against union solicitation); The Seng Co., 210 N.L.R.B. 936 (1974) (same); Sandusky Mall Co., 329 N.L.R.B. No.62, slip op. at 4 (1999), rev'd, 242 F.3d 682 (6th Cir. 2001) (allowing nine different charitable groups to solicit before denying union access and allowing two other groups to solicit at the same time union requested permission was deemed discriminatory); Albertson's Inc., 332 N.L.R.B No. 104, slip op. at 4 (2000) (groups solicited for a period of a week to a month).

(63.) See, for example: Star Tribune Division, 395 N.L.R.B. 543 (1989) (an employer may unilaterally institute drug testing programs to screen job applicants); and RCA Corp., 296 N.L.R.B. 1175 (1989) (drug and alcohol testing of applicants were held nor to be mandatory subjects of bargaining). Note that even as a permissive subject under the labor law, any investigation of applicants must be conducted of all applicants, as targeting specific groups of applicants may be deemed discriminatory under other employment statutes.

(64.) See, for example: Johnson-Bateman Co., 295 N.L.R.B. 180 (1989) (drug testing of current employees was a mandatory subject of bargaining); and Medicenter, MidSouth Hospital, 221 N.L.R.B. 670 (1978) (polygraph testing program for employees was found to be a mandatory subject of bargaining).

(65.) See: Tower Automotive, Inc., 26-CA-19981, 200 LEXIS 566 (2001) (employer had no duty to bargain with respect to the rule as it pertained to applicants but had an obligation to bargain concerning the waiver of rights under Fair Credit Reporting Act as applied to employees in the bargaining unit).

(66.) See: Colgate-Palmolive, 323 N.L,R.B. 515 (1997).

(67.) See: Id. at 515.

(68.) See: Id. at 516 (staring that the privacy considerations demonstrate that the use of video surveillance indeed affects working conditions).

(69.) 255 F.3d 683 (9th Cir. 2001), cert. denied 122 S. Ct. 806 (2002).

(70.) See: www.usps.com; and www.osha.gov. Despite assurances from the U.S. Postal Service that it had taken appropriate measures to decontaminate and ensure the health and safety of employees, the New York Metro Area Postal Union went to federal court, unsuccessfully, to attempt to force the shutdown of the anthrax-contaminated Morgan Processing and Distribution center in Manhattan. See: Jane Fritsch, "One center Staying Open; Anthrax Found at 4 Others," New York Times, Nov. 10, 2001, p. B9.

(71.) See: N.L.R.B. v. Gulf Power Co., 384 F.2d 822 (5th Cir. 1967) (finding that it was "inescapable" that "workers, through their chosen representative, should have the right to bargain with the company in reference to safe work practices").

(72.) See: A.M.F. Bowling Co., 303 N.L.R.B. 167 (1991), aff'd in part, reversed in part, 977 F.2d 141 (4th Cir. 1992) (transfer of duties from bargaining unit to non-bargaining unit employees a mandatory subject of bargaining); St. Jo John's Gen'l Hosp., 281 N.L.R.B. 1163 (1986), enforced, 825 F.2d 740 (3d Cir. 1987) (unilateral transfer of duties from non-bargaining unit to bargaining unit employees a mandatory subject of bargaining); and Alamo Cement Co., 277 N.L.R.B. 1031 (1985) (insignificant changes in job duties not unlawful).

(73.) For a detailed discussion of military-leave statutes, see: Klein et al., in this issue of Cornell Quarterly.

(74.) See: Maureen Minehan, "Just the Facts, Ma'am--How to Respond to Law-enforcement Requests," West Group Employment Alert, Vol. 18, No. 26 (December 20, 2001).

(75.) "420 U.S. 251 (1975).

(76.) 331 N.L.R.B. No. 92 (2000), review granted in part, decision reversed in part, Epilepsy Found. of Northeast Ohio v. N.L.R.B., 268 F.3d 1095 (D.C. 2001), cert denied, 2002 WL 386417 (U.S. Dist. Col. June 10, 2002).

(77.) See: Miranda v. Arizona, 384 U.S. 436 (1966).

(78.) Although an employer does not have to allow an attorney into an interview under Weingarten, it would seem that doing so would satisfy the employee's Weingarten rights.

(79.) See, for example: Johnson-Bateman Co., 295 N.L.R.B. 180 (1989) (drug testing of current employees was a mandatory subject of bargaining); and Medicenter, MidSouth Hosp., 221 N.L.R.B. 670 (1978) (polygraph testing program for employees was found to be a mandatory subject of bargaining).

(80.) Resthaven Corp., 322 N.L.R.B. 750 (1996) (implementation of new "package inspection" rule for employees found to be mandatory subject of bargaining).

(81.) See: Brotherhood of Locomotive Engineers v. Burlington N.R.R., No. 84-213-GF, 1984 U.S. Dist. Lexis 22978 (D. Mont. 1984).

(82.) Resthaven Corp., at 752 ("The board has long held that an employer is not obligated to bargain over changes so minimal that they have no significant, substantial, and material impact on employees' terms and conditions of employment"), citing W-I Forest Prods., 304 N.L.R.B. 957, 958-59 (1991); and Chef's Pantry, Inc., 274 N.L.R.B. 775 (1985) (posting notices that employees were required to stay until completion of work was consistent with and comprehended within previous policy affording supervisors to require Overtime).

(83.) See, for example: 29 C.F.R. [sections] 1910.36-1910.38 and N.Y.C. Rules [section] 6-01.

(84.) See, for example: Maussner v. Atlantic City Country Club, Inc., 691 A,2d 826 (N.J. Super. Ct. App. Div. 1997) (grant of summary judgment to defendant golf course reversed, where golfer was struck by lightning and golf course's evacuation plan was inadequate).

(85.) See, for example: Shirey v. City of Alexandria Sch. Bd., 229 F.3d 1143 (4th Cir. 2000) (school board liable for discrimination under the Americans with Disabilities Act for failure to have evacuation plan which provided for disabled child).

(86.) See: Trojan Yacht, Div. of Bertram-Trojan, Inc., 319 N.L.R.B. 741, 743 (1995) (finding duty to bargain over implementation of legally required condition of employment where law provided multiple options for compliance).

(87.) See: Steven Greenhouse, "Some Workers Are Finding It a Difficult Time to Strike," New York Times, June 15, 2002, which stated in part: "Gov. Jesse Ventura, business leaders, editorial writers and many other Minnesotans have condemned the strikers for walking out during a national crisis. When so many Americans are talking about the need for shared sacrifice and unity, it has suddenly become difficult, even risky, for unions to use their most potent weapon.

(88.) Ibid. Quoting The Belleville News-Democratic, Greenhouse wrote: "[The teachers] lost credibility when they walked out days after the worst terrorist attacks in our nation's history. Beyond that, the attacks of September 11 weakened our nation's already shaky economy-and made the union demands even more unreasonable."

(89.) Shortly before this issue went to press, President Bush intervened in the impasse between west-coast dockworkers and shippers, citing grounds of "national security."

(90.) Greenhouse, op. cit., citing Michael LeRoy, University of Illinois Labor Relations Professor.

(91.) See: Steven Greenhouse, "Citing Sept. 11, 2 Sides Avert Janitors' Strike," New York Times, Nov. 14, 2001, p. D1.

RELATED ARTICLE:

Article Outline

1. The Duty to Bargain over Post-September 11 Issues

A. Mandatory and Permissive Subjects

B. Effects Bargaining

C. Mid-Term Bargaining

D. Exceptions to the Duty to Bargain

II. Job-security Issues

A. Industry Responses

B. Contract Provisions that May Receive More Attention in the Future

1. "Acts of Terrorism or War" Provisos

2. Military Leave

III. Workplace-security Issues

A. Non-solicitation Policies

B. Employee-background Investigations

C. Video Surveillance

D. Bio-terrorism Protections

E. Law-enforcement Investigations

F. Physical Searches of Employees and Their Belongings

G. Evacuation Plans

IV. Effect of the Tragedy on Labor-Management Relations

L. Robert Batterman, J.D. (photo on left; rbatterman@proskauer.com), is a partner and John F. Fullerton III, J.D. (photo on right; jfullerton@proskauer.com), is an associate at Proskauer Rose LLP in New York City, which represents management in all facets of labor and employment law. The authors wish to acknowledge and thank Brian Rauch, an associate at Proskauer Rose LLP, for his assistance in the preparation of this paper. Proskauer Rose LLP represents several of the multi-employer bargaining associations discussed in this paper, including the Realty Advisory Board on Labor Relations, Inc.; the League of American Theatres & Producers; and the League of Voluntary Hospitals and Homes.