In re N.H. Dep't of Transp.

• Decision Date: 28 October 2021
• Docket Number: 2020-0416
• Citation: 174 N.H. 610,273 A.3d 368
• Parties: APPEAL OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION (New Hampshire Public Employee Labor Relations Board)
• Court: New Hampshire Supreme Court

174 N.H. 610

273 A.3d 368

APPEAL OF NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION (New Hampshire Public Employee Labor Relations Board)

No. 2020-0416

Supreme Court of New Hampshire.

Argued: September 14, 2021

Opinion Issued: October 28, 2021

Gary Snyder, general counsel, of Concord, on the brief and orally, for the State Employees’ Association of New Hampshire, Inc., SEIU Local 1984.

Office of the Attorney General, (Jessica A. King, assistant attorney general, Jill A. Perlow, senior assistant attorney general, and Daniel E.Will, solicitor general, on the brief, and Jessica A. King orally), for the New Hampshire Department of Transportation.

HICKS, J.

The New Hampshire Department of Transportation(DOT) appeals an order of the New Hampshire Public Employee Labor Relations Board(PELRB) finding that DOT committed an unfair labor practice when it implemented a new commercial driver's license (CDL) medical card requirement for certain current DOT employees.We affirm.

I.Background

We recite the facts as found by the PELRB and set forth pertinent legal principles to place those facts in context.Federal law generally requires commercial motor vehicle drivers subject to administration by the Federal Motor Carrier Safety Administration to have on their persons "the original, or a copy, of a current medical examiner's certificate" that the driver is "physically qualified to drive a commercial motor vehicle."49 C.F.R. § 391.41(a)(1)(i)(2020).CDL medical cards are issued by federally-approved medical examiners, who determine an individual driver's qualifications based upon criteria set forth in federal regulations.49 C.F.R. § 391.41(a)(3)(2020), (b)(2020)(amended 2021);49 C.F.R. § 391.43(2020)(amended 2021).The cost of the required medical exam ranges from $65 to $150.The exam is similar to a routine physical exam.A CDL medical card qualifies a driver for as little as three months or as long as two years, depending upon the medical examiner's rating.The CDL medical card requirements set forth in federal regulations do not apply to the DOT employees at issue in this case.

The State Employees’ Association of New Hampshire, Inc., SEIU Local 1984(Union) is the certified exclusive bargaining representative for certain classified DOT employees, including those at issue here.The parties’ most recent collective bargaining agreement (CBA) was executed in June 2018 and expired in June 2019.Because the CBA contains an automatic extension, also known as an "evergreen" clause, the 2018-2019 CBA remains in force until a new contract is approved.SeeAppeal of N.H. Dep't of Safety, 155 N.H. 201, 203, 921 A.2d 924(2007)(describing evergreen clause).

In early April 2019, DOT unilaterally revised the minimum qualifications necessary for certain positions so that they now require an employee to have a CDL medical card.DOT notified the Union that the new minimum qualifications apply to new hires and to current employees only upon being promoted (even temporarily), demoted, or transferred to a position that now requires a CDL medical card.Thus, a current employee occupying a position that now requires a CDL medical card need not obtain a card to remain in his or her current position.The employee must obtain a CDL medical card only if he or she is promoted, demoted, or transferred to a different position requiring a CDL medical card.

A current employee who is promoted, demoted, or transferred into a position that now requires a CDL medical card must pay the CDL medical exam fee.He or she need not renew or maintain the medical card once it expires.The failure of a promoted, demoted, or transferred employee to obtain a CDL medical card could lead to the employee's loss of DOT employment.DOT did not negotiate with the Union about the new CDL medical card requirement for current employees.

The Union filed an unfair labor practice complaint against DOT on April 30, 2019, asserting that, by adopting the medical card requirement for current employees, DOT failed to negotiate a mandatory subject of bargaining and improperly implemented a unilateral change in the terms and conditions of employment for affected employees.The Union did not challenge the new CDL requirement for new hires.DOT opposed the complaint, arguing that requiring certain current DOT employees to obtain CDL medical cards in connection with a position change is a matter of managerial prerogative and a prohibited subject of bargaining.Following a hearing, the PELRB ruled in favor of the Union.DOT unsuccessfully moved for rehearing, and this appeal followed.

II.Analysis

A.Standard of Review

Our review of the PELRB's decision is governed by RSA chapter 541.RSA 273-A:14 (2010).As the appealing party, DOT bears the burden of showing that the PELRB's decision is clearly unreasonable or unlawful.RSA 541:13(2021).The PELRB's findings of fact are deemed primafacie lawful and reasonable.Id.We review the PELRB's rulings on issues of law denovo.Appeal of Hillsborough County Nursing Home, 166 N.H. 731, 733, 103 A.3d 1186(2014).We will not set aside the PELRB's decision except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that its decision is unjust or unreasonable.RSA 541:13.

B.Framework for Analysis

The parties’ dispute centers upon the scope of the managerial policy exception to the statutory obligation to negotiate the terms and conditions of employment.Appeal of City of Nashua Bd. of Educ., 141 N.H. 768, 772-73, 695 A.2d 647(1997);seeRSA 273-A:1, XI, :3, I (2010).The managerial policy exception is contained in the statutory definition of "terms and conditions of employment."Nashua Bd. of Educ., 141 N.H. at 773, 695 A.2d 647(quotation omitted);seeRSA 273-A:1, XI.The phrase "terms and conditions of employment" means "wages, hours and other conditions of employment other than managerial policy within the exclusive prerogative of the public employer, or confided exclusively to the public employer by statute or regulations adopted pursuant to statute."RSA 273-A:1, XI.By statute, the phrase "managerial policy within the exclusive prerogative of the public employer" includes, but is not limited to, "the functions, programs and methods of the public employer, including ... the selection, direction and number of its personnel, so as to continue public control of governmental functions."Id.

We have articulated a three-step analysis to measure a particular proposal or action against the managerial policy exception.Nashua Bd. ofEduc., 141 N.H. at 773, 695 A.2d 647."First, to be negotiable, the subject matter of the proposed contract provision must not be reserved to the exclusive managerial authority of the public employer by the constitution, or by statute or statutorily adopted regulation."Appeal of State of N.H., 138 N.H. 716, 722, 647 A.2d 1302(1994)."Second, the proposal must primarily affect the terms and conditions of employment, rather than matters of broad managerial policy."Id."Third, if the proposal were incorporated into a negotiated agreement, neither the resulting contract provision nor the applicable grievance process may interfere with public control of governmental functions contrary to the provisions of RSA 273-A:1, XI."Id.

"A proposal that fails to satisfy the first step [in this analysis] is a prohibited subject of bargaining."Nashua Bd. of Educ., 141 N.H. at 774, 695 A.2d 647.A proposal that satisfies the first step, but fails either the second or third step is a permissible subject of bargaining.Id."A proposal that satisfies all three steps is a mandatory subject of collective bargaining."Id.

On appeal, DOT argues that the new CDL medical card requirement for current employees constitutes a prohibited subject of bargaining.Alternatively, DOT asserts that the requirement is a permissive subject of bargaining.The Union counters that the requirement is a mandatory subject of bargaining.For the reasons that follow, we agree with the Union.

1.Reservation to Exclusive Managerial Authority

DOT asserts that because RSA 273-A:1, XI reserves the new CDL medical requirement to its exclusive managerial authority, the requirement is a prohibited subject of bargaining.DOT observes that RSA 273-A:1, XI confers exclusive managerial authority to the public employer in the "selection, direction and number of its personnel,"RSA 273-A:1, XI, and reasons that because "[s]etting minimum qualifications for a particular position is an integral aspect of the ‘selection’ of personnel," doing so "must be an exclusive managerial right."However, we have previously rejected such "bootstrapping attempt[s]" to find a reservation of exclusive managerial authority in RSA 273-A:1, XI itself.Nashua Bd. of Educ., 141 N.H. at 774, 695 A.2d 647;seeAppeal of Town of North Hampton, 166 N.H. 225, 230, 93 A.3d 299(2014).Rather, we have held that the reservation of authority must be found in a statuteother than RSA 273-A:1, XI or in a constitutional provision or a valid regulation.Nashua Bd. of Educ., 141 N.H. at 774, 695 A.2d 647;seeAppeal of Town of North Hampton, 166 N.H. at 230, 93 A.3d 299.DOT urges us to overrule Nashua Board of Education and hold that RSA 273-A:1, XI provides a statutory basis for its assertion of exclusive managerial authority to create the new CDL medical card requirement.We decline to do so for the reasons that follow.

"The doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results."Ford v. N.H. Dep't of Transp., 163 N.H. 284, 290, 37 A.3d 436(2012)(quotation omitted)."When asked to reconsider a holding, the question is not whether we would decide the issue differently denovo, but whether the ruling has come to be seen so clearly as error that its enforcement was for that very...