2025 N.H. 14, Appeal of Town of Barnstead

brief), for the respondent. Pyle Rome Ehrenberg, P.C., of Boston, Massachusetts (Ian O. Russell on the Abigail M. Geier, of Boston, Massachusetts, on the brief and orally, and

petitioner. Upton and Nicholas J. Blei on the brief, and Matthew H. Upton orally), for the Drummond Woodsum & MacMahon P.A., of Manchester (Matthew H.

(New Hampshire Public Employee Labor Relations Board)

Citation: Appeal of Town of Barnstead, 2025 N.H. 14 Case No. 2024 - 0097 Public Employee Labor Relations Board

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

lieutenant to the proposed bargaining unit. The PELRB also gr anted AFSCME’s motion to amend its petition to add the position of police 1

police and fire department employees in the proposed bargaining unit share a [¶5] On appeal, the Town challenges the PELRB’s determination that the

affirmance and accepted th e appeal. motion for summary affirmance. We denied the motion for summary The Town thereafter filed a Rule 10 appeal in this court, and AFSCME filed a t he PELRB certified AFSCME as the bargaining unit ’s exclusive representative. subsequently moved for rehearing, which the PELRB denied. In January p. 2 2024, Town’s motion and approved the hearing officer’s decisio n. The Town “community of interest” pursuant to RSA 273 - A:8, I. T he PELRB denied the officer’s decision, challenging the determination that the employees share a [¶4] The Town subsequently filed a request for review of the hearing

interest.” interact with each other at work, and identify a “self - felt community of observed that the employees work in approximately the same geographic area, to the Town’s employment terms and conditions. The hearing offic er also bargaining unit work in the field of public safety for the Town and are subject the police and fire department employees, all of the employees in the proposed training requirements, job duties, and standard operating procedures between to negotiate jointly.” T he hearing officer reasone d that despite any difference in unit have a sufficient community of interest such that it is reasonable for them employees. The hearing officer concluded that the “employees in the proposed approving the proposed bargaining unit consisting of fourteen of the Town’s [¶3] In September p. 2 2023, a PELRB hearing officer issued a decision

decision on the written record. lieu of a hearing, t he parties agreed to submit the case to the PELRB fo r a that they lack the essential community of interest.” See RSA p. 2 273 - A:8, I. In the duties of the employees in the proposed bargaining unit “are so dissimilar five police officers, and one police secretary. The Town objected, arguing that 1 EMTs, two fire rescue captains, one fire rescue lieutenant, one police sergeant, various positions within the police and fire departments: three firefighter certify a bargaining unit consisting of thirteen of the Town’s employees in [¶2] In February 2023, AFSCME Council 93 (AFSCME) filed a petition to

reverse. our decision in Appeal of Town of Newport, 140 N.H. p. 3 343 (1995). We agree and RSA p. 2 273 - A:8, I (20 23) and contends that the PELRB’s conclusion is contrary to 3

sick, and other leaves, medical and dental benefit plans, disability overtime, compensatory time, break period s, holidays, vacation, things, compensation, hours of work, reimbursable expenses, by the Town Board of Selectmen, which covers, among other proposed bargaining unit are governed by the Manual, established t he terms and conditions of employment of all employees in the

Barnstead.” The hearing officer further explained that: and all of them serve to protect the lives and property of the residents of hearing officer noted that “[a]ll of these employees are public safety employees & disciplinary decisions by the same Board of Selectmen.” In addition, the same jurisdiction, the Town of Barnstead, and are subject to the hiring, firing found that “all employees in the proposed bargaining [unit] work within the [¶7] From the record submitted for decision, the PELRB hearing officer

Moultonborough, 164 N.H. at 260. and the extent to which the work is integrated. Appeal of Town of conditions, employee benefits, the organizational structure of the employer, interest,” therefore, we consider such factors as skills, duties, working of Town of Moultonborough, 164 N.H. at 260. Wh en construing “community of employees’ exclusive representative.” N.H. Admin. R., P ub p. 3 302.02; see Appeal potential for “division of loyalties between the public employer and the structures,” the “self - felt community of interest among employees,” and the work rules and personnel practices,” “common salary and fringe benefit geographic location” of the proposed unit, the presence or absence of “common regulations set forth additional factors for consideration, including a “common identity of organizational units. Id.; see RSA 273 - A:8, I. Furthe r, PELRB employment, a history of workable and acceptable collective negotiations, and must consider certain criteria such as any similarity in conditions of Moultonborough, 164 N.H. at 260. Pursuant to RSA 273 - A:8, I, the PELRB it is reasonable for the employees to negotiate jointly. Appeal of Town of is whether there exists a community of interest in working conditions such that [¶6] The principal consideration in determining a proper bargaining unit

N.H. p. 4 415, 416 - 18 (2002). fact, are not subject to deferential review. See Appeal of Town of Litchfield, 147 27 p. 3 3 - A:8, I, and the application of our prior decisions to the PELRB’s findings of 166 N.H. 225, 229 (2014). Issues of law, including the interpretation of RSA that the record support its determinatio ns. Appeal of Town of North Hampton, PELRB’s findings of fact are presumptively lawful and reasonable, we require 259 - 60 (2012) (quotation omitted); see RSA 541:13 (20 21). Although the unjust or unreasonable.” Appeal of Town of Moultonborough, 164 N.H. 257, party demonstrates by a clear preponderance of the evidence that the order is erroneous ruling of law, we will not set aside its decision unless the appealing decision of the PELRB, we defer to its findings of fact, and, absent an “community of interest” pursuant to RSA 273 - A: 8, I. “When reviewing a 4

decision in Appeal of Town of Newport. We agree. community of interest analysis and that its conclusion is contrary to our therefore contends that the PELRB misapplied Appeal of Town of Newport ’s employer and common set of generally applicable personnel policies. The Town command do not share a community of interest despite having a common employees with differ ent schedules, duties, responsibilities, and chains of Town’s view, Appeal of Town of Newport stands for the proposition that and personnel practices, and work in the same geographic location.” In the interact with each other, have the same salary and fringe benefits structures things, operate under the same terms and conditions of employment, regularly lieutenants in Newport, the Fire and Police employees in this case, among other [¶9] Here, t he PELRB hearing officer concluded that, “unlike fire

Id. at 35 p. 4 4 - 55. interest sufficient for it to be reasonable for the employees to negotiate jointly. not support a conclusion that the fire lieutenants shared a community of finding of a “self - felt community of interest,” we concluded that the record did different collective bargaining agreement. Id. Thus, despite the PELRB’s worked different hours than other town employees and operated under a certification.” Id. at 354. Specifically, we noted that the fire lieutenants lieutenants have little in common with the other employees proposed for record, we determined that “other than sharin g a common employer, the fire other employees in the bargaining unit. Id. at 354 - 55. From our review of the which to conclude that the firefighters shared a community of interest with the concluded that the PELRB’s findings d id not provide a sufficient basis upon the bargaining unit. Id. at 344 - 45, 352. We agreed with the town and community of interest to include fire lieutenants with the other employees in arguing, among other things, that there was insufficient evidence of a The PELRB approved the proposed bargaining unit, and the town appealed, and fire department employees. Appeal of Town of Newport, 140 N.H. at 344. was composed of the town’s highway, cemetery, recreation, water and sewer, decision in Appeal of Town of Newport. There, the proposed bargaining unit [¶8] The hearing officer also distinguished the present case from our

mandatory subject of collectiv e bargainin g.” procedures] are usually established unilaterally by an employer and not a [standard operating procedures] is of no consequence as [standard operating officer stated that “[t]he fact that the police and fire departments have separate duties do not preclude a formation of a cohesive bargaining unit.” The hearing “differences in bargaining unit positions’ training requirements or specific job Given these common personnel policies, t he hearing officer reasoned that the

resolution procedure. promotions, transfers, performance appraisals, and dispute coverage, personal dress, personnel records, discipline procedure, p. 5 5

in their respective duties require that they complete separate trainings. police and fire department employees attend trainings together, the difference s equipment and maintain different certifications. Although in some instances record reveals that police and fire department employees utilize different officers and sergeants are armed and have arrest authority. Furthermore, t he not limited to, performing patrol, arrest and prosecutorial functions.” P olice employees, on the other hand, are “engaged in law enforcement, including, but providing emergency medical care and transportation. P olice department ambulance services to citizens of the Town.” They are also responsible for employees provide “among other public services, f ire suppression, rescue and duties carried out by employees of the two department s differ. F ire department assistance and “perform critical public safety functions for the Town,” the of the employees in the proposed bargaining unit generally provide emergency and property of the residents of Barnstead.” Although the parties agree that all fire departments work in the field of public safety and “serve to protect the lives [¶12] T he PELRB also observed that employees from both the police and

shifts weekly “to ensure constant, around the clock coverage.” few month s. Fire department employees, on the other hand, work two 24 - hour from either 7 a.m. to p. 5 5 p.m. or 5 p.m. to 3 a.m., and rotate between shifts every Police department employees generally work four ten - hour shifts per week, that police and fire department employees maintain different work schedules. N.H. at 354. The same reasoning applies here. In this case, the record shows employees in the proposed bargaining unit. Appeal of Town of Newport, 140 upon the fact that fire lieutenants worked different schedules than the other [¶11] In Appeal of Town of Newport, our conclusion was based, in part,

possible, every word of a statute should be given effect.” (quotation omitted)). presumed to waste words or enact redundant provisions and whenever Garand v. Town of Exeter, 1 p. 5 59 N.H. 13 p. 6 6, 141 (2009) (“The legislature is not other factors. See RSA 273 - A:8, I; N.H. Admin. R., Pub 302.02; see also establish a community of interest, then there would be no reason to consider sharing a common employer and common personnel policies wer e sufficient to organizational structures, duties and responsibilities, and work schedules. If employees follow its employment policies fails to acknowledge differences in Simply concluding that a community of interest exists because all of the Town’s Procedures Manual is little more than evidence of a common employer.” Town that the “presence of a generally applicable Personnel Policies and fire departments but to all employees in all departments. We agree with the procedures, and benefits apply not only to employees of the Town’s police and those from its police and fire departments. However, those policies, benefits and employment policies that apply to the Town’s employee s, including manual. Indeed, the Town’s personnel manual sets forth uniform fringe terms and conditions set forth in the Town’s personnel policies and procedures that employees from both the police and fire departments are subject to the [¶10] The PELRB’s decision was based, in significant part, upon the fact 6

M AC DONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred.

decision approving the proposed collective bargaining unit. employees to negotiate jointly. See id. Accordingly, we reverse the PELRB’s community of interest in working conditions such that it is reasonable for the conclude that the record does not support the conclusion that there exists a the fact that police and fire department employees all work for the Town, we [¶15] Notwithstanding the PELRB’s finding s, which derive primarily from

Town of Newport, 140 N.H. at 354 - 55. record before us and our decision in Appeal of Town of Newport. See Appeal of collective bargaining unit share a community of interest is contrary to the with the Town that the PELRB’s finding that the employees in the proposed expertise,” Appeal of Town of Moultonborough, 1 p. 6 64 N.H. at 260 - 61, we agree guides PELRB decisions is flexible, and gives much discretion to the PELRB’s basis. See id. at 352. Although “the statutory and regulatory framework that showing is a fact - intensive process that must be determined on a case - by - case other towns’ police and fire departments. However, the community of interest units consisting of employees from different departments, in some cases from [¶14] AFSCME points to prior PELRB decisions approving bargaining

rules apply to all employees in the proposed bargaining unit. operating procedures contradicts the PELRB’s conclusion that common work Rather, we agree with the Town that the existence of separate standard subject of collective bargaining” is not supported by the record in this case. consequence” because standard operating procedures are “not a mandatory statement that the differe nce in standard operating procedures “is of no rank structures, and standard operating procedures. The hearing officer’s Organizationally, t he police and fire departments have separate chiefs, budgets, Barnstead, the two departments operate from separate buildings. departments are located within close proximity to one another in Center locations and follow different operating procedures. A lthough both [¶13] In addition, employees from the two departments work in different