The Nashua Police Commission (“Commission”) appealed the decision of the New Hampshire Public Employee Labor Relations Board (“PELRB”) finding an unfair labor practice claimed by the Nashua Police Patrolman’s Association (“Association”).
In September 1999, the city implemented a new standard operating procedure for notifying police officers of court appearances. The collective bargaining agreement between the city and Association also contained a provision regarding notification of court proceedings. The Association filed a grievance alleging that the new procedure violated the collective bargaining agreement. The Commission denied the grievance, and the Association filed unfair labor practice charges with the PELRB. The PELRB found in favor of the Association.
On appeal, the Commission argued that the collective bargaining agreement required the Association to arbitrate the grievance and, therefore, the PELRB did not have jurisdiction over the case. Specifically, the Commission argued that, among other things, the collective bargaining agreement required the Association to request that the PELRB appoint an arbitrator to decide the grievance. The Supreme Court held that the Commission’s interpretation of the collective bargaining agreement was not reasonable since RSAs 273-A:2, V and 273-A:12 permit the PELRB to appoint arbitrators to resolve only contract negotiation disputes, not grievances. Therefore, the Association was not required to request the appointment of an arbitrator.
The Commission also argued that the PELRB erroneously ruled that the Commission had a duty to negotiate the new standard operating procedure rather than unilaterally imposing it. The Commission relied upon the managerial policy exception to the obligation to bargain. The applicability of the managerial policy exception is determined using the three-part test adopted in Appeal of State of N.H., 138 N.H. 716 (1994):
1) To be negotiable, the subject matter of the proposed contract provision must not be reserved to the exclusive managerial authority of the public employer by the constitution, or by statute or statutorily adopted regulation;2) The proposal must primarily affect the terms and conditions of employment, rather than matters of broad managerial policy; and3) If the proposal were incorporated into a negotiated agreement, neither the resulting contract provision nor the applicable grievance process may interfere with public control of governmental functions contrary to the provisions of RSA 273-A:1, XI.
A proposal that fails the first part of the test is a prohibited subject of bargaining. A proposal that satisfies the first part of the test, but fails parts two or three, is a permissible topic of negotiations. A proposal that satisfies all three parts is a mandatory subject of bargaining.
After applying this three-part test, the Supreme Court held that negotiating the new standard operating procedure was a mandatory subject of bargaining and found that the police department committed an unfair labor practice by adopting the new standard operating procedure unilaterally.
Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.