Appeal of Town of North Hampton

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Public Employee Labor Relations Board
No. 2012-798

APPEAL OF TOWN OF NORTH HAMPTON
(New Hampshire Public Employee Labor Relations Board)

Argued: November 13, 2013
Opinion Issued: May 7, 2014

McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the
brief and orally), for the petitioner.

Molan, Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief
and orally), for the respondent.

HICKS, J. The petitioner, the Town of North Hampton (Town), appeals a
decision of the New Hampshire Public Employee Labor Relations Board
(PELRB), finding that the Town engaged in unfair labor practices in dealing
with the respondent, the North Hampton Professional Fire Fighters, Local
3211, IAFF (Union). We affirm.

The following facts were found by the PELRB or are supported in the
record. The Town is a public employer. See RSA 273-A:1, X (2010). The Union
is certified by the PELRB as the exclusive representative, for purposes of
collective bargaining and settling grievances, of a bargaining unit comprised of
“[f]ull time firefighters, EMT personnel and lieutenants.”
 The term “[e]mergency medical technician (EMT)” is defined by
administrative regulation to mean “an emergency medical care provider,
specifically trained at the EMT-basic, EMT-intermediate or EMT-paramedic
level of certification to administer life support care to injured and sick persons
in prehospital settings, overseen and directed by physicians.” N.H. Admin.
Rules, Saf-C 5901.50. EMTs are licensed by the department of safety. See
RSA 153-A:11 (Supp. 2013); N.H. Admin. Rules, Saf-C ch. 5903.

The parties’ most recent collective bargaining agreement was for the
period beginning July 1, 2010, and ending June 30, 2011 (the CBA). After the
expiration of the CBA, the parties’ relationship was governed by the status quo
doctrine. See Appeal of Alton School Dist., 140 N.H. 303, 307 (1995).

The CBA contained wage scales for firefighters and lieutenants,
respectively, each consisting of five steps. It provided that “[m]ovement
through [the] steps is dependent on achieving certain professional
certifications” as set forth therein. The requirements for each step included: a
firefighter or company officer level; an EMT level; and, after step 1, a specified
number of years. For example, the requirements for a firefighter to reach step
five were listed as “Firefighter II and Emergency Medical Technician
Intermediate + 15 years.”

During bargaining over the CBA, the Union submitted a wage proposal
that provided for, among other things, a “[s]tipend for paramedic level EMT
[that] will be 5% over actual step (base pay) whether hired as or a current
employee has received the certification.” The Town rejected the proposal and
the parties put the paramedic program issue on hold. The Town remained
interested in a paramedic program, however, and the Union informed the Town
in June 2011 that it was willing to resume negotiations over the program. The
Town responded that a vacancy on the selectboard was delaying the process.
Nevertheless, in August 2011, the Town adopted a paramedic program that
was not produced through bargaining with the Union. The program
established a wage schedule and conditions of employment similar to those
previously proposed by the Union and rejected by the Town.

By letter dated September 6, 2011, counsel for the Town contacted the
Union’s counsel regarding the new paramedic program. The letter stated that
the Town had “voted to establish a paramedic program including that position’s
initial wages (stipend) and working conditions.” It further stated that “it is
most logical that this new category be included in the current Firefighter’s
bargaining Unit. As such the Board recognizes the right of the Union to
request to bargain over the wages, hours and working conditions of that
position.” The letter invited the Union to contact the Town if it wished to
engage in such bargaining.

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 At that time, pending before the PELRB was an unfair labor practice
charge stemming from the Town’s alleged unilateral offer of different health
insurance options to Union members. On September 13, 2011, the Union
moved to amend its unfair labor practice complaint to include a charge based
upon the Town’s unilateral adoption of “a plan to increase the pay of
firefighters for obtaining additional training” – in other words, the paramedic
program. The PELRB granted the motion. Following a hearing, the PELRB
found, in pertinent part, that “the Town committed an unfair labor practice on
account of its unilateral adoption and establishment of a wage schedule and
other conditions of employment for a firefighter EMT with a paramedic
licensure level.”

On appeal, the Town argues that the PELRB erred in: (1) finding that the
Town was required to bargain over its paramedic program when the adoption of
that program was within the Town’s “managerial prerogative”; (2) finding that
the Town had previously created a paramedic program; (3) finding that the
Town was required to bargain over the wages, hours, and working conditions of
a position before the parties agreed to, and the PELRB ordered, the inclusion of
that position in a bargaining unit; and (4) finding, on insufficient evidence, that
the Town violated its duty to bargain and/or was motivated by anti-union
animus.

Our standard of review is governed by RSA 541:13 (2007). See Appeal of
Londonderry School Dist., 142 N.H. 677, 680 (1998); RSA 273-A:14 (2010).

When reviewing a decision of the PELRB, we defer to its findings of
fact, and, absent an erroneous ruling of law, we will not set aside
its decision unless the appealing party demonstrates by a clear
preponderance of the evidence that the order is unjust or
unreasonable. Though the PELRB’s findings of fact are
presumptively lawful and reasonable, we require that the record
support its determinations.

Appeal of Town of Hampton, 154 N.H. 132, 134 (2006) (quotation and citations
omitted); see RSA 541:13.

The Town’s first challenge to the PELRB’s decision is based upon the
“‘managerial policy exception,’ which is contained within the statutory
definition of ‘terms and conditions of employment.’” Appeal of City of Nashua
Bd. of Educ., 141 N.H. 768, 773 (1997). That definition is as follows:

“Terms and conditions of employment” means wages, hours and
other conditions of employment other than managerial policy
within the exclusive prerogative of the public employer, or confided
exclusively to the public employer by statute or regulations

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 adopted pursuant to statute. The phrase “managerial policy within
the exclusive prerogative of the public employer” shall be
construed to include but shall not be limited to the functions,
programs and methods of the public employer, including the use of
technology, the public employer’s organizational structure, and the
selection, direction and number of its personnel, so as to continue
public control of governmental functions.

RSA 273-A:1, XI (2010). The Town contends that “[t]he creation . . . and the
parameters of programs” like the paramedic program are the exclusive province
of management. Reasoning that the “[c]reation of a new program includes its
cost which entails an initial determination of hours and wages and work
conditions,” the Town concludes that it was not “required to bargain with the
Union prior to establishing the initial wages, hours, and other conditions of
employment.” We disagree.

“[A] public employer’s ‘greater’ power to create or eliminate a position or
program does not necessarily include the ‘lesser’ power to unilaterally
determine wages and hours for the position or program.” Appeal of City of
Nashua Bd. of Educ., 141 N.H. at 775. To determine whether the Town had a
managerial prerogative to initially set the wages, hours, and other conditions of
employment for firefighter/paramedics, we apply “a three-step analysis for
measuring a particular proposal or action against the managerial policy
exception.” Id. at 773.

First, 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. Second, the proposal must
primarily affect the terms and conditions of employment, rather
than matters of broad managerial policy. 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.

A proposal that fails to satisfy the first step is a prohibited
subject of bargaining. A proposal that satisfies step one, but that
fails either step two or step three, is a permissible topic of
negotiations. A proposal that satisfies all three steps is a
mandatory subject of collective bargaining.

Id. at 773-74 (quotations and citations omitted).

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 With respect to the first step, the Town has failed to identify any
“independent statute, or any constitutional provision or valid regulation,” id. at
774, that reserves “establishing the initial wages, hours, and other conditions
of employment” of firefighter/paramedics to the Town’s exclusive managerial
authority. As in Appeal of City of Nashua Board of Education, we reject the
Town’s “bootstrapping attempt” to find such a reservation of authority in RSA
273-A:1, XI itself. Id.

We also conclude, under the second step of the managerial policy
exception analysis, that “the proposal . . . primarily affect[s] the terms and
conditions of employment, rather than matters of broad managerial policy.” Id.
at 774. Here, as in many cases, the particular paramedic program “touch[es]
on significant interests of both the public employer and the employees.” Id.
We conclude, however, as did the PELRB, that the matters of wages, hours,
and conditions of employment for firefighter/paramedics may be considered
separately from other aspects of the program. Cf. City of Elizabeth v. Elizabeth
Fire Off., 487 A.2d 337, 340 (N.J. Super. Ct. App. Div. 1985) (finding that
issues of establishing a sick leave verification policy – a managerial prerogative
– and determining “who pays for the required doctors’ reports,” were, in
context of determining public employer’s obligation to negotiate, “for all
practical purposes entirely severable”). Thus, the PELRB found that while “it is
within the Town’s managerial prerogative to determine that it wants to promote
the provision of EMT services at the paramedic level[,] . . . the Town is obligated
to bargain with the Union [over] the compensation and other conditions of
employment for an EMT who holds a paramedic license.” This finding
comports with our case law:

[O]ur cases have consistently recognized proposals and actions
that primarily affect wages and hours as mandatory subjects of
bargaining. For example, even though a school board’s authority
to decide whether to offer extracurricular programs or to determine
the number of such programs implicates broad managerial policy,
the wages and hours for staff involved in any extracurricular
programs constitute mandatory subjects of bargaining.

Appeal of City of Nashua Bd. of Educ., 141 N.H. at 775 (citations omitted); see
Appeal of Berlin Educ. Ass’n, 125 N.H. 779, 783-84 (1984).

Finally, having determined that we may analyze the wages and
conditions of employment component of the paramedic program separately, we
conclude that if this proposal were incorporated into a negotiated agreement,
the resulting contract provision would not interfere with public control of
governmental functions. See Appeal of City of Nashua Bd. of Educ., 141 N.H.
at 774; cf. NJ Transit Auth. v. Transit PBA, 714 A.2d 329, 333 (N.J. Super. Ct.
App. Div. 1998) (noting that while “a public employer has a prerogative to

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determine training issues[,] . . . it is well-established that employees may
negotiate the costs connected with training without significantly impinging on
the managerial prerogative”). Because the wages, hours, and employment
conditions component of the paramedic program satisfies all three steps of the
managerial policy exception analysis, it is a mandatory subject of collective
bargaining. See Appeal of City of Nashua Bd. of Educ., 141 N.H. at 774.

The Town next argues that the PELRB erred in finding that the Town had
previously created a paramedic program. Specifically, the Town asserts that
the PELRB found that, because “the Town had previously employed firefighters
who had paramedic certification[,] . . . it[:] [(1)] had already created a
Paramedic Program[;] and [(2)] . . . was now obligated to negotiate over a
program already in existence.” The Union counters that the PELRB made no
such finding.

The PELRB found that “[f]irefighters with an EMT-paramedic level of
medical licensure/certification have previously worked in the department but
without any distinction in pay” and noted that “both the Town and the Union
are interested in resuming a paramedic level of service in town on a more
permanent basis.” The Town asserts that it “has never denied that it had
employed firefighters who possessed paramedic certification,” but contends
that it “never provided paramedic service to its citizens.” It acknowledges that
there was testimony before the PELRB that an EMT is required by the State to
provide a level of service consistent with the level at which he or she is
licensed. It then argues that even if this requirement exists, it establishes
“only that the individual who possesses paramedic certification must provide
‘paramedic care’[,] not that the Town had assumed that responsibility.”

While the PELRB’s finding with regard to “resuming a paramedic level of
service” might be ambiguous, it is immaterial because the PELRB did not find
that the Town was obligated to bargain over a paramedic program already in
existence. Rather, the PELRB found that the position of “EMT-paramedic is
not a new position but is an EMT with the third, or highest, level of training
and certification” and that “[a]n EMT in the Town Fire Department is already a
bargaining unit position that is represented by the Union.” It is this
determination that we must review for error.

“The composition of a bargaining unit is limited by law to those positions
identified in the recognition clause at the time the original unit is certified by
the PELRB and by any subsequent modifications approved by the PELRB.”
Appeal of Londonderry School Dist., 142 N.H. at 680. “Our focus, therefore, is
upon the language of the recognition clause, which we review de novo.” Id.

The applicable Certification of Representative and Order to Negotiate
issued by the PELRB certifies that the Union was “designated and selected by a

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majority of the employees of the [Town], in the unit described below, as their
representative for the purpose of” collective bargaining and settling grievances:

UNIT: Full time firefighters, EMT personnel and lieutenants.
EXCLUDED: Full time Deputy Chief.

The PELRB concluded that the term “EMT personnel” includes EMT-
paramedics, reasoning that the applicable administrative rules designate “three
levels of EMT certification[,] . . . EMT-basic, EMT-Intermediate, and EMT-
paramedic,” and, therefore, the “EMT-paramedic is . . . an EMT with the third,
or highest, level of training and certification.”

The Town challenges that reasoning, arguing that “[a] paramedic is not
simply a more advanced EMT designation; it is a designation within and part of
a discrete and specific program.” The Town concludes that “[p]aramedic
certification is not an extension or another level of EMT certification: it is a
discrete certification.” The Town cites no legal support for these assertions,
and we have found none. Rather, as noted previously, New Hampshire
Administrative Rule, Saf-C 5901.50 defines “[e]mergency medical technician
(EMT)” to mean, in pertinent part, “an emergency medical care provider,
specifically trained at the EMT-basic, EMT-intermediate or EMT-paramedic
level of certification.” N.H. Admin. Rules, Saf-C 5901.50 (emphasis added).
Interpreting the language of the bargaining unit certification de novo, Appeal of
Londonderry School Dist., 142 N.H. at 680, we conclude that the term “EMT
personnel” includes EMT-paramedics.

Our conclusion that EMT-paramedics are already in the bargaining unit
disposes of the Town’s next issue; namely, that it “has no obligation to bargain
over the creation or the initial wages, hours, and working conditions of new
positions such as those in the Paramedic Program” until the Town agrees to,
and the PELRB orders, inclusion of the new positions in a bargaining unit.
Moreover, we note that the record casts significant doubt upon the Town’s
appellate attempts to characterize the paramedic-certified firefighter as a new
position. In his letter to Union counsel following adoption of the paramedic
program, Town counsel stated that the Town selectboard “made the
determination not to create a new position distinct from that of FireFighter, but
to create [a] new category of Firefighter identified as a Firefighter/Paramedic.”
This is consistent with the CBA pay scales, in which “[m]ovement through [the]
steps is dependent on achieving certain professional certifications,” including
EMT certifications. Thus, in addition to falling within the EMT classification in
the bargaining unit, participants in the paramedic program apparently would
fall within the firefighter classification as well.

Finally, the Town argues that “[t]here was NO evidence submitted to the
PELRB that the creation of the Paramedic Program was based upon direct

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dealing or anti-union animus.” The PELRB, however, made no finding of direct
dealing with respect to the paramedic program, but, rather, found such with
respect to the original insurance-related unfair labor practice charge that was
pending when the Union added the charge related to the paramedic program.
The Town did not appeal the PELRB’s ruling with respect to the insurance-
related charge.

In any event, a finding of anti-union animus was not necessary to the
PELRB’s finding that the Town committed an unfair labor practice by
unilaterally setting the wage and other conditions of employment for a
firefighter/paramedic. “A unilateral change in a condition of employment is
equivalent to a refusal to negotiate that term and destroys the level playing
field necessary for productive and fair labor negotiations.” Appeal of Alton
School Dist., 140 N.H. at 308 (emphasis added).

The Town has failed to demonstrate that the PELRB made an erroneous
ruling of law or to demonstrate, by a clear preponderance of the evidence, that
its order is unjust or unreasonable. Appeal of Town of Hampton, 154 N.H. at
134; see RSA 541:13. Accordingly, we will not set aside the PELRB’s decision.
Given our rulings above, we need not address the parties’ remaining
contentions.

Affirmed.

DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

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