2013-0506, Appeal of Strafford County Sheriff’s Office & a.

record. The county is a public employer. See RSA 273 - A:1, X (2010). On July The fo llowing facts were found by the PELRB or are supported by the

that included those employees. We affirm. Association, Local 295 (union), was seeking certification of a bargaining unit the period when the respondent, the New England Police Benevolent the terms and conditi ons of employment of Sheriff’s Office employees during which found that the county committed an unfair labor practice by changing order of the New Hampshire Public Employee Labor Relations Board (PELRB), Strafford County Board of Commiss ione rs (collectively, the c ounty), appeal an LYNN, J. The petitioners, the Strafford County She riff’s Office and the

on the brief and orally), for the respondent. Nolan Perroni Harrington, LLP, of Lowell, M assachusetts (Peter J. Perroni

and orally), for the petitioner s. Soldati Law Offices, P.A., of Portsmouth (Lincoln T. Soldati on the brief

(New Hampshire Public Employee Labor Relations Board) APP EAL OF STRAFFORD COU NTY SHERIFF' S OFFICE & a.

No. 2013 - 506 Public Employe e Labor Relations Board

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, Concor d, 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 p. 2 22 as 2

during the University of New Hampshire’s yearly homeco ming weekend. For example, deputies have regularly worked outside details for the Durham Police Department 1

paid deputies for outside detail work at a rate equal to their overtime day or schedule, p rior to the time the union sought certification, the county it receives. Although o utside detail work is not part of a deputy’s normal work work and then compensates the deputi es by paying them a portion of the funds county bills the third parties who engage dep uties to perform outside detail police departments, which have need for extra personnel at certain times. The 1 consists of prov iding law enforcement services to third parties, such as local Deputy sheriffs also sometimes perform “outside detail” work. This work

schedule s to 5 - 8 schedule s. department, but that their work hours were being changed from 4 - 10 th e sheriff notified Rowe and Lemoi that they would remain in the civil 5 - 8 s chedule s would not be implemented for the ICE positions. In res p onse, previously agreed upon. He also requested to stay in t he civil department if the responded by e - mail and requested the 5 - 8 s chedule that he believed had been position s, which called for Rowe and Lemoi to work 4 - 10 s chedules. Lemoi In October p. 2 2012, the sheriff proposed a schedule for the new ICE

his civil department schedule changed to a 5 - 8 schedule. continued to work in the civil department, and ne ither deputy asked to have overtime earnings. H owever, both deputies preferred 4 - 10 s chedule s if they 8 s chedule s for the ICE positions in order to maximize their potential for consisted of five eight - hour work days per week (5 - 8 s chedule). They sought 5 expressed interest in the positions, but only i f their ICE work schedules discussed the new ICE positions with Rowe and Lemoi. Both deputies deputy positions dedicated to ICE work. The then - sheriff, Wayne Estes, By September p. 2 2012, the county decided to establish two new full - time

in ICE proceedings. deputies, also perf ormed work for ICE, such as transporting detainees involved Immigration and Customs Enforcement (ICE), Rowe and Lemoi, as well as other contractual arrangements between the Sheriff’s Office and the United States schedule of four ten - hour day s per week (4 - 10 s chedule). Pursuant to deputies in the c ivil department of the Sheriff’s Office. They both worked a As of July 13, p. 2 2012, Paul Rowe and Michael Lemoi were employed as

representative. December p. 2 2012, the union was certified as the barga ining unit’s exclusive positions of deputy sheriff, d ispatcher, and secretary. F ollowing an election i n Office. The PELRB subsequently approved a bargaining unit co mposed of the approval of a bargaining unit comprised of certain employees of the Sheriff’s 1 p. 3 3, 2012, the union filed a petition for certification with the PELRB, seeking 3

PELRB decided that the three changes made – to the deputies’ schedules, to bargaining unit formation and representation election proceedings.” The practice because it failed to maintain the status quo during the pendency of a hearing, t he PELRB determined that the county “committed an unfa ir labor unit’s exclusive representative for purposes of collec tive bargaining. Following of proposed bargaining unit members after the union petitioned to act as the A:5, I(a), (b), (c), and (g), by changing the terms and conditions of employment that the county commi tted an unf air labor practice, in violation of RSA 27 p. 3 3 - In November 2012, the union filed a complaint with the PELRB, alleging

time when computing hours worked for purposes of overtime compensation. de tail work regardless of the number of hours worked, and of including benefit discontinued both established practices of paying the o vertime rate for outside A fter the u nion filed its certification petition on July 1 p. 3 3, 2012, the county

back wages totaling $4,812.17. A s a result of these violations, five employees were found due

non - exempt employees for 2010. an accurate record of hours worked per day and per week by all worked for non - exempt employees. Specifically, you failed to retain resulting from your failure to keep an accurate record of all hours The investigation further found violatio ns of FLSA section 11

in excess of 40 per week. rate of pay with no additional half - time premium for hours worked week. As a result, the employees were paid at their regular hourly when computin g overtime pay for hours worked in excess of 40 per [ICE] hours into the total work hours of non - exempt employees excess of 40 per week. Specifically, you failed to include federal from your failure to pay statutory overtime pay for hours worked in The investigation found violations of FLSA section 7 resulting

findings in a letter to the c ounty, which stated in part: practices during the previous two years. The DOL investigator summarized his Standards Act (FLSA) by the Sheriff’s Office, based on its wage and hour completed an investigation into possible violations of the f ederal Fair Labor I n the summer of 2012, the United States Department of Labor (DOL)

excess of 40 hours per week. their hour totals for determining their eligibility for overtime pay for work in deputies to include benefit time, such as holiday, vacati on, and sick leave, in Prior to the union’s certification petition, the county also permitted

overtime compensation. compensation rate, regardless of whether they were otherwise eligible for p. 4 4

subjects of collective bargaining, but not on permissive topics of collective an employer is pro hibited from making unilateral changes on mandatory omitted). However, “the status quo doctrine is limited by its rationale. Thus, and fair labor negotiations.” Id. (emphasis added; quotation and parentheses negotiate that term and destroys the level playing field necessary for producti ve quo period following expiration of a CBA [,] is tantamount to a refusal to negotiations for an initial [collective bargaining agreement] or during a status “unilateral change in a term or condition of employment[,] whether during employer to refuse to negotiate in good faith.” Id. A public employer’ s and from RSA 273 - A:5,. . . which makes it an unfair labor practice for a public imposes the obligation to negotiate in good faith over the terms of empl oyment, explained that the status quo doctrine derives from RSA 273 - A:3, I, which Nashua Bd. of Educ., 1 p. 4 41 N.H. 768, 772 (1997) (quotation omitted). “We have employment remain the sam e during collective bargaining.” Appeal of City of “Maintenance of the status quo demands that all terms and conditions of

practice. We disagree. there was no cha nge in the status quo and, accordingly, no unfair labor deputies’ work schedules; therefore, when the sheriff altered the schedules, the status quo was that the sheriff retained the prerogative to determine when the sheriff changed Rowe’s and Lemoi’s work schedules. It argue s that The county first con tend s that it did not violate the status quo doctrine

of Portsmouth Regional Hosp., 1 p. 4 48 N.H. 55, 57 (2002). omitted). We review the PELRB’ s rulings on issues of law de novo. See Appeal in the record.” Appeal of Dean Foods, 158 N.H. 467, 474 (2009) (quotation rather to determine whether the findings are supported b y competent evidence have found differently than did the [PELRB], or to reweigh the evidence, but reviewing the PELRB’ s findings, “our task is not to determine whether we would findings of fact are presumed prima facie lawful and reasonable. Id. In evidence, that it is unjust or unreasonable. RSA 541:13 (2007). The PELRB’s for errors of law, unless we are satisfied, by a clear preponderance of the A:14 (2 010); RSA 541:2 (2007). W e will not set aside the PELRB’ s order except RSA chapter 541 governs our review of PELRB decisions. See RSA 273 -

followed. whole.” The PELRB denied the county’s motion for rehearing, and t his appeal ante that existed as of the filing of the certification petition and make them PELRB ordered the county to “restore the affected employees to the sta tus quo could no t unilaterally change once the u nion filed its certification petition. The was calculated – were all mandatory subjec ts of bargaining that the county the rate of pay for outside detail work, and to th e manner i n which overtime p. 5 5

constitutional provision or valid regulation, that reserves to the [county] the First, the parties here fail to identify any “independent statute, or any

Relations Act as begin ning “when a representation petition is filed”). during which unfair labor practices may occur under the National Labor 70 p. 5 5 F.2d 1537, 1538 - 39 (11 th Cir. 1983) (describing the “‘ critical period ’” quotation omitted)); see also Piggly Wiggly, Tuscaloosa Div., Etc. v. N. L. R. B., field necessary for product ive and fair labor negotiations” (emphasis added; tantamount to a refusal to negotiate that term and destroys the level playing condition of employment. . . during negotiations for an initial CBA. . . is at 772 (noting that a public employer’s “un ilateral change in a term or county could not unilaterally change after the u nion filed its petition. See id. the deputies’ scheduling was a mandatory subject of bargaining that the Applying th is three - step analysis to the present case, we conclude that

the provisions of RSA 273 - A:1, XI.” Id. (quotation omitted). process may interfere with public control of governmental functions contrary to agreement, neith er the resulting contract provision nor the applicable grievance (quotation omitted). “Third, if the proposal were incorporated into a negotiated employment, rather than matters of broad manageri al policy.” Id. at 774 “Second, the proposal must primarily affect the terms and conditions of statute or statutorily adopted regulation.” Id. at 773 - 74 (quotatio n omitted). exclusive managerial authority of the public employer by the constitution, or by subject matter of the proposed contract provision must not be reserved to the of City of Nashua Bd. of Educ., 141 N.H. at 773. “First, to be negotiable, the particular proposal or action against the managerial policy exception.” Appeal deputies’ work schedules, we apply a “three - step analysis for measuring a To determine whether the cou nty had a managerial prerogative to change the

functions. number of its personnel, so as to continue public control of governmental employer’ s organizational structure, and the selection, direction and of the public employer, including the use of technology, the public include but shall not be limited to the functions, programs and metho ds exclusive pre rogative of the public employer” shall be construed to adopted pu rsuant to statute. The phrase “managerial policy within the or confided exclusively t o the public employer by statute or regulations managerial policy within the exclusive prerogative of the public employer, [W] ages, hours and other conditions of employment other than

employment ’” as: RSA 273 - A:1, XI (Supp. 2013) defines the “‘ [t]erms and conditions of

is generally a legitimate exercise of discretion.” Id. at 773 (citation omitt ed). refusal to engage in required negotiation, but a unilateral change in the latter bargaining.” Id. at 772 - 73. “[A] unilateral change in the former is an unlawful p. 6 6

conflicting, and supports the PELRB’s finding that the sheriff “was indifferent exercised his scheduling authority prior to the filing of the petition was before the PELRB concerning the manner in which the sheriff actuall y that “[t] he Sheriff reserves the right to adjust working hours,” the evidence the letters by which Rowe and Lemoi were originally offered employment state d to establish and change work schedules before t he petition was filed. Although the filing of the union’s petition because the sheriff had exercised the authority quo doctrine by changing the work schedules of Rowe and Lemoi subsequent to Nonetheless, t he county a rgues that the sheriff did not violate the status

bargaining. See Appeal of City of Nashua Bd. of Educ., 141 N.H. at 774. three steps of the analysis, the changes are mandatory subject s of collective is “forbid[den]”). Because the changes in the deputies’ schedules satisfy all N.H. 790, 794 (1984) (noting that a “unilateral action to change hours of work” Educ., 141 N.H. at 775; see Appeal of White M ts. Regional Sch ool Bd., 125 standards, or criteria for disciplinary action.” Appeal of City of Nashua Bd. of hinderin g or impeding a public employer’ s authority to e stablish policy, “does not present the type of problem we have identified in this context: unilaterally altering the deputies’ schedules after the u nion’s petition was filed 1 p. 6 66 N.H. _ __, _ __, 93 A.3d 299, 303 (2014). Preventing the county from public control of governmental functions.” Appeal of Town of North Hampton, negotiated agreement, the resulting contract provision would not interfere with Finally, we “conclude that if this proposal were incorporated into a

conditions of the deputies’ employment. See id. civil department from 4 - 10 to 5 - 8 s chedules primarily affected t he terms and program.” Id. Thus, the change in Rowe ’ s and Lemoi’s hours of work in the the ‘ lesser ’ power to unilatera lly determine wages and hours for the position or power to create or eliminate a position or program do es not necessarily include N.H. at 775 (emphasis added). Additionally, “a public employer’s ‘greater’ mandatory subjects of bargaining.” Appeal of City of Nashua Bd. of Educ., 141 recognized proposals and actions that primarily affect wages or hours as conditions of employment.” (Emphasis added.) “[O] ur cas es have consistently conditions of emplo yment to specifically include “w ages, hours and other policy.” Id. As previously noted, RSA 273 - A:1, XI defines the terms and terms and conditions of employment, rather than matters of broad managerial We also conclude that the change in schedules “primarily affect [s] the

second step in the analysis. in any constitution, statute, or regulation. See id. Theref ore, we proceed to the county fail s to argue, or present any evidence, that such a policy was codified work schedule s of deputies.” Even assuming that this poli cy was in place, the department” that allegedly reserved for the sheriff the “exclusive right to set deputies’ hiring letters and a “specifically designated policy of the Sheriff’s Nashua Bd. of Educ., 141 N.H. at p. 7 774. Instead, the county refer s to the exclusive authority” to alter the deputies’ work schedules. Appeal of City of 7

readily distinguishable. that reserved to the sheriff the right to set work schedu les. Thus, th is case and Marion Cty. are Here, however, there was no explicit written col lective bargaining agreement (expired or otherwise) concluded that “there was no change in the status quo and, hence, no unfair labor practice.” Id. quo,” when th e employer changed the employee s ’ schedules pursuant to that agreement, the court Assn., 883 P.2d at 225. Since that written agreement was the “basis for determini ng the status “discretion to change the work schedule” of the employees as necessary. Marion Cty. Law Enf. involved a collective bargaining agreement that explicitly provided the employer with the Enf. Ass n. v. Marion C ty., 883 P.2d 222 (Or. Ct. App. 1994), we decline the invitation. That case To the extent that the county invite s us to adopt the reasoning an d outcome of Ma rion C ty. Law 2

statute.”). A part from its apparent misunderstanding, then, nothing preven ted of course, contract for additional rights above those guaranteed by the excessive hours that might ot herwise result from the free market. Parties may, conditions, in order to protect workers from the substandard wages and 52, 5 p. 7 7 (2d Cir. 1998) (“The FLSA sets a national ‘floor’ in terms of working (Randolph, J., dissenting); see also Rogers v. City of Troy, N ew York, 148 F.3d t o pay.” U.S. Dept. of Air Force v. F.L.R.A., 952 F.2d 446, 455 (D.C. Cir. 1991) minimum standards, a floor, not the maximum amount an employer may agree the changes in response to the DOL investigation, “the FLSA sets only We are not persuaded. Ev en assuming that the county actually made

penalties that could have been imposed by the DOL. and, thus, that it changed these practices to avoid possible f uture fines and choice but to comply with” what it “understood to be mandated” by the DOL, two changes because of the DOL investigation. It contends that it had “no Nevertheless, the county maintain s that it was justified in making these

unilateral changes after the u nion filed its certification petition. unfair labor practice by violating the status quo when it made these two conclude that the PELRB erred in determining that the county committed an (“Arguments not briefed are waived on appeal.”). Accordingly, we cannot this ground is waived. See Aubert v. Aubert, 129 N.H. 422, 428 (198 p. 7 7) mandatory subjects of bargaining. Therefore, any claim of error predicated on county does not argue on appeal that these two changes did not involve the way in whic h overtime was calculated, the u nion correctly notes that the Turning to the changes to the pay rate for the outside detail work and

point is affirmed. legally erroneous. See id. at p. 7 774 - 76. Therefore, the PELRB’s decision on this 2 following the filing of the union’s petition was unsupported by the evidence or practice, by unilaterally altering the deputies’ sched ules, over their objection, violated the status quo doctrine, and thereby committed an unfair labor circumstances, we cannot say that the PELRB’s determination that the county to whether the Deputies worked a 5 - p. 8 8 or a 4 - 10 schedule.” In these 8

retaliatory or discriminatory motive on the part of the public employer.”); have recognized that a cla im under RSA 273 - A:5 requires evidence of a t he county cites Hudon v. City of Manchester, 141 N.H. 420, 424 (1996) (“We necessary prerequisite to an unfair labor practice. In support of its position, compensation was calculated. The county argues that such a finding is a rate for the outside detail work, and the manner in which overtime or improper motive by the sheriff i n changing the deputies’ schedules, the pay Finally, t he county notes that the PELRB made no finding of retaliation

492 (19 p. 8 89). failing to do so. Cf. Brown v. John Hancock Mut. Life Ins. Co., 13 1 N.H. 485, not demonstrated that the board unsustainably exercised its discretion in PELRB was under no obligation to grant such a request, and the county has such evidence could not have been presented at the original hearing. The allow it to present additional evidence, without making any showing as to why the county’s motion asked the PELRB to permit it to reopen the hearing and with respe ct to establishing and implementing personnel polic i es.” In essence, and responsibilities of the Board of County Commissioners vis - à - vis the Sheriff personnel policies (status quo) of the County and the corresponding authority “[a]dditional testimony and exhibits are necessary to clarify the existing rehearing filed with the PELRB, it acknowledged in th at motion that although the county referenced a portion of its alleged policy in its motion for record to support its contention tha t such a county policy existed. And (2004). However, in its briefs, the county fail s to cite any evidenc e in the [its] issues on appeal.” Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 party, here the [county], to provide this court with a record sufficient to decide We decl ine to consider this argument. “It is the burden of the appealing

continue to violate that policy. petition violated c ounty policy, the status quo doctrine should not require it to the sheriff had been calculating overtime prior to the filing of the u nion’s calculation of overtime.” At bottom, the county contend s that, because the way the Sheriff’s department and all other county emp loyees . . . with respect to the Manual” and that the DOL investigation “brought to light the conflict between the c ounty “had a countywide overtime policy that was part of its Employee account for c ounty policy regarding overtime calculations. It maintain s that T he county also assert s that the PELRB erred by f ailing to properly

an unfair labor practice. See RSA 541:13. demonstrating that the PELRB erred in finding that these changes constitute d T herefore, we conclude that the county has not met its burden of were simply wages and benefits greater than what the FLSA required. continuing to includ e benefit tim e when computing overtime wages, as these the county from continuing to pay the increased outside detail wage and p. 9 9

N.H. at 88. unit members before the filing of the petition for certification. See Appeal of Sullivan County, 141 make the changes at issue and provided notice of its decision to do so to prospective bargaining As the union correctly observes, in Appeal of Sullivan County, the employer both decided to 3

DALIANIS, C.J.