Appeal of University System of New Hampshire

• Decision Date: 30 December 1988
• Docket Number: No. 87-376,87-376
• Citation: 553 A.2d 770,131 N.H. 368
• Parties: , 51 Ed. Law Rep. 977 APPEAL OF UNIVERSITY SYSTEM OF NEW HAMPSHIRE. (New Hampshire Public Employee Labor Relations Board)
• Court: New Hampshire Supreme Court

Page 770

553 A.2d 770

131 N.H. 368, 51 Ed. Law Rep. 977

APPEAL OF UNIVERSITY SYSTEM OF NEW HAMPSHIRE. (New Hampshire Public Employee Labor Relations Board)

No. 87-376.

Supreme Court of New Hampshire.

Dec. 30, 1988.

Rehearing Denied Feb. 3, 1989.

Devine, Millimet, Stahl & Branch, P.A., Manchester, and Morgan, Brown & Joy, Boston, Mass. (Joseph A. Millimet and Nicholas DiGiovanni, on the brief and orally), for the University System of New Hampshire.

Clark, Cook & Molan, P.A., Concord (Richard E. Molan and Robert T. Clark, on the brief and orally), for the Intern. Ass'n of Firefighters, Local 2253.

THAYER, Justice.

This is an appeal, under RSA chapter 541, by the University System of New Hampshire (UNH) from the public employee labor relations board's (PELRB) certification of a bargaining unit composed of the Durham-UNH firefighters and captains. For the reasons that follow, we affirm the PELRB's determination that the firefighters are an appropriate bargaining unit, but reverse its decision to include captains in that unit.

Local 2253 of the International Association of Firefighters (Union) filed a petition with the PELRB on January 16, 1987, seeking to represent a unit consisting of all full-time captains and firefighters in the Durham-UNH Fire Department. The proposed unit included sixteen employees of UNH, twelve firefighters and four captains. On February 2, 1987, UNH filed an exception to the union's petition and motion to dismiss, claiming that the proposed unit was an inappropriate fragment of a larger unit of all UNH operating staff, that the unit would be inefficient and, alternatively, that if the unit was approved, the captains should be excluded because they were supervisory and confidential employees under RSA chapter 273-A. The union objected, and the PELRB held hearings on April 15 and 22, 1987.

On June 23, 1987, the PELRB found that the proposed unit was appropriate. Its conclusion was founded on substantial differences which existed between the situation of the firefighters and that of other UNH operating staff, such as a variance in grievance procedure, location in leased facility, limited contact with other operating staff, control by the board of fire commissioners, and longer work hours. The PELRB also noted that the fire department functioned like the department of a municipality and that it was unique in its funding at UNH because one-third of its appropriations comes from the town of Durham. The PELRB also ruled that captains were not sufficiently vested with supervisory authority to be excluded from the firefighters' bargaining unit, because they spent the majority of their time working with, and performing the same duties as, firefighters.

UNH then filed a motion for a rehearing, which was denied. Shortly thereafter, an election was held, and the newly formed unit was certified as the exclusive representative of the Durham-UNH firefighters and captains. UNH filed a notice of appeal, and the union filed a motion for summary affirmance. This court denied the motion for summary affirmance and accepted this appeal.

UNH raises two issues on appeal: (1) whether the PELRB's determination that the Durham-UNH Fire Department constituted an appropriate bargaining unit was an error; and (2) whether the PELRB's decision to include captains in the unit was also error.

UNH first asserts that the PELRB's determination that the Durham-UNH Fire Department was an appropriate bargaining unit was an error of law, unjust and unreasonable. In New Hampshire, the legislature has vested the PELRB with authority to define the terms of RSA chapter 273-A and to fill in any gaps in the statute. Appeal of AFL-CIO Local 298, 121 N.H. 944, 947, 437 A.2d 260, 262 (1981). Additionally, the PELRB has been given broad subject matter jurisdiction to determine and certify bargaining units to enforce the provisions of that chapter. Appeal of SAU # 21, 126 N.H. 95, 97, 489 A.2d 112, 113 (1985). Although the PELRB is subject to our review, its findings of fact in collective bargaining matters, though not controlling, are deemed prima facie lawful and reasonable. Appeal of Town of Pelham, 124 N.H. 131, 135, 469 A.2d 1295, 1297 (1983).

Accordingly, we will not disturb the PELRB's ruling unless the appealing party satisfies its burden of demonstrating that the determination of the board was erroneous as a matter of law, unjust, or unreasonable. RSA 541:13; Appeal of Manchester Bd. of School Comm., 129 N.H. 151, 152-53, 523 A.2d 114, 115 (1987). Thus, " '[i]n reviewing a decision of the [PELRB], a court must consider both the facts found and the application of the relevant statute....' " N.H. Dept. of Rev. Administration v. Public Emp. Lab. Rel. Bd., 117 N.H. 976, 977, 380 A.2d 1085, 1086 (1977) (quoting E.I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 54, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100 (1977)).

The board is guided in its determination of an appropriate bargaining unit by RSA 273-A:8 and PELRB Rule § 302.02. RSA 273-A:8 provides that, in making its determination, the PELRB should consider the principle of community of interest. The statute provides in pertinent part:

"The community of interest may be exhibited by one or more of the following criteria, although it is not limited to such:

(a) Employees with the same conditions of employment;

(b) Employees with a history of workable and acceptable collective negotiations;

(c) Employees in the same historic craft or profession;

(d) Employees functioning within the same organizational unit."

RSA 273-A:8. In addition, PELRB Rule § 302.02 provides that, when considering the community of interest, the PELRB may consider, in addition to the statutory elements:

"the geographic location of the proposed unit, the presence or absence of common work rules and personnel practices, common salary and fringe benefit structures, the self-felt community of interest among employees, and the potential for a division of loyalties between the public employer and the employee's exclusive representative on the part of employees within the proposed bargaining unit. In addition to considering the principle of community of interest, the board may also consider the effect of forming any particular bargaining unit in the efficiency of government operations."

N.H. Admin. Rules, Pub. 302.02.

Accordingly, "[t]he principal consideration in determining an appropriate bargaining unit is whether there exists a community of interest 'in working conditions such that it is reasonable for the employees to negotiate jointly.' " Appeal of the University System of N.H., 120 N.H. 853, 855, 424 A.2d 194, 196 (1980) (quoting University System v. State, 117 N.H. 96, 100, 369 A.2d 1139, 1140 (1977)). In construing "community of interest," we consider such factors as "skills, duties, working conditions and benefits of the employees, the organizational structures of the employer, and the extent to which the work is integrated." University System v. State, supra at 99-100, 369 A.2d at 1140.

Based upon the evidence presented, the PELRB made the following findings of fact, inter alia:

"2. All employees of the Durham-UNH Fire Department share a community of interest in that they receive the same or similar wages; work the same number of hours; and, enjoy the same conditions of employment. They are all employed in the same historic craft; function within a single organizational unit; and, evidenced a very strong self-felt community of interest for the purposes of organizing under the collective bargaining statute.

3. Evidence further showed that a substantial difference exists between employees of the Durham-UNH Fire Department and other operating staff personnel at the University; i.e., grievance process appeal to final and binding decision with the Board of Fire Commissioners, as opposed to appeal of other operating staff to the Board of Trustees of the University; the Fire Department is a leased facility by the Town of Durham and the firefighters the only employees working out of that facility with limited contact with other University operating staff. The firefighters also work a longer workweek--42 hours per week and are not paid for shift differentials.

4. The Executive Head of the Fire Department is the Board of Fire Commissioners with direct supervision provided by the Fire Chief; University personnel are under the jurisdiction of the Board of Trustees and the Chancellor.

5. Although there is no question that the firefighters are University employees, working under the same personnel policies, they function like all other departments in any municipality, under the Department's own rules and regulations.

6. The University is unique in the funding for the operations of the Durham-UNH Fire Department in that they must follow a separate budget process with the Town of Durham appropriating one-third and the University two-thirds of the funds necessary for the operations of the Department.

....

10. As in the case of PPOM [Physical Plant Operations and Maintenance Department, see Appeal of the University System of N.H., 120 N.H. 853, 424 A.2d 194], the Board finds that the proposed unit is the appropriate unit and grants the petition filed by Local 2253, IAFF.

11. As is PPOM, however, 'this decision is not to be read to indicate that every group of employees who perceive a community of interest, or wish to have an election as a distinct group apart from a previously established larger group, may do so. It is confined to its facts and circumstances. The Board will continue to guard against fracturing units and the resulting inefficiencies which can result.' "

Accordingly, the PELRB determined that an appropriate bargaining unit consisted of the Durham-UNH Fire Department, and ordered that an election be held as expeditiously as possible.

UNH asserts that the PELRB had previously found all UNH operating staff, including firefighters, to be an appropriate bargaining unit and that, under RSA...