NH Supreme Court: Police and Fire Lack a Community of Interest

The New Hampshire Supreme Court has reversed a decision by the state Public Employee Labor Relations Board that found that police officers and firefighters in the Town of Barnstead share a sufficient community of interest that would warrant them being allowed in the same collective bargaining unit.

The case arose in February 2023 when Council 93 of the American Federation of State, County and Municipal Employees petitioned the PELRB to create a bargaining unit for thirteen town employees, all of whom worked for the police or fire departments. The employees included:

• “three firefighter-EMTs, two fire rescue captains, one fire rescue lieutenant, one police sergeant, five police officers, and one police secretary.”

The town objected, but the board concluded that the employees had a “sufficient community of interest such that it is reasonable for them to negotiate jointly.” The town appealed that decision to the New Hampshire Supreme Court.  In reversing the PELRB, the court held:

• On appeal, the Town challenges the PELRB’s determination that the police and fire department employees in the proposed bargaining unit share a “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.”
• 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.
• 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.
• 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.”
• 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.
• 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.”
• Specifically, we noted that the fire lieutenants worked different hours than other town employees and operated under a different collective bargaining agreement.
• 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.
• 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.
• 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.
• 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.
• In addition, employees from the two departments work in different locations and follow different operating procedures.
• 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.  
• Accordingly, we reverse the PELRB’s decision approving the proposed collective bargaining unit.

Here is a copy of the decision: