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Public Employee Labor Relations Board

October 16, 2012


APPEAL OF TOWN OF MOULTONBOROUGH (New Hampshire Public Employee Labor Relations Board)

The opinion of the court was delivered by: Conboy, J.

a.m. on the morning of their release. The direct address of the court's home page is:

Argued: April 5, 2012

The respondent, Town of Moultonborough (Town), appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) granting a petition for certification filed by the petitioner, New England Police Benevolent Association, Inc. (NEPBA). We affirm in part, reverse in part, and remand.

In June 2010, the NEPBA filed a petition for certification of a proposed collective bargaining unit to be composed of "[a]ll sworn and non-sworn employees of the Town of Moultonborough Police Department excluding the Chief of Police." The proposed bargaining unit contained fourteen employees in seven different positions. The Town objected to the petition on the basis that RSA 273-A:8, I (2010) (amended 2011) requires a minimum of ten employees to

form a bargaining unit, and that this requirement was not met because several of the positions were not statutorily eligible for inclusion. The Town argued that the executive assistant, communication specialist, and prosecutor positions, and a probationary employee lacked a "shared community of interest" with the remaining members of the proposed unit. The Town also argued that the executive assistant was a confidential employee, see RSA 273- A:1, IX(c) (2010), and that the sergeant and corporal positions were supervisory positions, see RSA 273-A:8, II (2010).

In January 2011, after an evidentiary hearing, a PELRB hearing officer certified a bargaining unit composed of the following positions: sergeant, corporal, master patrol officers, patrolman, executive assistant, and communication specialist/dispatcher. The hearing officer, acting for the PELRB, excluded the position of prosecutor, finding it lacked a community of interest with the other positions in the unit. She also excluded one "on call" communication specialist position. See RSA 273-A:1, IX(d) (2010) (exempting persons employed "on call" from the definition of "public employee").

The Town filed a motion to review the hearing officer's decision. The PELRB denied the motion and approved the hearing officer's decision. In a decision footnote, the board noted that the Town failed to include a "duly prepared transcript of the proceedings." See N.H. Admin. Rules, Pub 205.01(b). Subsequently, the Town moved for a rehearing, noting that the transcript of the proceeding was not attached to its electronic submission through "inadvertent error." The board denied the motion, and this appeal followed.

On appeal, the Town challenges the PELRB's inclusion in the bargaining unit of the corporal, sergeant, executive assistant, and communication specialist positions. "When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable." Appeal of State Employees' Assoc. of N.H., 156 N.H. 507, 508 (2007) (quotation omitted).

The principal consideration in determining a proper bargaining unit is whether there exists a community of interest in working conditions such that it is reasonable for the employees to negotiate jointly. Appeal of the University System of N.H., 120 N.H. 853, 855 (1980). Pursuant to RSA 273-A:8, I, the PELRB must consider such criteria as similarity in conditions of employment, a history of workable and acceptable collective negotiations, and identity of organizational units. Further, PELRB regulations set forth additional factors for consideration, including: a common geographic location of the proposed unit, the presence or absence of common work rules and personnel practices, common salary and fringe benefit structures, and the potential for division of loyalties between the public employer and the employees' exclusive representative. N.H. Admin. Rules, Pub 302.02. In construing "community of interest," therefore, we consider such factors as skills, duties, working conditions, employee benefits, the organizational structures of the employer, and the extent to which the work is integrated. Appeal of University System of N.H., 131 N.H. 368, 372 (1988) (quotations omitted).

Based upon the evidence presented at the hearing, the PELRB concluded that, with the exception of the position of prosecutor, [a]ll other employees in the proposed bargaining unit function within the same organizational unit and share a community of interest. They work for the same department in the field of law enforcement, work at the same building, and are covered by the same personnel rules, policies, and evaluation and grievance procedures. The members of the proposed unit interact with each other on [a] regular basis.

The Town first asserts that the PELRB erred in finding that there was a sufficient community of interest between the position of communication specialist and the other members of the bargaining unit. It argues that the "PELRB placed undue emphasis on the fact that only one condition needs to be present to support a finding for shared community of interest and, in doing so, ignored the reasonableness standard." In addition, it asserts that the board "made general findings regarding all employees of the proposed bargaining unit, but failed to provide a specific analysis . . . as to each category of employee."

The Town's assertions ignore the fact, however, that the statutory and regulatory framework that guides PELRB decisions is flexible, and gives much discretion to the PELRB's expertise. Appeal of University System of N.H., 131 N.H. at 374. Both the statute and regulation require only that certain factors may be considered in determining whether a community of interest exists. See RSA 273-A:8, I ("The community of interest may be exhibited by one or more of the following criteria, although it is not limited to such . . . ." (emphasis added)); see also Appeal of Town of Newport, 140 N.H. 343, 354 (1995). Thus, the PELRB need not find each criterion satisfied in order to find that a community of interest exists. Appeal of University System of N.H., 131 N.H. at 374.

Moreover, the record does not support the Town's assertion that the PELRB ignored the reasonableness standard and placed undue emphasis on only one criterion in reaching its conclusion. The PELRB found that with the exception of the prosecutor, all other employees in the proposed bargaining unit function within the same organizational unit. See RSA 273-A:8, I(d). It also found that all of the employees, except the prosecutor, are covered by the Town's personnel policy and by the police department's rules and regulations. See N.H. Admin. Rules, Pub 302.02(b)(2)(a). In addition, the PELRB found that all of the employees work in a common geographic location, the Town's public safety building, and interact on a regular basis. See N.H. Admin. Rules, Pub 302.02(b)(1). Based upon these findings, which are supported by the record, we cannot say that the board's conclusion is unreasonable or unjust. "We will not, therefore, under the circumstances, substitute our judgment for that of the board on this issue." Appeal of the University System of N.H., 120 N.H. at 855.

The Town next argues that the PELRB erred by failing to address its objection to the NEPBA's late inclusion of two part-time employees occupying the communication specialist position and one on-call communication specialist. The PELRB, however, implicitly overruled the Town's objection to any tardy amendment of the proposed bargaining unit's members by specifically addressing the communication specialist position on its merits. While the PELRB hearing officer found "insufficient evidence to establish that [a part-time] Communication Specialist/Dispatcher . . . is an irregular, seasonal, on call, or temporary employee within the meaning of RSA 273-A:1, IX (d) or should otherwise be excluded from the bargaining unit," and therefore included the position, the board construed the statute to exclude an "on call Communication Specialist/Dispatcher ...

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