Appeal of Town of Barnstead

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Public Employee Labor Relations Board
Case No. 2024-0097
Citation: Appeal of Town of Barnstead, 2025 N.H. 14

APPEAL OF TOWN OF BARNSTEAD
(New Hampshire Public Employee Labor Relations Board)

Argued: November 7, 2024
Opinion Issued: March 26, 2025

Drummond Woodsum & MacMahon P.A., of Manchester (Matthew H.
Upton and Nicholas J. Blei on the brief, and Matthew H. Upton orally), for the
petitioner.

Abigail M. Geier, of Boston, Massachusetts, on the brief and orally, and
Pyle Rome Ehrenberg, P.C., of Boston, Massachusetts (Ian O. Russell on the
brief), for the respondent.

DONOVAN, J.

¶1 The Town of Barnstead (Town) appeals a decision of the New
Hampshire Public Employee Labor Relations Board (PELRB) certifying a
bargaining unit comprised of employees from the Town’s police and fire
departments. The Town argues that the PELRB erred by concluding that the
employees in the bargaining unit share a “community of interest” pursuant to
RSA 273-A:8, I (2023) and contends that the PELRB’s conclusion is contrary to
our decision in Appeal of Town of Newport, 140 N.H. 343 (1995). We agree and
reverse.

I. Facts

¶2 In February 2023, AFSCME Council 93 (AFSCME) filed a petition to
certify a bargaining unit consisting of thirteen of the Town’s employees in
various positions within the police and fire departments: three firefighter-
EMTs, two fire rescue captains, one fire rescue lieutenant, one police sergeant,
five police officers, and one police secretary.1 The Town objected, arguing that
the duties of the employees in the proposed bargaining unit “are so dissimilar
that they lack the essential community of interest.” See RSA 273-A:8, I. In
lieu of a hearing, the parties agreed to submit the case to the PELRB for a
decision on the written record.

¶3 In September 2023, a PELRB hearing officer issued a decision
approving the proposed bargaining unit consisting of fourteen of the Town’s
employees. The hearing officer concluded that the “employees in the proposed
unit have a sufficient community of interest such that it is reasonable for them
to negotiate jointly.” The hearing officer reasoned that despite any difference in
training requirements, job duties, and standard operating procedures between
the police and fire department employees, all of the employees in the proposed
bargaining unit work in the field of public safety for the Town and are subject
to the Town’s employment terms and conditions. The hearing officer also
observed that the employees work in approximately the same geographic area,
interact with each other at work, and identify a “self-felt community of
interest.”

¶4 The Town subsequently filed a request for review of the hearing
officer’s decision, challenging the determination that the employees share a
“community of interest” pursuant to RSA 273-A:8, I. The PELRB denied the
Town’s motion and approved the hearing officer’s decision. The Town
subsequently moved for rehearing, which the PELRB denied. In January 2024,
the PELRB certified AFSCME as the bargaining unit’s exclusive representative.
The Town thereafter filed a Rule 10 appeal in this court, and AFSCME filed a
motion for summary affirmance. We denied the motion for summary
affirmance and accepted the appeal.

II. Analysis

¶5 On appeal, the Town challenges the PELRB’s determination that the
police and fire department employees in the proposed bargaining unit share a

1 The PELRB also granted AFSCME’s motion to amend its petition to add the position of police

lieutenant to the proposed bargaining unit.

2
“community of interest” pursuant to RSA 273-A:8, I. “When reviewing a
decision of the PELRB, we defer to its findings of fact, and, absent an
erroneous ruling of law, we will not set aside its decision unless the appealing
party demonstrates by a clear preponderance of the evidence that the order is
unjust or unreasonable.” Appeal of Town of Moultonborough, 164 N.H. 257,
259-60 (2012) (quotation omitted); see RSA 541:13 (2021). Although the
PELRB’s findings of fact are presumptively lawful and reasonable, we require
that the record support its determinations. Appeal of Town of North Hampton,
166 N.H. 225, 229 (2014). Issues of law, including the interpretation of RSA
273-A:8, I, and the application of our prior decisions to the PELRB’s findings of
fact, are not subject to deferential review. See Appeal of Town of Litchfield, 147
N.H. 415, 416-18 (2002).

¶6 The principal consideration in determining a proper 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 Town of
Moultonborough, 164 N.H. at 260. Pursuant to RSA 273-A:8, I, the PELRB
must consider certain criteria such as any similarity in conditions of
employment, a history of workable and acceptable collective negotiations, and
identity of organizational units. Id.; see RSA 273-A:8, I. Further, PELRB
regulations set forth additional factors for consideration, including a “common
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 “division of loyalties between the public employer and the
employees’ exclusive representative.” N.H. Admin. R., Pub 302.02; see Appeal
of Town of Moultonborough, 164 N.H. at 260. When construing “community of
interest,” therefore, we consider such factors as skills, duties, working
conditions, employee benefits, the organizational structure of the employer,
and the extent to which the work is integrated. Appeal of Town of
Moultonborough, 164 N.H. at 260.

¶7 From the record submitted for decision, the PELRB hearing officer
found that “all employees in the proposed bargaining [unit] work within the
same jurisdiction, the Town of Barnstead, and are subject to the hiring, firing
& disciplinary decisions by the same Board of Selectmen.” In addition, the
hearing officer noted that “[a]ll of these employees are public safety employees
and all of them serve to protect the lives and property of the residents of
Barnstead.” The hearing officer further explained that:

the terms and conditions of employment of all employees in the
proposed bargaining unit are governed by the Manual, established
by the Town Board of Selectmen, which covers, among other
things, compensation, hours of work, reimbursable expenses,
overtime, compensatory time, break periods, holidays, vacation,
sick, and other leaves, medical and dental benefit plans, disability

3
 coverage, personal dress, personnel records, discipline procedure,
promotions, transfers, performance appraisals, and dispute
resolution procedure.

Given these common personnel policies, the hearing officer reasoned that the
“differences in bargaining unit positions’ training requirements or specific job
duties do not preclude a formation of a cohesive bargaining unit.” The hearing
officer stated that “[t]he fact that the police and fire departments have separate
[standard operating procedures] is of no consequence as [standard operating
procedures] are usually established unilaterally by an employer and not a
mandatory subject of collective bargaining.”

¶8 The hearing officer also distinguished the present case from our
decision in Appeal of Town of Newport. There, the proposed bargaining unit
was composed of the town’s highway, cemetery, recreation, water and sewer,
and fire department employees. Appeal of Town of Newport, 140 N.H. at 344.
The PELRB approved the proposed bargaining unit, and the town appealed,
arguing, among other things, that there was insufficient evidence of a
community of interest to include fire lieutenants with the other employees in
the bargaining unit. Id. at 344-45, 352. We agreed with the town and
concluded that the PELRB’s findings did not provide a sufficient basis upon
which to conclude that the firefighters shared a community of interest with the
other employees in the bargaining unit. Id. at 354-55. From our review of the
record, we determined that “other than sharing a common employer, the fire
lieutenants have little in common with the other employees proposed for
certification.” Id. at 354. Specifically, we noted that the fire lieutenants
worked different hours than other town employees and operated under a
different collective bargaining agreement. Id. Thus, despite the PELRB’s
finding of a “self-felt community of interest,” we concluded that the record did
not support a conclusion that the fire lieutenants shared a community of
interest sufficient for it to be reasonable for the employees to negotiate jointly.
Id. at 354-55.

¶9 Here, the PELRB hearing officer concluded that, “unlike fire
lieutenants in Newport, the Fire and Police employees in this case, among other
things, operate under the same terms and conditions of employment, regularly
interact with each other, have the same salary and fringe benefits structures
and personnel practices, and work in the same geographic location.” In the
Town’s view, Appeal of Town of Newport stands for the proposition that
employees with different schedules, duties, responsibilities, and chains of
command do not share a community of interest despite having a common
employer and common set of generally applicable personnel policies. The Town
therefore contends that the PELRB misapplied Appeal of Town of Newport’s
community of interest analysis and that its conclusion is contrary to our
decision in Appeal of Town of Newport. We agree.

4
 [¶10] The PELRB’s decision was based, in significant part, upon the fact
that employees from both the police and fire departments are subject to the
terms and conditions set forth in the Town’s personnel policies and procedures
manual. Indeed, the Town’s personnel manual sets forth uniform fringe
benefits and employment policies that apply to the Town’s employees, including
those from its police and fire departments. However, those policies,
procedures, and benefits apply not only to employees of the Town’s police and
fire departments but to all employees in all departments. We agree with the
Town that the “presence of a generally applicable Personnel Policies and
Procedures Manual is little more than evidence of a common employer.”
Simply concluding that a community of interest exists because all of the Town’s
employees follow its employment policies fails to acknowledge differences in
organizational structures, duties and responsibilities, and work schedules. If
sharing a common employer and common personnel policies were sufficient to
establish a community of interest, then there would be no reason to consider
other factors. See RSA 273-A:8, I; N.H. Admin. R., Pub 302.02; see also
Garand v. Town of Exeter, 159 N.H. 136, 141 (2009) (“The legislature is not
presumed to waste words or enact redundant provisions and whenever
possible, every word of a statute should be given effect.” (quotation omitted)).

¶11 In Appeal of Town of Newport, our conclusion was based, in part,
upon the fact that fire lieutenants worked different schedules than the other
employees in the proposed bargaining unit. Appeal of Town of Newport, 140
N.H. at 354. The same reasoning applies here. In this case, the record shows
that police and fire department employees maintain different work schedules.
Police department employees generally work four ten-hour shifts per week,
from either 7 a.m. to 5 p.m. or 5 p.m. to 3 a.m., and rotate between shifts every
few months. Fire department employees, on the other hand, work two 24-hour
shifts weekly “to ensure constant, around the clock coverage.”

¶12 The PELRB also observed that employees from both the police and
fire departments work in the field of public safety and “serve to protect the lives
and property of the residents of Barnstead.” Although the parties agree that all
of the employees in the proposed bargaining unit generally provide emergency
assistance and “perform critical public safety functions for the Town,” the
duties carried out by employees of the two departments differ. Fire department
employees provide “among other public services, fire suppression, rescue and
ambulance services to citizens of the Town.” They are also responsible for
providing emergency medical care and transportation. Police department
employees, on the other hand, are “engaged in law enforcement, including, but
not limited to, performing patrol, arrest and prosecutorial functions.” Police
officers and sergeants are armed and have arrest authority. Furthermore, the
record reveals that police and fire department employees utilize different
equipment and maintain different certifications. Although in some instances
police and fire department employees attend trainings together, the differences
in their respective duties require that they complete separate trainings.

5
 [¶13] In addition, employees from the two departments work in different
locations and follow different operating procedures. Although both
departments are located within close proximity to one another in Center
Barnstead, the two departments operate from separate buildings.
Organizationally, the police and fire departments have separate chiefs, budgets,
rank structures, and standard operating procedures. The hearing officer’s
statement that the difference in standard operating procedures “is of no
consequence” because standard operating procedures are “not a mandatory
subject of collective bargaining” is not supported by the record in this case.
Rather, we agree with the Town that the existence of separate standard
operating procedures contradicts the PELRB’s conclusion that common work
rules apply to all employees in the proposed bargaining unit.

¶14 AFSCME points to prior PELRB decisions approving bargaining
units consisting of employees from different departments, in some cases from
other towns’ police and fire departments. However, the community of interest
showing is a fact-intensive process that must be determined on a case-by-case
basis. See id. at 352. Although “the statutory and regulatory framework that
guides PELRB decisions is flexible, and gives much discretion to the PELRB’s
expertise,” Appeal of Town of Moultonborough, 164 N.H. at 260-61, we agree
with the Town that the PELRB’s finding that the employees in the proposed
collective bargaining unit share a community of interest is contrary to the
record before us and our decision in Appeal of Town of Newport. See Appeal of
Town of Newport, 140 N.H. at 354-55.

III. Conclusion

¶15 Notwithstanding the PELRB’s findings, which derive primarily from
the fact that police and fire department employees all work for the Town, we
conclude that the record does not support the conclusion that there exists a
community of interest in working conditions such that it is reasonable for the
employees to negotiate jointly. See id. Accordingly, we reverse the PELRB’s
decision approving the proposed collective bargaining unit.

Reversed.

MACDONALD, C.J., and BASSETT and COUNTWAY, JJ., concurred.

6