The New Hampshire Supreme Court recently issued three opinions reviewing decisions of the Public Employees Labor Relations Board (PELRB) arising from disputes in the unionized police departments of three different municipalities. In each case, a Collective Bargaining Agreement (CBA) was involved, and each decision depends in part upon the specific agreement that applied to the facts of the case. Thus, before relying upon any of these decisions as a guide in another municipality, consider the specific language of any CBA that may apply to the facts in question.
In Appeal of Exeter Police Association, No. 2005-718, decided August 15, 2006, a citizen complained that an officer was harassing him and his family following the issuance a traffic ticket. The officer was summoned to an internal investigatory interview, and as an individual sought to have a local attorney present with him during the interview. The request was denied, and the officer was interviewed. The officer was a member of a union, and five days after the interview, the union ratified the retention of the attorney as counsel for the union. Shortly thereafter, the officer’s employment was terminated as a result of the information learned during the interview.
The officer and the union challenged the discharge in the PELRB, which ruled that the termination was proper, based upon just cause, and that the refusal to admit the attorney to the interview did not violate a union employee’s right to union representation at an interview because the attorney did not represent the union at the time of the interview. The Supreme Court affirmed, finding that the statute, RSA 272-A: 5 does not guarantee a union employee the right to have a non-union representative of his or her choice present at an investigatory interview.
In Appeal of Exeter Police Association, No. 2005-718, decided August 15, 2006, the Court reversed a finding that the chief of police in Hampton had improperly attempted to negotiate directly with police union members rather than with their exclusive representative. As a matter of law, direct negotiations are an unfair labor practice, because they thwart the collective bargaining purposes of the statute, RSA 273-A. In this situation, a vote of the town meeting caused the board of selectmen to cancel all private police details for the remainder of the 2005 fiscal year. The police union demanded and received “impact bargaining” pursuant to their collective bargaining agreement, and negotiation sessions were held. Following a session, the local union president sent an e-mail to all members of the department, including both union and non-union personnel.
The chief of police responded to the president’s e-mail with a reply that also went to all members of the department. The response took issue with facts set forth in the original e-mail, and described the result of the failed negotiation session. The Court found that this was not “direct dealing with union membership” and instead affirmed that “…the mere act of communication by an employer with its employees is not a per se unfair labor practice under RSA 273-A: 5.” The key was that the statements did not deal with on-going or future negotiations, but instead dealt with a meeting held in the past.
Finally, in Appeal of Exeter Police Association, No. 2005-718, decided August 15, 2006 the Court affirmed the PELRB order reinstating a civilian police dispatcher who had been terminated for making untruthful statements during an investigatory interview about soliciting a “police discount” at local food establishments in violation of a department rule. The town argued that the PELRB erred by requiring the town to reinstate an untruthful police department employee, since there was a “…well defined and dominant public policy…” against such actions in light of the Supreme Court’s own holding in State v. Laurie, 139 N.H. 325 (1995).
The Court held that Laurie did not create a “strong and dominant public policy” against the retention of police department employees who are known to be untrustworthy, and allowed the reinstatement order to stand. As a practical matter, this holding may be limited to civilian employees, since sworn officers have additional standards to uphold to maintain their professional certification. However, an employee who knowingly misstates the facts to an employer during an internal interview, even in a police agency, is no longer subject to immediate termination for the infraction based solely upon public policy grounds. Local personnel policy manuals should be reviewed to assure that they carefully set forth the employment consequences of making untruthful statements to a supervisor.