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Appeal of Strafford County Sheriff's Office

Supreme Court of New Hampshire

November 13, 2014

Appeal of Strafford County Sheriff's Office & a. (New Hampshire Public Employee Labor Relations Board)

Argued September 11, 2014.

Page 1062

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.

Public Employee Labor Relations Board.

Soldati Law Offices, P.A., of Portsmouth ( Lincoln T. Soldati on the brief and orally), for the petitioners.

Nolan Perroni Harrington, LLP, of Lowell, Massachusetts ( Peter J. Perroni on the brief and orally), for the respondent.

LYNN, J. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

OPINION

Page 1063

Lynn, J.

The petitioners, the Strafford County Sheriff's Office and the Strafford County Board of Commissioners (collectively, the county), appeal an order of the New Hampshire Public Employee Labor Relations Board (PELRB), which found that the county committed an unfair labor practice by changing the terms and conditions of employment of Sheriff's Office employees during the period when the respondent, the New England Police Benevolent Association, Local 295 (union), was seeking certification of a bargaining unit that included those employees. We affirm.

I

The following facts were found by the PELRB or are supported by the record. The county is a public employer. See RSA 273-A:1, X (2010). On July [167 N.H. 117] 13, 2012, the union filed a petition for certification with the PELRB, seeking approval of a bargaining unit comprised of certain employees of the Sheriff's Office. The PELRB subsequently approved a bargaining unit composed of the positions of deputy sheriff, dispatcher, and secretary. Following an election in December 2012, the union was certified as the bargaining unit's exclusive representative.

As of July 13, 2012, Paul Rowe and Michael Lemoi were employed as deputies in the civil department of the Sheriff's Office. They both worked a schedule of four ten-hour days per week (4-10 schedule). Pursuant to contractual arrangements

Page 1064

between the Sheriff's Office and the United States Immigration and Customs Enforcement (ICE), Rowe and Lemoi, as well as other deputies, also performed work for ICE, such as transporting detainees involved in ICE proceedings.

By September 2012, the county decided to establish two new full-time deputy positions dedicated to ICE work. The then-sheriff, Wayne Estes, discussed the new ICE positions with Rowe and Lemoi. Both deputies expressed interest in the positions, but only if their ICE work schedules consisted of five eight-hour work days per week (5-8 schedule). They sought 5-8 schedules for the ICE positions in order to maximize their potential for overtime earnings. However, both deputies preferred 4-10 schedules if they continued to work in the civil department, and neither deputy asked to have his civil department schedule changed to a 5-8 schedule.

In October 2012, the sheriff proposed a schedule for the new ICE positions, which called for Rowe and Lemoi to work 4-10 schedules. Lemoi responded by e-mail and requested the 5-8 schedule that he believed had been previously agreed upon. He also requested to stay in the civil department if the 5-8 schedules would not be implemented for the ICE positions. In response, the sheriff notified Rowe and Lemoi that they would ...


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