NLRB Finds College Failed To Properly Bargain With Union About COVID-19 Mask Mandate And Return To In-Person Work

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: May 25, 2023

Goddard College Corporation is a non-profit liberal arts college that provides educational services in Plainfield, Vermont, and Seattle and Port Townsend, Washington. Most of the administrative staff is based at the Plainfield campus.

An alumnus, Dechen Albero, expressed interest to Goddard’s former director of development about the advertised opening for the position of assistant director of development. Albero resides full-time in Sanibel, Florida, and was only interested in working remotely, which the director of development approved. Albero applied and was hired on September 28, 2020.

All full-time, regular part-time, and temporary administrative, clerical, technical, maintenance, and service employees, employed at the Plainfield campus, excluding faculty, managerial, and confidential employees, guards, and supervisors, are part of the staff bargaining unit.

In March 2020, Goddard directed all staff bargaining unit members to work remotely, wear masks on campus, socially distance, and refrain from coming to work if sick. The same month, the Governor of Vermont followed with similar mandates and recommendations. In June 2021, Vermont rescinded the mask mandate but recommended the continuing wearing of masks in work areas. Goddard kept the mask mandate in place until September 10, 2021. During the summer of 2021, Goddard informed the Union of its intention to have staff bargaining unit members return to work at the Plainfield campus.

The Goddard representatives and the Union representatives met several times during August and September 2021, during which time the union representatives expressed concerns regarding the continuing impact of the pandemic and instead proposed an October 18 return date, which Goddard rejected. The parties continued to negotiate the return to campus, and the union representative emailed a proposed Memorandum of Agreement, which included, among other things, a mask requirement when in public indoor spaces. Goddard wanted to downgrade the mask mandate to a mask recommendation, which the union representatives agreed to discuss with their members. The parties also negotiated over the amount of sick leave. Goddard said they would discuss it further with President Hocoy. Goddard agreed to delay the return to work until September 27 while the parties continued discussions.

President Hocoy called the union representative on September 15, saying Goddard would defer to the relevant jurisdictions on the mask mandate. The union representative disagreed and explained the importance of the mask requirement to unit employees. A few minutes later, Goddard’s representative emailed the union leadership with Goddard’s last, best, and final offer, which included that Goddard would follow the mask and vaccination mandates of the relevant jurisdiction and that the return to campus date would be September 27, 2021. The parties met again on September 21, and the Goddard representative reiterated that the decision to eliminate the mask mandate was not subject to negotiation. The parties discussed but continued to disagree about the mask mandate, the union insisting that it provided vital protection against COVID, while Goddard asserted that vaccinations remained the primary protection against COVID and no employee was prohibited from wearing a mask.

On June 25, 2021, Albero’s supervisor, the director of development, resigned. The position remained vacant, and Albero continued to work remotely in his capacity as assistant director of development. President Hocoy, having inherited serious budget crises, decided that he wanted the assistant director of development to be on campus in order to engage donors in person. On October 13, Albero received an email from Goddard’s representative, stating that his position would be required to be located on campus in Plainfield, Vermont starting on November 3, 2021. The union was not included in the initial communication to Albero, but two minutes after sending the email, Goddard’s representative forwarded the email to the union representatives.

Albero told Goddard that the union was filing an unfair labor practice charge challenging the legality of Goddard’s actions. The Goddard representative replied that if Albero did not report to campus, Goddard would consider Albero to have abandoned his job. Goddard locked Albero out of the network when Albero failed to report to campus on November 3.

The National Labor Relations Act requires an employer to provide its employees’ representatives with notice and opportunity to bargain before instituting changes to mandatory bargaining subject matters. For the employer’s unilateral action to be determined unlawful there must be a material, substantial, and significant change in these terms and conditions. If a party is claiming an impasse as the basis for its unilateral action, the party has the burden of proving that an impasse in negotiations actually existed, which occurs when, despite the parties’ best efforts to reach an agreement, neither party is willing to move from its position.

Goddard argued that there was an impasse because they met six times to bargain over the return to work rules and sent their last, best, and final offer on September 15. The Board disagreed. Goddard’s representative never claimed on or before September 10 that the parties were at an impasse on any issue. There was movement between the parties on September 10, with agreement on one issue, a tentative agreement on another issue, and disagreement on two issues. On the two issues where they disagreed, Goddard’s representative said she would discuss the matter with President Hocoy. This created a reasonable expectation by the union representatives that they would hear back. Goddard violated the National Labor Relations Act by implementing a return-to-campus policy that included a return-to-work date of September 27 and a change from a mask mandate to a mask recommendation, without first bargaining with the union to an overall good-faith impasse.

In regard to Albero’s termination, the Board noted that Albero’s remote work location was clearly a term and condition of his employment. He was assured he could work remotely by his supervisor and he received an additional Remote Worker Stipend of $50.00 per month. The job description for the associate director of development did not mention where the position’s work was to be performed. President Hocoy changed a fundamental term of Albero’s employment before consulting the union. Although the union was notified shortly thereafter, the change was already implemented, and when the union asked for a timeout in order to bargain over this change, Goddard unlawfully rejected that proposal. Modifying Albero’s work location constituted a material change that was done without providing the union with timely notice and a meaningful opportunity to bargain. Goddard violated the National Labor Relations Act when it unilaterally changed Albero’s work location without first notifying and bargaining with the union.

Goddard Coll. Corp. & United Auto Workers Local 2322, 372 NLRB No. 85 (May 3, 2023).

Note: This case emphasizes the importance of bargaining all material changes to employment with the appropriate union, and, when the parties cannot come to an agreement, bargaining changes to an impasse before implementing any changes. Goddard was issued a cease-and-desist order, and, among other remedies, was required to reinstate Albero to his previous position, provide Albero back pay, compensate Albero for any tax consequences related to the back pay, and rescind all unilateral changes implemented by Goddard on September 15, 2021.

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