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APPEARANCES
Representing New Hampshire Troopers Association:
James W. Donchess, Esq.
Representing State of New Hampshire:
Douglas Jones, Esq.
Also appearinq:
Kathleen M. Lord, New Hampshire State Police
Virginia Lamberton, Division of Personnel
Nancy Wiggin, New Hampshire State Police
Tia Massaro, New Hampshire Troopers Association
P.A. Massaro, New Hampshire Troopers Association
L. Copponi, New Hampshire Troopers Association
C. J. Winters, New Hampshire Troopers Association
R. H. Terhune, State Police
Background
The New Hampshire Troopers Association (Association) filed
unfair labor practice (ULP) charges against the State of New Hampshire
Department of Safety (State) on August 27, 1997 alleging violations of RSA
273-A:5 I (e) and (g) relating to a failure to bargain and a unilateral change
in working conditions by eliminating the rank and title of "corporal"
for certain bargaining unit' positions. The State filed its answer and a motion
to dismiss on September 11, 1997. A hearing was held on the motion to dismiss
before a hearing officer on
November 14, 1997 after which a decision was issued on December 18, 1997 denying
that motion. See Decision No. 97-122. This matter was then heard on the merits
by the PELRB on February 12, 1998.
FINDINGS OF FACT
1. The State of New Hampshire through its Department of
Safety, employs state police personnel in the grades of Trooper I, Trooper II,
Corporal and other grades, and, thus, is a "public employer" within
the meaning of RSA 273-A: 1 X.
2. The New Hampshire Troopers Association is the duly
certified bargaining agent for sworn personnel
employed by the Division of State Police up to and including the grade of
sergeant.
3. The State and the Association have negotiated a collective
bargaining agreement (CBA) which is
awaiting funding by the legislature. Meanwhile, the Association continues to
administer contract and sub-unit provisions negotiated on behalf of the
employees in Finding No. 2 by the prior bargaining agent. The CBA does not
address the issue of "rank", i.e., the types of duties required in
order to hold or progress from one bargaining unit rank to another. On the other
hand, duties generally are translated into a ''labor grade" through the
State's 'class evaluation plan" (State Exhibit A) which, in turn,
determines the rate of compensation for a given job specification.
4. On October 19, 1992, the New Hampshire Division of
Personnel, by letter to Colonel Lynn M. Presby (State Exhibit D), recognized a
technique to promote senior troopers with the requisite record, longevity,
training and exam scores to the rank of corporal even though the promoted
corporal would not be in a "supervisory" or "hard corporal"
position. Thereafter, the non-officer structure in a troop was sergeants, labor
grade 21, supervisory or "hard" corporal, labor grade 19, upgraded or
"soft" corporal, labor grade 19, trooper, labor
grade 17 and trooper-trainee, labor grade 13. (State Exhibit E. )
5. In October of 1996, the
Troopers Association and the administration of the Division of State Police
jointly recognized "problems with the present rank structure" within
the state Police and formed a committee to identify and address those problems
to the benefit of the Association and the Division in ways which would 'increase
the economic status, benefits, job security and pride within the
organization." (State Exhibit F.) One of the problems identified was
the fact that soft corporals, without supervisory responsibilities, were earning
the same pay as hard corporals who were first line supervisory personnel.
6. On February 28, 1997,
the Director of Personnel,Virginia Lamberton, wrote Richard M. Flynn,
Commissioner
of the Department of Safety, approving the "first phase" of a
reorganization plan. (State Exhibit G.) The new plan changed the non-officer
structure of the organization to sergeant, labor grade 22, sergeant labor grade
21, corporal, labor grade 20, trooper 11, labor grade 19, trooper I, labor grade
17 and probationary trooper, labor grade 13.
7. Association witnesses
who were formerly corporals and who are now Trooper 11's as the result of the
1997 reorganization testified that on and after February 28, 1997 they were no
longer given supervisory
duties, even on an "as needed" basis. One such Corporal became a
Trooper II after his supervisory
duties were eliminated because his responsibilities as a midnight supervisor
were assumed by another individual who retained his rank of corporal.
8. By letter of March 28,
1997, counsel for the Association wrote to the Director of State Police and the
State Negotiator to protest the unilateral decision to implement changes in
terms and conditions of employment, namely new wage scales and a new rank
structure. (Association Exhibit No. 4.) On the same date, counsel for the
Association wrote Lamberton seeking reconsideration of the reclassification plan
which she had approved (Finding No. 6.) The Association claimed it had not
received notice of Lamberton's letter of February 28, 1997 until March 18, 1997.
(State Exhibit K)
9. In March of 1997, after
the Association was notified of the reorganization, the corporal ranks were
reorganized. Fifty corporals lost their rank, were required to
change the rank insignia on their uniforms
and lost the title of "corporal." Thirty-two employees retained the
rank and title of "corporal." Those personne1 who lost the rank of
corporal retained their status as labor grade 19 and became Trooper 11's. Those
personnel who retained their rank as corporal had their pay status increased to
labor grade 20. (State Exhibit G and testimony from Association past president
Copponi.) Pleadings show that the parties do not dispute that the loss of
the rank of corporal for approximately fifty unit employees 'was not done for
any disciplinary reason related to any misconduct by any affected
corporal." The Association (Complaint, para. 8) claims this loss of rank
was a "demotion," that rank was a "basic term and condition of
employment" (Complaint, para. 15), that the stripping of rank cannot be
construed as a 'reorganization" (Complaint, para. 13) and that the removal
of rank in the manner described, without any disciplinary infraction, is an
unfair labor practice (Complaint, para. 17).
10. Testimony by
Association witnesses universally documented a loss of morale and self-esteem
accompanying the rank change from Corporal to Trooper II. Trooper II's testified
that non-trooper personnel did not understand the change. There was also
evidence from one Association witness that he had supervised the same five
people doing the same functions since 1996 while holding the ranks of Trooper
II,
Corporal and Sergeant.
11. Association witnesses
testified that they believed the duties of "hard corporals" could be
switched to and performed by "soft corporals" and vice versa. This
belief was caused by comments attributed to the former Executive Major, Thomas
Kennedy, now retired, who is said to have suggested complete fungibility by his
statement that "a corporal is a corporal is a corporal." (See
testimony of Association witnesses Copponi, Massaro, Lord and Winters.)
Likewise, there was consensus in the belief that the rank of corporal was a
permanent rank. (See testimony of Wiggin, Copponi, Lord and Symmonds.)
Association witness Wiggin said this was the first reduction in rank of
personnel in the 65 year history of the organization which was not the
consequence of a disciplinary event. The Association cited RSA 106-B:5 for the
proposition that no unit employee could be demoted except for cause.
12. The State takes the
position that the change in rank from Corporal to Trooper II for the individuals
involved was not a 'demotion." Personnel Rule 101.20 defines
"demotion" as 'a transfer of an employee from
one position to another position having a lower salary grade." Personnel
Rule 101.46 defines "reclassification" as "a determination by the
[state] director [of personnel] that a position be assigned to a
specific classification different from the one in which it was previously
placed." Personnel Rule 101.44
defines "reallocation" as a determination by the director [of
personnel] that a class specification be reevaluated in relation to the position
classification plan established under RSA 21-I:42 II." The Director of
Personnel, Virginia Lamberton, testified that the action removing the grade of
corporal from some fifty unit employees was not a "demotion" but
rather a "reclassification" under the personnel rules. None of
the individuals who lost the rank of corporal and became Trooper 11's lost pay
or benefits while existing or continuing corporals were reclassified upward to
labor grade 20. She also testified that agency heads cannot insure or promise
labor grade stability over or superior to the reallocation and reclassification
procedure found in the personnel rules.
DECISION AND ORDER
Our review of the circumstances convinces us
that the action complained of relative to the affected corporals was not a
demotion within the meaning of the personnel rules. None of them lost pay or
benefits and none was transferred to a lower salary grade. The action complained
about is within the authority of the State during the course of a
reclassification, also as defined by the personnel rules. Likewise, since there
was no demotion, there can have been no violation of RSA 106-B:5.
The Association would have us find that
elimination of the grade of corporal was a refusal to bargain and a unilateral
change in working conditions. To so find, we must also find that rank in
general, and being a corporal in particular, was a working condition.
While credible Association witnesses have valid reasons for believing the rank
of corporal was a permanent grade and totally fungible with other corporals, the
record cannot support a finding that being a corporal is a working condition.
Pay and benefits have been negotiated by the parties, job titles have not. There
has been no change in pay or benefits resulting from the acts complained of.
This case results from an unfortunate
convergence of circumstances, namely, reliance on statements relating to the
supposed similarity in status of all corporals, whether "hard" or
"upgraded," the historic belief that the rank of corporal was
"permanent," and the assumption that RSA 106-B:5 prevented any
modification in rank structure unless precipitated by disciplinary proceedings.
Rather than explain these mistaken assumptions, management proceeded with the
reorganization in a way which not only resulted in this litigation but also has
been universally recognized by the affected employees as being demoralizing. We
believe this to have been a poor management decision which, long term, results
in diminished effectiveness for the labor-management relationship between the
parties. This is unfortunate since it appears that the morale of the division
could have been maintained and hard feelings avoided entirely by letting this
matter correct itself by attrition rather than by reorganization.
Notwithstanding our feelings about other
methodology which might have been utilized to handle the corporal issue, the
pivotal consideration in this case must be the key language in RSA 273-A:1
XI relating to managerial policy. The statute provides that it is within the
'exclusive prerogative of the public employer" to determine its programs
and methods and its organizational structure. The reorganization described to us
by the State's witness and documentary evidence (State Exhibits B through G,
inclusive) show a reorganization
within the authority of RSA 273-A:1 XI. The ULP is DISMISSED.
So ordered.
Signed this 13th day of March, 1998
/s/ Jack Buckley
JACK BUCKLEY
Alternate Chairman
By unanimous decision. Alternate Chairman Jack
Buckley presiding. Members Seymour Osman and E. Vincent Hall present and
voting.
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