State Employees' Ass'n of New Hampshire, Inc. v. Board of Trustees, New Hampshire State Prison

• Decision Date: 27 June 1978
• Docket Number: Nos. 7911,7912,s. 7911
• Citation: State Employees' Ass'n of New Hampshire, Inc. v. Board of Trustees, New Hampshire State Prison, 388 A.2d 203, 118 N.H. 466 (N.H. 1978)
• Parties: , 99 L.R.R.M. (BNA) 2437 STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. v. BOARD OF TRUSTEES, NEW HAMPSHIRE STATE PRISON. STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. v. NEW HAMPSHIRE PUBLIC EMPLOYEE LABOR RELATIONS BOARD.
• Court: New Hampshire Supreme Court

Page 203

388 A.2d 203

118 N.H. 466, 99 L.R.R.M. (BNA) 2437

STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. v. BOARD OF TRUSTEES, NEW HAMPSHIRE STATE PRISON.

STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC. v. NEW HAMPSHIRE PUBLIC EMPLOYEE LABOR RELATIONS BOARD.

Nos. 7911, 7912.

Supreme Court of New Hampshire.

June 27, 1978.

Cleveland, Waters & Bass, Concord (Howard J. Zibel, Concord, orally), for plaintiff.

David H. Souter, Atty. Gen. (Andrew R. Grainger, Concord, orally), for the State.

DOUGLAS, Justice.

On December 2, 1976, the Board of Trustees of the New Hampshire State Prison (Trustees) unilaterally altered the hours of work of certain prison employees. That change of shift did not affect the number of hours that these employees worked. The State Employees' Association (SEA), which represented the affected employees, filed a complaint with the Public Employees Labor Relations Board (PELRB), claiming that shift hours are subject to collective bargaining, RSA 273-A:1 XI, and not a matter of managerial policy for exclusive executive discretion. Id. Although the PELRB ultimately agreed with this contention, it made no affirmative finding that the failure of the trustees to bargain over this point was an unfair labor practice, RSA 273-A:5 I(e), (g). Instead, it ordered merely that "the parties . . . negotiate over the effects of the shift rotation plan (and) negotiate prior to any further changes." Number 7911 is the appeal of the trustees from the PELRB's finding that their action violated RSA ch. 273-A. Number 7912 is the appeal of the SEA from the order. SEA asks that we direct the PELRB to make a finding that the trustees committed an unfair labor practice and to issue a cease-and-desist order, RSA 273-A:6 VI.

We recently had occasion to consider the scope of the PELRB's discretion to fill in the interstices of RSA 273-A:1 in New Hampshire Department of Revenue Administration v. PELRB, 117 N.H. ---, 380 A.2d 1085 (1977). We noted that the legislature has vested the PELRB with primary authority to define the terms of that section. Id. at ---, 380 A.2d at 1086. Hence, the PELRB's decision on whether a change in hours is a matter for collective bargaining or managerial discretion will be reversed only for a " gross abuse of discretion." Id. Because the bare term "hours" is vague and because neither the statutory context nor anything presented to us indicates that the legislature meant to reserve the assignment of shift time to managerialdiscretion on this record we will not overturn the PELRB's finding that "shift change in and of itself cannot . . . constitute a managerial policy." We affirm number 7911.

RSA 273-A:6 VI states that when the PELRB has found a violation of section five an unfair labor practice it "shall issue a cease and desist order." The trustees do not dispute that the language of the statute is mandatory. Nevertheless in their brief they argued that the making of such an order is discretionary. The attorney for the PELRB addressed a letter to this court in which he stated that in the context of their decision, the language of the PELRB was equivalent to a finding of an unfair labor practice. Trustees' counsel at oral argument here objected to that letter and argued that either a prehearing stipulation barred the SEA from raising the meaning of the PELRB's order or that the SEA should be equitably...