2006 Fall, Pg. 40. Collective Bargaining in New Hampshire's Public Sector: Thirty Years of Contentious Labor Peace.

AuthorBy Attorney James F. Allmendinger(fn*)

New Hampshire Bar Journal


2006 Fall, Pg. 40.

Collective Bargaining in New Hampshire's Public Sector: Thirty Years of Contentious Labor Peace

New Hampshire Bar Journal Fall 2006, Volume 47, No. 3Taxes, Trusts, Judicial Review, and more. . .Collective Bargaining in New Hampshire's Public Sector: Thirty Years of Contentious Labor PeaceBy Attorney James F. Allmendinger(fn*)Introduction

This article has two parts. The first, Sections I-IV, is a review of New Hampshire Supreme Court decisions on the public sector bargaining law. The second, Section V, discusses recurring problems under the bargaining law. The Public Employee Labor Relations Board's many significant decisions are too numerous for this article.

  1. A Brief History

    Public employees in New Hampshire gained the right to bargain collectively in the Public Employee Labor Relations Act of 1975.(fn1) Before 1975, collective bargaining in New Hampshire's public sector was "permissive," not mandatory.(fn2) The public employer decided if it would bargain and what it would bargain. If a public employer decided it had had enough of bargaining, the public employees had little choice but to give up or strike. Some public employees decided to strike.(fn3)

    In 1974, a unanimous New Hampshire Supreme Court surprised many by refusing to enjoin a teachers strike in the Timberlane School District. The Court concluded that stopping the strike would frustrate bargaining, since "the essence of the collective bargaining process is that the employer and the employees should work together in resolving problems relating to employment."(fn4) The Court made it clear that it thought the time had come for a bargaining law.(fn5)

    A House-Senate conference committee created a labor-management committee to draft a bill dealing with bargaining and strikes.(fn6) That bill took effect in 1975 when Governor Meldrim Thompson signed the bill into law. The Act declared that the State must "protect the public by encouraging the orderly and uninterrupted operation of government."(fn7) The Act made bargaining mandatory and created a Public Employee Labor Relations Board "vested with broad powers to assist in resolving disputes between government and its employees."(fn8)

    The new agency's broad powers focused on holding secret ballot votes to determine whether employees wanted to be represented by a union, and then, if the union won the vote, requiring public employers to bargain collectively in good faith with the union. In the main, the law has worked. It has largely ended strikes and otherwise preserved labor peace. But more than one hundred Supreme Court decisions since 1975 attest to the fact that labor peace has been restive.

  2. Structure of the Public Employee Labor Relations Board

    The legislature declared that "the policy of the state [is] to foster harmonious and cooperative relations between public employers and their employees" and to that end created the Public Employee Labor Relations Board (the Board or the PELRB). The Board has the duty to carry out two broad policies:

  3. Acknowledging the right of public employees to organize. . . . [and]

  4. Requiring public employers to negotiate in good faith . . . with employee organizations that have been certified as representing their public employees.(fn9)

    As a result, the PELRB primarily deals with two broad responsibilities - representation cases, in which a union is certified as the exclusive representative of public employees following a secret ballot vote; and unfair labor practice cases, mostly regarding the duty to bargain in good faith. The Board has "broad powers to assist in resolving disputes between government and its employees."(fn10)

    There is, of course, more to it than that, but that is the core. In representation cases, the PELRB must also decide, for example, which employees belong in a union and which employers are subject to the Act.(fn11) In unfair labor practice cases, more is at stake than just refusals to bargain in good faith when, for example, a union organizer is fired or a union goes on strike. But the core is still certifying unions for bargaining, and then requiring public employers to bargain in good faith with that certified representative. All else is in aid of those two purposes.

    The PELRB itself is made up of five members and four alternates appointed by the Governor and Council.(fn12) Two board members must have extensive experience representing organized labor and two members must have extensive experience representing management. The fifth member serves as the chairman and represents the interests of the public at large. Labor, management and the public must all be represented in Board decisions.(fn13)

  5. The Coverage and Jurisdiction of the PELRB

    Under the Act, public employers are broadly defined as the state and any political subdivision thereof, any quasi-public corporation, council, commission, agency or authority, and the state university system.(fn14)

    Public employees are broadly defined as any persons employed by a public employer. However, a person is not considered a public employee if elected by popular vote or if appointed to office by the chief executive or legislative body of the employer.(fn15) Probationary employees have limited rights,(fn16) and other particular types of employees such as confidential or temporary employees(fn17) may be excluded from union representation by statute or Board decision.

    Court personnel are covered by the Act, RSA 273-A:9-a, but employees of the legislature are not.(fn18)

  6. "The Union Comes to Town" - Representation Elections under RSA 273-A

    Collective bargaining is democracy in the workplace, and secret ballot votes determine whether employees will be represented for purposes of collective bargaining. Under the Act, the PELRB must certify an employee organization as the exclusive representative of a bargaining unit, and the PELRB may not do so unless a representation election is held pursuant to RSA 273-A:10, V.(fn19) The procedure is summarized as follows.

    First, a petition is filed by employees seeking an election. Under PERLB rules, the petitioning employees should try to reach agreement with the public employer on the make-up of the bargaining unit. Second, a hearing is held to determine what is the appropriate bargaining unit and which employees are eligible to vote in the secret ballot election. Third, an election is held among those employees in the appropriate bargaining unit. Fourth, if a majority vote is for the union, the union is certified as the exclusive representative unless there are challenges to the conduct of the election. And fifth, an order is issued certifying the union and requiring the employer to bargain.

    1. The Representation Petition

      A representation election is held when a group of at least thirty percent of the employees files a petition for election with the PELRB.(fn20) In most instances, the Board will then schedule a hearing to determine the appropriate bargaining unit. However, elections are barred if there is an existing collective bargaining agreement, RSA 273-A:11, I (b), or if an election has been conducted within the preceding year. RSA 273-A:10, III. Where there is no certified representative, petitions for certification may be filed at any time.(fn21)

      Public employers may also file petitions with the Board when they have a good faith doubt about the majority status of the union.(fn22) These limitations preserve administrative resources and minimize the disruption in the workplace caused by elections.(fn23) An employer's agreement on election procedures and bargaining units is binding.(fn24)

    2. The Appropriate Bargaining Unit

      What is "appropriate" can be hotly contested. The inquiry is fact-specific and no one factor is necessarily determinative.(fn25) Disputes generate numerous appeals. Public employers vigorously "protect" employees they believe to be confidential or supervisory. Unions often want the same employees in the bargaining unit, if for no other reason than to reach the 10 employee minimum. Other issues arise where the employees organized a union prior to RSA 273-A, because such units are "grandfathered" and may be at odds with later decisions on appropriate bargaining units.(fn26)

      1. "Community of Interest"

        The first issue in determining an appropriate bargaining unit is whether "there exists a community of interest in working conditions such that it is reasonable for the employees to negotiate jointly."(fn27) In determining community of interest, factors such as skills, duties, working conditions, benefits, the organizational structure of the employer and the extent to which work is integrated are considered.(fn28) Additionally, the Board considers the geographic location of the work, common work rules and common salary structures, the self-felt community of interest, and the potential for division of loyalties within the proposed bargaining unit.(fn29) Exclusions are required for employees of limited tenure, such as those in a probationary or temporary status, those employed seasonally, or those on on-call status.(fn30) The Court has more often than not deferred to the PELRB's application of the community of interest factors.(fn31)

      2. The ten employee minimum

        Public employers can avoid bargaining altogether if there are fewer than ten employees in an "appropriate" bargaining unit. RSA 273-A:8 (d). In an early case, the town lost its argument that probationary employees should not be counted towards the minimum ten employees before the PELRB...

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