Appeal of Town of Newport

666 A.2d 954, 140 N.H. 343, 1995 N.H. LEXIS 152, 151 L.R.R.M. (BNA) 2278
CourtSupreme Court of New Hampshire
DecidedOctober 27, 1995
DocketNo. 94-305
StatusPublished
Cited by9 cases

This text of 666 A.2d 954 (Appeal of Town of Newport) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Town of Newport, 666 A.2d 954, 140 N.H. 343, 1995 N.H. LEXIS 152, 151 L.R.R.M. (BNA) 2278 (N.H. 1995).

Opinion

JOHNSON, J.

The Town of Newport (town) appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) to include certain employees within a new bargaining unit proposed by AFSCME, Council 93 (AFSCME). We reverse.

In April 1991, AFSCME filed a petition for certification of a proposed bargaining unit to be composed of twenty-three full-time and part-time employees in the town’s highway, cemetery, recreation, water & sewer, and fire departments. The town timely filed exceptions to the petition, objecting to the inclusion of supervisors and the employees they supervise in the same bargaining unit. The town also objected to the inclusion of employees from different disciplines and crafts because they lacked a community of interest in their labor relations.

Thereafter, AFSCME withdrew its request to include part-time employees in the bargaining unit. The PELRB first ordered the creation of a bargaining unit of all full-time employees of the town except the fire chief, the deputy fire chief, and the superintendent of highways:

A unit is hereby created which includes all full-time employees of the Town of Newport, namely: working foreman, head mechanic, mechanic, clerk, truck drivers/equipment operators, laborers, utility technician, sewage treatment operator, fire fighters, fire lieutenants], superintendent water and sewer and superintendent of [345]*345cemetery and grounds. Excluded from the unit: Fire Chief, Deputy Chief and Superintendent of Highways.

In October 1991, the PELRB issued a corrected decision, deleting mention of the firefighters, who were part-time employees, and including the position of “Superintendent Sewage Treatment Plant.” The exclusions remained the same.

The town appealed. Following oral argument, we remanded the case to the PELRB “for proceedings at which it may further consider making findings to support its ultimate decision and order in this case.” No further hearing was held. In April 1993, the PELRB issued a supplemental decision that included twelve findings of fact and several conclusions of law. This decision included within the bargaining unit the deputy fire chief, who previously had been specifically excluded.

On appeal, the town argues that the PELRB erred by including in the proposed bargaining unit: (1) the department of public works’ secretary, who acts in a confidential capacity to the person who manages the bargaining unit employees and who has access to information concerning negotiations with the bargaining unit; (2) three superintendents in the department of public works, who exercise supervisory authority involving the significant exercise of discretion over other members of the bargaining unit; (3) fire lieutenants, who lack a community of interest in labor relations with the other employees; and (4) the deputy fire chief, who exercises supervisory authority and lacks a community of interest. The town also argues that the PELRB erred by waiving the statutory time limits of RSA 273-A:3, 11(a) (1987).

To succeed on appeal, the town must show that the PELRB decision is unlawful or clearly unreasonable.

[A]ll findings of the commission upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from shall not be set aside or vacated except for errors of law, unless the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable.

RSA 541:13 (1974); see also Appeal of State of N.H., 138 N.H. 716, 719-20, 647 A.2d 1302, 1305 (1994). “It is not the function of this court to engage in a de novo review of the evidence in PELRB determinations, but we have consistently required record support for its decisions,” Appeal of Bow School District, 134 N.H. 64, 71, 588 A.2d 366, 371 (1991) (quotations, citations and brackets omit[346]*346ted), and we will reverse the PELRB’s decision “if the record fails to support findings necessary to the determinations,” id.

The town first argues that the PELRB erred by including in the bargaining unit a secretary in the department of public works who acts in a confidential capacity to the director of public works, the person who manages most of the employees who would be included in the bargaining unit. “Persons whose duties imply a confidential relationship to the public employer” are excluded from the definition of “public employee,” RSA 273-A:l, IX (1987), and thus are ineligible for membership in the bargaining unit, see RSA 273-A:8 (1987); Appeal of City of Laconia, 135 N.H. 421, 423-24, 605 A.2d 225, 227 (1992).

The PELRB found “no evidence” that the employee, whose job description is entitled “department secretary,”

is involved in confidential matters related to labor relations although she does attend staff meetings and handle personnel matters. The applicable job description calls for this employee to “perform highly responsible secretarial work, develop office procedures and answer routine inquiries.” This employee is required to act independently, exercise judgment and utilize tact in matters requiring the department head’s attention. This employee is not required to exercise any supervisory control over subordinates.

(Citations omitted.) Based upon this finding, the PELRB included the department secretary in the bargaining unit:

The secretary/clerk has no privy or confidential relationship to the public employer (RSA 273-A:l IX) nor any supervisory authority under RSA 273-A:8 II. The Town is not prejudiced or inconvenienced by this position being in the unit since the Town Manager’s secretary is responsible for all clerical functions associated with collective bargaining. The position is INCLUDED.

In light of all of the evidence before the PELRB, we conclude that its decision was unreasonable. See RSA 541:13. The PELRB’s conclusion fails to consider evidence, including uncontroverted testimony, regarding the confidential relationship the department secretary has with the director of public works.

According to her job description, the department secretary

[w]orks under the general supervision of an administrative superior or department head who outlines departmental policy, makes work assignments, and evaluates work in [347]*347terms of effectiveness of results. Performs duties with some degree of independence, exercising judgment and tact in answering inquiries and determining correct courses of action in matters warranting department head’s attention.

Floyd Roberts, the director of public works, testified that he considered the department secretary to be his “administrative assistant.” Mr. Roberts stated that the department secretary keeps the personnel records, is privy to any disciplinary actions taken, and attends staff meetings at which confidential matters are discussed. No bargaining unit existed at the time of the PELRB hearing, and thus there were no labor relations or negotiations, but Mr. Roberts testified that if the proposed bargaining unit was created, the department secretary might be put in a situation where her loyalties would be divided between the union and the town.

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666 A.2d 954, 140 N.H. 343, 1995 N.H. LEXIS 152, 151 L.R.R.M. (BNA) 2278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-town-of-newport-nh-1995.