Appeal of Strafford County Sheriff's Office & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Public Employee Labor Relations Board
No. 2013-506

APPEAL OF STRAFFORD COUNTY SHERIFF'S OFFICE & a.
(New Hampshire Public Employee Labor Relations Board)

Argued: September 11, 2014
Opinion Issued: November 13, 2014

Soldati Law Offices, P.A., of Portsmouth (Lincoln T. Soldati on the brief
and orally), for the petitioners.

Nolan Perroni Harrington, LLP, of Lowell, Massachusetts (Peter J. Perroni
on the brief and orally), for the respondent.

LYNN, J. The petitioners, the Strafford County Sheriff’s Office and the
Strafford County Board of Commissioners (collectively, the county), appeal an
order of the New Hampshire Public Employee Labor Relations Board (PELRB),
which found that the county committed an unfair labor practice by changing
the terms and conditions of employment of Sheriff’s Office employees during
the period when the respondent, the New England Police Benevolent
Association, Local 295 (union), was seeking certification of a bargaining unit
that included those employees. We affirm.

I

The following facts were found by the PELRB or are supported by the
record. The county is a public employer. See RSA 273-A:1, X (2010). On July
13, 2012, the union filed a petition for certification with the PELRB, seeking
approval of a bargaining unit comprised of certain employees of the Sheriff’s
Office. The PELRB subsequently approved a bargaining unit composed of the
positions of deputy sheriff, dispatcher, and secretary. Following an election in
December 2012, the union was certified as the bargaining unit’s exclusive
representative.

As of July 13, 2012, Paul Rowe and Michael Lemoi were employed as
deputies in the civil department of the Sheriff’s Office. They both worked a
schedule of four ten-hour days per week (4-10 schedule). Pursuant to
contractual arrangements between the Sheriff’s Office and the United States
Immigration and Customs Enforcement (ICE), Rowe and Lemoi, as well as other
deputies, also performed work for ICE, such as transporting detainees involved
in ICE proceedings.

By September 2012, the county decided to establish two new full-time
deputy positions dedicated to ICE work. The then-sheriff, Wayne Estes,
discussed the new ICE positions with Rowe and Lemoi. Both deputies
expressed interest in the positions, but only if their ICE work schedules
consisted of five eight-hour work days per week (5-8 schedule). They sought 5-
8 schedules for the ICE positions in order to maximize their potential for
overtime earnings. However, both deputies preferred 4-10 schedules if they
continued to work in the civil department, and neither deputy asked to have
his civil department schedule changed to a 5-8 schedule.

In October 2012, the sheriff proposed a schedule for the new ICE
positions, which called for Rowe and Lemoi to work 4-10 schedules. Lemoi
responded by e-mail and requested the 5-8 schedule that he believed had been
previously agreed upon. He also requested to stay in the civil department if the
5-8 schedules would not be implemented for the ICE positions. In response,
the sheriff notified Rowe and Lemoi that they would remain in the civil
department, but that their work hours were being changed from 4-10
schedules to 5-8 schedules.

Deputy sheriffs also sometimes perform “outside detail” work. This work
consists of providing law enforcement services to third parties, such as local
police departments, which have need for extra personnel at certain times.1 The
county bills the third parties who engage deputies to perform outside detail
work and then compensates the deputies by paying them a portion of the funds
it receives. Although outside detail work is not part of a deputy’s normal work
day or schedule, prior to the time the union sought certification, the county
paid deputies for outside detail work at a rate equal to their overtime

1For example, deputies have regularly worked outside details for the Durham Police Department
during the University of New Hampshire’s yearly homecoming weekend.

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compensation rate, regardless of whether they were otherwise eligible for
overtime compensation.

Prior to the union’s certification petition, the county also permitted
deputies to include benefit time, such as holiday, vacation, and sick leave, in
their hour totals for determining their eligibility for overtime pay for work in
excess of 40 hours per week.

In the summer of 2012, the United States Department of Labor (DOL)
completed an investigation into possible violations of the federal Fair Labor
Standards Act (FLSA) by the Sheriff’s Office, based on its wage and hour
practices during the previous two years. The DOL investigator summarized his
findings in a letter to the county, which stated in part:

The investigation found violations of FLSA section 7 resulting
from your failure to pay statutory overtime pay for hours worked in
excess of 40 per week. Specifically, you failed to include federal
[ICE] hours into the total work hours of non-exempt employees
when computing overtime pay for hours worked in excess of 40 per
week. As a result, the employees were paid at their regular hourly
rate of pay with no additional half-time premium for hours worked
in excess of 40 per week.

The investigation further found violations of FLSA section 11
resulting from your failure to keep an accurate record of all hours
worked for non-exempt employees. Specifically, you failed to retain
an accurate record of hours worked per day and per week by all
non-exempt employees for 2010.

As a result of these violations, five employees were found due
back wages totaling $4,812.17.

After the union filed its certification petition on July 13, 2012, the county
discontinued both established practices of paying the overtime rate for outside
detail work regardless of the number of hours worked, and of including benefit
time when computing hours worked for purposes of overtime compensation.

In November 2012, the union filed a complaint with the PELRB, alleging
that the county committed an unfair labor practice, in violation of RSA 273-
A:5, I(a), (b), (c), and (g), by changing the terms and conditions of employment
of proposed bargaining unit members after the union petitioned to act as the
unit’s exclusive representative for purposes of collective bargaining. Following
a hearing, the PELRB determined that the county “committed an unfair labor
practice because it failed to maintain the status quo during the pendency of
bargaining unit formation and representation election proceedings.” The
PELRB decided that the three changes made – to the deputies’ schedules, to

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the rate of pay for outside detail work, and to the manner in which overtime
was calculated – were all mandatory subjects of bargaining that the county
could not unilaterally change once the union filed its certification petition. The
PELRB ordered the county to “restore the affected employees to the status quo
ante that existed as of the filing of the certification petition and make them
whole.” The PELRB denied the county’s motion for rehearing, and this appeal
followed.

II

RSA chapter 541 governs our review of PELRB decisions. See RSA 273-
A:14 (2010); RSA 541:2 (2007). We will not set aside the PELRB’s order except
for errors of law, unless we are satisfied, by a clear preponderance of the
evidence, that it is unjust or unreasonable. RSA 541:13 (2007). The PELRB’s
findings of fact are presumed prima facie lawful and reasonable. Id. In
reviewing the PELRB’s findings, “our task is not to determine whether we would
have found differently than did the [PELRB], or to reweigh the evidence, but
rather to determine whether the findings are supported by competent evidence
in the record.” Appeal of Dean Foods, 158 N.H. 467, 474 (2009) (quotation
omitted). We review the PELRB’s rulings on issues of law de novo. See Appeal
of Portsmouth Regional Hosp., 148 N.H. 55, 57 (2002).

III

The county first contends that it did not violate the status quo doctrine
when the sheriff changed Rowe’s and Lemoi’s work schedules. It argues that
the status quo was that the sheriff retained the prerogative to determine
deputies’ work schedules; therefore, when the sheriff altered the schedules,
there was no change in the status quo and, accordingly, no unfair labor
practice. We disagree.

“Maintenance of the status quo demands that all terms and conditions of
employment remain the same during collective bargaining.” Appeal of City of
Nashua Bd. of Educ., 141 N.H. 768, 772 (1997) (quotation omitted). “We have
explained that the status quo doctrine derives from RSA 273-A:3, I, which
imposes the obligation to negotiate in good faith over the terms of employment,
and from RSA 273-A:5, . . . which makes it an unfair labor practice for a public
employer to refuse to negotiate in good faith.” Id. A public employer’s
“unilateral change in a term or condition of employment[,] whether during
negotiations for an initial [collective bargaining agreement] or during a status
quo period following expiration of a CBA[,] is tantamount to a refusal to
negotiate that term and destroys the level playing field necessary for productive
and fair labor negotiations.” Id. (emphasis added; quotation and parentheses
omitted). However, “the status quo doctrine is limited by its rationale. Thus,
an employer is prohibited from making unilateral changes on mandatory
subjects of collective bargaining, but not on permissive topics of collective

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bargaining.” Id. at 772-73. “[A] unilateral change in the former is an unlawful
refusal to engage in required negotiation, but a unilateral change in the latter
is generally a legitimate exercise of discretion.” Id. at 773 (citation omitted).

RSA 273-A:1, XI (Supp. 2013) defines the “‘[t]erms and conditions of
employment’” as:

[W]ages, 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
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.

To determine whether the county had a managerial prerogative to change the
deputies’ work schedules, we apply a “three-step analysis for measuring a
particular proposal or action against the managerial policy exception.” Appeal
of City of Nashua Bd. of Educ., 141 N.H. 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.” Id. at 773-74 (quotation omitted).
“Second, the proposal must primarily affect the terms and conditions of
employment, rather than matters of broad managerial policy.” Id. at 774
(quotation omitted). “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.” Id. (quotation omitted).

Applying this three-step analysis to the present case, we conclude that
the deputies’ scheduling was a mandatory subject of bargaining that the
county could not unilaterally change after the union filed its petition. See id.
at 772 (noting that a public employer’s “unilateral change in a term or
condition of employment . . . during negotiations for an initial CBA . . . is
tantamount to a refusal to negotiate that term and destroys the level playing
field necessary for productive and fair labor negotiations” (emphasis added;
quotation omitted)); see also Piggly Wiggly, Tuscaloosa Div., Etc. v. N.L.R.B.,
705 F.2d 1537, 1538-39 (11th Cir. 1983) (describing the “‘critical period’”
during which unfair labor practices may occur under the National Labor
Relations Act as beginning “when a representation petition is filed”).

First, the parties here fail to identify any “independent statute, or any
constitutional provision or valid regulation, that reserves to the [county] the

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exclusive authority” to alter the deputies’ work schedules. Appeal of City of
Nashua Bd. of Educ., 141 N.H. at 774. Instead, the county refers to the
deputies’ hiring letters and a “specifically designated policy of the Sheriff’s
department” that allegedly reserved for the sheriff the “exclusive right to set
work schedules of deputies.” Even assuming that this policy was in place, the
county fails to argue, or present any evidence, that such a policy was codified
in any constitution, statute, or regulation. See id. Therefore, we proceed to the
second step in the analysis.

We also conclude that the change in schedules “primarily affect[s] the
terms and conditions of employment, rather than matters of broad managerial
policy.” Id. As previously noted, RSA 273-A:1, XI defines the terms and
conditions of employment to specifically include “wages, hours and other
conditions of employment.” (Emphasis added.) “[O]ur cases have consistently
recognized proposals and actions that primarily affect wages or hours as
mandatory subjects of bargaining.” Appeal of City of Nashua Bd. of Educ., 141
N.H. at 775 (emphasis added). Additionally, “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.” Id. Thus, the change in Rowe’s and Lemoi’s hours of work in the
civil department from 4-10 to 5-8 schedules primarily affected the terms and
conditions of the deputies’ employment. See id.

Finally, 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.” Appeal of Town of North Hampton,
166 N.H. ___, ___, 93 A.3d 299, 303 (2014). Preventing the county from
unilaterally altering the deputies’ schedules after the union’s petition was filed
“does not present the type of problem we have identified in this context:
hindering or impeding a public employer’s authority to establish policy,
standards, or criteria for disciplinary action.” Appeal of City of Nashua Bd. of
Educ., 141 N.H. at 775; see Appeal of White Mts. Regional School Bd., 125
N.H. 790, 794 (1984) (noting that a “unilateral action to change hours of work”
is “forbid[den]”). Because the changes in the deputies’ schedules satisfy all
three steps of the analysis, the changes are mandatory subjects of collective
bargaining. See Appeal of City of Nashua Bd. of Educ., 141 N.H. at 774.

Nonetheless, the county argues that the sheriff did not violate the status
quo doctrine by changing the work schedules of Rowe and Lemoi subsequent to
the filing of the union’s petition because the sheriff had exercised the authority
to establish and change work schedules before the petition was filed. Although
the letters by which Rowe and Lemoi were originally offered employment stated
that “[t]he Sheriff reserves the right to adjust working hours,” the evidence
before the PELRB concerning the manner in which the sheriff actually
exercised his scheduling authority prior to the filing of the petition was
conflicting, and supports the PELRB’s finding that the sheriff “was indifferent

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to whether the Deputies worked a 5-8 or a 4-10 schedule.” In these
circumstances, we cannot say that the PELRB’s determination that the county
violated the status quo doctrine, and thereby committed an unfair labor
practice, by unilaterally altering the deputies’ schedules, over their objection,
following the filing of the union’s petition was unsupported by the evidence or
legally erroneous.2 See id. at 774-76. Therefore, the PELRB’s decision on this
point is affirmed.

IV

Turning to the changes to the pay rate for the outside detail work and
the way in which overtime was calculated, the union correctly notes that the
county does not argue on appeal that these two changes did not involve
mandatory subjects of bargaining. Therefore, any claim of error predicated on
this ground is waived. See Aubert v. Aubert, 129 N.H. 422, 428 (1987)
(“Arguments not briefed are waived on appeal.”). Accordingly, we cannot
conclude that the PELRB erred in determining that the county committed an
unfair labor practice by violating the status quo when it made these two
unilateral changes after the union filed its certification petition.

Nevertheless, the county maintains that it was justified in making these
two changes because of the DOL investigation. It contends that it had “no
choice but to comply with” what it “understood to be mandated” by the DOL,
and, thus, that it changed these practices to avoid possible future fines and
penalties that could have been imposed by the DOL.

We are not persuaded. Even assuming that the county actually made
the changes in response to the DOL investigation, “the FLSA sets only
minimum standards, a floor, not the maximum amount an employer may agree
to pay.” U.S. Dept. of Air Force v. F.L.R.A., 952 F.2d 446, 455 (D.C. Cir. 1991)
(Randolph, J., dissenting); see also Rogers v. City of Troy, New York, 148 F.3d
52, 57 (2d Cir. 1998) (“The FLSA sets a national ‘floor’ in terms of working
conditions, in order to protect workers from the substandard wages and
excessive hours that might otherwise result from the free market. Parties may,
of course, contract for additional rights above those guaranteed by the
statute.”). Apart from its apparent misunderstanding, then, nothing prevented

2 To the extent that the county invites us to adopt the reasoning and outcome of Marion Cty. Law
Enf. Assn. v. Marion Cty., 883 P.2d 222 (Or. Ct. App. 1994), we decline the invitation. That case
involved a collective bargaining agreement that explicitly provided the employer with the
“discretion to change the work schedule” of the employees as necessary. Marion Cty. Law Enf.
Assn., 883 P.2d at 225. Since that written agreement was the “basis for determining the status
quo,” when the employer changed the employees’ schedules pursuant to that agreement, the court
concluded that “there was no change in the status quo and, hence, no unfair labor practice.” Id.
Here, however, there was no explicit written collective bargaining agreement (expired or otherwise)
that reserved to the sheriff the right to set work schedules. Thus, this case and Marion Cty. are
readily distinguishable.

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the county from continuing to pay the increased outside detail wage and
continuing to include benefit time when computing overtime wages, as these
were simply wages and benefits greater than what the FLSA required.
Therefore, we conclude that the county has not met its burden of
demonstrating that the PELRB erred in finding that these changes constituted
an unfair labor practice. See RSA 541:13.

The county also asserts that the PELRB erred by failing to properly
account for county policy regarding overtime calculations. It maintains that
the county “had a countywide overtime policy that was part of its Employee
Manual” and that the DOL investigation “brought to light the conflict between
the Sheriff’s department and all other county employees . . . with respect to the
calculation of overtime.” At bottom, the county contends that, because the way
the sheriff had been calculating overtime prior to the filing of the union’s
petition violated county policy, the status quo doctrine should not require it to
continue to violate that policy.

We decline to consider this argument. “It is the burden of the appealing
party, here the [county], to provide this court with a record sufficient to decide
[its] issues on appeal.” Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004). However, in its briefs, the county fails to cite any evidence in the
record to support its contention that such a county policy existed. And
although the county referenced a portion of its alleged policy in its motion for
rehearing filed with the PELRB, it acknowledged in that motion that
“[a]dditional testimony and exhibits are necessary to clarify the existing
personnel policies (status quo) of the County and the corresponding authority
and responsibilities of the Board of County Commissioners vis-à-vis the Sheriff
with respect to establishing and implementing personnel policies.” In essence,
the county’s motion asked the PELRB to permit it to reopen the hearing and
allow it to present additional evidence, without making any showing as to why
such evidence could not have been presented at the original hearing. The
PELRB was under no obligation to grant such a request, and the county has
not demonstrated that the board unsustainably exercised its discretion in
failing to do so. Cf. Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485,
492 (1989).

V

Finally, the county notes that the PELRB made no finding of retaliation
or improper motive by the sheriff in changing the deputies’ schedules, the pay
rate for the outside detail work, and the manner in which overtime
compensation was calculated. The county argues that such a finding is a
necessary prerequisite to an unfair labor practice. In support of its position,
the county cites Hudon v. City of Manchester, 141 N.H. 420, 424 (1996) (“We
have recognized that a claim under RSA 273-A:5 requires evidence of a
retaliatory or discriminatory motive on the part of the public employer.”);

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Appeal of Sullivan County, 141 N.H. 82, 88-89 (1996) (stating that “the union
must prove some minimal degree of illegal motivation on the part of the
employer to commit an unfair labor practice before the PELRB can find that
RSA 273-A:5, I(a) or (b) has been violated”); and Appeal of Prof. Firefighters of
E. Derry, 138 N.H. 142, 145 (1993) (noting that to establish an unfair labor
practice under RSA 273-A:5, one “must prove by a preponderance of the
evidence some element of retaliatory action”). These cases are easily
distinguishable from this case, however, because none of them involved an
employer making a unilateral change to the terms and conditions of
employment after a petition for certification of a bargaining unit had been filed
with the PELRB, as occurred here.3

Additionally, in our recent decision in Appeal of Town of North Hampton,
we concluded that “a finding of anti-union animus was not necessary” for the
PELRB to determine that the public employer “committed an unfair labor
practice by unilaterally setting the wage and other conditions of employment.”
Appeal of Town of North Hampton, 166 N.H. at ___, 93 A.3d at 305. In that
case, we reasoned that 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.” Id. (quotation
omitted). For the same reason, we reject the county’s argument here that the
PELRB erred in finding an unfair labor practice without making findings of
retaliation or improper motive on the part of the county. See id.

Affirmed.

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

3As the union correctly observes, in Appeal of Sullivan County, the employer both decided to
make the changes at issue and provided notice of its decision to do so to prospective bargaining
unit members before the filing of the petition for certification. See Appeal of Sullivan County, 141
N.H. at 88.

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