2012-798, Appeal of Town of North Hampton

McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the

(New Hampshire Public Employee Labor Relations Board) APPEAL OF TOWN OF NORTH HAMPTON

No. 2012-798 Public Employee Labor Relations Board

record. The Town is a public employer. See RSA 273-A:1, X (2010). The Union The following facts were found by the PELRB or are supported in the

3211, IAFF (Union). We affirm.

“[f]ull time firefighters, EMT personnel and lieutenants.” THE SUPREME COURT OF NEW HAMPSHIRE collective bargaining and settling grievances, of a bargaining unit comprised of

with the respondent, the North Hampton Professional Fire Fighters, Local

is certified by the PELRB as the exclusive representative, for purposes of 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

(PELRB), finding that the Town engaged in unfair labor practices in dealing decision of the New Hampshire Public Employee Labor Relations Board HICKS, J. The petitioner, the Town of North Hampton (Town), appeals a

and orally), for the respondent. Molan, Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief

to press. Errors may be reported by E-mail at the following address: brief and orally), for the petitioner.

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 engage in such bargaining.

p. 2 position.” The letter invited the Union to contact the Town if it wished to request to bargain over the wages, hours and working conditions of that bargaining Unit. As such the Board recognizes the right of the Union to

most logical that this new category be included in the current Firefighter’s

initial wages (stipend) and working conditions.” It further stated that “it is the Town had “voted to establish a paramedic program including that position’s Union’s counsel regarding the new paramedic program. The letter stated that

By letter dated September 6, 2011, counsel for the Town contacted the

previously proposed by the Union and rejected by the Town. established a wage schedule and conditions of employment similar to those

was not produced through bargaining with the Union. The program

Nevertheless, in August 2011, the Town adopted a paramedic program that

Town responded that a vacancy on the selectboard was delaying the process. in June 2011 that it was willing to resume negotiations over the program. The interested in a paramedic program, however, and the Union informed the Town

the parties put the paramedic program issue on hold. The Town remained

employee has received the certification.” The Town rejected the proposal and [that] will be 5% over actual step (base pay) whether hired as or a current that provided for, among other things, a “[s]tipend for paramedic level EMT

During bargaining over the CBA, the Union submitted a wage proposal

Intermediate + 15 years.” five were listed as “Firefighter II and Emergency Medical Technician

number of years. For example, the requirements for a firefighter to reach step

doctrine. See Appeal of Alton School Dist., 140 N.H. 303, 307 (1995). expiration of the CBA, the parties’ relationship was governed by the status quo

firefighter or company officer level; an EMT level; and, after step 1, a specified

period beginning July 1, 2010, and ending June 30, 2011 (the CBA). After the

certifications” as set forth therein. The requirements for each step included: a through [the] steps is dependent on achieving certain professional in prehospital settings, overseen and directed by physicians.” N.H. Admin. respectively, each consisting of five steps. It provided that “[m]ovement level of certification to administer life support care to injured and sick persons specifically trained at the EMT-basic, EMT-intermediate or EMT-paramedic

The parties’ most recent collective bargaining agreement was for the

The CBA contained wage scales for firefighters and lieutenants, administrative regulation to mean “an emergency medical care provider, The term “[e]mergency medical technician (EMT)” is defined by

RSA 153-A:11 (Supp. 2013); N.H. Admin. Rules, Saf-C ch. 5903. Rules, Saf-C 5901.50. EMTs are licensed by the department of safety. See p. 3 Our standard of review is governed by RSA 541:13 (2007). See Appeal of

animus. the Town violated its duty to bargain and/or was motivated by anti-union

that position in a bargaining unit; and (4) finding, on insufficient evidence, that

a position before the parties agreed to, and the PELRB ordered, the inclusion of

Town was required to bargain over the wages, hours, and working conditions of the Town had previously created a paramedic program; (3) finding that the that program was within the Town’s “managerial prerogative”; (2) finding that

Appeal of Town of Hampton, 154 N.H. 132, 134 (2006) (quotation and citations

Town was required to bargain over its paramedic program when the adoption of

support its determinations.

On appeal, the Town argues that the PELRB erred in: (1) finding that the

licensure level.”

presumptively lawful and reasonable, we require that the record

exclusively to the public employer by statute or regulations

other conditions of employment for a firefighter EMT with a paramedic

unreasonable. Though the PELRB’s findings of fact are preponderance of the evidence that the order is unjust or its decision unless the appealing party demonstrates by a clear

within the exclusive prerogative of the public employer, or confided

account of its unilateral adoption and establishment of a wage schedule and found, in pertinent part, that “the Town committed an unfair labor practice on program. The PELRB granted the motion. Following a hearing, the PELRB

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

other conditions of employment other than managerial policy “Terms and conditions of employment” means wages, hours and

Bd. of Educ., 141 N.H. 768, 773 (1997). That definition is as follows: definition of ‘terms and conditions of employment.’” Appeal of City of Nashua firefighters for obtaining additional training” – in other words, the paramedic “‘managerial policy exception,’ which is contained within the statutory The Town’s first challenge to the PELRB’s decision is based upon the When reviewing a decision of the PELRB, we defer to its findings of

omitted); see RSA 541:13.

upon the Town’s unilateral adoption of “a plan to increase the pay of moved to amend its unfair labor practice complaint to include a charge based insurance options to Union members. On September 13, 2011, the Union Londonderry School Dist., 142 N.H. 677, 680 (1998); RSA 273-A:14 (2010).

charge stemming from the Town’s alleged unilateral offer of different health At that time, pending before the PELRB was an unfair labor practice p. 4 A proposal that fails to satisfy the first step is a prohibited

Union prior to establishing the initial wages, hours, and other conditions of contrary to the provisions of RSA 273-A:1, XI. may interfere with public control of governmental functions resulting contract provision nor the applicable grievance process

conditions,” the Town concludes that it was not “required to bargain with the cost which entails an initial determination of hours and wages and work of management. Reasoning that the “[c]reation of a new program includes its were incorporated into a negotiated agreement, neither the

parameters of programs” like the paramedic program are the exclusive province than matters of broad managerial policy. Third, if the proposal

exception.” Id. at 773.

Id. at 773-74 (quotations and citations omitted). RSA 273-A:1, XI (2010). The Town contends that “[t]he creation . . . and the primarily affect the terms and conditions of employment, rather mandatory subject of collective bargaining. or statutorily adopted regulation. Second, the proposal must public control of governmental functions. authority of the public employer by the constitution, or by statute fails either step two or step three, is a permissible topic of

measuring a particular proposal or action against the managerial policy

determine wages and hours for the position or program.” Appeal of City of negotiations. A proposal that satisfies all three steps is a selection, direction and number of its personnel, so as to continue provision must not be reserved to the exclusive managerial subject of bargaining. A proposal that satisfies step one, but that

employment for firefighter/paramedics, we apply “a three-step analysis for

program does not necessarily include the ‘lesser’ power to unilaterally

technology, the public employer’s organizational structure, and the First, to be negotiable, the subject matter of the proposed contract programs and methods of the public employer, including the use of construed to include but shall not be limited to the functions,

managerial prerogative to initially set the wages, hours, and other conditions of Nashua Bd. of Educ., 141 N.H. at 775. To determine whether the Town had a

“[A] public employer’s ‘greater’ power to create or eliminate a position or

employment.” We disagree.

the exclusive prerogative of the public employer” shall be adopted pursuant to statute. The phrase “managerial policy within p. 5 Appeal of City of Nashua Bd. of Educ., 141 N.H. at 775 (citations omitted); see

programs constitute mandatory subjects of bargaining. the wages and hours for staff involved in any extracurricular

the number of such programs implicates broad managerial policy,

to decide whether to offer extracurricular programs or to determine

governmental functions. See p. 5 Appeal of City of Nashua Bd. of Educ., 141 N.H. the resulting contract provision would not interfere with public control of conclude that if this proposal were incorporated into a negotiated agreement, bargaining. For example, even though a school board’s authority that primarily affect wages and hours as mandatory subjects of [O]ur cases have consistently recognized proposals and actions

conditions of employment component of the paramedic program separately, we

employment for an EMT who holds a paramedic license.” This finding to bargain with the Union [over] the compensation and other conditions of

Finally, having determined that we may analyze the wages and

the provision of EMT services at the paramedic level[,] . . . the Town is obligated App. Div. 1998) (noting that while “a public employer has a prerogative to at 774; cf. NJ Transit Auth. v. Transit PBA, 714 A.2d 329, 333 (N.J. Super. Ct.

Appeal of Berlin Educ. Ass’n, 125 N.H. 779, 783-84 (1984).

conditions of employment, rather than matters of broad managerial policy.” Id. within the Town’s managerial prerogative to determine that it wants to promote practical purposes entirely severable”). Thus, the PELRB found that while “it is context of determining public employer’s obligation to negotiate, “for all

separately from other aspects of the program. Cf. City of Elizabeth v. Elizabeth and conditions of employment for firefighter/paramedics may be considered

on significant interests of both the public employer and the employees.” Id.

exception analysis, that “the proposal . . . primarily affect[s] the terms and We also conclude, under the second step of the managerial policy – and determining “who pays for the required doctors’ reports,” were, in 273-A:1, XI itself. Id. issues of establishing a sick leave verification policy – a managerial prerogative Fire Off., 487 A.2d 337, 340 (N.J. Super. Ct. App. Div. 1985) (finding that authority. As in p. 5 Appeal of City of Nashua Board of Education, we reject the

We conclude, however, as did the PELRB, that the matters of wages, hours, “independent statute, or any constitutional provision or valid regulation,” id. at at 774. Here, as in many cases, the particular paramedic program “touch[es] With respect to the first step, the Town has failed to identify any

Town’s “bootstrapping attempt” to find such a reservation of authority in RSA

of employment” of firefighter/paramedics to the Town’s exclusive managerial 774, that reserves “establishing the initial wages, hours, and other conditions employed firefighters who possessed paramedic certification,” but contends p. 6 permanent basis.” The Town asserts that it “has never denied that it had

are interested in resuming a paramedic level of service in town on a more Appeal of Londonderry School Dist., 142 N.H. at 680. “Our focus, therefore, is

without any distinction in pay” and noted that “both the Town and the Union the PELRB and by any subsequent modifications approved by the PELRB.”

medical licensure/certification have previously worked in the department but identified in the recognition clause at the time the original unit is certified by The PELRB found that “[f]irefighters with an EMT-paramedic level of “The composition of a bargaining unit is limited by law to those positions 6

and certification” issued by the PELRB certifies that the Union was “designated and selected by a not a new position but is an EMT with the third, or highest, level of training The applicable Certification of Representative and Order to Negotiate

service” While the PELRB’s finding with regard to “resuming a paramedic level of

such finding. determination that we must review for error.

existence. Rather, the PELRB found that the position of “EMT-paramedic is upon the language of the recognition clause, which we review de novo.” Id.

bargaining. See Appeal of City of Nashua Bd. of Educ., 141 N.H. at 774. ‘paramedic care’[,] not that the Town had assumed that responsibility.”

program already in existence.” The Union counters that the PELRB made no bargaining unit position that is represented by the Union.” It is this Paramedic Program[;] and [(2)] . . . was now obligated to negotiate over a and that “[a]n EMT in the Town Fire Department is already a who had paramedic certification[,] . . . it[:] [(1)] had already created a

that the Town was obligated to bargain over a paramedic program already in might be ambiguous, it is immaterial because the PELRB did not find

managerial policy exception analysis, it is a mandatory subject of collective “only that the individual who possesses paramedic certification must provide conditions component of the paramedic program satisfies all three steps of the licensed. It then argues that even if this requirement exists, it establishes the managerial prerogative”). Because the wages, hours, and employment provide a level of service consistent with the level at which he or she is there was testimony before the PELRB that an EMT is required by the State to that it “never provided paramedic service to its citizens.” It acknowledges that the PELRB found that, because “the Town had previously employed firefighters

negotiate the costs connected with training without significantly impinging on determine training issues[,] . . . it is well-established that employees may

previously created a paramedic program. Specifically, the Town asserts that The Town next argues that the PELRB erred in finding that the Town had p. 7 PELRB that the creation of the Paramedic Program was based upon direct Finally, the Town argues that “[t]here was NO evidence submitted to the

fall within the firefighter classification as well. the bargaining unit, participants in the paramedic program apparently would

EMT certifications. Thus, in addition to falling within the EMT classification in

specifically trained at the EMT-basic, EMT-intermediate or EMT-paramedic (EMT)” to mean, in pertinent part, “an emergency medical care provider,

steps is dependent on achieving certain professional certifications,” including This is consistent with the CBA pay scales, in which “[m]ovement through [the] to create [a] new category of Firefighter identified as a Firefighter/Paramedic.”

Administrative Rule, Saf-C 5901.50 defines “[e]mergency medical technician

determination not to create a new position distinct from that of FireFighter, but

and we have found none. Rather, as noted previously, New Hampshire

program, Town counsel stated that the Town selectboard “made the position. In his letter to Union counsel following adoption of the paramedic appellate attempts to characterize the paramedic-certified firefighter as a new

discrete certification.” The Town cites no legal support for these assertions, certification is not an extension or another level of EMT certification: it is a 7 a discrete and specific program.” The Town concludes that “[p]aramedic

Moreover, we note that the record casts significant doubt upon the Town’s

simply a more advanced EMT designation; it is a designation within and part of

and the PELRB orders, inclusion of the new positions in a bargaining unit.

The Town challenges that reasoning, arguing that “[a] paramedic is not

or highest, level of training and certification.”

positions such as those in the Paramedic Program” until the Town agrees to, over the creation or the initial wages, hours, and working conditions of new disposes of the Town’s next issue; namely, that it “has no obligation to bargain Our conclusion that EMT-paramedics are already in the bargaining unit

personnel” includes EMT-paramedics. Londonderry School Dist., 142 N.H. at 680, we conclude that the term “EMT Interpreting the language of the bargaining unit certification de novo, Appeal of level of certification.” N.H. Admin. Rules, Saf-C 5901.50 (emphasis added). paramedic,” and, therefore, the “EMT-paramedic is . . . an EMT with the third,

UNIT: Full time firefighters, EMT personnel and lieutenants.

representative for the purpose of” collective bargaining and settling grievances: majority of the employees of the [Town], in the unit described below, as their

levels of EMT certification[,] . . . EMT-basic, EMT-Intermediate, and EMTparamedics, reasoning that the applicable administrative rules designate “three The PELRB concluded that the term “EMT personnel” includes EMTfirefighter/paramedic. “A unilateral change in a condition of employment is

unilaterally setting the wage and other conditions of employment for a

PELRB’s finding that the Town committed an unfair labor practice by In any event, a finding of anti-union animus was not necessary to the

related charge.

A f f i r m e d .

its order is unjust or unreasonable. Appeal of Town of Hampton, 154 N.H. at

The Town did not appeal the PELRB’s ruling with respect to the insurancepending when the Union added the charge related to the paramedic program. DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred. respect to the original insurance-related unfair labor practice charge that was field necessary for productive and fair labor negotiations.” Appeal of Alton

contentions. Given our rulings above, we need not address the parties’ remaining 134; see RSA 541:13. Accordingly, we will not set aside the PELRB’s decision.

ruling of law or to demonstrate, by a clear preponderance of the evidence, that The Town has failed to demonstrate that the PELRB made an erroneous

School Dist., 140 N.H. at 30 p. 8 8 (emphasis added). dealing with respect to the paramedic program, but, rather, found such with equivalent to a refusal to negotiate that term and destroys the level playing dealing or anti-union animus.” The PELRB, however, made no finding of direct