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APPEARANCES
Hudson Police, Fire & Town Supervisors' Association:
Ray Mello, Esquire
Town of Hudson:
Mark Broth, Esquire
William Bagley, Esquire
BACKGROUND
The Hudson Police, Fire and Town Supervisors' Association (HPFTSA)
filed two modification petitions on January 14, 2003, for the positions of
Highway Department Supervisor and Assistant Fire Chief, respectively, seeking
to have them included in the bargaining unit for which it is the certified
bargaining agent. The Town filed its objections to the inclusion of each of
these positions in the bargaining unit on February 5, 2003. Thereafter, both
cases were consolidated for hearing before the undersigned hearing officer on
April 9, 2003, at the PELRB's offices in Concord, New Hampshire.
At the commencement of the foregoing proceedings, the
hearing officer advised the parties that there were multiple discrepancies
between the bargaining unit certification on file with the PELRB (Case No.
M-0637 most recently amended August 9, 2000) and the recognition clause of the
CBA referenced in and appended to the Modification Petition. These
discrepancies existed both as to inclusions and exclusions. (See CBA for the
period July 1, 2002 to June 30, 2005.) In order to correct this inconsistency,
and to be able to proceed with this hearing, the parties stipulated to the
hearing officer that they would agree upon and submit a jointly agreed-to
modification petition on or before the submission of their respective
post-hearing briefs due to be filed on April 18, 2003. The stipulated
modification and the HPFTSA's brief were filed on April 17, 2003. The Town's
brief was filed with requisite copies on April 22, 2003.
In furtherance of proceeding with the hearing on the two
petitions under consideration, the parties marked and asked to be admitted,
without objection, the following exhibits:
1. Job Summary, Highway Department Supervisor Jt. Ex. 1
2. Assistant Fire Chief Job Description, effective 3/15/01
Jt. Ex. 2
3. Packet of 3 performance evaluations by Shawn Murray dated
10/02/02, 12/19/02, and 2/11/03 respectively Jt. Ex. 3
4. Deputy Fire Chief Job Description, effective 12/15/97
Assn. Ex. 1
5. Town-generated organizational chart of fire department
Assn. Ex. 2
6. Organizational chart of Hudson Police Organization, 10/02
Assn. Ex. 3
7. Police Captain Job Description, 3 pages Assn. Ex. 4
8. Letter, Shawn Murray to HPFTSA, dated Nov. 13, 2002 Assn.
Ex. 5
9. Extract, p. 2 from HPFTSA current CBA, Arts IV, V and VI.
Assn. Ex. 6
10. Extract, p. 18 from HPFTSA current CBA, Art XXVI Assn.
Ex. 7
11. Responsibilities sheet for Asst. Chief, Deputy Chief and
Fire Marshal, Hudson Fire Dept., 1999 Town.
Ex. 1
12. Chain of Command General Order, ADMIN 41 5/01/02 Town. Ex. 2
13. Chief Officer Incident General Order, ADMIN 42 7/14/02
Town. Ex. 3
FINDINGS OF FACT
1. The Town of Hudson employs personnel in managerial and/or
supervisory capacities below the level of department head in the various
departments of that municipality and, as such, is a "public
employer" within the meaning of RSA 273-A: 1 X.
2. The Hudson, Police, Fire & Town Supervisors
Association is the certified bargaining agent for the following positions per
the parties' stipulation of April 16, 2003 and subsequent amended
certification submitted as the result of these proceedings: Town Planner,
Administrative Assistant to the Director of Public Works, Town Engineer, Civil
Engineer, Fire Captain, Fire Marshall, Police Lieutenants, Police Chief's
Secretary, Police Animal Control Division Supervisor, Town Accountant, Data
Processing Manager, Town Attorney's Secretary, Associate Planner, Deputy Fire
Chief, Fire Chief's Secretary, Police Captains, Police Records Manager,
Assistant Assessor, Zoning Administrator, Fire Prevention Officer, Computer
Systems Operator, Support Services Manager, Assessment Technician EXCLUDES:
Fire Chief, Town Clerk, Director of Public Works, Police Chief, Finance
Director, Road Agent, Town Attorney, Recreation Director, All Library
Employees.
3. The job description for the Highway Supervisor (Jt. Ex.
1) explains the scope of his duties, supervision for which he is responsible
and a job summary, to wit:
EXAMPLES OF DUTIES
1. Plans, assigns, inspects the work of a number of
crews
in the construction, repair, alterations and maintenance
of the drainage and sanitary sewer systems. Responsible
for sanitary sewer inspections.
2. Interprets work orders, specifications or other
instructions,
and explains required procedures as needed and continuously inspects work
in progress for conformance to plans and instructions; checks for employee
safety.
3. Supervises workers and coordinates activities at
various locations, performing duties relative to the construction,
maintenance, and repair of the drainage and sanitary sewer systems.
Instructs and trains subordinates in the safe operations and practices in
trench shoring of excavations, equipment and tools used.
4. Reviews and investigates complaints of residents and
dispatches crews as warranted.
5. Maintains and prepares reports on completed work;
schedules and approves leave request; evaluates performance of
subordinates.
6. Participates in the preparation of the annual
departmental budget through the complete preparation of some materials for
the departmental review and other related activities as directed by the
Road Agent.
7. Keeps the Road Agent advised of unusual problems or
delays; works with the Road Agent in planning work priorities and
developing details for carrying out projects and reviews completed
projects.
Performs other related duties as required.
SUPERVISION EXERCISED
Directs division employees performing both skilled and
unskilled manual labor and operating motor equipment. Reviews work of
subordinates in progress and on completion as to conformance with
instructions, timeliness, and technical adequacy. In the absence of the
Road Agent supervises all department employees to include two division
foremen and a moderately large workforce of personnel.
JOB SUMMARY
Supervises and coordinates activities of a number of
work crews engaged in a variety of public works projects involving the
construction, maintenance, and repairs of the drainage and sanitary sewer
systems.
4. The Highway Supervisor position is a new one. According
to the attachment to Joint Ex. 1, a memo from Road Agent Burns to then Town
Administrator Paul Sharon, dated July 8, 2002, Burns sought to reorganize the
department and create the Highway Supervisor position. That proposal was
inclusive of suggesting that it be a non-union position, noting that the
"rate of pay should be in or near the same general range as the 2nd in
command in the other operating departments," some of whom (e.g., senior
police captain) are in this bargaining unit.
5. The Highway Supervisor position was created and filled
without consultation with the HPFTSA as contemplated at Article IV § 2 of the
CBA, notably, "The inclusion or exclusion in the bargaining unit of a new
personnel classification established by the Town subsequent to the effective
date of this agreement [July 1, 2002] shall be preceded by discussion with the
Association. Any impasse in this area shall be submitted to the Public
Employee Labor Relations Board for resolution." There is credible and
unrebutted testimony from Ray Mello that such discussion did not occur.
6. It is undisputed that the Highway Supervisor is the
"number two" position and may act in a leadership role in the
absence of the Road Agent, who is the equivalent of a department head
(testimony of Ray Mello and Kevin Burns). Likewise, there is no evidence that
the Highway Supervisor's role, either regularly or in the absence of the Road
Agent, involves the "significant exercise of discretion" over other
employees in the current bargaining unit under examination in these
proceedings. (Emphasis added) RSA 273-A: 8 II.
7. The structure of the current bargaining unit, from the
outset and implicitly, involved the co-mingling of supervisory personnel from
various operating departments within the Town so that the "base line
organizational unit" within the meaning of RSA 273-A: 8 I (d) is
town-wide rather than department-wide.
8. The incumbent Highway Supervisor did not testify in these
proceedings. The Town offered testimony that this was because he opposed
inclusion. Mello, testifying on behalf of HPFTSA, attributed the incumbent's
absence to his ambivalence about being, or not being, included in the
bargaining unit vis-à-vis the self-felt community of interest referenced in
PUB 302.02 (g).
9. The position of Assistant Chief at the Fire Department is
newly created after having been approved by the Town selectmen on November 14,
2000 and implemented on March 15, 2001. (Jt. Ex. 2.) There is credible and
unrebutted testimony that the contractually provided for discussions,
referenced in CBA Article IV, § 2, did not occur.
10. When the Assistant Chief's position was created, its
"General Statement of Duties" and "Example of Duties"
taken from Jt. Ex. 2, were, respectively:
GENERAL STATEMENT OF DUTIES:
Performs highly responsible administrative and
supervisory work assisting the Fire Chief in planning, organizing and
directing the Fire Departments Operations Division.
Works under the general supervision of the Fire Chief
who outlines broad departmental policy and procedures. Work is carried out
independently on a day-to-day basis once general policy has been
established by the Fire Chief. Coordination is maintained with Fire Chief
in order to assure departmental goals and objectives are accomplished.
Supervision exercised-general supervision over
subordinates; evaluates and recommends selection, performance and
discipline of assigned personnel.
This position is the second ranking position within the
Department.
EXAMPLE OF DUTIES: (the following does not include all
duties
which may be assigned to this position)
1. Plans, organizes and directs the overall day-to-day
operations of the Fire Department. Shall assume command
of all multiple alarm incidents.
2. Supervises and assists, through subordinates, all
personnel
personnel assigned. Provides necessary guidance or instruction to
accomplish a given task and review work on a periodic basis to ensure
desired results.
3. Participates in department policy making, with the
Fire Chief; develops and implements procedures. Prepares and presents
reports of all division activities, new equipment, methods and procedures
to Chief of Department for evaluation.
4. Assists in preparation of budget; develops staffing
for assigned subordinates; recommends changes to obtain the most effective
results.
5. Evaluates performance, disciplines, and participates
in selection of personnel assigned to the Department; ensures that all
personnel have received adequate training to accomplish their tasks and
recommends specific individual training as needed.
6. Coordinates call force activities with full time
personnel.
7. Shall assume full responsibility of the Department
during the absence of the Fire Chief.
8. Performs other related duties as required or assigned
by Chief.
9. Supervises and coordinates all maintenance and
testing of all Department apparatus, hose, SCBA's, ladders and small
equipment.
10. Supervises and coordinates the Departmen[t's]
Physical Fitness Program.
11. Is the Departmen[t's] liaison concerning Hazardous
Materials.
11. The Deputy Fire Chief, a bargaining unit position of
long duration and uncontested in these proceedings, operates under a job
description with an effective date of December 15, 1997. (Assn. Ex. 1.) With
the exception of a reference to the Operations Division in Jt. Ex. 2., the
language of the "General Statement of Duties," for the Deputy Chief,
is the functional equivalent of that which describes the Assistant Chief's
position. Likewise, the first eight of the "Examples of Duties" of
the Assistant Chief (Jt. Ex. 2) are identical with the Deputy Chief except
that the latter "may assume full responsibility … during absence of the
Fire Chief" instead of "shall assume…." for the Assistant
Chief and a reference to "division" for the Deputy which refers to
"Department" for the Assistant Chief. "Examples of Duties"
numbered 9, 10 and 11 are new and exclusive to the Assistant Chief on Jt. Ex.
2, but cite neither exclusionary (RSA 273-A:I IX) nor supervisory (RSA
273-A:8) criteria.
12. The Assistant Chief is parallel in structure in the
organization with both the Fire Marshall and the Deputy Chief, both of which
are bargaining unit positions. (Assn. Ex. 2) In the chain of command, the
Assistant Chief is second, the Deputy Chief is third and the Fire Marshal is
fourth. (Town Ex. 2) The functions of each of these jobs are compared in Town
Ex's. 1 and 3.
13. The Assistant Chief's job involves operational elements
of the department, namely, fire suppression and EMT's. The incumbent, Shawn
Murray, said he directly supervises four (4) shift captains and 3 call,
part-time lieutenants. Murray evaluates the shift captains. (Jt. Ex. 3). His
work product is forwarded to the Chief for review, narrative commentary and
sign-off authority, as shown in each instance addressed in Jt. Ex. 3. Under
Article XXVI of the CBA, satisfactory performance reviews are a prerequisite
for step increases. The CBA provides that members may appeal performance
reviews to "the Town Administrator as well as to the Board of
Selectmen." Assn. Ex 7. As for the consequences of Murray's doing
performance evaluations, he testified he does not know if the personnel he
rates receive step increases. He stated he is not the final authority for
raises or discipline and that the Chief follows his recommendations about
"50-50."
14. Both the Fire Marshall and the Assistant Chief forward
the performance evaluations which they have done to the Chief for final
disposition. Likewise, they both forward disciplinary matters to him for
approval or determination of corrective measures to be taken. Before there was
an Assistant Chief position, the Deputy Chief performed the evaluations now
done by the Assistant Chief. The Deputy would then forward his work product to
the Chief for review, commentary and sign-off authority.
15. Chief Carpentino testified that the creation of the
Assistant Chief's position, about 4 years ago, resulted from the needs of a
growing department, better management of discipline and corrective measures,
and an increased emphasis on budget, planning and policy development issues.
He emphasized that the Assistant Chief does not set or make policy but may
assess current policies to determine if they conform with the requirements and
goals of the department after which he may make an appropriate recommendation
to the Chief. The Chief said the Assistant Chief can involve himself in
counseling, oral reprimands, emergency suspensions and a letter of meeting,
also known as a "memo for record." Notwithstanding this, the Chief
said he (his office) is the final step in the evaluation process, regardless
of the grade of the individual who was evaluated.
16. One or more of the events which prompted the Assistant
Chief to seek inclusion in the HPFTSA bargaining unit occurred after the
inception of the current CBA on July 1, 2002, because that/those event(s) were
related to criticisms from an elected official, who is/was also an on-call
firefighter, about the Assistant Chief's unavailability to greet a visiting
congressional candidate. This manifested itself in the Assistant Chief's
letter of November 13, 2002 to HPFTSA. (Assn. Ex. 5)
17. There is no evidence that the parties engaged in
"negotiations" relating to the composition of the bargaining unit
within the meaning of PUB 302.05 (b) (2). In fact, the absence of
contractually contemplated discussions about the placement of the two,
relatively, newly created jobs under consideration herein suggests to the
contrary. See Finding No's. 5 and 9, above.
DECISION AND ORDER
The Highway Supervisor position is appropriate for inclusion
in the bargaining unit. The supervisory functions of the position do not
trigger the "exercising supervisory authority" exception of RSA
273-A: 8 II because the persons supervised are not in the same bargaining
unit. There is no evidence that the Highway Supervisor supervises any other
employee in this bargaining unit or, if he did so, that the supervision
involved the requisite "significant exercise of discretion." Finding
No. 6, above.
The Town's arguments relating to the lack of community of
interest (brief, p. 9) are not persuasive. While community of interest
standards have a role in determining whether a given position is, or is not,
appropriate for inclusion in a bargaining unit, in the context of this case
those standards must be applied against a town-wide supervisory unit which,
implicitly, consists of a broader diversification of employees than might
ordinarily be the case for a departmental bargaining unit. In these
circumstances, the geographical proximity standard (PUB 302.02, for example)
would apply across the work spectrum of supervisors generally in the Town, not
just in the police station, town hall, fire station or public works garage.
The weighting of "employees in the same historic craft or
profession" (RSA 273-A:8 I) is, thus, minimized and the
"organizational unit" becomes the Town, not one of its departments.
RSA 273-A: 8 I (d). Under these conditions in the existing bargaining unit,
standards such as geographical proximity, same craft or profession (although
the profession could be generically categorized as "supervisory
personnel" to be consistent with the name of the bargaining unit) and
conditions of employment in an environmental sense, cannot be used as a basis
for exclusion of the Highway Supervisor.
Finally, reliance on a difference in the policies and
procedures in the Highway Department compared to other departments already
represented by a supervisory presence in the bargaining unit is, likewise, not
a basis for excluding the Highway Supervisor position. (Town brief, p. 10.)
The policies and procedures referenced by the Town are those which apply to
"line employees" in the Highway Department and are understandably
different than policies and procedures which might apply to line personnel in
the fire or police departments, by way of example. The applicable
"policies and procedures" discrepancy, if there were one, would have
to be integral to the members of this bargaining unit. The Town has failed to
show that to be the case if the Highway Supervisor position is added to the
current bargaining unit.
The position of Assistant Fire Chief is one, at first blush,
which suggests it to be appropriate for exclusion from this bargaining unit,
especially because of the responsibilities for evaluating subordinates,
placement in the command structure and what the job description calls
"highly responsible and supervisory work." (Jt. Ex. No. 2.) The
presumptions associated with the job title wane, however, under further
scrutiny.
The job description of the Assistant Chief (Jt. Ex. No. 2)
supercedes a prior document, not in evidence, dated 5/30/00 and carries an
effective date of 3/15/01. It has a striking resemblance, although not
identical, to the job description for Deputy Fire Chief, a bargaining unit
position of considerable longevity since 1991. The effective date of the
Deputy Chief's job description is 12/15/97. As noted in Finding No. 11, the
first eight (8) examples of duties on the job descriptions for both positions
are almost identical except for the breadth of authority for the Assistant
(department-wide) and his unequivocal requirement to assume responsibility for
the department in the absence of the chief. The Assistant Chief's job
description has three additional "examples" which do not appear on
the Deputy's job description. They are: "(9) supervises and coordinates
all maintenance and testing of all Department apparatus, hose, SCBA's, ladders
and small equipment, (10) supervises and coordinates departmen[t's] physical
fitness program and (11) is the departmen[t's] liaison concerning hazardous
materials." None of these added examples of duties is grounds to exclude
the Assistant Chief from the bargaining unit.
Within the Hudson Fire Department, the Assistant Chief,
Deputy Chief (Administration) and Fire Marshal are all on the same line/level
of the organizational chart, showing each with a direct line of responsibility
to the Chief. Both the Deputy Chief and the Fire Marshal are already
bargaining unit positions such as to satisfy all four elements of RSA 273-A: 8
I (a)(b)(c) and (d). There is no evidence that the Assistant Chief, if
included, would be treated any differently or in a manner to cause these
conditions to cease to prevail. In the context of the larger bargaining unit,
the Assistant Chief is the "number two" position in the department.
Putting him in the bargaining unit would place him alongside other
"number two" positions, e.g., police department and highway public
works department.
Example No. 5 of the Assistant Chief's job description
provides that he "evaluates performance, disciplines and participates in
selection of personnel assigned to the department." If the Assistant
Chief performs these duties such that he is exercising "the significant
exercise of discretion" when he does so, this may be cause for him to be
excluded from any bargaining unit which also contains employees whom he
supervises. RSA 273-A: 8 II. The Town noted this same provision in its brief,
p. 4, placing reliance on Appeal of Town of Stratham, 144 N.H. 429 (1999)
Crucial in determining the applicability of RSA 273-A:8 II
to the Assistant Chief's position is the issue of whether his supervisory
authority involves the "significant exercise of discretion." In
Appeal of Town of Stratham, supra, the New Hampshire Supreme Court said,
"In determining whether an employer exercises supervisory authority
sufficient to exclude an employee from a bargaining unit, we consider several
factors, including the employee's authority to evaluate other employees, the
employee's supervisory role and the employee's disciplinary authority."
The applicability of these standards to the Assistant Chief's position would
suggest that it is not appropriate for inclusion in the bargaining unit. There
are two considerations, however, which impact the application of these
standards.
The first is the degree to which the Assistant Chief engages
in these activities, a quantitative assessment which appears to tip back
towards inclusion of the Assistant Chief's position when his job duties, job
description, and actual job performance are compared to the Deputy Chief and
the Fire Marshal, both included and undisputed bargaining unit positions. The
similarity to the Deputy Chief is compelling, as noted in Finding Nos. 11, 12
and 14, above. In a similar vein, a closely scrutinized assessment of the
Assistant Chief's functions fails to indicate the "significant exercise
of discretion" since his actions are more ministerial than discretionary.
They are recommendatory and lack final authority. He functions as a conduit of
information, not as a final or necessarily conclusive decision maker. The
Assistant "works under the general supervision of the Fire Chief…and
coordination is maintained with the Fire Chief…" Finding No. 10,
"General Statement of Duties." See also Finding Nos. 13, 14 and 15
as to the Chief's following the Assistant's recommendations "about
50-50," the Chief's being the final reviewer of both performance
evaluations and disciplinary matters, and the Chief's saying that the
Assistant does not set or make policy because his (the Chief's) office is the
final step in the evaluation or assessment process. Even though it is clear
that the Assistant Chief evaluates four captains, already in the bargaining
unit, the Town has failed in its attempt to show, under the specific
circumstances of this case, that the consequences of this process rise to the
level of being the "significant exercise of discretion" given the
lack of finality and subsequent levels of review implicit in the organization
of the department.
Second, the background of Appeal of Town of Stratham
emanates from a unit determination proceeding, not a unit modification
proceeding, as is the case here. This difference impacts the instant case by
creating a divergence of results which is potentially chaotic and perpetuates
both an inequity and an inequality for the Assistant Chief's position
vis-à-vis the Deputy Chief and the Fire Marshal positions at the departmental
level. (The parties agreed that the Deputy Chief and Fire Marshal positions
were appropriate for inclusion in this bargaining unit as recently as April
16, 2003, as affirmed by Decision No. 2003-038.) At the Town-wide bargaining
unit level, this difference creates a similar divergence between the Assistant
Chief and other "number two" positions in the police and assessing
departments which are included in the bargaining unit, also reaffirmed by the
parties as recently as April 16, 2003. Exclusion of the Assistant Chief's
position results in disparate treatment which, in turn, flies directly in the
face of Chapter 490:2, Laws of 1975, namely that "...it is the policy of
the state to foster harmonious and cooperative relations between public
employers and their employees…" and must be considered in the process
of applying the language of RSA 273-A:8 II. If, in fact, the strict dictates
of Appeal of Town of Stratham are appropriate to be followed in unit
modification proceedings, as contrasted to unit determination proceedings,
without consideration as to the disruption that application may cause, then
the whole matter should be revisited judicially in the context of unit
modification proceedings with the concomitant results of doing so coming under
full and thorough consideration.
The record here is clear. The Assistant Chief is not
"a" or "the" final authority for performance evaluations
or discipline. That final authority rests with the Chief, by his own
testimony. Finding No. 15. The recommendations of the Assistant Chief,
followed by the Chief on a "50-50" basis, are not controlling. The
results of and feedback from the evaluation process are sufficiently informal
or non-existent that the Assistant Chief does not know if the employees whom
he evaluated did or did not receive step increases. He is not the level at
which the evaluated employee would raise an appeal. Finding No. 13. Finally,
the Association, through Assn. Ex. No. 5, has satisfied the self-felt
community of interest standards for the Assistant Chief under PUB 302.02 (b)
(3).
Based on the foregoing, the current bargaining unit shall be
modified to include the positions of Highway Department Supervisor and
Assistant Fire Chief with an appropriate amended certification to issue from
the PELRB at the conclusion of these proceedings.
So ordered.
Dated this 8th day of May, 2003
/s/ Parker Denaco
PARKER DENACO
Hearing Officer
Distribution: Ray Mello, Esquire
Mark Broth, Esquire
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