key: cord-338934-61wnbf1t authors: Fay, Daniel L.; Ghadimi, Adela title: Collective Bargaining During Times of Crisis: Recommendations from the COVID‐19 Pandemic date: 2020-05-19 journal: Public Adm Rev DOI: 10.1111/puar.13233 sha: doc_id: 338934 cord_uid: 61wnbf1t The COVID‐19 dramatically changed employment across sectors in 2020. This Viewpoint essay examines public sector labor relations during the pandemic and describes the impact bargaining process used to protect public employees. We draw on our own experience in impact bargaining negotiations and the public labor relations, conflict management, and civil service reform literatures to develop recommendations for public union labor leaders in times of crisis. We suggest that public unions have an important role in crisis management, but must act strategically in order to develop good working relationships with leadership and successfully negotiate employee protections in uncertain times. This article is protected by copyright. All rights reserved. 1) Union leaders should initiate negotiations with leadership early and often during times of crises. 2) As part of the negotiations, unions must mobilize union members and the workforce represented by the collective bargaining agreement immediately. 3) Negotiations should prioritize issues for the workforce groups most affected by the crisis. 4) Labor relations leaders must integrate governmental crisis response to negotiations 5) Impact bargaining agreements must be formalized upon completion. The global Coronavirus Disease 2019 pandemic of 2020 has disrupted many aspects of normal life, including the work processes and responsibilities of public employees. Many in the public sector workforce have been on the front lines as first responders directly dealing with those infected with COVID-19, and enforcing government protective orders. Others have been forced to rethink how to effectively accomplish their job responsibilities virtually while adhering to protective orders. Every public employee has faced challenges, uncertainty, and anxiety as a result of the COVID-19 pandemic affecting their dayto-day and long-term employment. The Bureau of Labor Statistics estimates that 37.2% of public sector employees, including police officers, firefighters, and teachers, are covered by union or employee association collective bargaining agreements. (U.S. Bureau of Labor Statistics, 2020). Public sector unions use collective action to improve the working conditions of workers during normal operations, but emergencies which disrupt normal operations further underscore the role of collective bargaining to protect the public workforce and in negotiating new "impact agreements" to protect employees during times of uncertainty. In March 2020, one of our authors participated in "impact bargaining" for a unit of a large state education union: UFF-FSU-GAU, a graduate assistant (GA) union, which is a unit of the statewide United Faculty of Florida 1 . The union proposed beginning the impact bargaining process to the university leadership on March 13, 2020, and after negotiations, the university accepted the Memorandum of Understanding (MOU) on April 10, 2020. Estimates suggest that 27% of faculty and graduate students are covered by collective bargaining agreements at more than 500 institutions across the U.S. Representation for both groups, including part-time and adjunct faculty has been growing since 2006 (Berry & Savarese, 2012) . Florida has had a long history of legislative efforts to weaken public unions in the state, including the state house passing HB 1 in early March, prior to public protective orders in response to COVID-19 (Dailey, 2020) . At the time of these writing there has been no further action to diminish public unions by the state government. In our roles as public management and policy scholars, and using our experience as practicing public labor relations leaders, we describe the challenges of collective bargaining during the COVID-19 pandemic and present five general recommendations for public sector unions impact bargaining during times of crisis: 1) Initiate negotiations with leadership early and often; 2) Mobilize union members and the workforce represented by the collective bargaining agreement immediately; 3) Prioritize issues for the workforce groups most affected by the crisis; 4) Integrate governmental crisis response to negotiations 5) Formalize impact bargaining agreements. While our negotiations occurred in a higher education setting, our recommendations apply to general public labor relations in times of crisis. As industries quickly adapted to the COVID-19 pandemic, employers made swift decisions that directly impacted collective bargaining agreements (CBAs) across the country in terms of working conditions, compensation, benefits, and workforce reductions. When circumstances in times of crisis arise that allow employers to make these sweeping changes, bargaining units are then entitled to begin "impact bargaining," which is also known as "effect bargaining" or "implementation bargaining." The process allows the bargaining team to negotiate the impact that these crisis-time decisions have had on their terms and conditions of employment as outlined in their CBA. Impact bargaining, when successful, results in the creation of a MOU which serves as an addendum to the collective bargaining agreement and can create additional protections for employees during the crisis which are otherwise not covered under the CBA. This process was commonly used by European labor unions in response to the Great Recession of 2008 (Glassner, Keune, & Marginson, 2011; Lehndorff, 2011; Malo, 2016) . It is imperative that bargaining units react as soon as possible to begin these impact negotiations. Doing so helps manage conflict by establishing a sense of shared mission between management and labor in addressing the challenges presented by the crisis. The labor challenges of COVID-19 are far different than those presented by the global financial crisis of 2008, but, regardless, timing is critical, with the best defense being a good offense to protect public employees. Units which delay negotiations may be perceived as self-interested and reactionary, which could generate hostility, win-or-lose situations, and long-term resentments (Yates, 1985) . Given the state of the COVID-19 pandemic, unions must consider that these newfound conditions have an undetermined end date. Units may have to develop several MOUs throughout the duration of the crisis, so establishing an open communication channel early allows management and labor to provide contemporaneous information, which is an effective strategy to manage conflict (Yates, 1985) . Research has identified several other strategies and tactics to constructively manage conflict including using an incremental approach focused on winning concrete issues (Rainey, 2009) . Unions that begin negotiations early can request protections and resources before other competing groups or agencies, thereby increasing the likelihood of success. As conflict endures, barriers to communication (e.g. aggressive language, biased interpretations, selective information, and dissolved collaborations) decrease the likelihood of agreement (Rainey, 2009) . Early success can prevent prolonged conflict and may help future negotiations in a prolonged crisis. Delaying fervent and frequent negotiations and communications with administration can lead to unilateral decision-making by the administration without consulting the union, leaving unions retroactively trying to combat issues that could have been circumvented. Our own experience in the COVID-19 bargaining process demonstrated that when early success is achieved in the MOU, it is advantageous for the bargaining team to recognize the uncertain duration of the crisis and include a clause providing open-ended language allowing for agreed upon protections to stay status quo throughout the duration of the crisis. The longer the crisis will last, the more dire circumstances will become, and once agreed upon protections and gains are made, this open-ended language will provide a baseline of worker protections that will not have to be renegotiated every few months with potentially increased hostility. The necessity of physical distancing for the duration of the COVID-19 crisis has significantly impacted the typical means by which unions mobilize members and their workforce. During "normal" working conditions, it is beneficial to mobilize and engage members of one"s bargaining unit to urge negotiations forward during collective bargaining. Often staging public showings of support, organizing a demonstration, or simply packing a bargaining session full of bodies can lead to increased cooperation from leadership and adds social pressure to avoid enmity during negotiations and increases the likelihood of success (Flavin & Hartney, 2015) . A specific example of the value of physical mobilization can be seen in the various calls to action made by UFF-FSU-GAU. Over its ten-year tenure, mobilizing members in large numbers to occupy a physical presence during bargaining creates a noticeable shift in the tone and conversation with leadership, which is dramatically different than if the room is equitably represented with about a dozen individuals on both sides of the bargaining table. Prior to the pandemic, this same union has packed the room at Board of Trustees (BoT) meetings (Florida State University Board of Trustees, 2020), utilizing the public comment section at the front end of these public, live streamed meetings to have several speakers attest to the harmful deficiencies and unsavory working conditions of GAs. During times when physical presence is impossible, such as during mandatory social distancing orders adopted in response to COVID-19, there are alternative modes of group mobilization that are effective and raise the profile of one"s bargaining efforts. Building up a social media presence that incorporates as many people as possible and mobilizing massive contact campaigns to reach out to key administrative offices on a set issue are also effective and important. The need for this group involvement and additional visibility and applied pressure is even more critical during the COVID-19 crisis. Creating multiple opportunities for stakeholder involvement from your unit is critical during a regular bargaining period, but embracing public employees at all levels and providing complete information to members as part of the negotiation process empowers the unit. This does not change during impact bargaining. One effective strategy for conflict management is to include all affected parties in negotiations (Yates, 1985) . This will make a critical difference in impact bargaining during times of crises, particularly if most negotiations take place on virtual online platforms. While technology can be seen as a challenge for successful negotiations during an emergency period, it also offers an opportunity to engage more of the represented group and involve them in the negotiation process. Most unions have never had to engage in virtual bargaining, and adjusting to the changing format requires some intentionality. Leadership is responsible for setting up the virtual forum for formal impact bargaining, which is a public meeting open to anyone. However, during caucus 1 , unions will want to operate their own separate virtual platform not tied to their administration and switch between these two with attending members to keep them engaged and visible. This is quite different than bargaining at a physical table, in person, with administration on one side, and the bargaining team and unit members on the other, presenting and discussing proposals face to face, and then separating into two separate physical spaces for caucus periods. One of the largest opportunities for unions to come from this is to increase member turnout and engagement; unions should take every opportunity to increase email communications during this emergency period to ensure members are informed, included, and empowered to participate in a larger way in these virtual spaces. While the essence of collective bargaining stems from the desire to achieve the best outcomes for the bargaining unit as a whole, advocating for those most affected and least advantaged during times of crisis must be prioritized in a search for just conditions (Rawls, 2001) . During crises such as the COVID-19 pandemic, this may not inherently default to those who are the lowest paid in the bargaining unit, as one might assume. Certainly low-wage workers are deeply affected by crises that generate financial instability, because they may not have amassed enough savings to weather the storm, but even high-wage public sector employees may be on the front-line of emergency management and therefore disproportionately exposed to risk. In the higher education system, graduate assistants (GAs) are easily categorized as one of the most marginalized and vulnerable employment groups within a university system, despite the critical role they play in organizational operations. In the example of UFF-FSU-GAU, GAs across departments are compensated very differently. In response to COVID-19, UFF-FSUparty leaving the main room in which they are meeting and going to another private space before they both agree to reconvene and resume discussions. GAU, quickly prioritized protecting two of the most vulnerable groups of employees -on one end of the spectrum, vulnerable employees typically paid the least -GAs in the music, theater, and dance departments, because immediately many of their summer appointments were eliminated in an effort to defer mounting university deficits. Moreover, university departments have, in the past, manipulated these employees" appointment start and end dates to the point that these workers actually earn less than the minimum stipend outlined in the CBA. While summer appointments are not guaranteed because regular appointments are on a nine-month timeline covering the fall and spring semesters, many GAs are approved to take on teaching duties in the summer for additional income. Many were going to be conducting one-on-one instruction, and in a term when assistantships are not guaranteed, the university decided to offer fewer positions that could not easily accommodate multitudes of students in online sections. While these GAs did not yet have their summer offer letter in hand, experiencing this unit loss early on in COVID-19 response helped guide building in added protections for subsequent semesters, to help especially those most vulnerable. This solidified the need to advocate that part of the MOU which flushed out reappointment protections. However, another marginalized group also exists and was identified on the opposite side of the spectrum. GAs in the STEM fields, which are typically paid among the highest rates within the university, were still required to go in to work during the initial few weeks of closures when virtually everyone else was working from home. Their own full-time faculty who oversee their work were no longer coming into the labs, but deemed their GAs as essential employees and had required them to show up to campus in person, often in smaller groups, to complete lab research. This created a great deal of anxiety and frustration, from the fear of running out of essential supplies such as personal protective equipment (PPE). UFF-FSU-GAU elevated this as a need to start impact bargaining with administration to address this issue, and while it was resolved and administrative review procedures for who would be considered "essential" were put into place, perhaps those three weeks of anxiety-inducing work could have been avoided if impact bargaining could have started even sooner. While a very small handful of GAs are still classified as essential, it is now a much smaller number, and they have safeguards and guarantees that they will receive what they need to complete their job safely. The context of this example can be transferred to nearly any other bargaining unit: a large bargaining unit with vastly different job duties and associated compensation, some portion of the employees being deemed essential frontline workers and therefore facing significant personal risk, shortage of adequate and necessary supplies, and disproportionate change in their day-to-day ability to perform job duties. This reinforces the need for a comprehensive evaluation of who is most affected within a unit and to ensure the ways in which they need to be supported and protected are clearly delineated in impact bargaining strategies. State policy can dramatically influence union membership, mobilization efforts, and civic participation of members, but public employee unions also influence policy making at every level of government, and union commitment can directly and indirectly increase employee job satisfaction (Davis, 2013; Flavin & Hartney, 2015; Riccucci, 2011) . Public employee unions should be mindful of the interconnectedness of public policy and public labor relations during impact bargaining and integrate the government response to the crisis and negotiations. In both require officers to interact with the public thereby increasing likely exposure to COVID-19 (Cohen & Kupferschmidt, 2020; Eligon & MacFarquhar, 2020) . Other public employees were also deemed essential to ensure that government operations and revenue generation continued during the crisis, and therefore had to show up to work despite the dangers and the lack of PPE (Mays & Goodman, 2020) . In each of these cases, public sector unions intervened in certain jurisdictions to provide public employees with protections and conditions that these policy makers overlooked in the protective orders. Labor relation leaders must be keenly aware of the public policy responses to crises and the disproportionate impacts for certain employee groups, both contemporaneously and after the crisis has ended. In our own experience, we understood that operational disruptions would disproportionately harm graduate assistants that require scientific lab workstations, archival materials, travel, or other fieldwork to make progress in their degree program, a necessary employment condition. All covered employees benefited from the guaranteed protections that targeted these unique circumstances resulting from state policy response to COVID-19. Public policy change itself may necessitate impact bargaining across sectors, such as when food workers unions challenged working conditions in meat processing plants, which were mandated to stay operational through an executive order (Swanson & Yaffe-Bellany, 2020). Public unions must therefore remain hypervigilant of policy change during crises in order to protect members during a rapidly changing policy landscape. When formulating impact bargaining negotiation plans, union leaders should be strategic and intentional about securing agreements that are achievable in the current crisis and provide the best employment protections for members. This can be best achieved by focusing on nonresource-based protections since leadership may be unable to provide financial commitments during financial catastrophes. In our own experience, we initially proposed a refund of graduate student fees, since campus operations ceased on March 13 th , 2020, as one resource-based request for university leadership. This was a particular sticking point, which the union dropped to focus on other non-resource-based priorities. Union leadership should therefore consider the fiscal environment and policy changes which address the causes of financial crises. During the farreaching COVID-19 crisis, financial impacts remain unknown and unpredictable across sectors and industries, but the effects will likely last for years. As a result, rather than trying to impact bargain for 100% salary guarantees, for example, it is more advantageous to focus on general job security, protecting health insurance coverage, and working conditions for public employees. Putting guarantees on the longevity of job security and health insurance over direct salary benefits enables a union to protect the largest number of people possible. This also allows leaders to use tools such as furloughs to solve budget crises. Aggregate public employee groups view furloughs as reasonable during troubled times and have little influence on employee turnover (Grissom, Viano, & Selin, 2016; Lee & Sanders, 2013) . A furloughed employee is better off than a terminated employee. At the time of this writing, cities and states have already signaled that, without federal intervention, hundreds of thousands of public employees could be terminated in response to the COVID-19 fiscal crisis (Romm, 2020) . Limiting the flexible tools available to leadership during financial crises through an impact bargaining MOU is not in the best interest employees. Labor relations leaders should acknowledge that workforce reduction tools are inevitable, but should embrace the least harmful and temporary options such as furloughs and work-sharing arrangements that may reduce pay, but maintain long-term employment (Skuterud, 2007; Wright, Christensen, & Isett, 2013) . It is crucial that public unions take the extra steps needed to ratify their MOUs from impact bargaining. During normal conditions, at the conclusion of bargaining, the union would disseminate the agreed upon and signed contract to the bargaining unit for review, giving them two weeks" notice to review the new contract, and are provided with several dates and locations where dues-paying members can appear in person to submit a secret ballot. At the conclusion of vote collection, the ballots are counted, numbers are reported and the contract is considered certified in accordance with the state-level Public Employer Relations Commission (PERC) (Public Employees Relations Commission, 2020). Without ratification, the MOU is an unenforceable agreement with leadership based on a goodwill commitment. The CBA is what is enforceable and applicable for grievance procedures as needed, and without ratifying a newly established MOU, negotiated protections may lack legal force. For example, if the administration takes action that causes direct harm to members of your unit in violation of the MOU, the union will not be able to follow grievance procedures or file an unfair labor practice (ULP). While some states allow for online ratification, a 2008 case in Florida set precedent (United Teachers of Dade v. The School District of Miami-Dade County, 2008), and Florida"s PERC has not allowed online ratification due to issues tied to voter custody and transparency, factors that at that time they deemed difficult to uphold in an online format. At the time of this writing, Florida"s PERC is currently working with unions to approve ratification procedures virtually during this COVID-19 emergency period. Currently these procedures can vary by state PERC offices, so units should contact their statewide office to complete the appropriate forms required to apply for a variance to conduct ratification of COVID-19 MOUs online. Once the variance is granted, unions can utilize a host of online vendors through which to case their online ratification vote. To uphold validity, it is best to use a platform that provides a tracking number for each case vote, allowing the caster of the vote to see that their vote was in fact counted correctly, and answers the transparency issue of concern to the union. Once the vote is ratified, similar to during normal times, the union can communicate the outcome to administration and have now established solid legal protection for the MOU. Completing this virtual ratification also connects back to Recommendation 1, because this step gives people in the bargaining unit power and ownership in this process. Importantly, we are not suggesting that the MOUs should attempt to finalize the labor relation response to the crisis. The end date of the crisis may be unknown, such as the case for COVID-19. This uncertainty reinforces the importance of flexibility in the MOU"s language to ensure that the agreed-upon guarantees will be in effect for the duration of the crisis. The MOU is not something that should be time-bound by a specific date, but rather kept in effect for as long as normal operations are disrupted as a result of the crisis (UFF-FSU-GAU, 2019). A crisis such as COVID-19 is a pressure cooker, decreasing the time but increasing the pressure on both administrative leadership and employees in the negotiation process (Venn, 2009 ). Public labor relations leaders must respond quickly and strategically to protect employees. Impact bargaining is infrequent, but can dramatically affect the lives of public employees for years after the end of the crisis. We have identified several strategies to increase the likelihood of successful negotiations during times of crises such as COVID-19 or the Great Recession. Of utmost importance is for union leaders to identify how the crisis will affect public workers and negotiate accordingly. In these uncertain times, impact bargaining should be a dynamic communication process between public leaders and public sector unions. Notes: The directory of US faculty contracts and bargaining agents in institutions of higher education Collective bargaining; approval or rejection Florida house passes HB1, called an opt out measure by supporters, 'union busting' by opponents. WFSU News Unionization and work attitudes: How union commitment influences public sector job satisfaction When government subsidizes its own: Collective bargaining laws as agents of political mobilization Collective bargaining in a time of crisis: Developments in the private sector in europe Understanding employee turnover in the public sector: Insights from research on teacher mobility Fridays are furlough days: The impact of furlough policy and strategies for human resource management during a severe economic recession Before the crisis, in the crisis, and beyond: The upheaval of collective bargaining in germany Collective bargaining reforms in southern europe during the crisis: Impact in the light of international standards. Employment Relations in an Era of Change Understanding and managing public organizations Justice as fairness: A restatement Mass layoffs begin in cities and states amid coronavirus fallout, threatening education, sanitation, health and safety Identifying the potential of work-sharing as a job-creation strategy United Teachers of Dade v. The School District of Miami-Dade County Union members summary Legislation, Collective Bargaining and Enforcement: Updating the OECD Employment Protection Indicators Motivated to adapt? the role of public service motivation as employees face organizational change The politics of management Jossey 1 UFF-FSU-GAU is the legal union representing all Teaching Assistants (TAs), Graduate Assistants (GAs), and Research Assistants (RAs) employed by Florida State University. UFF-FSU-GAU represented a total bargaining unit of 2,700-3,000 GAs, with more than 600 dues paying members. UFF-FSU-GAU is one of thirty-two chapters of United Faculty of Florida (UFF), which includes more than 9,000 dues paying members across the state.