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AFSCME Local 3657, Enfield Police Employees
Petitioner v. Respondent |
Case No. P-0790 Decision No. 2007-015 |
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APPEARANCES Representing Petitioners: Representing Town of Enfield: BACKGROUND On October 16, 2006 AFSCME Local 3657, Enfield Police ("AFSCME") filed a petition for certification seeking to create a new bargaining unit comprised of police assistant (1), full time patrol officer (3), part-time patrol officer (6), sergeant (1), and detective sergeant (1). On October 30, 2006 the Town of Enfield filed its exceptions to the petition, asserting that the proposed unit lacks the number of employees required under RSA 273-A:8 because the Town does not have six part-time patrol officer positions and the part-time patrol officer position is an "on-call" position. The undersigned hearing officer conducted a hearing on the petition on January 10, 2007 at the PELRB in Concord. Both parties submitted exhibits and presented evidence through direct and cross-examination of witnesses. At the close of evidence the parties argued their respective positions and submitted the case for decision and the record was closed except for a further submission the parties anticipated filing forthwith. The PELRB received this filing on January 12, 2007 and it consists of a one-page letter from the Town's counsel with a one-page attachment. It is marked as Joint Exhibit One. FINDINGS OF FACT 1. The Town of Enfield is a public employer within the meaning of RSA 273-A. 2. AFSCME Local 3657 is an employee organization that seeks to represent employees of the Town of Enfield police department for purposes of collective bargaining pursuant to RSA 273-A. 3. AFSCME Local 3657 filed a Petition for Certification proposing a bargaining unit consisting of ten employees: police assistant (1), full time patrol officer (3), part-time patrol officer (6), sergeant (1), and detective sergeant (1). In its petition AFSCME excluded the positions of police chief, police captain and police chief's secretary from the proposed bargaining unit. 4. At the time this petition was filed the Town did not employ any part-time patrol officers. The Town has not employed a part-time patrol officer since 2003. When previously employed by the Town part-time patrol officers did not work a fixed schedule or regular schedule. In the 2003 and earlier time period part-time patrol officers may have been asked to provide shift coverage during times when full-time patrol officers took vacation, during emergencies, and during vacancies created by sick leave or other staffing shortfalls. Part-time patrol officers have included special police officers from other departments, like the Town of Canaan, as well as firefighters and Fish and Game employees. Their hours worked ranged from 0-20 in any given week. 5. In 2006 the Town budgeted $76,799.00 for part-time police personnel. Union Exhibit 1. Partway through October 2006, the Town had paid $61,754.64 to five part-time employees of the police department. None of these employees are patrol officers. At the time of hearing neither party had records showing the year end totals for payment to part-time employees of the police department. However, it was anticipated that most, if not all, of the remaining 2006 police part-time personnel budget amount will have been spent on these employees (other than former employee Captain Wayne Agan) by December 31, 2006. 6. Town Exhibit C concerns the positions in the Enfield police department and doesn't list any part-time patrol officer positions. It is posted on the bulletin board outside the squad room. At an early October 2006 meeting Chief Richard Crate told Sergeant Scott Thompson that there were eight unfilled part-time slots in the police department. 7. Town Exhibit A is a Town-wide organization chart for 2006 and includes positions in the police department. There are no part-time patrol officer positions listed. 8. Currently, the Town is actively seeking to hire at least one new part-time patrol officer. The Town is not seeking to hire four part-time patrol officers, nor is there any evidence that the Town has simultaneously employed four part-time patrol officers during the last several years. DECISION JURISDICTION The PELRB has jurisdiction over petitions to determine public employee bargaining units and certify exclusive representatives pursuant to the provisions of RSA 273-A:8 and 10. DISCUSSION RSA 273-A:8, I requires that a proposed bargaining unit contain at least ten employees with the same community of interest. RSA 273-A:1, IX excludes persons employed irregularly or on call from the definition of "public employee." This means that part-time employees who work irregularly or who are employed on call are ineligible for inclusion in a proposed bargaining unit, and such employees cannot be counted for purposes of meeting the ten employee requirement. Appeal of Town of Stratham, 144 N.H. 429, 430-31 (1999). In this case I cannot find that AFSCME has satisfied the ten employee requirement imposed by RSA 273-A:8, I. The evidence concerning the Town's current hiring activities, its employment and lack of employment of part-time patrol officers before and after 2003, the budgeting for part-time personnel in the police department in 2006, the actual 2006 payroll for part-time employees of the police department, as well as police department employee organizational charts all indicate that the Town has not recently employed four part-time patrol officers and has not been and is not currently seeking to hire four part-time patrol officers. This information is more complete, probative and reliable than the reference to 8 part time employees which appears in Union Exhibit 2 and the Chief's statements. It is noted that although Union Exhibit 2 is a document which dates to 2001, the Town stipulates it is currently in effect. See Joint Exhibit 1, page 1. More information is contained at page 2 of Joint Exhibit 1. This portion of Joint Exhibit 1 is a draft Emergency Management Plan dating to the fall of 2006. It provides that the police department has 7 full-time members and 1 special member. Additionally, in the past the Town has employed part-time patrol officers only on an irregular or an on call basis. There was insufficient evidence to show that a different arrangement would be employed currently, assuming the Town proceeds with the hiring of a part-time patrol officer(s). This serves as another reason for concluding that AFSCME has not satisfied the ten employee minimum imposed by the state, since irregular or on call employees are excluded from the definition of public employee under RSA 273-A:1, IX (d). Whether or under what circumstances unfilled positions can otherwise be counted when determining a bargaining unit is not addressed in this decision, since neither party argued this point and it is otherwise unnecessary to reach this question in order to decide the case. Accordingly, AFSCME's petition is dismissed. So ordered. February 6, 2007.
Distribution:
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