Appeal of New Hampshire Department of Transportation

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Good morning. Good morning. You seated please. Thank you, sir. This is Case 20 20 0 4 1 6 appeal of New Hampshire Department of Transportation. Thank you very much. Counsel. You may proceed.

Good afternoon, a may it please the court, Jessica King, on behalf of the New Hampshire Department of Transportation. I'm reserving one minute and I'm happy to take questions at any time. Selection criteria are prohibited. Subjects of bargaining and the public employee Labor Relations Board aired at the matter of law when it concluded that a CDL medical requirement implemented by the department as a minimum selection criteria was a mandatory subject of bargaining. I have a problem. It's when I read your brief, which are very well written, very well thought out. Thank you, your Honor. Entertaining. It struck me that you might be on a different case from your opposing counsel. Have you read them? I have, your Honor. Yes. Extensively We're talking about issues that really your opponent doesn't talk about at all, so help me out. No problem, your Honor. I believe the, the, uh, disparity comes when, because we are looking at this statute in two completely different ways. I-C-R-S-A 2 73 a one 11 Right. As reserving to the state, the exclusive authority to act in the categories listed within the statute, because the statute itself says there is exclusive authority there. So you're taking, uh, exception with our previous decision, city of Nashville, that there had to be something more than just the statute you just quoted. Correct? Correct, your Honor. And I asked the court today to overrule appeal of City of Nashville because to hold to that ruling would completely ignore the statutory language. The, that Legislature hasn't changed to statutes since that ruling. It's been 20 plus years, right? Correct, your Honor. But there, there's exists a during case law in this area. Um, the legislature is likely unaware that there is even a problem here. Um, the, the express language of the statute is very clear, exclusive managerial authority is, and it enumerates certain subjects. Uh, appeal City of Nashville is cited maybe four times for this proposition. And at no point is there any discussion, um, describing how the court got to its, um, its conclusion. So do we have to overrule, Um, city of Nashua for the DOT to prevail in this Case? Not necessarily. There are two avenues that you could get to, um, you could pursue to get to, uh, overturning the board's order. First, we have a conflict in the underlying case law here in re Pittsfield, which was decided two years after, uh, appeal of City of Nashua ceased to consider RSA 2 73 or explicitly considers RSA 2 73 A as a source of exclusive managerial authority in first prong of the, uh, test and appeal of state. And so if this court sees kind of the, um, discrepancy in the cases in the past cases, as well as the, uh, lack of analysis in appeal of City of Nashua, you can read appeal of City of Nashua to say that they're, the subject that they're talking about is not in those enumerated subjects. Can you tell me More about the more recent case that you find in Conflict? Yes. It's appeal of, I'm sorry, in re Pittsfield School District, it's a 1999 case. It was decided two years after, uh, PL of City of Nashua. It's about employee evaluations that were implemented for teachers. Um, the city implemented these unilaterally. The board said that that was a mandatory subject of bargaining while this court agreed. The analysis done in re pittsfield is the exact analysis that the state is asking the court to do today. Uh, the But isn't that just analysis, hence dicta. The, it is in dicta, but the holding is based upon this, this, um, reading of the law that 2 73 A is a statutory source of managerial ex, uh, exclusive and managerial prerogatives. Do you Agree that the parties have bargained the medical cards in the Past? I don't. I, we have bought bargained the pay as it relates to the card and not the policy. And we have maintained throughout this case that we are subject to impact bargaining on the pay aspect. And so while we have bargained what the stipend could be, we have never bargained with the union what the policy should actually be. We've brought the policy to the table and started bargaining the impacts of that policy. But we've, but, uh, and that's what we propose today, is we have impacts that may be bargain, but the policy itself is reserved exclusively to the state. And there's testimony at the board that describes that process by the former manager of employee relations. So, ha hasn't the, I, I'm a bit confused. Hasn't the state unilaterally gone ahead and moved in the direction of what it proposed a number of times back in mid 2000 teens that was negotiated about and rejected? Well, so we have gone through and we've actually implemented, it's a, a different, um, it's different than what's in the contract. The explicit language of the contract is a stipend program. If somebody maintains their card, they're, if they have their medical card, they maintain it, they show proof of it throughout the winter, they get a stipend throughout the winter. What we've implemented is a mandatory hiring requirement, and that's to make sure that once they come into the state, once they enter state service, they meet those minimum safety requirements that, uh, DOT is looking for. Unfortunately, this medical card requirement is required of all federal carriers and all private carriers. The states and local government are exempt, but The P-E-L-R-B determined that the state can impose that requirement upon initial hiring. They just, it just determined that internal movement, lemme put it that way, of already hired employees would be a subject of bargaining. I, yes, your Honor. I agree that the, the board made a distinction. I think it's a distinction without merit. Um, the first I, the board ruled that it was a permissive subject of bargain. I, I sorry, that it could be, uh, yeah, it was a mandatory subject of bargaining, but, um, the hiring could be under the selection of personnel contemplated under the selection of personnel. But what we've implemented here are, um, a man, uh, minimum requirements, which are part of the supplemental job description. So practically the way that works is anytime somebody in the state moves to a new position, they have to certify for that position. And in order to certify for that position, you have to meet the minimum requirements. And so we did not just randomly implement this requirement, uh, upon movement, it was put into SJD as a minimum requirement. And the effect of that is upon movement. Are There other minimum requirements that added after the fact or that have been added after the fact outside of bargaining? I mean, uh, none specific come to mind, but in across state service, uh, we revise the s jds quite frequently, um, without going to the bargaining table. Um, and the, so an example that comes to mind for just minimum meeting minimum requirements is, you know, attorneys in the state must, uh, show that they've been admitted to the State of New Hampshire Bar. But wouldn't That be something that would be required upon first hire, not something added after the fact? So I see where you're, I see your question, your Honor. Uh, so if, say, as an attorney for the Department of Safety wishes to move their position, either within the Department of Safety or outside of the department safety to transfer their position, they must then show that they are certified for that next position. So they have to show they, they have the minimum requirements for that position. So yes, we do check upon every transfer, um, that you have to say, Hey, I meet the qualifications of this job. The, the board was not impressed by the department's safety arguments. And it would seem that they're somewhat undermined by the fact that if somebody has a job and conquered, they can continue the job in Concord without getting the CDL, um, license or medical rec. And, but if they're going to transfer to Nashua, then they need to get it. And that didn't, that doesn't make sense to me. It doesn't seem to make sense to them If it's a safety issue, it's a safety issue. Yes, your Honor. So this has been a longstanding, um, issue for the department. It's something we've tried to work towards, um, with the, with the union to get, uh, compliance, understanding that potentially the federal requirements might be imposed down the line. We've been expecting it for a number of years now in that, um, in that vein, we've been trying to encourage employees to come into compliance, um, as we go. And so this is one of those tools we thought will implement this, um, as a hiring requirement. And it, once that is implemented, the um, stipend will keep those, uh, um, cards maintained. And so it's working in connection. It's a gradual step process to get the ultimate goal of safety. What about the costs that are imposed on people for the exams? So bargaining history shows that the costs were considered when they implemented the stipend, but regardless of that, we, we admit and we are ready to impact bargain those costs. We understand costs to employees may have to be bargained down the line. Um, on the starry decisis issue, what, what's, what supports your argument that the, the city of Nashville is unworkable? It seems to me there's no evidence that it's unworkable. The, the fact that there haven't been that many cases here, to me means it's workable to you. It means it's unworkable No to the very fact that it is completely, uh, opposite of what the statutory language is. To me, that makes it unworkable. It's just wrong in your view. It it is wrong. And it is hampering the, uh, states and public employees, uh, managerial authority to manage the state. We're not talking private bargaining here. The history, legislative history of RSA 2 73 recognizes that there has to be inherent managerial authority, and it has to be broad for the state, because we have to keep the government functioning. You're Not arguing that the statute's ambiguous. I'm not arguing. The statute is ambiguous. So we don't Get the legislative history. I agree, your honor, but it's to put into context that this is unworkable because this is supposed to be a, a prerogative of the state so that we can manage the state, um, in a way to serve the people of the state. And I see I'm almost outta time. I'd like to get to one other point, and that's that the board used the wrong reasoning when it appli applied the permissive part of the test. Um, it considered the state the overall value to the state as opposed to the underlying, um, uh, impacts to bargaining the test and state is not, does this help the state? Does this hurt the state? Does it, uh, help get to the goal of where the state is going? The test is, is it, does it, what does it impact, does it impact terms and conditions of employment, or does it impact, uh, traditional managerial subjects? So Right. The board's not permitted to second guess the policy determination. Correct, your honor, it, the board here is acting as a super department questioning the advisability of what the state has done here. And so it has reached outside of its granted expertise in bargaining. And, you know, we, we defer to the board and its expertise in bargaining, but here, it's gone outside of that expertise in bargaining. It's reached into the department and made a policy decision. I see. My time is up. Thank you. You still have one minute if You need it, I reserve it. Thank you, your Honor. Mr. Schneider, Good morning. May it please the court.

My name is Gary Snyder. I'm here today on behalf of the State Employees Association. Um, jumping right in, uh, the, the state failed meet its burden to overturn the Prbs decision state. Further fails to establish that overturning appeal of City of Nashua, uh, board of Education is justified, warranted, uh, based on the applicable facts and the case law in accord, sorry, in accordance with the principals of very decisis. Could you move that microphone closer to you? I'm getting old. Sure. Is this, is this better? Thank you. So the, the first test, the three-pronged test under the appeal state that the, uh, PLRB appropriately applied. And the first test is to determine whether or not, uh, there is an independent, uh, statute or constitution or statutorily adopted regulation that grants the exclusive managerial, uh, right to, uh, uh, sorry. To, um, and you Say there is none here. There is none here. What did the board find? The board found that there was none here that it pointed to essentially, uh, you know, it, it pointed to the past precedent with, um, appeal Nashua, but also appeal Sheriff County, um, uh, sheriff's office as well as, um, uh, appeal of town of North Hampton, and basically found that all of those cases have con consistently appealed that there is an independent statute other than RSA 2 73, A one, subsection one, uh, that can, that must be used or to determine that a subject is prohibited. Can I draw your attention to 16 six of the collective bargaining agreement, which allows for changes to job specifications? So all employees shall be notified in writing of any changes in his, her job specifications and duties upon receipt of said changes from the division of personnel, blah, blah, directives from the commissioner, agency head, et cetera. How does that fit in with this, um, attempt to perhaps impose a new specification? So, as the, Doesn't that authorize this type of managerial decision making? It does not because of the specific factual scenario. Uh, generally speaking, it, it's, it's understood that there could be changes to job descriptions as a state, um, has already alluded to. It happens all the time. Uh, it's the specific fact scenario, fact scenario here that the, it impacted the terms and conditions of employment and namely wages. Uh, when, when that happens, then it goes beyond the board 'cause of the cost of the medical appointment, correct. Or review. Correct, Your Honor. So a job specification that doesn't cost anything could be imposed. I wouldn't go with that broad. 'cause there's other terms of conditions of employment that could apply, but, um, in, in many cases it can, it can be imposed, yes. Okay. So, and then while it was never raised at the initial hearing, um, on the most reconsideration and appeal, the state now raises, uh, the statute of RSA 21 G nine and argues that that offers exclusive managerial authority. But looking, even just a cursory review of that statute shows that, uh, managerial authority provided in that statute is, uh, general. And that, and that's a very important distinction that, uh, the, this court in previous decisions has stated that it, it's not enough to just simply have an authority. It has to be an exclusive authority. And RSA 21 G nine does not provide that. In fact, the, the site of two language states, uh, that RA 21 and it's RSA 21 G nine two C provides, uh, the DOT with the ability to exercise general supervisory appointed and appointing authority over all department employees subject to applicable personnel statutes and rules. Um, RSA 2 73 A is a law that would, that, that, uh, that grant of authority would be subject to. Do you agree with the board that new hires could be subject to the medical card requirement without, um, returning to the bargaining table? Yes. Yes. In, in the terms that it was upon selection not necessarily required throughout the term as long as it was initially, yes. And do I understand you say that if in fact the state had imposed this requirement as it did, but then said, and we'll pay for it, we wouldn't have an issue, we wouldn't be here. Um, we still may have an issue because it imposing a, uh, a wage issue at all becomes, uh, I think a, a mentor subject to bargaining. I do think that they much neutral. That's what Judge bas point, even if it's neutral, because there's other additional factors that are, are, I mean, what do you mean they have to go to the doctor? You have to go to the doctor. Um, it also brings 'em in line with, uh, the, the private and, um, non-governmental or non non-state entities have a higher level of pay. So it, it raises other concerns about, well, now if you're going to treat them like private, uh, employees, then they should be paid in line with private employees. But I fully acknowledge that it certainly changes the analysis a bit because when it's, when it becomes cost neutral, certainly, uh, at least takes away some of the, the impact. So a harder Case, but that's not the one we have in front of us. Correct. So in summation, on the least first point, there is no independent statute, uh, that, um, that, that, uh, creates a, a exclusive managerial right on this, uh, point of bargaining. And so as a result, it passes the first test and it's at least permissive, but move on to the second and third test. Now, under the second test, it asks the question, does the subject primarily affect the terms of, sorry, you don't think it's mandatory? Sorry, sorry. I pivoted. I must have, as I say, mandatory. It is, I do believe it's mandatory. It is not prohibited. It is at least permissive when we move on to find out if it's mandatory through the second and third step. Right. I apologize if I misspoke. Um, so the, the second has asked the question, does the subject primarily affect the terms of conditions of employment rather than matters of broad managerial policy? And where I think there's a, a, a large difference between my point of view and the state's point of view on this, uh, and this question is that the state seems to basically be arguing that there's sort of an ipso facto, uh, that the state says that this is, um, a term condition or this is a managerial policy because it, it applies to safety, it applies to selection of personnel. Therefore it must be the problem is they haven't shown anything that suggests that that's actually true. All of the supporting. So that's a question of fact, correct. Right. Well, and does it have to be true or are managers allowed to attempt something that might fail, but all for good reasons? I think it has to be true, because that is what the court has imposed in the past. The court has said, So it has to be effective. Well, it, it at least has to be supported by fact, right? I don't know if I would say it has to be effective, but it has to be supported by fact in this case. The court has previously said that this conditions are not determined by offering simple labels either party, but rather requires determining the primary effective proposals and requires an evaluation of strength and focus of competing interests. The, the strength and focus of the competing interests clearly are outweighed in favor of the, the union in this case, because there are tangible losses of wages as well as other impacts determined conditions of employment such as internal movement, And as of yet, no effective increase in safety 'cause it hasn't been implemented yet. Well, So how do you balance what is against what might be? Well, because there's no reasonable expectation at all, and, and the, the state did not put anything forward that would suggest that safety would actually be improved. In fact, so The feds are on a snip hunt as well, imposing these medical cards? No, your Honor, drivers? No, your Honor. If they were imposed in the way the federal government does it, it'd be different. Again, the specific facts of this case requiring it at all times, it only requires it for internal movement. So that means that as Justice Bass has pointed out that a person can fail the test in trying to transfer from Concord to, to Nashua, and then continue to drive a huge multi ton truck around Concord for 20 more years to come, even though, uh, a doctor has decided that it's Unsafe, right? It might be an interim proposal seeking compliance later, but without, um, throwing someone out of work who has a job but might fail the test. So it's kind of, they're damned if they do, and they're damned if they don't, trying to accommodate all sorts of current employees, meaning the person who's sufficiently performing in Concord but now fails the test paying transfer can stay in Concord as opposed to losing their job. So I, I think I'm losing the point a bit because again, the, the, the goal is safety here, and it doesn't affect safety at all. Um, it's, it, it's An incremental move towards safety of the entire workforce. I I don't see that it, I don't see that Accommodating individuals along the way. Everything that's sort of, uh, rolled into an existing situation might have some transition time, I guess is my point. And I appreciate that. With, with all due respect. I do disagree. I I don't think that, um, you know, to call it incremental I think is somewhat misleading because it doesn't have any effect on safety. And if it were incremental, there would be at least some effect on safety. Um, But that's not, that's not our standard of review here. How do we, how are we supposed to look at the decision of the board? Well, that's somewhat my point is that it is a finding of fact and, uh, findings of fact are prima facily accepted by, by the court, and so that portion of the, of this cannot be reviewed. Um, it's, it must be taken as as true. And so that's essentially my conclusion. Um, that, sorry, did that answer your, your question? I, I don't know. What about the department's position that No, this wasn't really a subjective prior bargaining. I read your brief to make a different point. Yeah, I'm not sure how the state reaches that conclusion. Uh, there are, I mean, it's in right in a certified record, uh, multiple proposals back and forth, including proposals that, uh, these PDL medical cards be mandatory, uh, that they'd be, you know, paid for, and they, those were rejected. And then the parties had set since settled on this sort of, you know, during the, the, the busiest months of the year from November to March, there would be an incentive for people to, to make sure that they're, they're safer. Um, that I see as an incremental step toward, towards safety. Um, just to go back to the other point. Um, but so I, I think it's very clear that, that the intention of the parties when looking at the totality of things, um, and the board didn't make a decision on this, uh, in its finale, but did sort of make a comment. They found merit to this argument that, uh, when you're looking at the, the contract as, as along with the bargaining history, it shows the parties, uh, were, had agreed not to make, uh, any, not impose any sort of mandatory limitation on the CDL medical card, rather, was to create an incentive-based voluntary program. So yeah, I'm not sure where the, uh, where the state supports its argument that there was no bargaining history on this. So on, uh, city of Nashua, is it, uh, why does a stare decisis analysis lead us to the conclusion that it should stand? So as you, I'm sure you know, there's a four part test for determining whether or not sta decisis on the stand and appeal of national, I believe all four of these prongs, he says, fall in favor of maintaining the current standard. Uh, the, the state's primary argument on the first prong essentially seems to be that the reasoning was bad. They don't agree with the reasoning of, uh, of appeal of state and appeal of Nashville came up with 27, 24 years ago, and therefore ifso facto, it's, it's bad. It might be changed, but, um, just as pass it, as you sort of pointed out there, there, there hasn't been a lot of case law on this. The parties have been working under these standards on a daily basis for the last 24 years without issue, and it's been upheld at least two other times since then. Uh, there's really, if any What about, what about the Pittsfield case? So the Pittsfield case didn't actually, it, it never actually found it. There was a, um, an exclusive right in that case, but I, I, I've got circled back to, again, that happened two years later. Then subsequently, uh, in 2014, I think 2014, uh, two more cases came out upholding the standard. So I, I don't see the, the level of negative treatment that the, the state is arguing. Um, and again, the, I, I think the proof is sort of in the pudding more so that there are hundreds of bargaining units and public employers that bargain along these lines every day that have signed MOAs along these lines every day that, um, process grievances along these lines every day. And it's causing a very minimal amount of problem. It, it seems to work and it makes sense. I have a concern if the court were to, uh, uh, actually, um, accept the, the state's argument that it would then become unworkable though, because as this court has acknowledged in the past, it is to the benefit of, and it's the, the larger goal of our 2 73 A, that the parties be able to collectively bargain and that there be meaningful, uh, topics they'd be able to discuss and, and debate and, and negotiate upon. This would limit those number of, uh, of, um, mandatory subjects of bargaining and permiss subject to bargaining to a much lesser number and would arguably uncut the entire value of RSA 2 73 A and specifically RSA two 70 A three, which has the obligation to bargain. So there are no questions with that. Moving on to the second test, um, and it sort of touched a bit, but there is a heavy reliance on this standard currently. If we were to adopt the, the state's line of think the state's, uh, sort of proposed way of reading this, uh, it is going to change contract. It is going to make provisions and contracts illegal or un enforceable void. And there's a reason that people agreed to terms and contracts right there, there was somebody got something or somebody gave something up in order to get there, and it's going to undercut the, the, the, the benefit of the bargain, uh, for somebody probably, uh, probably the, the employees in those cases. I also wanna address just a, I think it's a related, uh, a point that the state feels that it impact bargaining. This would be sufficient. Um, impact bargaining is a much lesser value than a mandatory subjective bargaining. It basically gives the employer the right to do whatever they want, and then the employees to beg for a change after the fact, right? I mean, if, if the employer can in this, in this case, impose this, uh, this requirement and then require people to go out and pay for, you know, the doctors and everything and drive to the doctors, and, um, then there, there, the pay has already, the pay issue has already occurred. Now you're, I I now don't mean to interrupt your thought. Oh, I'd like you to conclude your thought because your red light is on. Oh, thank you. Um, so I guess it, it, it completely changes the dynamic. It completely cuts the legs out. It removes any leverage for the, uh, the employees to say that, okay, our, our, you're now saying our, our, our pay has changed, and you get to do that without us having to say anything, and now we get to come and ask you to, to fix it. They can just say no, the employer can just say no. Under impact bargaining, there's no obligation to say yes, but under a mandatory subject, the, uh, you know, the, the union, the employees can go to the, uh, to the state and say, look, if you wanna do this, and, and it's your choice if you want to pursue this, but we need X, Y, and Z and you can't do it until, and then there can be actual negotiations that, that take place. Thank you. Thank you, counsel. Thank you very much. Do You need your one minute Just to address a brief Please Proceed point. Um, I rise to address one brief point, and it's the focus of the second prong in the test and appeal of state, um, the impact to the state, uh, managerial authority subjects. Um, the SEA states that we haven't provided any evidence and the, the board said the same thing, but I, I read the statutes as saying it has, the board has to evaluate the impacts to the state's subjects of what is traditionally reserved to the, the state's authority. And so we've got a mixed question of law and act here. The board used the wrong standard when it evaluated this evidence, and then it did not, it did not recognize the evidence we did provide. We had Alexis Martin, who's the HU administrative of, um, the Bureau of Human Resources, testified that we've had incidents with employees driving large vehicles. Um, we wanted to implement a risk management strategy for drivers. We were hiring and selection selecting, and she quoted as saying at the time of hire, we want to ensure that you're meeting the standards of safety to be in that position. Thank You. Your red light is on. Thank you both, Counsel. Thank you. Case submitted at the.