New Hampshire law requires that, in almost all cases, a collective bargaining unit have at least ten employees before it may be certified by the New Hampshire Public Employee Labor Relations Board (PELRB) as an official bargaining unit. RSA 273-A:8, I. The issue in this case was when, exactly, the ten employees had to qualify to be part of the bargaining unit.
Ten employees of the Deerfield Police Department wished to form a collective bargaining unit. They included six full-time patrol officers, two part-time patrol officers, a corporal, and the department’s secretary. The PELRB certified the bargaining unit, and the Town appealed that decision. Although the Town alleged errors had been made regarding two of the employees, the Supreme Court addressed only one of them: a part-time patrol officer who worked a regular shift at the time the bargaining unit petition was filed with the PELRB, but who had switched to an on-call, irregular schedule by the time the PELRB held a hearing on the petition and certified the bargaining unit.
Certain employees are not counted toward the ten-employee minimum because they are excluded from the statutory definition of “public employee.” Among those excluded are “persons who are employed seasonally, irregularly, or on call.” RSA 273-A:1, IX. The Court noted the language of RSA 273-A:8, which says that “in no case shall the board certify a bargaining unit of fewer than ten employees.” Interpreting this to mean that at least ten employees had to qualify at the time of the PELRB hearing and decision (rather than at the time the petition was made to the PELRB), the Court found that the part-time officer failed to qualify at the correct time, and thus the PELRB should not have certified the bargaining unit.