Transfer Of Troopers A Management Right

Members of the New Hampshire Division of State Police are assigned by the division to road patrol within six troop areas, Troops A through F, throughout the state. Section 21.7 of the collective bargaining agreement between the State and the New Hampshire Troopers Association provides: “Any employee may live within a town within a patrol area to which she/he is assigned or within a reasonable distance from his/her assigned patrol area.” The term “reasonable distance” is not defined in the collective bargaining agreement.

In 2007, a trooper requested permission from the Division colonel to change her residence to one outside her patrol and troop areas. The colonel initially denied the request, but later reversed his decision and permitted the trooper to live outside her assigned area. Around the time of this request, the colonel undertook a survey analyzing trooper residency and discovered that 14 of 28 troopers assigned to Troop A were not living within their assigned areas. Subsequently, all troop areas were surveyed. The results indicated that other troopers were not living within the areas to which they were assigned. Troopers use division cruisers in commuting from their homes to their assignments.

In January 2008, due to a concern about rising fuel costs, the Division revised its Professional Standards of Conduct to define the “reasonable distance” that a trooper could live outside his or her patrol area as a distance that would not exceed $100 per year for commuting to the assigned patrol area. In February 2008, the Division advised troopers living outside their assigned patrol areas that they would be reassigned to patrol areas that included towns in which they resided. These reassignments necessitated troop transfers. No troopers were required to move and there were no changes in rank, duties, job responsibilities, or income. However, some of the transferred troopers’ shifts were changed as a result of the seniority-based shift bidding procedure within each troop.

The Association filed a complaint with the New Hampshire Public Employment Relations Board charging the Division with an unfair labor practice because it unilaterally and without negotiation defined residential “reasonable distance” and reassigned troopers to patrol areas in which they reside. When the Board sided with the Association, the State appealed to the New Hampshire Supreme Court.

The Court overturned the Board’s decision, and found that the Division’s transfer decisions were a management right. The Court relied on Article II of the parties’ collective bargaining agreement, which provides that the Division “retains all rights to manage, direct and control its operations,” including directing and supervising employees, appointing, promoting, transferring, assigning, demoting, suspending, and discharging employees”; and “maintaining the efficiency of governmental operations.”

The Court found that “by its plain language, the collective bargaining agreement expressly reserves to management the discretion to transfer and assign troopers. Here, no troopers were required to change residence and the Association does not dispute that the troopers, following reassignment, continue to live within a reasonable distance from their assigned patrol areas. Accordingly, we hold that the PELRB erred in finding that the unilateral reassignment of troopers was an unfair labor practice.”

In re New Hampshire Div. of State Police, 2010 WL 3269800 (N.H. 2010).

This article appears in the November 2010 issue