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Public Employee Labor Relations Board

Supreme Court of New Hampshire

May 22, 2015

Public Employee Labor Relations Board

Argued: March 31, 2015

APPEAL OF NEW HAMPSHIRE RETIREMENT SYSTEM (New Hampshire Public Employee Labor Relations Board)

Sulloway & Hollis, PLLC, of Concord (Edward M. Kaplan and Katherine DeForest on the brief, and Mr. Kaplan orally), for the petitioner.

Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the brief and orally), for the respondent.

LYNN, J.

The petitioner, the New Hampshire Retirement System (NHRS), appeals the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) denying the NHRS's petition to modify the composition of the respondent, Local 1984, a bargaining unit represented by the State Employees' Association (SEA), to exclude from the unit certain supervisory positions. See N.H. Admin. Rules, Pub 302.05(a). We reverse and remand.

I

The following facts were found by the PELRB or are otherwise not in dispute. The NHRS is a public employer within the meaning of RSA 273-A:1, IX (Supp. 2014). On September 13, 1978, the PELRB certified the SEA as the exclusive representative of a bargaining unit composed of certain of the NHRS's "[c]lassified state employees." Between 2004 and 2010, and without objection from the NHRS, the PELRB issued three orders modifying the bargaining unit at the SEA's request. In 2004, the unit description was modified to read as follows: "Employees of the NH Retirement System, with the exception of those employees excluded from the [applicable statutory] definition of public employee . . . ." In 2009 and 2010, while the general unit description remained unchanged from 2004, it was specifically modified to exclude certain enumerated positions, none of which are relevant to this appeal. Subsequent to these modifications, on December 7, 2011, the NHRS and the SEA entered into a collective bargaining agreement with effective dates from July 1, 2011, through June 30, 2013.

George Lagos became the executive director of the NHRS in February 2012. Upon assuming his new position, Lagos reviewed NHRS's procedures, methodology, written policies, and some job descriptions, and met with the Trustees and management team, all with the goal of developing a new business plan. Based upon his review, Lagos concluded that the NHRS lacked an effective management structure because the management team itself lacked responsibility, accountability, and authority. Specifically, he was concerned that managerial employees did not have a proper sense of the scope of their authority and responsibilities. Lagos instituted changes to improve the management structure of the NHRS, including the training of managerial employees, and developed a three-year business plan that involved, among other things, instituting performance evaluations.

Rosamond Cain was hired as the NHRS's Human Resources Manager in August 2012. Under the direction of Lagos, she helped to address concerns that certain NHRS employees did not perform their assigned responsibilities and needed assistance in managing their teams. As a member of the new management team, Cain participated in the creation of a three-part training program for management that focused upon evaluations, employee expectations, and job performance. She also amended job descriptions and conducted training sessions on performance appraisals and supervisor accountability.

The following NHRS positions, all members of the bargaining unit as currently constituted, were affected by the new management team's training efforts and are the subject of this appeal[1]: Retiree Services Team Lead, Employer Auditing Team Lead, Employer Reporting Team Lead, Member Accounts Team Lead (collectively "Team Leads"), Public Information Officer, and Controller. The Employer Auditing, Employer Reporting, and Member Accounts Team Lead positions were established on various dates in 2008; the record does not indicate when the Retiree Services Team Lead position was established. The Public Information Officer position was established in 1988, and the Controller position was established in October 2011. The job descriptions for all of these positions contain the following language:

Carries out supervisory responsibilities in accordance with the organization's policies and applicable laws. Responsibilities include interviewing, hiring and training employees; planning, assigning and directing work; appraising performance; rewarding and disciplining employees; addressing complaints and resolving problems.

. . .

Actively participates in NHRS' Management Team, including development and implementation of strategic planning initiatives, collaborative problem-solving and various project initiatives.

Prior to the new management team's efforts, these positions, as indicated by the job description, were responsible for managing other bargaining unit employees, but were not actually performing these responsibilities.

Cain testified that, under the new management regime, the Team Leads, Public Information Officer, and Controller now all have similar supervisory responsibilities, including assigning work, imposing discipline, and conducting performance evaluations of other employees who are members of the bargaining unit. The performance evaluations are reviewed by the human resources department and by Lagos, after which each employee's evaluation is placed in his or her personnel file. The evaluations may affect the employee's opportunities for promotion, lead to placement on an improvement plan, or result in discharge. The NHRS did not submit any completed performance evaluations to the PELRB hearing officer. Cain also testified that these positions now issue disciplinary letters and written warnings which, like the performance evaluations, ...


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