Mr. Kennedy was a music teacher in a school and a member of a bargaining unit represented by a union. Following declining enrollment in the band segment of the program, the school district eliminated the band program and entered into an agreement to allow affected students to participate in band offerings in a different community. His position was then eliminated. The teacher and union filed an unfair labor practice claim with the Public Employees Labor Relations Board (PELRB), alleging, among other claims, that the changes amounted to unlawful subcontracting of a program negotiated within the collective bargaining agreement. The PELRB rejected all claims, and the teacher and union appealed to the Supreme Court.
The Court affirmed the decision of the PELRB, and the opinion provides a helpful restatement of how to determine whether or not a proposed change in a public program must be negotiated with a bargaining unit. As the court noted, "[t]he Public Employee Labor Relations Act requires public employers and employee organizations to negotiate in good faith over the terms and conditions of employment. RSA 273-A:3 (2010). A public employer's unilateral change in a term or condition of employment is tantamount to a refusal to negotiate that term. Appeal of Hillsboro-Deering School Dist., 144 N.H. 27, 30 (1999)."
There is a three-pronged test for determining whether a particular proposal or action constitutes a mandatory subject of bargaining:
First, "[t]o be negotiable, the subject matter of the [proposal] must not be reserved to the exclusive managerial authority of the public employer by the constitution, or by statute or statutorily adopted regulation." Appeal of State of New Hampshire, 138 N.H. 716, 722 (1994). "Second, the proposal must primarily affect the terms and conditions of employment, rather than matters of broad managerial policy." Id. "Third, 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 [reserving matters of managerial policy to the employer]." Id. Negotiation over the public employer's action is mandatory only if all three prongs are met. Appeal of City of Nashua, 141 N.H. at 774.
In this matter, the Court ruled that the second prong of the test was not satisfied. The record showed that the music program was in fact eliminated, and none of the duties assigned to the teacher's position were assigned to any other provider. Therefore, the PELRB correctly determined that this was a case of managerial prerogative to eliminate a program, rather than impermissible subcontracting. It highlights the importance of establishing a factual basis for a proposed action prior to making a decision affecting a covered employee.