HR Report: Communicating with Unionized Employees During Negotiations and the Impact of Appeal of State of New Hampshire

The HR REPORT

Communicating with Unionized Employees During Negotiations and the Impact of Appeal of State of New Hampshire

By Mark T. Broth

Under the Public Employees Labor Relations Act (PELRA), employers are required to negotiate in good faith with the union selected by employees to represent a bargaining unit. Negotiations are expected to be made across the bargaining table between employer and union representatives, each of whom are selected solely by their own side. This process can at times be frustrating, particularly when an employer believes that a union negotiating team is keeping bargaining unit members in the dark or misinforming them about the employer’s proposals. Employers who attempt to educate employees regarding the status of negotiations and management proposals are often accused of committing unfair labor practices. Unions argue that direct communication with bargaining unit members during negotiations violates the obligation to bargain with the chosen employee representative and constitutes unlawful “direct dealing.” Unions further argue that direct communication with employees interferes with the internal operation of the union and interferes with employees in the exercise of their collective bargaining rights.

In Appeal of State of New Hampshire, decided on July 21, 2022, the New Hampshire Supreme Court, in a rare 3-2 decision, held that the PELRA does not place broad restrictions on an employer’s ability to communicate with employees while negotiations are ongoing. The case arose from negotiations between the State and the several unions that represent State employees. When negotiations that began in 2018 reached an impasse, the parties engaged a fact finder to assist in reaching an agreement. A fact finder’s report was issued in November 2019. Governor Sununu rejected the fact finder’s report and refused to submit it to the Executive Council. Instead, he made an alternate proposal to the unions. Just prior to an announced State Employees’ Association (SEA) membership meeting to consider the fact finder’s report, Governor Sununu sent an email to all State employees, including SEA unit members. In that email, he compared the State’s recent proposal with the fact finder’s recommendation and encouraged the unions to reconsider the State’s proposal. The SEA filed unfair labor practice charges, alleging that the Governor’s communication with employees constituted unlawful direct dealing, interference with union members’ rights and the administration of union business, and an unauthorized communication with the Union membership. The SEA further alleged that the Governor was obligated to submit the fact finder’s report to the Executive Council. The PELRB ruled in the SEA’s favor on each of these allegations. On appeal, the Court reversed the PELRB. The Court held that the Governor’s communication with employees did not interfere with employee rights, as it did not contain any threats that employees would lose their jobs or be the victims of retaliation if they voted in favor of the fact finder’s report. The Court held that even if the Governor’s email contained misrepresentations, as the Union had alleged, it would not be considered an interference with employee rights unless the statements had a tendency to intimidate, coerce, or unduly influence employees with regard to the State’s bargaining proposal. The Court further held that the Governor’s email did not constitute unlawful direct dealing. The Court noted that the Governor’s email did not contain threats of retaliation or job loss, did not solicit feedback about state employee’s views on the negotiations, or encourage employees to deal directly with the State if they were displeased with their Union representation. The Court pointed out that the email acknowledged the Union’s role in negotiations and did not disparage unions generally or with regard to these negotiations. The Court further found that RSA 273-A:12, which establishes a procedure for employers to speak directly to bargaining unit members and labor representatives to speak directly to governing bodies did not preclude the Governor from emailing State employees directly. The Court concluded that the Governor’s action was not an attempt to bypass the unions and negotiate directly with the workforce.

Finally, regarding the disputed obligation to submit the fact finder’s report to the Executive Council, the Court noted that the PELRA makes the Governor the State’s sole representative in collective bargaining. The Court concluded that as the Ex-

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ecutive Council is not a legislative body, has no official role in the bargaining process and cannot override the Governor’s rejection of a fact finder’s report. Therefore, the Governor has no obligation to submit the fact finder’s report to the Executive Council.

The Court’s decision means that public employers may be able to provide carefully worded communications to employees while labor negotiations are ongoing. Before doing so, employers should consider the overall impact of communications on the bargaining process. Collective bargaining takes place in non-public settings to allow for the free exchange of ideas. In a public setting, the ability to compromise, which is at the heart of all negotiations, would be hindered by the pressure to posture for each parties’ respective constituency. Accordingly, the Court’s decision will likely place greater importance on ground rules negotiated by the parties that establish limitations on communications away from the bargaining table.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.

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