Appeal of State Employees' Ass'n of New Hampshire, Inc.

• Decision Date: 27 October 1980
• Docket Number: No. 79-401,79-401
• Citation: 120 N.H. 690,422 A.2d 1301
• Parties: Appeal of STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

Page 1301

422 A.2d 1301

120 N.H. 690

Appeal of STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. (New Hampshire Public Employee Labor Relations Board).

No. 79-401.

Supreme Court of New Hampshire.

Oct. 27, 1980.

Cleveland, Waters & Bass, Concord (Robert T. Clark, Concord, orally), for plaintiff.

Gregory H. Smith, Acting Atty. Gen. (James E. Townsend, Asst. Atty. Gen., orally), for the State.

BOIS, Justice.

The issue presented in this appeal is whether the New Hampshire Public Employee Labor Relations Board (PELRB) erred in holding that the State Negotiating Committee (SNC) had not committed an unfair labor practice by refusing to negotiate a State Employees' Association (SEA) proposal pertaining to certain academic employees. At the hearing before the PELRB the SEA claimed that the subject matter of its proposal constituted "wages" under RSA 273-A:1 XI, thereby requiring collective bargaining. The State, however, successfully asserted that the proposal involved salary administration and equalization of pay which come within the ambit of non-negotiable managerial discretion. We uphold the PELRB.

In 1978 the SEA and the SNC were negotiating the terms and conditions of a new State employee contract to take effect in July of 1979. During the negotiations the SEA offered a proposal which it claimed would equalize the salaries for faculty members of the vocational technical college and technical institute system to reflect "equal pay for equal work." See Slayton v. Personnel Comm'n, 117 N.H. 206, 371 A.2d 1159 (1977); RSA 98:13 XIII. The SNC refused to negotiate, citing the intrusion the proposed plan would have on the managerial discretion of the director of personnel and the personnel commission. The parties eventually came to terms on a State employee contract, which would increase the salaries for all State classified employees, including academic employees. The new agreement, which was included in the bill for the 1979 operating budget, however, did not include all of the terms of the SEA proposal. See 1979 N.H. Laws, ch. 434:35 II, III, IV & :42 II, III, IV.

Prior to legislative action on the State budget, the SEA submitted its proposal to a fact finder under RSA 273-A:12 I (Supp.1979). The fact finder recommended that the SEA withdraw its proposal, the objective of which was similar to an SEA action pending before this Court. See State Employees' Ass'n v. Lang, 119 N.H. 637, 406 A.2d 702 (1979). Rejecting the recommendation of the fact finder, the SEA submitted that recommendation for approval or denial to the full membership of the SEA and the Governor and Executive Council. RSA 273-A:12 II. The full membership of the SEA thereupon accepted the recommendation of the fact finder.

Prior to a decision on the findings of the fact finder by the Governor and Executive Council, counsel from the attorney general's office met with SEA counsel to inform him that the personnel department was preparing a bill for submission to the legislature to provide for salaries for academic employees higher than those included in their current labor grade. After the parties were unsuccessful in reaching a compromise, the SEA filed an unfair labor practice complaint with the PELRB, alleging that the SNC had refused to negotiate wages for State personnel and had evidenced an intent to circumvent the negotiation process by legislation. The PELRB held a hearing on the SEA complaint, and shortly thereafter the bill authored by the department of personnel was introduced in the New Hampshire Senate and adopted as an amendment to the State budget legislation. Uncertain of the effect that the pending legislation and the pending case before this court would have on the matter before it, the PELRB issued an order denying the SEA request for a finding of an unfair labor practice. The Governor, meanwhile, signed the State budget bill. Both the SNC and the SEA filed motions for a rehearing before the PELRB which the board granted. After a rehearing, the PELRB rescinded its earlier order and issued the order which led to this appeal, ruling that the SEA had attempted to negotiate the classification of certain academic employees, a subject within the non-negotiable managerial function of the State.

The SEA contends that its effort to include equalization of pay for a specific group of academic employees into the State budget constituted an attempt to negotiate "wages," which is a mandatory subject of collective bargaining under RSA 273-A:3 I. See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958). Basing its assertion on our decision in Slayton v. Personnel Comm'n, 117 N.H. 206, 371 A.2d 1159 (1977), the SEA argues that its proposal sought to implement "equal pay for equal work" for this subgroup of academic state employees. Although the Slayton case is factually similar to the case before us, we conclude that substantive distinctions exist between them. In Slayton a teacher at the Laconia State School had worked a nine-month academic year prior to beginning the same work on a twelve-month basis. The teacher sought implementation of equal pay for equal work from the director of personnel, who raised her wages to reflect a two-month increase under the mistaken impression that she had been working a ten-month academic year. In our holding in Slayton we remedied this discrepancy by awarding compensation to the plaintiff for three months to reflect the accurate state of the facts.

Although the SEA had chosen to characterize its attempts to collectively bargain as an effort to effectuate "equal pay for equal work" under the Slayton decision, the PELRB concluded that their efforts to implement the same rate of pay for certain classes of employees in fact constituted an attempt to infringe upon the state employee classification system. Under RSA 273-A:3 III the State can establish a merit system which allows advancement for its employees. This power is consistent with the definition of "managerial policy within the exclusive prerogative of the public employer" as set forth in RSA 273-A:1 XI. The SEA essentially is not claiming unequal salaries here, but is seeking to abolish the tripartite classification system which the personnel department has established to determine compensation based on when the academic employee was hired and the length of the respective school year. The logical extension of this SEA attempt would be one pay scale for all academic employees regardless of when they began to work, thereby altering the state merit system as it relates to the designation of salaries. See RSA 98:3; cf. Melton v. Personnel Comm'n, 119 N.H. 272, 280, 401 A.2d 1060, 1065 (1979); Jeannont v. N. H. Personnel Comm'n, 118 N.H. 597, 601, 392 A.2d 1193, 1195 (1978); Wilson v. State Personnel Comm'n, 118 N.H. 424, 426, 387 A.2d 1160, 1161 (1978). The PELRB held that such a result falls within the managerial prerogative of the public employer and, therefore, is not negotiable.

In State Employees' Ass'n v. N. H. PELRB, 118 N.H. 885, 397 A.2d 1035 (1978), this court examined the obligation of the State to bargain under the collective bargaining statute, RSA ch. 273-A. We recognized the dual policy considerations of the statute: to "foster harmonious and cooperative relations" between the State and its...