Appeal of Town of Brookline (New Hampshire Public Employee Labor Relations Board)
Submitted: January 22, 2014.
Public Employee Labor Relations Board.
Law Offices of Shawn J. Sullivan, PLLC, of Concord ( Shawn J. Sullivan on the brief), for the petitioner.
Devine, Millimet & Branch, P.A., of Manchester ( Donald L. Smith and Anna B. Peterson on the brief), for the respondent.
James F. Allmendinger, of Concord, by brief, for NEA-New Hampshire, as amicus curiae.
LYNN, J. DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.
[166 N.H. 203] Lynn, J.
The respondent, the Town of Brookline (the Town), appeals the decision of the New Hampshire Public Employee Labor Relations Board (PELRB), based upon stipulated facts and exhibits, which found that the Town engaged in an unfair labor practice by refusing to bargain with the petitioner, AFSCME, Council 93 (Union). On appeal, the Town argues that the PELRB erred by ruling that the Town had a duty to bargain with the Union even though the bargaining unit in question, originally certified in 2001, currently contains fewer than ten employees. We affirm.
The following facts either were found by the PELRB or are facts to which the parties stipulated. In October 2001, the PELRB originally approved the bargaining unit and certified the Brookline Police Officers Association (Association) as the bargaining unit's exclusive representative. At the time, the unit contained at least ten employees. As originally certified, the bargaining unit consisted of the patrol officers and a sergeant.
Shortly after the bargaining unit was approved, the Town filed a petition to modify the bargaining unit to exclude the sergeant position. As a result, in April 2002, the PELRB amended the certification between the Association and the Town to exclude the sergeant position from the bargaining unit. Thereafter, the Association and the Town agreed to modify the bargaining unit to include the position of corporal, and, in April 2004, the PELRB amended the bargaining unit description accordingly. In February 2005, the Association filed a petition to change its union affiliation. The [166 N.H. 204] Town objected to the petition, in part, because, as of February 2005, " there [were] no more than eight positions in the bargaining unit, consisting of four full-time police officers, three part-time police officers, and one corporal." In April 2005, the Town withdrew its opposition to the Association's petition to change its affiliation. The PELRB granted the petition for changed affiliation on April 22, 2005, and on that date issued an amended certification of representative.
The number of employees holding bargaining unit positions since 2001 has fluctuated. It is undisputed that when the bargaining unit was certified, it contained at least ten employees. ...