Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2020-0416

October 28, 2021

Affirmed.

 

  • Whether the New Hampshire Public Employee Labor Relations Board erred in finding that the New Hampshire Department of Transportation (DOT) committed un unfair labor practice when it implemented a new commercial driver’s license (CDL) medical card requirement for certain current DOT employees?

 

The State Employees’ Association of New Hampshire SEIU Local 1984 (Union) filed an unfair labor practice complaint against DOT alleging that by adopting a new requirement for a CDL medical card for current employees if they were promoted, demoted or transferred to a different position requiring a CDL medical card, the DOT failed to negotiate a mandatory subject of bargaining and improperly implemented a unilateral change in terms and conditions of employment for certain employees.  The DOT argued that the requirement was a matter of managerial prerogative and a prohibited subject of bargaining.  On appeal, DOT argued that the new CDL medical card requirement was a prohibited subject of bargaining and alternatively that it is a permissive subject of bargaining.  DOT argued that RSA 273-A:1, XI reserved the new CDL medical card requirement to its exclusive managerial authority and therefore said requirement was a prohibited subject of bargaining.  DOT argued that the Court should overrule Appeal of Nashua Board of Education (1997) and the Court declined to overrule that case using a four factored stare decisis analysis.  The Court agreed with the Union that the new CDL medical card requirement is a mandatory subject of bargaining.  The Court also found that the new CDL medical card requirement primarily affected the employee’s terms and conditions of employment rather than managerial matters.  Finally, under the third step in the managerial policy exception analysis, the new CDL medical card requirement must not interfere with public control of governmental functions.  The Court agreed with the PELRB’s finding that the DOT did not demonstrate that the CDL medical card requirement for current employees was necessary to protect employee health and public safety actually served those goals.  Therefore, the Court agreed with the PELRB that the DOT failed to establish that treating the requirement as a mandatory subject of bargaining will interfere with public control of governmental functions.  Therefore, the Court agreed with the PELRB that all three steps of the managerial policy exception were met that therefore, the new CDL medical card requirement for current employees is a mandatory subject of bargaining.

 

Gary Snyder, of Concord, on the brief and orally, for the State Employees’ Association of New Hampshire, Inc. SEIU Local 1984.  Office of the Attorney General (Jill A. Perlow, senior assistant attorney general and Daniel E. Will, solicitor general on the brief and Jessica A. King, assistant attorney general, on the brief and orally) for the New Hampshire Department of Transportation.