Appeal of Town of Loudon

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0229, Appeal of Town of Loudon, the
court on March 17, 2020, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
petitioner, the Town of Loudon, appeals an order of the New Hampshire Public
Employee Labor Relations Board (PELRB) certifying a bargaining unit including
11 of the Town’s police and fire employees. We reverse.

The following facts are derived from the PELRB’s orders and the record,
or are otherwise undisputed. On June 6, 2018, the respondent, the Teamsters
Local 633 (Union), filed a petition for certification seeking to represent certain
employees of the Town’s police and fire departments. The Town objected to the
petition on a number of grounds, and an adjudicatory hearing was held.
Following the hearing, a hearing officer acting for the PELRB approved a
bargaining unit including 11 employees: one police sergeant, one police
corporal, four police patrol officers, three full-time firefighters, one part-time
firefighter, and one fire department administrative assistant. The Town filed a
motion for review, which the PELRB denied on February 12, 2019. The Town
filed a motion for rehearing of the PELRB’s February 12 order, which the
PELRB also denied. This appeal followed.

On appeal, the Town argues that the PELRB erred in approving the
bargaining unit because: (1) the police and fire employees lack a sufficient
community of interest, see RSA 273-A:8, I (Supp. 2019); (2) the sergeant and
corporal are employees “exercising supervisory authority involving the
significant exercise of discretion,” RSA 273-A:8, II (2010); (3) the administrative
assistant is an employee “whose duties imply a confidential relationship” with
the Town, RSA 273-A:1, IX(c) (2010); and (4) with the exclusion of some or all of
the employees above, the proposed bargaining unit would include fewer than
10 employees. See RSA 273-A:8, I. In addition, the Town argues that the part-
time firefighter must be excluded from the bargaining unit based upon a joint
stipulation by the Town and Union, and an amended order for election and
certification of representation issued by the PELRB. The Union does not
dispute that the part-time firefighter should be excluded from the bargaining
unit, nor does it dispute that it stipulated to the part-time firefighter’s
exclusion. However, the Union argues that all other aspects of the PELRB’s
decision should be affirmed.
 Because the parties do not dispute that the part-time firefighter is
excluded from the bargaining unit, we find that the part-time firefighter is
excluded. In addition, we agree with the Town that the police sergeant and
corporal must be excluded from the bargaining unit because they are
supervisory employees. See RSA 273-A:8, II.

Our review of the PELRB’s decision is governed by RSA chapter 541. See
RSA 273-A:14 (2010). As the appealing party, the Town bears the burden of
showing that the PELRB’s decision is clearly unreasonable or unlawful. See
RSA 541:13 (2007). The PELRB’s findings of fact are deemed prima facie lawful
and reasonable. See id. “We review the PELRB’s rulings on issues of law de
novo.” Appeal of Hillsborough County Nursing Home, 166 N.H. 731, 733
(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 such
order is unjust or unreasonable. RSA 541:13.

RSA 273-A:8, II provides, in pertinent part: “Persons exercising
supervisory authority involving the significant exercise of discretion may not
belong to the same bargaining unit as the employees they supervise.” In
determining whether employees exercise supervisory authority involving the
significant exercise of discretion, “we consider several factors: their authority to
evaluate other employees; the nature of their supervisory role; and their
disciplinary authority.” Appeal of N.H. Retirement System, 167 N.H. 685, 691
(2015). In considering these factors, we look to the employee’s job description,
as well as his or her actual duties in practice. See id. at 691-92. The
determination of whether an employee is a supervisory employee is “made on a
case by case basis.” Appeal of Town of Newport, 140 N.H. 343, 352 (1995).
“[S]ome employees performing supervisory functions in accordance with
professional norms will not be vested with the supervisory authority involving
the significant exercise of discretion described by RSA 273-A:8, II.” Id.
(quotation omitted).

Here, the police sergeant and corporal job descriptions demonstrate that
both positions carry authority in the areas of evaluation, supervision, and
discipline. See N.H. Retirement System, 167 N.H. at 691. For example, the
sergeant job description provides that the sergeant “[e]xercises supervision over
assigned officers. Assists with training, instruction, and guidance to
Department personnel and evaluates quality of work performed.” (Emphases
added.) The description further provides that the sergeant “[m]aintains contact
with officers throughout the shift providing supervision and advice . . .
[p]rovides guidance and direction to officers in dealing with such problems as
discipline . . . makes recommendations to supervisor on performance
evaluation and disciplinary actions.” (Emphases added.) Also, “[i]n the
absence of the Chief,” the sergeant “may assume the powers, duties and
responsibilities of the Chief, within the limits established by Department
policy.” Similarly, the corporal job description states that the corporal

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“[p]rovides direct or general supervision to Police Officers or civilian personnel
. . . evaluates performance and recommends discipline.” (Emphases added.) In
addition, the corporal “makes assignments and reassigns subordinates as
warranted . . . reviews the work product and efficiency of subordinates . . .
[m]aintains contact with subordinates throughout the shift providing
supervision, advice and assistance as necessary.” (Emphases added.)

Moreover, the sergeant and corporal currently do exercise supervisory
authority. The sergeant sets the monthly schedule for full-time patrol officers,
determines whether there is a need for part-time patrol officers, and provides
advice and guidance to officers when necessary. See Appeal of East Derry Fire
Precinct, 137 N.H. 607, 611 (1993) (finding that fire department officers were
supervisory employees in part because they assigned work, ensured full
staffing on shifts, and supervised individuals under their command). At the
evidentiary hearing before the hearing officer, the police chief testified that,
when he is not on duty, the sergeant is responsible for supervising the patrol
officers. The chief further testified that, if he is not on duty and is inaccessible,
and there is a serious disciplinary or safety issue within the department, the
sergeant or corporal is responsible for initially addressing such an issue,
depending upon whether the sergeant is available. The corporal testified that
he answers substantive questions from patrol officers, and provides guidance
to them.

Further, the sergeant and corporal attended a “supervisory training,” and
their attendance was paid for with funding approved by the Town’s Board of
Selectmen. Other than the chief, no other officers attended the training. The
chief made the request to the Board for funding, and he testified that he sought
to have the sergeant and corporal attend the training to further their learning
of the supervisory skills exercised under their job descriptions. In making the
request to the Board, the chief described the corporal as the police
department’s “night supervisor.”

The Union argues that we should rely on the testimony of the police chief
and corporal that, in practice, the chief alone has authority in the areas of
evaluation and discipline. We are not persuaded. Although the chief testified
that he considers the sergeant and corporal to be “glorified patrol officers,” and
that he does not believe that their inclusion in the bargaining unit would create
a conflict among employees, “[t]he fact that [an employee] has [supervisory]
authority, regardless of whether he presently exercises it, is sufficient to vest
him with supervisory authority under the statute.” Appeal of Town of
Stratham, 144 N.H. 429, 432 (1999) (emphasis added). Although the sergeant
and corporal may not currently exercise their full authority to evaluate and
discipline other employees granted to them by the job descriptions, they are
authorized to do so and could do so in the future, without a formal change to
their official duties. See N.H. Retirement System, 167 N.H. at 691-92 (finding
that employees were supervisory employees in part because their job

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descriptions vested them with supervisory authority, even though they had not
actually performed all supervisory duties specified in the job descriptions).
Further, the sergeant and corporal presently do exercise authority in the area
of supervision. See id.

The Union also urges us to consider “qualifying language” in the job
descriptions stating that “[a]ny one position may not include all of the duties
listed.” The Union argues that, because some of the duties suggesting
supervisory authority are subject to this “qualifying language,” those duties are
of little probative value. The Union, citing Appeal of Town of Moultonborough,
164 N.H. 257 (2012), and Appeal of University System of N.H., 131 N.H. 368
(1988), further argues that the positions at issue here are distinguishable from
the positions addressed in our earlier cases in which we have found employees
to have supervisory authority. We disagree. First, many of the job duties in
this case that describe supervisory authority are not subject to the “qualifying
language” cited by the Union. Second, when taken as a whole, the job
descriptions vest the sergeant and corporal with authority in the areas of
evaluation, supervision, and discipline — the very factors that we have
identified as material. See University System, 131 N.H. at 376. Like the fire
captain positions addressed in University System, here, the sergeant and
corporal are “in command . . . when senior staff are not present.” Id. The
sergeant and corporal exercise supervision over patrol officers, the sergeant
sets the schedule and ensures full staffing on shifts, and the sergeant may,
subject to department policies, assume the duties of the chief in his absence.
See Moultonborough, 164 N.H. at 266; East Derry, 137 N.H. at 611.

Given the record before us, we find that the sergeant and corporal are
employees “exercising supervisory authority involving the significant exercise of
discretion.” RSA 273-A:8, II. The authority given to the sergeant and corporal
under their job descriptions, combined with their actual exercise of supervisory
functions, makes them supervisory employees under the statute. Therefore,
they may not be included in the bargaining unit. See id.

Because the sergeant, corporal, and part-time firefighter cannot be
included in the bargaining unit, the proposed bargaining unit would contain, at
most, eight employees; therefore, it cannot be certified. See RSA 273-A:8, I.
Given our holding, we need not consider the parties’ other arguments.

Reversed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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