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REPRESENTATIVES
For SEIU Local 1984:
Lorri Hayes, Contract and Field Operations Administrator
For the Town of Bristol:
Everett J. Marder, Labor Consultant
BACKGROUND
On January 22, 2003 the SEIU Local 1984 ("Union")
filed an initial Petition for Certification on behalf of "all full time
and permanent part-time employees" of the Town of Bristol. The Union
excluded from its request the public employee positions of Fire Chief, Police
Chief, and Town Administrator on the basis of their supervisory
responsibilities and the Administrative Secretary to the Board of Selectmen on
the basis of the confidential nature of that position. The Town of Bristol
(Town) filed its answer to the petition on February 5, 2003 objecting to the
formation of any bargaining unit on the basis that the proposed group lacked
the requisite community of interest required by RSA 273-A:8,I. In the
alternative, the Town argues that should the Public Employee Labor Relations
Board (PELRB) determine that a community of interest does exist among all, or
a sufficient number, of the members proposed for inclusion in the bargaining
unit, that in addition to those positions excluded in the Union's original
petition, the following positions also be excluded as "supervisory
personnel": Superintendent of Water/Sewer Department; Superintendent of
Highway Department; Deputy Tax Collector; Police Lieutenant; Town Clerk/Tax
Collector; Fire Captain and Fire Lieutenant. The Town also requested further
exception of the following as "confidential employees": Town
Accountant; "Confidential" Secretary to the Police Chief; and Water
and Sewer Office Manager. The Town also raised a despositive issue alleging
that the Union's filing was not timely in that it was not filed at a date that
would allow the Town to be provided with at least 120 days notice prior to its
budget submission date of February 1, 2003.
On February 12, 2003 the Union filed an Amendment to its
original Petition for Certification wherein it added two additional employees.
Following the evidentiary hearing that was conducted on February 21, 2003
before the Hearing Officer, the Union filed another written Amendment to its
petition on February 26, 2003 to conform to the evidence that was presented by
the parties during the hearing.
At the evidentiary hearing both parties were represented,
presented exhibits and testimony and undertook cross-examination of witnesses.
The Hearing Officer has considered all of the evidence admitted at hearing,
assigned appropriate weight to documentary evidence and evaluated the
credibility of each witness in making this decision and order.
FINDINGS OF FACT
1. The Town of Bristol ("Town") employs persons to
carry out certain functions of municipal government and therefore is a public
employer within the meaning of RSA 273-A:1 X.
2. The Service International Employees Union Local 1984
("Union") seeks to become the exclusive bargaining representative
for a proposed bargaining unit comprised of individuals employed by the Town
who provide municipal services within the Town of Bristol in the following
positions:
Town Accountant
(1)
Librarian (1)*
Town Clerk/Tax Collector
(1)
Library Custodian (1)*
Deputy Town Clerk Tax Collector
(1)*
Public Works Superintendent (1)
Custodian
(1)
OfficeManager/Admin.Sec-DPW (1)
Welfare Officer/Administrator*
(1)
Chief Operator-Wastewater (1)
Highway Superintendent
(1)
Asst. Chief Operator/Wastewater (1)
Driver/Laborer/Equip
Operator(2)
Water Distribution/Sewer Collection
Highway Foreman
(1)
Chief Operator (1)
Laborer
(1)
(Shared DPW/Highway) Fire Captain (1)
Solid Waste Facility Attendants
(3)*
Fire Lieutenants (2) and (1)**
Police Lieutenant
(1)
Firefighter/EMT (3)
Police Patrol Sergeant
Police Patrol Officer (4)
and
(1*) Wastewater Treatment Plant Operator
Police Administrative Secretary (1)
* Part-time positions
** Permanent part-time position
3. The Union's initial complaint was filed on January 22,
2003, a date falling less than 120 days prior to the Town's budget submission
date of February 1st that is on file with the PELRB.
4. The parties stipulated to the following:
a. There is a single Employee Manual adopted by the Town
to which all
Town employees are subject.
b. All Town departments submit payroll information directing the payment
of their respective employees at the same time.
c. All employees are paid on the same day by the Town.
d. All full time and permanent part-time employees are eligible for the
same benefits.
e. The Welfare Administrator reports to the Town Administrator
f. The Union could add the position of Welfare Director, three positions
at the library and the position of solid waste facility operator (3) to
the
ranks of their proposed bargaining unit.
5. Various municipal functions are governed by several
separate entities within the Town. In addition to an elected Board of
Selectmen, there is an elected Police Commission with appointive powers over
police personnel pursuant to RSA 105-C:4. There is also an elected Fire
Commission with appointive authority over a fire chief, who in turn recommends
hirings to the Fire Commission pursuant to RSA 154:1 (d). There is also an
appointed, combined Water and Sewer Commission, (See RSA 38:19 and RSA
149-I:19) also referred to by the Town as the Public Works Commission, with
appointive authority over a superintendent of the works and other employees
pursuant to RSA 38:,20 and RSA 149-I:19. The funds provided by the
municipality for expenditure by the Police and Fire Commissions are subject to
normal budgeting, appropriation and disbursement authorization requirements.
The funds expended by the Water and Sewer Commission are restricted to those
in a separate enterprise fund under the control of the appointed commission
although incorporated into the single budget formation process used within the
Town by the Board of Selectmen and culminating with the Town Meeting. There is
also an elected Library Board of Trustees with appointive authority over a
librarian and, in consultation with that librarian, exercises authority over
the selection and compensation of library employees. (See RSA 202-A:6, 11, 13
and 17).
6. All of those employed in the positions proposed for
inclusion in the bargaining unit work within the same geographic area, namely
the Town of Bristol.
7. All of those employed in the positions proposed for
inclusion in the bargaining unit were treated as a combined group for purposes
of orientation to the Town's employee manual and attended a meeting, presided
over by the Chairman of the Board of Selectmen and at which all employees had
been mandated to attend to hear the Town's presentation and at which the
employees' comments and questions were invited.
8. All subject employees have the same holidays, vacation,
and sick leave benefits as are provided in the employee manual (Joint Exhibit
#14).
9. All full time and permanent part-time employees are
eligible to participate in an employer sponsored health insurance program.
10. All of the Town's employees were subject to the
provisions of an employee handbook preceding the current one that described
their previous benefits.
11. Under the existing Employee Manual, no supervisors can
change any of the employment benefits extended to employees. Only the Board of
Selectmen can do so. (Joint Exhibit #14)
12. All employees are subject to a grievance process with
the same final step of consideration by the Board of Selectmen.
13. Various positions proposed for inclusion in the
bargaining unit receive joint training, e.g. traffic school, forest fire
suppression, safety training with others proposed for inclusion in the
proposed bargaining unit.
14. Representatives from the several Town departments work
together on a joint safety or "risk/loss" committee established by
the Town.
15. There are numerous examples of employee interaction.
Individuals in support positions within the town hall and the police
department interact daily and at times share each other's work overload.
Individuals in sworn police service interact frequently with individuals in
the fire service when assisting EMT Firefighters in carrying victims
(so-called "carry-outs"), providing traffic control, responding to
emergencies and other incidents and for traffic control necessary to highway
and public works projects. Individuals in the Highway Department interact with
those in the Department of Public Works (Water/Sewer) to share work and
equipment. Highway employees are trained in forest fire suppression to help
firefighters. Fire Department employees help Highway employees in flushing
pipes and cleaning drainage grates.
16. All subject employees received the same general pay
increase of 8% in the past budget which was the amount proposed by, and set
by, the Board of Selectmen. At least in the case of the Police Department's
increase, the Police Commission's recommended wage increase differed from that
of the Selectmen and it was the Selectmen's position that was implemented.
17. Some testimony was offered to indicate that the Board of
Selectmen have final executive authority over proposed wages; control the
hiring of new employees and creation of new positions through their control of
the budget formation process and budget control of expenditures; and make the
final determination on employee terminations.
18. The testimony regarding the role of the Board of
Selectmen in the hiring, compensation and termination of employees regardless
of whether such persons work for the elected Police Commission, the elected
Fire Commission, the elected Library Board of Trustees or the appointed Water
and Sewer Commission differs from the authority given to these same
commissions by the General Court. The testimony that, in practice, these
bodies do not set personnel policy within the Town, but rather work in
conjunction with the Board of Selectmen who do so indicates an accommodation
by the commissions to the Board of Selectmen or a high degree of cooperation
among the incumbent leaders of this community. It is not interpreted as an
abdication of authority by those other commissions.
19. The several Commissions generate separate operational
procedure manuals or standard operating procedures governing the performance
of their assigned functions.
20. Credible testimony by all of the Union's witnesses
expressed that the employees proposed for inclusion in the bargaining unit
held a self felt community of interest characterized by statements such as
" we all work for the town's people", "all out for the same
goal", "all serve the taxpayer", we "help out each
other."
21. No evidence was offered to establish that any employee
would feel a division of their loyalty between the Town and being a member of
a bargaining unit should it be formed.
22. The Town Clerk/Tax Collector is an elected official. The
Deputy Town Clerk is not.
23. There is a single town budget that incorporates all
municipal departments and functions and is established and managed by the
Board of Selectmen. The revenue side of that budget contains an enterprise
fund for water and sewer services.
24. The Board of Selectmen and the various commissions work
in conjunction with one another and coordinate the performance of their
respective functions, including certain personnel responsibilities.
25. The Town's organizational functioning is significantly
more fluid and dynamic than would otherwise be represented by the
organizational charts (Joint Exhibits #1 and #24) that were offered into
evidence. Further, Joint Exhibit #1 was prepared by the Town's representative
in these proceedings for use in these proceedings. While the Town
Administrator responded to a question of his representative that characterized
Joint Exhibit #1 as "accurate" except for depiction of Town
Clerk/Tax Collector he immediately qualified his answer, indicating that he
doesn't really rely on written organizational charts to depict all interaction
or flow of communication accurately.
26. The actual chain of command from the Public Works
Superintendent in public works (water/sewer) or the Police Chief or Fire Chief
upward within the Town hierarchy differs based upon whether the issue is one
related to personnel, in which case it proceeds through the Town
Administrator's office to the Board of Selectmen, or relates to functional
operations, in which case it proceeds to the separate commissions directly who
may or may not involve the Town Administrator and the Board of Selectmen in
the decision or report process.
27. The uniform Personnel Action Form (Union Exhibit #1) is
used by all departments within the Town. However, there was also credible
testimony from the Town Administrator that the Commissions would use the same
Personnel Action Form but obliterate the Board of Selectmen reference and
substitute the name of their respective commission at the end of the document.
28. Credible supporting testimony established that the Board
of Selectmen have the final authority for all hiring, terminations, pay
increases, and written disciplinary warnings for administrative personnel
within town hall, highway personnel, water and sewer personnel and fire
personnel. There was insufficient evidence regarding the specific hiring
process for individuals employed for service within the library upon which to
make a finding as to how the process there was tethered to the Board of
Selectmen.
29. The Board of Selectmen's actual role in the hiring of
police personnel is unclear because while the Police Commission may have the
statutory authority under enabling legislation, testimony regarding how
personnel were actually hired through the approval of payment for the position
was not definitive.
30. Employee evaluations for all subject employees are
conducted using the same evaluation form that is basically a checklist that,
for the most part, directs the evaluator to choose among three boxes when
commenting on performance criteria. The form does not solicit nor provide that
the evaluator recommend a wage increase. (Joint Exhibit #30).
31. The secretary employed in the police department reports
to the Police Chief, as does the police lieutenant. Only the Police Chief has
the authority to discipline and suspend. The Police Chief schedules the
shifts, vacation and overtime for police personnel. The Police Chief can only
recommend hiring personnel to the Police Commission.
32. Merit increases, in wages, in practice, actually amount
to annual or longevity raises and are almost universally given in similar
amounts to all employees.
33. Only the Board of Selectmen, or commissions or board of
library trustees within their relative spheres of responsibility, can approve
the issuance of written warnings.
34. The Highway Superintendent cannot hire or fire any of
the employees within the highway department without the approval of the Town
Administrator or the Board of Selectmen. Any performance evaluation that he
may conduct is not tied to employee wage increases or decreases. He consults
with the Town Administrator on matters of discipline and does not issue
written warnings to employees in the highway department before they are at
least approved by the Town Administrator and possibly the Board of Selectmen.
35. The Public Works Superintendent supervises the operation
of the water and sewer functions within the Town. The incumbent's testimony is
that he is appointed to his position by both the Water and Sewer Commission
and the Board of Selectmen. If he needs to hire an individual he would
recommend that action to the Commission and if they agreed they would sign a
Personnel Action Form and submit it to the Board of Selectmen before the
hiring would take place. This Superintendent would seek approval of the
Commission on written warnings to employees. Suspensions and terminations of
employees within this department would first be recommended by him to the
Commission and, in turn, they would submit the action to the Board of
Selectmen for concurrence.
DECISION AND ORDER
The legislative mandate of the Public Employee Labor
Relations Board (PELRB) includes the authority to consider petitions for the
certification of bargaining units (RSA 273-A:10), determine the appropriate
composition of bargaining units (RSA 273-A:8, I) and thereafter to exercise
authority to order elections, if appropriate (RSA 273-A:10, I(b). Where the
parties involved cannot agree as to the composition of the proposed bargaining
unit evidenced by the filing of a mutual Petition for Certification, the PELRB
conducts a hearing for such purpose, makes a decision regarding certification
and then issues an appropriate order of election, if necessary, under Pub
303.01.
In the present case, at the outset there is a threshold
issue raised by the Town regarding the timeliness of the Union's petition for
certification of a bargaining unit. The Town requests the PELRB to dismiss the
certification because even if the unit were certified the Union could not
provide the Town with the required minimum 120 day notice. (See RSA 273-A:3,
II(a); see also N. H. Admin. Rules, Pub 301.01). The board has ruled on the
120 day limitation issue previously (See PELRB Decision #2002-007) and the
Supreme Court has affirmed the board's application of the statute and its
rules concluding that "petitions for certification for bargaining units
without a certified representative may be filed at any time without regard to
the time limits contained within the contract bar rule and Rule
301.01(b)." Appeal of Manchester, 148 N.H. ___ . (Slip Opinion 2002-341,
issued 4/4/03). Therefore, the PELRB denies the Town's request that the
Union's petition be dismissed on the basis that it was not timely filed with
the caveat that should there be an exclusive representative elected, the Town
cannot be compelled to negotiate so-called "cost items" unless the
requisite 120 day pre-budget submission notice is met.
The merits of the respective parties' positions is
considered within an adjudicative process that provides that each bargaining
unit is to be reviewed on its own circumstances on a case by case basis.
Appeal of Town of Newport, 140 N. H. 343, 352 (1995). This case is unlike
certifications issued by the PELRB in response to Petitions that propose unit
compositions that are consented to by all parties where the concept of
self-determination between the parties is accorded all but commanding weight.
In those cases, the PELRB assumes that the parties have given requisite
consideration (1) to the composition of the unit, (2) the impact the proposed
change will have on the operation of that particular governmental unit, and
(3) that both parties have concluded that it constitutes a workable
arrangement between a public employer and its employees. As a consequence,
unless an agreed petition for unit certification is filed with the PELRB that
presents a proposed bargaining unit, that on its face, causes the PELRB, on
its own motion, to solicit additional information or conduct an evidentiary
hearing, a significantly lesser degree of scrutiny is exercised before that
certification of a bargaining unit is granted. In the instant case a more
thorough scrutiny of this bargaining unit is required of the PELRB because the
matter before it is contested and each party has participated in an
evidentiary hearing, presented exhibits and witness testimony and has had the
ability to cross-examine the other's witnesses. Much more information thereby
becomes available to the PELRB upon which to consider whether or not a
sufficient community of interest exists and a certification should issue.
The instant matter involves a municipality that provides
what can be characterized as traditional municipal services of administration,
fire, police, highway, water and sewer and also part-time library services.
It's citizens have elected to do so, utilizing enabling statutes, in a manner
to structure the delivery of these services through the creation of an elected
Board of Selectmen, as well as an elected Fire Commission, an elected Police
Commission, an elected Board of Library Trustees and a Water and Sewer
Commission whose members are appointed by the Board of Selectmen. Each of
these governmental entities within the Town of Bristol is assigned separate
statutory authority, duties and responsibilities by the legislature. (See
Finding of Fact #5). Some testimony offered by several witnesses indicated
that some blurring or blending of the authority, duty and responsibility of
these created entities has occurred through the actions of the respective
incumbents. (See Findings of Fact #16-#18, #25 and #30). The various positions
that the Union has proposed for inclusion in the proposed bargaining unit are
employed within several departments that, while included in a single budgetary
process, are entitled to exercise significant statutory prerogatives within
their own spheres of authority.
In the Town of Bristol all full time and permanent part-time
employees, whatever their work assignment, share many of the indicia contained
within the "community of interest" that a proposed bargaining unit
must possess under RSA 273-A:8, I and Pub 302.02 (b). What is not proven is
that the employees in this municipality share a uniform hiring authority and
individual wage setting process because of the autonomy held, albeit exercised
to varying degrees, by the several elected and appointed bodies. That these
bodies have joined in offering similar benefits to those employed in the
several departments is not sufficient to create an obligation that these
separate, though cooperating, local government entities must now combine to
negotiate a single collective bargaining agreement which they would be
compelled to do if a the unit sought by the Union were granted.
In certain schemes of governance that exist in the many
towns in New Hampshire, the fact that differing departments may possess
significant statutory prerogatives within their assigned authority may not
substantially affect the community of interest among members of a proposed
bargaining unit. However, given the present scheme of governance in the Town
of Bristol and the existing statutory authority assigned by the legislature to
each of the relevant entities, the community of interest is diminished and the
restriction of N.H. Admin. Rule, Pub 302.02 (c) must also be considered. That
rule provides that the PELRB must consider "(1) The effect of forming any
particular bargaining unit on the efficiency of government operations
contemplated in RSA 273-A:1, XI". In turn, that referenced statute
addresses the sum and substance of the reason bargaining units are formed,
namely to mutually negotiate the "terms and conditions of
employment" and protect so-called "management rights."
One of these management rights is the public employer's
choice of organizational structure that is defined within the exclusive
prerogative of the employer. (RSA 273-A:1, IX). In the instant case
individuals that occupy the respective offices of Selectman, Commissioner, or
Trustee seem to have come to an accommodation that has resulted in a practice
where the evidence presented indicates a deferral to the Board of Selectmen in
the hiring of employees, in the application of significant discipline to
employees, and in the termination of employees in departments governed by
separately elected bodies. Such an accommodation is transitory and could be
altered by any election that changes the make up of any of these elected
bodies.
While the Hearing Officer does find certain indicia of a
community of interest existing among the employees of the Town of Bristol as
reflected in the findings of fact, above, those indicia are not found to be of
sufficient weight to overcome the authority reserved to the Police Commission,
the Fire Commission and the Water and Sewer Commission by the statutory
options selected by the voters of this municipality. The fragmentation of
authority presents a serious impediment to the efficiency of government
operations should individuals wanting to exercise a greater degree of
statutory autonomy be elected or appointed to the several commissions and
board or trustees. In light of the statutory autonomy reserved to several
commissions and boards in Town of Bristol whether presently exercised or not,
it is not reasonable for those employees within the several departments and
named in the Union petition to negotiate jointly at this time.
Having made this determination, it is unnecessary to
consider the specific exceptions of those positions alleged by the Town to
meet the statutory requirements of "supervisory " or
"confidential" positions. It should also be noted in the event that
a new petition is considered in the future, that there was insufficient
evidence produced at the hearing in regard to library employees upon which a
determination could be made regarding any inclusion at this time. Also, the
Town Clerk/Tax Collector is elected by popular vote and is not, therefore,
considered a "public employee" pursuant to RSA 273-A:1, IX. At
present, the departments of police, fire, water and sewer, highway and
administration, respectively, do not employ the minimum of ten (10) qualifying
individuals.
The Hearing Officer does not, on the evidence presented,
find the existence of a sufficient community of interest among all or a
substantial and significant portion of the named positions requested by the
Union in its Petition for Certification, as Amended. In the event that the
number of individuals employed within any one of those departments governed or
overseen by a separate Commission or Board of Trustees should rise to the
required minimum of ten employees, or other significant change in circumstance
should transpire, then a new petition could be filed on the behalf of any
number of the positions appearing in the Union's Petition for Certification,
as Amended.
Therefore the Petition for Certification, as Amended in its
present form, is DENIED.
So Ordered.
Signed this 16th day of April, 2003.
/s/ Donald E. Mitchell
Donald E. Mitchell, Esq.,
Hearing Officer
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