2009-496, Appeal of New Hampshire Division of State Police

Michael A. Delaney

(New Hampshire Public Employee Labor Relations Board) APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE

No. 2009-496

the state police. See Public Employee Labor Relations Board disputed. The State, through its department of safety, is the public employer of The following facts were found by the PELRB or are not otherwise

reside. We reverse. practice by unilaterally reassigning state troopers to patrol areas in which they Relations Board (PELRB) finding that the division committed an unfair labor (division), appeals an order of the New Hampshire Public Employee Labor CONBOY, J. The petitioner, New Hampshire Division of State Police

sworn personnel employed by the division up to and including the rank of Troopers Association (association), is the duly certified bargaining agent for

Molan, Milner & Krupski, PLLC

and orally), for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE

attorney general, on the brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as void the February 2008 reassignment directive. The division unsuccessfully p. 2 based upon an illegal directive. Accordingly, the PELRB ordered the division to

“reasonable distance” and, as a consequence, the troopers were reassigned breached the collective bargaining agreement by unilaterally defining the term invalidates any portion of an agreement). It concluded that the division agreement), and RSA 273-A:5, I(i) (making any law or regulation that negotiate in good faith), RSA 273-A:5, I(h) (breaching a collective bargaining that the division’s unilateral actions violated RSA 273-A:5, I(e) (failing to areas in which they reside. After a two-day hearing, the PELRB determined defined residential “reasonable distance” and reassigned troopers to patrol with an unfair labor practice because it unilaterally and without negotiation The respondents filed a complaint with the PELRB charging the division

result of the seniority-based shift bidding procedure within each troop. income. However, some of the transferred troopers’ shifts were changed as a to move and there were no changes in rank, duties, job responsibilities, or These reassignments necessitated troop transfers. No troopers were required would be reassigned to patrol areas that included towns in which they resided. division advised troopers living outside their assigned patrol areas that they per year” for commuting to the assigned patrol area. In February 2008, the that would “not exceed a cost to the division over one hundred ($100) dollars distance” that a trooper could live outside his or her patrol area as a distance revised its Professional Standards of Conduct to define the “reasonable In January 2008, due to a concern about rising fuel costs, the division

to their assignments. were assigned. Troopers use division cruisers in commuting from their homes indicated that other troopers were also not living within the areas to which they their assigned areas. Subsequently, all troop areas were surveyed. The results fourteen of twenty-eight troopers assigned to Troop A were not living within 2 colonel undertook a survey analyzing trooper residency and discovered that trooper to live outside her assigned area. Around the time of this request, the initially denied the request, but later reversed his decision and permitted the change her residence to one outside her patrol and troop areas. The colonel In 2007, a trooper requested permission from the division colonel to

agreement. The term “reasonable distance” is not defined in the collective bargaining assigned or within a reasonable distance from his/her assigned patrol area.” employee may live within a town within a patrol area to which she/he is the state. Section 21.7 of the collective bargaining agreement provides: “Any division to road patrol within six troop areas, Troops A through F, throughout collective bargaining agreement. Association members are assigned by the reassigned. During the relevant time period, the parties were bound by a

sergeant. The remaining respondents are six state troopers who were agreement, as it reflects the parties’ intent. Appeal of Nashua Police Comm’n

p. 3 We begin by examining the language of the collective bargaining

Articles II and XXI of the collective bargaining agreement. dispute requires us to determine whether the PELRB correctly interpreted troopers to live ‘within a reasonable distance’ of their assignment area.” This transfer and assign personnel, it is also bound by its agreement to permit The PELRB concluded that “while the [division] may have retained the right to collective bargaining agreement, and therefore no negotiation was required. management prerogative as defined in RSA 273-A:1, XI and section 2.1.2 of the The division next argues that the unilateral reassignment of troopers is a

“retains all rights to manage, direct and control its operations,” including Pursuant to Article II of the collective bargaining agreement, the division

we review de novo. Appeal of City of Manchester, 153 N.H. 289, 294 (2006). interpretation of a collective bargaining agreement is a question of law, which meaning of their words and phrases.” Id. (quotation omitted). The taken as a whole, and by construing its terms according to the common 149 N.H. 688, 690 (2003). “This intent is determined from the agreement

they reside. “reasonable distance”; and (2) reassigning troopers to patrol areas in which fuel costs: (1) revising the Professional Standards of Conduct to define the term division implemented two distinct measures to achieve its purpose in reducing labor through reassignments and savings in gas usage.” We conclude that the results of [the] survey, ideas of efficiencies to be achieved in the division of PELRB found, the division’s decision to reassign troopers was based “upon the upon the newly articulated definition of “reasonable distance.” Rather, as the distance,” nothing in the record indicates that the reassignments were based “[a]t approximately the same time” as the decision to define “reasonable agree. Although the PELRB found that the reassignment decision was made savings, was independent of its decision to define “reasonable distance.” We

the order is unjust or unreasonable.” Appeal of State Employees’ Assoc. of the appealing party demonstrates by a clear preponderance of the evidence that and, absent an erroneous ruling of law, we will not set aside its decision unless “When reviewing a decision of the PELRB, we defer to its findings of fact,

argues that its reassignment directive, based upon an assessment of fuel but for the division’s decision to define residential “reasonable distance.” It PELRB erroneously assumed that the reassignments would not have occurred N.H., 158 N.H. 258, 260 (2009). On appeal, the division first contends that the

distance” based on fuel expense is a mandatory subject of negotiation. challenged the PELRB’s finding that the definition of residential “reasonable trooper reassignment, and that issue is now before us. The division has not moved for rehearing and reconsideration of the PELRB’s decision regarding p. 4 Reversed

unilateral reassignment of troopers was an unfair labor practice. area[s].” Accordingly, we hold that the PELRB erred in finding that the continue to live within “a reasonable distance from [their] assigned patrol and the respondents do not dispute that the troopers, following reassignment, language in section 21.7. Here, no troopers were required to change residence express reservation of discretion is not limited by the “reasonable distance” reserves to management the discretion to transfer and assign troopers. This

By its plain language, the collective bargaining agreement expressly

BRODERICK, C.J.