HR REPORT: Surviving the Pandemic Together

Mark Broth, Esq. and Anna Cole, Esq.

We are all in this together.  Establishing and maintaining an effective and cooperative relationship between labor and management is important in the best of times.  By any measure, we are not in the best of times.  As the pandemic drags on into the fall and winter months, it is important that we continue to recognize the benefits that can be reaped from positive labor/management relations.  This is especially true given changing circumstances created by the pandemic and the impact of governmental actions intended to keep us safe. 

One of the pillars of effective labor/management relationships is communication.  Through respectful communication, many employers learn that employees and their union representatives share many of the employer’s goals and objectives, which can often lead to better informed and happier work environments even during times of stress and anxiety.   

One topic that often benefits from advanced discussion is workplace safety rules.  In general, employers have the authority to adopt workplace rules, so long as the rules are not in conflict with any express provision of a collective bargaining agreement.  Over the last several months, the majority of New Hampshire employers have instituted new or modified existing workplace safety rules intended to address the risks posed by COVID-19 and to implement state and federal safety guidelines.  Some of those rules may have been first discussed and proposed through a Joint Loss Management Committee, composed of both management and labor representatives.   However, in response to the urgency of the moment, many employers have unilaterally implemented safety rules.   Even though well intentioned, unilaterally adopted rules are sometimes met with resistance.  Some of this might be avoided if employers inform union leadership of the intent to implement new or changed rules and the purpose underlying those rules.  Importantly, employers should consider giving union representatives an advanced draft copy of the rules and invite them to meet and confer with management before the rule is implemented.  These advanced conversations provide the employer with the opportunity to explain the basis for the rules and the factors that the employer is balancing – which are commonly a mix of operational concerns, financial concerns, and safety/best practice concerns.  Most, if not all, of these concerns are likely shared by the employees’ representatives.  Employers are often pleasantly surprised to find that employee representatives share many of their safety concerns, understand the need to maintain operations, and are just as invested in reaching a mutually satisfactory way of addressing safety-driven concerns.    Union representatives may help employers understand and anticipate employee concerns, identify areas where proposed rules might be improved, and alert the employer to an unintended consequence of the contemplated rule.  When union representatives have had the opportunity to provide input into a safety-driven rule, they are more likely to support its implementation. 

Of course, circumstances are not always that ideal.  A union may object to new or changed rules on both substantive and procedural grounds, arguing that the rules should be the subject of bargaining.     In those circumstances, an employer may need to decide whether the immediate safety considerations outweigh the risk of potential grievances or unfair labor practice charges.  And even if a dispute cannot be avoided, an employer who engages with employee representatives before implementing new or changed rules, may be able to narrow the issues and avoid misunderstandings that may unnecessarily undermine a rule before it even gets off the ground. 

As we all push forward beyond six months of the pandemic, we must rely on each other and our shared goals and objectives to see us through.  Ongoing communication with employees and their representatives is vital to furthering positive workplace culture in the face of unanticipated challenges.

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Mark Broth and Anna Cole are members of Drummond Woodsum’s Labor and Employment Group.  Their practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. 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. “Copyright 2020 Drummond Woodsum.  These materials may not be reproduced without prior written permission.”