2011-538, Appeal of Town of Moultonborough

The respondent, Town of Moultonborough (Town), appeals a

on the brief, and Ms. Rice orally), for the respondent.

on the brief and orally), for the petitioner. 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 the evidence that the order is unjust or unreasonable.” Appeal of State

p. 2 decision unless the appealing party demonstrates by a clear preponderance of

common salary and fringe benefit structures, and the potential for division of

findings of fact, and, absent an erroneous ruling of law, we will not set aside its

unit, the presence or absence of common work rules and personnel practices,

specialist positions. “When reviewing a decision of the PELRB, we defer to its unit of the corporal, sergeant, executive assistant, and communication On appeal, the Town challenges the PELRB’s inclusion in the bargaining communication specialist position. See is reasonable for the employees to negotiate jointly. Appeal of the University interest with the other positions in the unit. She also excluded one “on call” whether there exists a community of interest in working conditions such that it

prepared transcript of the proceedings.” See decision footnote, the board noted that the Town failed to include a “duly for consideration, including: a common geographic location of the proposed PELRB denied the motion and approved the hearing officer’s decision. In a organizational units. Further, PELRB regulations set forth additional factors history of workable and acceptable collective negotiations, and identity of

2 PELRB, excluded the position of prosecutor, finding it lacked a community of The principal consideration in determining a proper bargaining unit is

The Town filed a motion to review the hearing officer’s decision. The PELRB must consider such criteria as similarity in conditions of employment, a System of N.H., 120 N.H. 853, 855 (1980). Pursuant to RSA 273-A:8, I, the

followed. through “inadvertent error.” The board denied the motion, and this appeal communication specialist/dispatcher. The hearing officer, acting for the transcript of the proceeding was not attached to its electronic submission corporal, master patrol officers, patrolman, executive assistant, and Employees’ Assoc. of N.H., 156 N.H. 507, 508 (2007) (quotation omitted). certified a bargaining unit composed of the following positions: sergeant,

argued that the executive assistant was a confidential employee, see

205.01(b). Subsequently, the Town moved for a rehearing, noting that the

persons employed “on call” from the definition of “public employee”). interest” with the remaining members of the proposed unit. The Town also RSA 273-A:1, IX(d) (2010) (exempting positions, and a probationary employee lacked a “shared community of that the executive assistant, communication specialist, and prosecutor

positions, see RSA 273-A:8, II (2010). A:1, IX(c) (2010), and that the sergeant and corporal positions were supervisory

of the positions were not statutorily eligible for inclusion. The Town argued form a bargaining unit, and that this requirement was not met because several discretion to the PELRB’s expertise. Appeal of University System of N.H.

p. 3 regulatory framework that guides PELRB decisions is flexible, and gives much The Town’s assertions ignore the fact, however, that the statutory and

employee.”

unit, but failed to provide a specific analysis . . . as to each category of “made general findings regarding all employees of the proposed bargaining ignored the reasonableness standard.” In addition, it asserts that the board

unit function within the same organizational unit. See present to support a finding for shared community of interest and, in doing so,

exception of the prosecutor, all other employees in the proposed bargaining “PELRB placed undue emphasis on the fact that only one condition needs to be specialist and the other members of the bargaining unit. It argues that the sufficient community of interest between the position of communication

only one criterion in reaching its conclusion. The PELRB found that with the PELRB ignored the reasonableness standard and placed undue emphasis on Moreover, the record does not support the Town’s assertion that the The Town first asserts that the PELRB erred in finding that there was a

other on [a] regular basis. procedures. The members of the proposed unit interact with each 3 same personnel rules, policies, and evaluation and grievance added)); see

374. community of interest exists. Appeal of University System of N.H., 131 N.H. at the PELRB need not find each criterion satisfied in order to find that a enforcement, work at the same building, and are covered by the also Appeal of Town of Newport, 140 N.H. 343, 354 (1995). Thus, the following criteria, although it is not limited to such . . . .” (emphasis RSA 273-A:8, I (“The community of interest may be exhibited by one or more of be considered in determining whether a community of interest exists. See N.H. at 374. Both the statute and regulation require only that certain factors

interest. They work for the same department in the field of law within the same organizational unit and share a community of [a]ll other employees in the proposed bargaining unit function

that, with the exception of the position of prosecutor, Based upon the evidence presented at the hearing, the PELRB concluded

N.H., 131 N.H. 368, 372 (1988) (quotations omitted). and the extent to which the work is integrated. Appeal of University System of conditions, employee benefits, the organizational structures of the employer, interest,” therefore, we consider such factors as skills, duties, working representative. N.H. Admin. Rules, Pub 302.02. In construing “community of loyalties between the public employer and the employees’ exclusive p. 4 Appeal of Town of Deerfield

community of interest was “unlawful, or clearly unjust or unreasonable.”

PELRB’s determination that the included positions have a sufficient shared indicated above, the Town has not met its burden of establishing that the community of interest with the other positions, and concluded that it did. As

did in fact consider whether the executive assistant position shared a

share a community of interest.” Thus, the record establishes that the PELRB than the prosecutor position] function within the same organizational unit and meaningful appeal. The PELRB concluded, however, that “all [positions other

specifically address this argument, thus denying it the opportunity for a

the community of interest. The Town also asserts that the PELRB failed to

applicable to other positions in the proposed bargaining unit, does not share in position that is exempt from the training and certification requirements The Town next contends that the executive assistant position, a civilian

been timely disclosed. the Town fails to suggest how the result would have differed had the position prejudice as a result of the PELRB’s consideration of the position is unavailing:

Communication Specialist/Dispatcher position.” The Town’s assertion of

included the position, the board construed the statute to exclude an “on call IX (d) or should otherwise be excluded from the bargaining unit,” and therefore seasonal, on call, or temporary employee within the meaning of RSA 273-A:1,

[a part-time] Communication Specialist/Dispatcher . . . is an irregular,

“acts in a confidential capacity in support of the Chief of Police, the person who

While the PELRB hearing officer found “insufficient evidence to establish that

should be excluded from the bargaining unit because the executive assistant

specifically addressing the communication specialist position on its merits. any tardy amendment of the proposed bargaining unit’s members by 4 specialist. The PELRB, however, implicitly overruled the Town’s objection to

Alternatively, the Town argues that the executive assistant position

the communication specialist position and one on-call communication

objection to the NEPBA’s late inclusion of two part-time employees occupying The Town next argues that the PELRB erred by failing to address its

the board on this issue.” Appeal of the University System of N.H. not, therefore, under the circumstances, substitute our judgment for that of we cannot say that the board’s conclusion is unreasonable or unjust. “We will

See

855.

302.02(b)(1). Based upon these findings, which are supported by the record, safety building, and interact on a regular basis. See N.H. Admin. Rules, Pub all of the employees work in a common geographic location, the Town’s public N.H. Admin. Rules, Pub 302.02(b)(2)(a). In addition, the PELRB found that Town’s personnel policy and by the police department’s rules and regulations. also found that all of the employees, except the prosecutor, are covered by the the Chief and the Board of Selectmen.

p. 5 Executive Assistant does not attend non-public meetings between

opens departmental mail unless it is marked “confidential.” The containing personnel files without the Chief’s permission. She the personnel files and has no access to the locked cabinet

placed in the personnel files. Ms. Welch does not file anything into

department for payments. Payroll and benefits information is not arrest and accident reports, and sends bills to the finance conducts billing, handles worker’s compensation reports, files

Assistant enters payroll information into [the] computer system,

calls, not only the phone calls directed to the Chief. The Executive Communication Specialist/Dispatcher, she answers all phone Assistant’s office is next to the Dispatch office. Like a

8. Maintains all files for the Police Chief, except for 11. Virginia Welch is the Executive Assistant. The Executive . . . .

functions of the Police Department.

5

the Chief’s permission. Any employee who wants to access a personnel file[] must request office. The Chief is the only person with the key to that cabinet. 1. Coordinates the daily general administration and clerical

include the following:

10. Personnel files are kept in a locked cabinet in the Chief’s

. . . . 9. The Executive Assistant’s duties set forth in the job description

Regarding the executive assistant position, the PELRB found: confidential files.

decisions and the like.’ ” Appeal of City of Laconia information with respect to labor relations, negotiations, significant personnel

346. ineligible for membership in the bargaining unit. See Newport, 140 N.H. at from the definition of “public employee.” Thus, confidential employees are 5 (PELRB Jan. 1978)). RSA 273-A:1, IX(c) excludes confidential employees Dept. of Rev. Administration v. State Employees’ Ass’n, Decision No. 780001 at (quotation, brackets and emphasis omitted) (quoting State of New Hampshire

“Confidential employees” are “ ‘those employees who have access to confidential manages most of the employees who would be included in the bargaining unit.” mail marked “confidential.”

p. 6 non-public meetings between the chief and board of selectmen. See the position was confidential. Id containing personnel files. Additionally, she does not attend staff meetings or . In

6 Laconia

that we found confidential in Laconia was not sufficiently distinguishable from the administrative secretary position Moreover, although she receives all of the department mail, she does not open which her loyalties would be divided between the union and the town. Id id. from his secretary regarding a significant part of his work, and concluded that maintain personnel files and only the chief has a key to the locked cabinet meetings at which confidential matters were discussed. Id records, Newport, 140 N.H. at 347, here, the executive assistant does not Unlike in Newport, in which the department secretary maintained personnel

and Newport, however, are distinguishable from this case.

the proposed unit. Id. at 348.

Based upon this evidence, we concluded that the department secretary position

unit was created, the department secretary might be put in a situation in addition, the director of public works testified that if a proposed bargaining labor negotiator, to work under circumstances in which he must keep secrets In Appeal of City of Laconia. at 347. In the city manager and the personnel director. Id personnel records, was privy to disciplinary actions taken, and attended staff communications, including those involving labor negotiation strategies between results. Town of Newport, 140 N.H. at 346-47. Moreover, she maintained policy, made work assignments, and evaluated work in terms of effectiveness of director of public works, an administrative superior who outlined departmental Newport, the department secretary worked under the general supervision of the We reached a similar conclusion in Appeal of Town of Newport requesting information from other communities regarding the types of

that it was unreasonable to require the personnel director, as the city’s chief

Assistant is not involved with personnel or other confidential labor relations Moreover, the administrative secretary opened all inter-departmental thoughts, strategies, and notes about the collective bargaining process. Id. the administrative secretary was privy to the personnel director’s personal

secretary was responsible for preparing wage and benefit surveys and for 423. The PELRB’s decision rested upon evidence that the administrative secretary did not act in a confidential capacity. City of Laconia, 135 N.H. at

Based upon these findings, the PELRB concluded that since “the Executive p. 7 Communication Specialists/Dispatchers.

evaluations of, and has authority to issue oral counseling to, the regarding leave request[s] once. Sgt. Beede completes written leave requests. The Chief has overturned Sgt. Beede’s decision

38. Sgt. Beede is responsible for scheduling and for processing

into the personnel files. review them and send them to the Chief. The Chief places them

Officers fill out Use of Force forms. The Sergeants or the Corporal

supervisors and the Chief using an appropriate form. Patrol use of force procedures. Use of force must be reported to the 37. Sgt. Canfield is in charge of the Patrol Division and oversees

whole. Appeal of University System of N.H.

of the legislature as expressed in the words of the statute considered as a

in the Department.

matter of law, or unjust or unreasonable, we are the final arbiter of the intent

background checks of the candidates applying to fill open positions Patrol Officer/School Resource Officer. Sgt. Fulton also conducts the PELRB’s determination will not be overturned unless it is erroneous as a evaluations of the Master Patrol Officer/Detective and the Master belong to the same bargaining unit as the employees they supervise.” Although supervisory authority involving the significant exercise of discretion may not

not addressed in detail at the hearing. He also completes written

RSA 273-A:8, II provides in pertinent part that “[p]ersons exercising

7 administrative and support services, the exact nature of which was 36. Sgt. Fulton has responsibilities in the area of the significant exercise of discretion over other members of the bargaining unit. and the corporal because they exercise supervisory authority involving the The Town next asserts that the PELRB erred in including the sergeants

included:

The PELRB’s findings of fact regarding the sergeants and the corporal

way,” and, therefore, should be included in the bargaining unit., 131 N.H. at 375. personnel or other confidential labor relations matter[s] in any meaningful the PELRB’s conclusion that “the Executive Assistant is not involved with

to labor negotiations, the objection is premature. See role after the unit is certified. Whatever her potential role may be with regard

Decision No. 94-48, at 3 (PELRB June 21, 1995). Accordingly, we concur with Staff/NEA-New Hampshire v. Plainfield School District, SAU #32, PELRB

in the proposed bargaining unit rests largely upon conjecture regarding her The Town’s objection to the inclusion of the executive assistant position p. 8 In Appeal of University System of N.H.

because of differing duties and relationships. is not likely to create conflict within the proposed bargaining unit supervisory authority exercised by the Sergeants and the Corporal

Master Patrol Officers and the Prosecutor. . . . The degree of

and ranking candidates along with other employees, including

relatively modest and is limited to the participation in oral boards The Sergeants’ and the Corporal’s role in hiring is likewise

terminations. . . .

determine pay increases, promotions, demotions, discipline or is insufficient evidence to prove that these forms are relied upon to Patrol Officers and Communication Specialists/Dispatchers, there

Sergeants and the Corporal complete annual evaluation forms for

exclusion from the bargaining unit. For example, although the of the significant exercise of discretion that would warrant process, and the nature of their involvement do not rise to the level

the Corporal are involved in discipline, evaluation, and the hiring

In the present case, the extent to which the Sergeants and

the corporal positions should be included in the bargaining unit: Based upon these findings, the PELRB concluded that the sergeant and

Department. demotions, hiring, termination, or continued employment with the have authority to recommend pay increases, promotions,

evaluations were given certain weight in merit pay increases and were

authority. Appeal of East Derry Fire Precinct completing written evaluations. Neither Sergeants nor Corporal firefighters, the nature of their supervisory roles, and their disciplinary indicative of their supervisory authority: their authority to evaluate the

8

evaluated the lower-ranking firefighters in the proposed unit, and their

137 N.H. 607, 610 (1993). We found three characteristics of the captains’ jobs. . . . University System of N.H., 131 N.H. at 376; Appeal of East Derry Fire Precinct, incorrectly determined that fire captains were not supervisory employees.

Officers. counseling to, the Dispatchers, Master Patrol Officers, and Patrol authority to complete written evaluations of, and to issue oral

Master Patrol Officers, and Patrol Officers. The Corporal has 39. Patrol Sergeants complete written evaluations of a Corporal, record because the record was closed. See

p. 9 the hearing officer noted that the chief’s affidavit was not admitted to the

petition for certification and to its post-hearing brief. In a decision footnote, the chief’s affidavit, which the Town attached both to its objection to the Finally, the Town asserts that the PELRB erred in refusing to consider

unreasonable. its decision to include the sergeant and the corporal positions was because the affidavit was duly disclosed before the hearing, not after its Accordingly, in light of all of the evidence before the PELRB, we conclude that

See and (c) of this section.”). The Town argues that this decision was erroneous the corporal is authorized to issue verbal warnings, and written reprimands.

9

shifts, develop department rules, and assume the role of chief in his absence. the subordinate officers. The sergeants assign work, ensure full staffing on evidence shall be received into the record, except as allowed by paragraphs (b) The sergeants and the corporal also have supervisory responsibility over also has disciplinary authority over subordinate officers. Like the sergeants, (“After the conclusion of the hearing, the record shall be closed and no other

evaluations, like those in University System and distributes to the town administrator and the board of selectmen. The and the corporal, which the chief “sign[s] off” on, adds to their personnel files,

distinguishable from the captain positions in University System

may relieve an officer from duty, with pay, for certain infractions. The corporal are documented in the employee’s personnel file. Additionally, the sergeants sergeants are authorized to issue verbal warnings or written reprimands, which have certain disciplinary authority over subordinate officers. See id. The As did the officers in University System unit. The sergeants conduct yearly performance evaluations of the patrolmen involved in various aspects of the hiring process. See id. id. Moreover, as in University System, the sergeants and the corporal are

Here, the sergeants and the corporal positions are not sufficiently

raises.

candidates for employment. Id the corporal are authorized to evaluate subordinate officers in the proposed inclusion in the bargaining unit. As in University System, the sergeants and

for a conflict of interest to arise with the firefighters. Id. and responsibilities of the captains, we held that there was a strong potential firefighters deemed unfit for duty home with pay. Id. Thus, given the authority absent. Id. The captains were also authorized to issue warnings and send included assigning work and assuming command when senior staff was

131 N.H. at 376. Additionally, the captains jointly interviewed and rated considered in terminating new employees. Appeal of University System of N.H., p. 10 Affirmed in part; reversed in

after exclusion of the sergeant and corporal positions.

its determinations. We make no ruling on the eligibility of the bargaining unit the sergeants and corporal in the bargaining unit, and affirm the remainder of Accordingly, we reverse the decision of the PELRB as to its inclusion of

the document.

Therefore, the PELRB sustainably exercised its discretion in refusing to admit hearing or to request time to add the affidavit to the record after the hearing. hearing.” The Town, however, failed to offer the affidavit as an exhibit at the

required to offer your exhibits into evidence at the time of the adjudicatory

yet part of the record in [the] case.” The e-mail also stated, “You will be mail acknowledging receipt of the filing, but noting that “the exhibits [were] not the Town filed its objection, however, the PELRB sent the Town’s counsel an e-

record solely upon the fact of its attachment to a pre-hearing pleading. When

10

The Town thus bases its assertion that the affidavit constitutes part of the open for the submission of additional evidence [after the hearing] was made.” Pub 203.03(c). The hearing officer noted that “no request to have the record

or offered it as an exhibit pursuant to New Hampshire Administrative Rules, DALIANIS, C.J., and HICKS and LYNN, JJ., concurred.

part; and remanded

The Town does not contend that it submitted the affidavit at the hearing

the affidavit part of the record in the hearing on the petition for certification.

affidavit as part of the objection to the NEPBA’s petition for certification makes conclusion: it asserts that the submission and disclosure of the chief’s