Schedule, Private Detail Changes Require Bargaining

The New England Police Benevolent Association (PBA) filed a petition with New Hampshire’s Public Employee Labor Relations Board seeking to represent employees of the Strafford County Sheriff’s Office. While the PBA’s petition was pending, the Sheriff made three changes to existing policies.

First, the Sheriff changed some employees from 4-10 to 5-8 work schedules. Second, the Sheriff changed the existing practice of paying deputies at the overtime rate for private detail work. Third, the Sheriff discontinued the past practice of including holiday, vacation, and sick leave in determining the eligibility of deputies for overtime pay for work in excess of 40 hours per week.

The PBA filed an unfair labor practice complaint, alleging that the pending representation petition required the Sheriff to keep unchanged all past practices concerning mandatorily negotiable topics. Citing the “status quo rule,” the New Hampshire Supreme Court sided with the PBA.

The Court held that “maintenance of the status quo demands that all terms and conditions of employment remain the same during collective bargaining. We have explained that the status quo doctrine derives from the obligation to negotiate in good faith over the terms of employment, whether during negotiations for an initial collective bargaining agreement or during a status quo period following expiration of a contract.

“To determine whether the County had a managerial prerogative to change the deputies’ work schedules, we apply a three-step analysis for measuring a particular proposal or action against the managerial policy exception. First, to be negotiable, the subject matter of the proposed contract provision must not be reserved to the exclusive managerial authority of the public employer by the constitution, or by statute or statutorily adopted regulation. Second, the proposal must primarily affect the terms and conditions of employment, rather than matters of broad managerial policy. Third, if the proposal were incorporated into a negotiated agreement, neither the resulting contract provision nor the applicable grievance process may interfere with public control of governmental functions.

“We conclude that the deputies’ scheduling was a mandatory subject of bargaining that the County could not unilaterally change after the Union filed its petition. The parties here fail to identify any independent statute, or any constitutional provision or valid regulation that reserves to the County the exclusive authority to alter the deputies’ work schedules. Instead, the County refers to the deputies’ hiring letters and a specifically designated policy of the Sheriff’s Department that allegedly reserved for the Sheriff the exclusive right to set work schedules of deputies. Even assuming that this policy was in place, the County fails to argue, or present any evidence, that such a policy was codified in any constitution, statute, or regulation. We also conclude that the change in schedules primarily affects the terms and conditions of employment, rather than matters of broad managerial policy.

“Turning to the changes to the pay rate for the outside detail work and the way in which overtime was calculated, the County maintains that it was justified in making these two changes because of a Department of Labor investigation. It contends that it had no choice but to comply with what it understood to be mandated by the DOL, and, thus, that it changed these practices to avoid possible future fines and penalties that could have been imposed by the DOL.

“We are not persuaded. Even assuming that the County actually made the changes in response to the DOL investigation, the FLSA sets only minimum standards, a floor, not the maximum amount an employer may agree to pay. Apart from its apparent misunderstanding, then, nothing prevented the County from continuing to pay the increased outside detail wage and continuing to include benefit time when computing overtime wages, as these were simply wages and benefits greater than what the FLSA required.”

Strafford County Sheriff’s Office, 105 A.3d 1061 (N.H. 2015).