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APPEARANCES
Representing Teamsters Local 633 of New Hampshire:
Kevin Foley
Chauffeurs, Teamsters and Helpers Local Union 633 of NH, Manchester, New
Hampshire.
Representing Town of New Ipswich:
Raymond Mello, Esq.
Bernstein, Bartis & Mello, P.L.L.C., Nashua, New Hampshire.
BACKGROUND
On January 2, 2008 the Chauffeurs, Teamsters and Helpers
Local Union 633 of NH (“Union”) filed a Written Majority Authorization
Petition seeking certification as the exclusive representative via written
majority authorization cards (“WMA cards”) of a proposed bargaining unit
consisting of police officers, highway department employees, and transfer
station employees. The Town filed its objections to the petition on January
17, 2008. The Town contends that the proposed unit improperly includes a
confidential employee and that there is no community of interest since the
police employees have no desire to be part of the proposed bargaining unit.
The Town also contends that some of the highway or landfill department
employees are probationary employees and therefore cannot submit WMA cards.
The undersigned hearing officer conducted a hearing on the petition on
February 4, 2008 at the PELRB in Concord. Both parties had the opportunity
to submit exhibits and present 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.
FINDINGS OF FACT
1. The Town of New Ipswich is a public employer within the
meaning of RSA 273-A.
2. The Chauffeurs, Teamsters and Helpers Local Union 633 of NH is an
employee organization that seeks to represent employees of the Town for
purposes of collective bargaining pursuant to RSA 273-A.
3. Neil Beauregard is a one year employee of the Highway department whose
current duties include truck driver and laborer responsibilities. He
previously worked as a foreman in the same department. Mr. Beauregard
testified at the hearing.
4. W. Garrett Chamberlain has been the Chief of Police since November, 2002.
He also served as the interim road agent from May, 2007 to January, 2008.
Chief Chamberlain testified at the hearing.
5. Marie Knowlton has served as the town administrator for two years. Ms.
Knowlton testified at the hearing.
6. Chief Chamberlain maintains personnel files for police department
employees, which includes the 3 full time patrol officers and the 3 part
time permanent patrol officers. These positions are part of the proposed
unit. New patrol officers are placed on 6 months probation, a process the
Chief reviews with the new hires when they are hired and when their
probationary period ends. The police officers have expressed their
opposition to being included in the proposed bargaining unit.
7. Chief Chamberlain does not maintain personnel records for employees of
the highway department or the transfer station.
8. When Mr. Beauregard was hired he understood that he was not eligible for
a raise for the first 6 months of his employment, but he did not understand
nor was he informed that the first 6 months of his employment were
probationary.
9. Ms. Knowlton did not address the probationary status of highway or
transfer department employees in her testimony.
10. At hearing the Teamsters withdrew the position of police secretary
support staff from the proposed unit.
11. In August, 2003 the Town agreed to a similar unit consisting of all
full-time and permanent part-time Police, Office, Highway & Transfer station
employees. Following an election, the board certified New Ipswich Town
Employees/SEA-SEIU Local 1984 as the unit’s exclusive representative. In
June, 2007 the SEA-SEIU Local 1984 surrendered its certification. The
parties did not submit evidence concerning the bargaining history of this
previously certified unit.
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
The Union seeks to be certified as the exclusive representative of the
proposed bargaining unit through written majority authorization cards (“WMA
cards”) signed by a majority of employees in the proposed bargaining unit.
This is a new procedure available under RSA 273-A:10, IX. The procedure
eliminates the use of a secret ballot election to determine the
representation of a new bargaining unit. Board rules governing the WMA card
certification procedure are set forth in Pub 301.05. In the event there is
agreement as to the composition of the proposed bargaining unit, the
sufficiency of WMA cards can be determined by the PELRB or a neutral third
party agreed upon by the petitioner and the public employer. However, the
PELRB will determine the appropriate bargaining unit in accordance with RSA
273-A:8 and Pub 302.02 in all cases where there are objections to the
composition of the proposed bargaining unit, and in such cases the PELRB
will determine the sufficiency of the WMA cards as well.
In this case the Union elected to file its WMA petition with the PELRB and
have the PELRB determine the sufficiency of the WMA cards. Since the Town
filed objections to the composition of the bargaining unit, the
determination of the sufficiency of the WMA cards was deferred pending the
hearing on the appropriateness of the proposed bargaining unit. This is in
accord with RSA 273-A:10, IX, which requires a determination of whether
there is a sufficient written majority authorization within the appropriate
bargaining unit, and Pub 301.05, which requires, in contested cases such as
this one, a hearing upon and determination of the bargaining unit before the
sufficiency of WMA cards can be determined.
RSA 273-A:8, I requires that a proposed bargaining unit contain at least 10
public employees with the same community of interest. RSA 273-A:1, IX
excludes persons in a probationary status and those employees “whose duties
imply a confidential relationship to the public employer” from the
definition of “public employee,” although probationary employees can be
counted to meet the 10 person requirement.
As to the Town’s objections to any WMA cards submitted by probationary
employees, there is insufficient evidence to show that highway or transfer
department employees are placed on a probationary status at the time they
are hired. Accordingly, the Town’s objections to the petition based upon the
purported probationary status of certain highway/transfer station employees
are dismissed on that basis.
The Town also contends that employees in the proposed bargaining unit lack
the requisite community of interest on account of the police officers’
opposition to their inclusion in the proposed bargaining unit. Community of
interest is a factor taken into account when determining an appropriate
bargaining unit. See RSA 273-A:8, I. The board’s rules address community of
interest in detail:
Pub 302.02 Additional Criteria for Determining
Appropriate Bargaining Units.
(a) An appropriate bargaining unit shall be
characterized by the existence of a community of interest shared by its
members.
(b) In determining the appropriate bargaining unit, the board shall
consider the following as evidence of a community of interest, in
addition to the elements set out in RSA 273-A:8, I(a) through (d):
(1) A Common geographic location of the proposed
unit;
(2) The presence of:
a. Common work rules and personnel practices;
and
b. Common salary and fringe benefit structures; and
(3) The self-felt community of interest among
employees.
In this case there is insufficient evidence to establish a
community of interest among the employees in the proposed bargaining unit.
The testimony on the issue showed that a self-felt community of interest is
lacking as to police officers, as they are opposed to being included in the
proposed bargaining unit. The likely basis for such a lack of self-felt
community of interest as between police officers and highway/transfer
station employees is evident when the generally accepted and distinct
differences between the job responsibilities and conditions of employment of
police officers and highway/transfer station employees are considered. There
is also insufficient evidence of the presence of common work rules and
personnel practices and common salary and fringe benefit structures as
between police officers and highway/transfer station employees. There is
also insufficient evidence of other factors relevant to whether there is a
community of interest amongst the employees in the proposed bargaining unit,
such as the employees having a history of workable and acceptable collective
negotiations or being in the same historic craft or profession. See RSA
273-A:8, I.
The Union relies upon the 2003 certification of a similar bargaining unit
involving a different representative as justification for the
appropriateness of the bargaining unit it has proposed in this case.
1 In the earlier
proceeding the Town agreed to the composition of the similar bargaining
unit, and the matter proceeded directly to election. The board has
previously distinguished between the level of scrutiny applicable to unit
composition in the case of an agreed upon unit and the level of scrutiny
applicable to unit composition in a contested case. See Bow School District
v Bow Educational Support Staff/NEA-NH, PELRB Decision No. 2002-033
(involving a closer examination of the composition of a previously agreed
upon unit in a modification proceeding). A “more thorough scrutiny” is
warranted in this case because the composition of the unit is contested. The
fact that the Town previously agreed to the composition of a similar unit in
2003 is a factor to consider, but it is not conclusive as to the
appropriateness of the proposed unit currently under consideration. In this
case, the evidence of the previously agreed upon unit is relevant and
probative, but it is insufficient to overcome the contemporary evidence
concerning a lack of community of interest as between police patrol officers
and highway/ landfill employees. Accordingly, the police officer positions
must be excluded from the proposed bargaining unit.
After the exclusion of the police officer positions, the size of the
proposed unit is reduced to 8 employees, an insufficient number under RSA
273-A:I (d). Accordingly, the Teamster’s petition is dismissed.
So ordered.
February 5, 2008.
/s/ Douglas L. Ingersoll
Douglas L. Ingersoll, Esq.
Hearing Officer
Distribution:
Kevin Foley
Roger Travers
Raymond Mello, Esq.
1
Case No. M-0805, PELRB Decision No.
2003-098, certification surrendered by the SEA/SEIU Local 1984 in June,
2007- PELRB Decision No. 2007-094.
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