II. Representation Proceedings
1. Petitions for Certification
2. Confidential Authorization cards
3. Agreement on composition of proposed bargaining unit
4. Objections, exceptions, petitions to intervene, posting, employee list
5. Intervention in Election Representation Proceedings
6. PELRB Processing of Petitions for Certification
7. Certification and Order to Negotiate
1. Who can file modification petitions
2. Content of modification petitions
3. Time to file modification petitions
4. Creating new bargaining units through the modification process
5. PELRB processing of modification petitions
II. Representation Proceedings
When the legislature enacted RSA 273-A it acknowledged the right of public employees to organize and to be represented for the purpose of bargaining collectively with any public employer. The organization process is carried out through the establishment of a "bargaining unit" and the selection of an "exclusive representative" to represent the members of the bargaining unit in collective bargaining and grievances. A bargaining unit consists of certain positions grouped together upon a determination that the collection of these positions in one "unit" is appropriate. Bargaining unit employees select their exclusive representative through a secret ballot election conducted by representatives of the PELRB.
The formal process requires the preparation and filing of a Petition for Certification. Petitions to establish a new bargaining unit may be filed at any time, and use of PELRB approved forms is required. All required forms are available on the agency website under Forms. The petitions require specific information about the petitioner and the employer as well as a description of the proposed bargaining unit, including position descriptions and the number of employees within each position. The petitioner is also required to list positions to be excluded from the proposed unit on the basis of, for example, a supervisory exclusion under RSA 273-A:8, II ("Persons exercising supervisory authority involving the significant exercise of discretion may not belong to the same bargaining unit as the employees they supervise") or a confidential exclusion under RSA 273-A:1, IX (c)(public employee does not include individuals "whose duties imply a confidential relationship to the public employer") or some other basis. The budget submission date of the employer must also be listed. For state employees the applicable budget submission date is February 15. Currently a minimum of ten employees must be included in the proposed bargaining unit.
Petitions for Certification must be supported by confidential authorization cards signed within six months of the date the petition is filed. The authorization card is also available on the agency website under Forms. The petition needs to be supported by authorization cards signed by at least 30% of the employees in the proposed bargaining unit. The original authorization cards must be filed with the PELRB, where they are inspected and maintained by PELRB staff on a confidential basis. Ultimately, after determination of an appropriate bargaining unit, and if the matter proceeds to election, the question of representation is determined through the secret ballot process based upon the number of eligible voters who vote.
The petitioner and employer are required to review the composition of the proposed bargaining unit before a certification petition is filed and hopefully reach agreement on the positions to be included and excluded from the unit, with the fact of agreement or disagreement being documented on the certification petition. However, under Pub 302.01, such agreements are without prejudice to the rights of an intervener who does not participate in such discussions and are also not binding on the board. More detail about the criteria for determining bargaining units is contained in Part II-B of these materials.
Objections, exceptions, and petitions to intervene are due within fifteen days of the date the certification petition is filed. Upon receipt of a properly filed certification petition, the PELRB prepares and issues a Notice of Filing documenting these deadlines as well as other responsibilities the parties may have, such as employer posting of the petition in the workplace and employer submission of the list of employees holding positions within the proposed bargaining unit.
Interveners may also participate in this election representation proceedings pursuant to Pub 301.02. Such interveners may include any employee organization other than the petitioner wishing to appear on the ballot. To intervene a petition must be filed which contains the same information as required for the original petition that is the subject of the pending proceedings. The petition to intervene must be filed within 15 days of the date the original petition was filed, and all parties to the pending case must be provided with copies. The intervener's petition must be supported by authorization cards signed by at least 20% of the employees in the proposed bargaining unit.
The PELRB typically reviews Petitions for Certification on the day they are filed to ensure that they contain all required information and, based upon the information contained in the petition, are supported by a sufficient number of confidential authorization cards. Petitions which are deficient will be returned to the filing party for correction and re-filing as appropriate. Once a petition is properly filed the PELRB prepares and issues a Notice of Filing to the involved employer and to the petitioner. Employers are required to post petitions (as well as unfair labor practice complaints and hearing notices) in the workplace.
In the event the employer has filed objections or exceptions a hearing will be scheduled, and a written decision will subsequently issue. In the event a bargaining unit is approved the question of representation is then settled through the secret ballot election process, discussed in more detail in the "Elections" portion of these materials in Part II-G, or by final review of the confidential authorization cards.
In the event a majority of employees who vote in a secret ballot election choose to be represented the PELRB will issue a Certification of Exclusive Representative and Order to Negotiate. This order identifies the employee organization or other representative authorized to act as the exclusive representative of employees in the approved bargaining unit in collective bargaining with the employer and in the statutorily required grievance process that must be included in every collective bargaining agreement.
If a majority of the eligible voters choose "no representative" through the secret ballot election process then a petition for representation involving the same bargaining unit cannot be filed for 12 months.
In written majority authorization proceedings, if the PELRB's finds that there is not a written majority authorization, the petitioner may, within ten days of the PELRB's decision, request an election. In this event the petitioner may use the same confidential authorization cards to establish the necessary 30% showing of interest, subject to the requirements of Pub 301.05 (l) and 301.01 (l). Upon the receipt of a proper request the PELRB will proceed with the election process.
Only individuals who qualify as "public employees" under RSA 273-A:1, IX may be included in bargaining units. This means that an individual who is employed by a public employer may not necessarily be a "public employee" under the statute. The statutory definition of public employee is set forth in RSA 273-A:1, IX (a)-(d):
IX. "Public employee" means any person employed by a public employer except:
(a) Persons elected by popular vote;
(b) Persons appointed to office by the chief executive or legislative body of the public employer;
(c) Persons whose duties imply a confidential relationship to the public employer; or
(d) Persons in a probationary or temporary status, or employed seasonally, irregularly or on call. For the purposes of this chapter, however, no employee shall be determined to be in a probationary status who shall have been employed for more than 12 months or who has an individual contract with his employer, nor shall any employee be determined to be in a temporary status solely by reason of the source of funding of the position in which he is employed.
The PELRB applies specific criteria set forth by statute and administrative rule when determining the composition of appropriate bargaining units. One area of consideration is whether there is a sufficient "community of interest" among the employees in the proposed bargaining unit. In assessing community of interest the PELRB considers a number of facts, including but not limited to criteria such as whether the proposed bargaining unit contains employees:
(a) with the same conditions of employment;
(b) with a history of workable and acceptable collective negotiations;
(c) in the same historic craft or profession; or
(d) functioning within the same organizational unit.
PELRB rules list other factors relevant to the question of community of interest, including whether there is:
(1) a common geographic location of the proposed unit;
(2) the presence of common work rules and personnel practices;
(3) the presence of common salary and fringe benefit structures; and
(4) the self-felt community of interest among employees.
Two additional criteria for the PELRB to consider in determining the appropriate composition of the bargaining unit are:
(1) the effect of forming any particular unit on the efficiency of government operations within the parameters of the "Terms and conditions of employment" clause within the statute (RSA 273-A:1, XI) which actually addresses management rights considerations; and
(2) the potential for creating a division of loyalties between the public employer and the employees' exclusive representative.
The PELRB determines appropriate bargaining units based upon these considerations outlined by statute and administrative rule and in a manner consistent with its broad mandate to exercise primary jurisdiction in the determination of appropriate unit composition. The PELRB gives consideration to whether a petitioner and employer have agreed to the composition of the proposed bargaining unit, but under Pub 302.01 (b) such agreements are not binding on the PELRB or, in general, interveners. A hearing to address unit composition may still be scheduled even though the petitioner and employer have reached agreement on composition of the proposed bargaining unit, or the composition of the unit may be subject to scrutiny in connection with some future proceeding involving the agreed upon bargaining unit. Even if a hearing is not scheduled in connection with an agreed upon and approved bargaining unit, the question of representation must still be settled through a secret ballot election or the written majority authorization process. Appeals of PELRB bargaining unit determinations to the New Hampshire Supreme Court cannot be filed until after the resulting election is conducted and the results certified, as the outcome of the election may moot the potential grounds for appeal.
With the passage of time and changes in circumstances the original composition of a bargaining unit may no longer be appropriate and it may need to be altered through the addition or deletion of certain positions, or even the creation of a new bargaining unit comprised of some of the employees in the original bargaining unit. This is accomplished through the modification process, which requires the completion of a Petition to Modify using the PELRB's form, available on the agency website under Forms.
The public employer, the exclusive representative, or another employee organization may file a petition for modification.
The petition requires information about the composition of the existing bargaining unit, a description of the proposed change, the reasons for the requested change, and whether the public employer and exclusive representative agree the proposed changes should be made. It is important that the petition contain a "clear and concise" statement of the circumstances which prompted the filing party to ask for the change in unit composition.
The appropriate time for filing a petition for modification is different depending on whether the filing party is the public employer, the exclusive representative, or another employee organization. The public employer and exclusive representative may file modification petitions at any time, although if the petition is contested the modification request may ultimately be denied.
An employee organization other than the incumbent exclusive representative is restricted in terms of when it may file. Such modification petitions are generally filed in conjunction with a "challenge" certification petition, are subject to the same filing requirements, and usually involve a challenge by a "rival" employee organization which seeks to become certified as the exclusive representative of an existing bargaining unit through the election process. More information about when to file such modification petitions and challenge petitions is contained in Part II-E of these materials.
A modification petition filed in conjuction with a certification petition can request the creation of a new bargaining unit comprised of employees covered by an existing bargaining unit. Limitations on when such filings can be made are referenced in Pub 302.05. The PELRB applies bargaining unit criteria to determine the appropriateness of the proposed unit. The certification petition is filed because a new bargaining unit is being proposed, and procedures relating to represenation elections are followed.
A properly filed petition for modification will follow one of two paths. If the public employer and the incumbent exclusive representative have agreed to the proposed changes to the bargaining unit and there is no challenge from any other party, the PELRB may grant the petition and issue an Amended Certification to document the composition of the bargaining with the agreed upon changes in place. However, the PELRB is not compelled by statute or rule to grant an agreed to modification petition because the PELRB retains its original and primary jurisdictional authority to determine appropriate bargaining units.
If the modification petition is contested, as evidenced by a lack of agreement to the proposed changes and the filing of objections and exceptions, the PELRB will conduct a hearing and following hearing issue a written decision granting or denying the modification request. In modification proceedings which result in the creation of a new bargaining unit, the PELRB will proceed with the election process, as described in more detail elsewhere in these materials.
Decertification means an existing duly certified exclusive representative has lost its certification as the exclusive representative of a bargaining unit, with the result that employees in the underlying bargaining unit no longer engage in collective bargaining under the provisions of RSA 273-A. There are several ways by which a valid certification as exclusive bargaining representative can be lost pursuant to RSA 273-A:10 and Pub 301.03. They include dissolution of the employee organization, the voluntary surrender by an exclusive representative of its certification, and the loss of a decertification election. The PELRB is also required to decertify any employee organization which has been found in a judicial proceeding to discriminate or found to have systematically failed to fairly represent its members. In the event an exclusive representative is decertified through one of these processes, a new petition for certification may be filed at any time except if the decertification was the result of an election, in which event a new petition for certification may not be filed until 12 months after the election per RSA 273-A:10, III
This is a relatively simple decertification process that takes place when the existing certified exclusive representative surrenders its certification as the bargaining agent for an approved bargaining unit by giving notice of its intent to surrender to the employees in the bargaining unit and filing a surrender notice with the PELRB. If everything is in order the PELRB will issue an order stating the effective date of the surrender, after which the bargaining agent will have no further responsibility under any collective bargaining agreement or the provisions of RSA 273-A which give it authority to bargain collectively. Any collective bargaining agreement shall be deemed void, and a subsequent petition seeking an election to establish a new exclusive representative for the bargaining unit may be filed at any time.
The most common method of decertification involves a decertification election, and it arises from a situation in which some employees support continuing with the existing exclusive representative and some employees support having no representative and not participating in collective bargaining under RSA 273-A. The Decertification Petition is the process by which these particular conflicting employee positions on representation are settled, with the successful petition resulting in an election using the election process described in more detail in Part II-G of these materials.
Because an employee who files a Decertification Petition is requesting an election the petitions must be processed subject to the requirements of RSA 273-A:11, I (b) and Pub 301.01, much in the same manner as some modification petitions, as discussed in Part II-C of these materials, and "challenge" Petitions for Certification, discussed in Part II-E of these materials. This means that Decertification Petitions may be filed at any time if there isn't a collective bargaining agreement in place or any agreement has expired, notwithstanding whether the agreement has an extension or renewal clause. However, if there is a collective bargaining agreement in place, the Decertification Petition may generally only be filed within the time periods set forth in Pub 301.01 (240 to 180 days prior to the employer's budget submission date in the year the contract expires) and elections only held during the period 180 to 120 days prior to the same budget submission date.
The PELRB Decertification Petition form must be used, and it is available on the PELRB website under Forms. The Decertification Petition must be supported by Decertification Cards signed within six months of the date the petition is filed, available on the website under Forms, signed by at least 30% of the employees in the existing bargaining unit.
The Decertification Cards will be compared against a list of employees, supplied by the employer, who occupy positions within the bargaining unit, and in the absence of sufficient Decertification Cards the Petition will be dismissed, and no election will be held. Probationary employees are not considered "public employees" under RSA 273-A:1, IX, and may not sign Decertification Cards or vote in any resulting election. Decertification Cards signed by probationary employees will not be counted.
If there are sufficient Decertification Cards, and any objections or exceptions to the Petition are resolved, by hearing if necessary, in favor of the petitioner, the matter will proceed to election. If a majority of the eligible voting employees vote in favor of no representation by choosing "No Representative" on the ballot, an order or notice of decertification will issue, the existing certified representative will be deemed "decertified" and will no longer have any authority to represent the bargaining unit in collective bargaining or grievances under the statute and any existing collective bargaining can no longer be enforced. Under RSA 273-A:10, III, in the event the incumbent exclusive representative is decertified through the election process, no election shall be held within the following 12 months.
Sometimes a group of bargaining unit employees wants to continue to participate in collective bargaining under RSA 273-A but with different representation. Additionally, in such cases the bargaining unit employees may wish to form a new bargaining unit comprised of a portion of the employees in the existing bargaining unit. In such cases the employees are seeking to "challenge" the existing incumbent exclusive representative and replace it with another employee organization, and under Pub 301.03 (c) a Petition for Certification must be filed. A Petition for Modification is also required if the petitioner seeks to create a new bargaining unit through modification of the existing bargaining unit, with the requested end result being two bargaining units, one containing a new bargaining unit which contains only some of the employees currently included within the existing bargaining unit.
Under RSA 273-A:11 (b), an existing exclusive representative has the "right to represent the bargaining unit exclusively and without challenge during the term of the collective bargaining agreement. Notwithstanding the foregoing, an election may be held not more than 180 nor less than 120 days prior to the budget submission date in the year such collective bargaining agreement shall expire." Pub 301.03(c) provides that "[i]f a group of employees in a bargaining unit seeks to decertify an existing certified bargaining agent and to replace it with a new certified bargaining agent, the group shall file a petition for certification under the applicable provisions of Pub 301.01." Under Pub 301.01 (a), a "petition for certification as the exclusive representative of a bargaining unit for which a collective bargaining agreement constituting a bar to election under RSA 273-A:11, I (b) presently exists shall be filed no more than 240 days and no less than 180 days prior to the budget submission date of the affected public employer in the year that agreement expires, notwithstanding any provisions in the agreement for extension or renewal." Pub 301.01 (b) provides that "[a]ny petition filed less than 180 days prior to the budget submission date of the affected public employer shall be accompanied by an explanation of why the petition could not have been filed sooner. The board shall refuse to entertain any petition filed so close to the budget submission date of the affected employer that the board cannot reasonably conduct the election called for in the petition within 120 days of the budget submission date.
The absence of such filing and election restrictions can have a tendency to destabilize labor relations, creating avoidable uncertainty among public employees and public employers. Filing and election window time frames calculated on the basis of the employer's budget submission date in the year in which the contract expires allows sufficient time for the processing of the challenge petitions, including the conduct of any necessary adjudicatory hearings, while still having enough time to complete the election process within the required time frame. The election timetable, in turn, leaves sufficient time, deemed 120 days prior to the budget submission date, for the parties to negotiate a successor collective bargaining agreement and have the cost of the agreement included in the employer's budget submitted on the budget submission date and ultimately presented to the local legislative body (for example, at the municipal level, depending upon the form of the local government, voters at town meeting, the city council, or the board of aldermen).
The same form is used for "challenge"; petitions and certification petitions seeking to create a new bargaining unit and establish representation. However, additional information is required on the form when the petitioner seeks to challenge an existing incumbent exclusive representative, including information about the existing incumbent exclusive representative.
A copy of the completed "challenge" certification petition must be provided via electronic mail, if available, and by hand delivery or regular mail to the existing certified agent and the public employer at the same time it is filed with the PELRB.
As is true in the case of Petitions for Certification seeking to establish a new bargaining unit and representation, challenge petitions must be supported by authorization cards signed by at least 30% of the employees in the existing bargaining unit or, in the case a petition to modify is filed and a new bargaining unit is proposed, at least 30% of the employees in the proposed new bargaining unit. The employer and the incumbent exclusive representative have fifteen days from the date the challenge petition is filed to submit objections and exceptions. If any exceptions and objections are resolved in favor of the petitioner, a process that might involve an adjudicatory hearing, the question of representation will be settled through a secret ballot election. The election ballot typically will have the following choices: the name of the incumbent exclusive representative, the name of the challenging employee organization, and a "no representative" choice. The incumbent exclusive representative's name is placed on the ballot if the election is among employees in a newly created bargaining unit resulting from a related modification petition.
If a majority of eligible voting employees choose no representation, the existing incumbent exclusive representative will be decertified, and the procedures generally applicable to Decertification Petitions are followed. Employees and employee organization are barred from seeking another representation election for twelve months under RSA 273-A:10, III.
If a majority of eligible voting employees choose the existing incumbent exclusive representative, contract administration and negotiation continue in the normal manner.
A challenging petitioner who prevails at election will be certified as the new exclusive representative of the bargaining unit and will assume the responsibilities of the prior representative. Such responsibilities include administration of any existing collective bargaining agreement, continuation of any ongoing negotiations for a successor collective bargaining agreement, or provision of any necessary notice of intent to bargain. Any such notice of intent must still comply with the statutory minimum notice period of 120 days prior to the employer's budget submission deadline, and in the case of state employees, 120 days prior to the Governor's proposed budget submission deadline. If, in the case of on-going negotiations, the time for introducing new proposals has passed, the new certified exclusive representative may initiate a "single, one-time" exchange of proposals or modifications to existing proposals.
By statute, there are only two methods by which an employee organization can become certified as an exclusive representative of a bargaining unit, and that is through the PELRB election process, RSA 273-A:10, V, or through the written majority authorization process, RSA 273-A:10, IX. However, PELRB rules provide that upon compliance with certain procedures existing certified exclusive representatives can affiliate or disaffiliate with another organization. In such cases, the original existing certified exclusive representative remains the same, but the PELRB will issue an Order of Affiliation and an updated and amended certification in order to recognize the affiliation, or disaffiliation, as the case may be. Compliance with the following criteria is necessary in order to accomplish an affiliation or disaffiliation:
1. The internal rules of the exclusive representative pertaining to approval
of the affiliation or disaffiliation must be followed;
2. Two weeks written notice must be given to the unit employees of the proposed change in status through affiliation or disaffiliation and they must have the opportunity for input into that decision whether by direct vote, or vote of their representative; and
3. The local organization must not materially change from that previously selected
as the exclusive representative.
If the PELRB finds that there has been a material change in the local organization or that any of the above criteria have not been met the PELRB is required to conduct an election to settle the question of affiliation unless the proposed affiliation or disaffiliation is withdrawn. The PELRB can conduct such elections at any time, regardless of any collective bargaining agreement that may be in place
Upon the determination of an appropriate bargaining unit, a certification petition will proceed to the election process. The specific PELRB rules relating to the election process are set forth in Pub 303.01 to 303.14.
After the order for election is issued, a representative of the board conducts a pre-election conference to provide the parties and the board's representative the opportunity to informally meet to resolve procedures that will facilitate the conduct of the election. Topics for consideration include matters such as designation of the voter eligibility cut-off date, the date and time of election, the absentee ballot procedure, and the specific polling place.
After the pre-election conference the PELRB issues a notice of election with specific information about the pending election. The public employer must post the notice in designated locations at the workplace, which includes a list of employees eligible to vote.
Each named party has the right to access bargaining unit members during the time period leading up to the election. To facilitate this access, a public employer is obligated to distribute to the PELRB and the named parties a complete list of the names and addresses of the employees in the proposed bargaining unit immediately upon the employer's receipt of the order for election. While employee organizations do hold a relatively broad right of access, this right is not without limitation. A public employer retains the ability to reasonably restrict access to bargaining unit members at the work-place when such access would interfere with the employer's interest in maintaining staff efficiency and discipline.
A representative of the board conducts the election and the parties are prohibited from engaging in any electioneering in and around the polling area during the course of the election. Such prohibited activity in the polling area may result in the invalidation of the election results. Each party is entitled to select one representative who may observe the entire election process. The designated observer has the right to be present during the distribution, receipt, and counting of the ballots. At the conclusion of the election, the representative is asked to certify that the election, including the subsequent ballot tally, was conducted in a fair and appropriate manner. The representative's certification on the conduct of the election does not waive a party's right to object to other aspects of the election process.
The actual vote is by secret ballot. Besides including all of the named parties as ballot choices, the ballot automatically includes a "No Representative" option. In general, the vast majority of balloting occurs at the workplace. However, the board may conduct mail balloting elections when on-site balloting is impracticable. An individual employee may petition the board for an absentee ballot. In order to qualify for an absentee ballot, the petitioner must make a request sufficiently in advance of the election to allow proper processing, and must demonstrate an inability to vote at the designated time and place of the election for reasons such as those listed in applicable rules.
A party's designated observer may challenge a voter's eligibility to vote at any time prior to the board's receipt of the challenged voter's marked ballot. Upon challenge, the ballot at issue is first placed in an unmarked envelope, and then sealed in a second envelope which is marked with the voter's name, the basis for the challenge, and the challenger's identification. The challenged ballot is excluded from the subsequent ballot tally until a determination may be made as to whether the ballot will affect the outcome of the election, in which event the PELRB will decide the sufficiency of the challenge.
The outcome of the elections is determined by a majority of the votes properly cast. If there are more than two ballot options, and no option receives a majority of the votes cast, then the board will conduct a second election between the two choices that received the most votes in the initial election.
At the close of the tally of the ballots, the results of the election are recorded in a report of election. The report generally summarizes all relevant information as to the conduct of the election and balloting, including each party's tally, and the number of challenged ballots, if any. Observers will be asked to sign a certification that the conduct of the balloting has been fair and appropriate and the tally of ballots.
After the PELRB's issuance of the report of election a party file an objection a party has five days to file any objections to the conduct of the election by the PELRB representative and to conduct affecting the outcome of an election not occurring at the polling area. If necessary, the board will conduct a hearing on an election challenge within ten days of its filing.