Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

No. 2017-0514
Oct. 12, 2018

  • The Court considered whether the State committed an unfair labor practice under the parties’ collective bargaining agreement by prospectively eliminating salary enhancements for newly hired employees of the Sununu Youth Services Center.


The State operates the Sununu Youth Services Center (SYSC). The petitioner, State Employee’s Association of New Hampshire, Inc., SEIU, LOCAL 1984 (Union) is the certified bargaining representative for certain employees of SYSC. As part of a consent decree that resolved a federal lawsuit in the 1980s, the State was required to pay SYSC employees salary enhancements in addition to base wages, and these enhancements continued to be paid after the consent decree expired in July 2002. The State began attempting to eliminate the salary enhancements in 2014, and the Union has filed unfair labor practice complaints in response.

In response to an unfair labor practices complaint, The New Hampshire Public Employee Labor Relations Board (PELRB) issued an order in July 2014 finding that the payment of the salary enhancements was a binding past practice and subject to mandatory bargaining. The PELRB found that the State had not “effectively cancelled” the practice by rejecting the Union’s request to put the practice in writing because the Union was only seeking to memorialize the current practice and the State continued to pay the salary enhancements after the 2013-2015 CBA went into effect. The PELRB also found that the State could not unilaterally terminate the payments when the termination would occur during a period the 2013-2015 CBA was in effect. The State did not appeal.

When the parties negotiated the 2015-2017 CBA, the State rejected the Union’s proposal to include the salary enhancements, and the Union ultimately withdrew the request when the parties reached a tentative agreement during mediation. After that point and before the 2015-2017 CBA was final, the State announced that the salary enhancements would be discontinued on the later of July 1, 2015 or when new contract became effective. Salary enhancements were to remain in place for teachers subject to the 2014 PELRB decision. The Union filed a new unfair practices complaint following the hiring of a new teacher for which the State did not pay a salary enhancement after the new contract went into effect.

The PELRB dismissed the complaint and found that the 2014 decision did not apply to this action and that the State had timely notified the Union of its intent to terminate the new hire salary enhancement after the effective date of the 2015-2017 CBA. The PELRB found that because the Union had an opportunity to negotiate for the enhancements after the State announced that it would be discontinuing the practice, the Union waived its bargaining rights. On appeal, the Union advanced a number of arguments, which the Supreme Court held it did not need to consider because it found that the elimination of the salary enhancements were the result of normal bargained for exchanges as part of the negotiations for the 2015-2017 CBA. In this case, the parties actually bargained regarding the removal of the salary enhancements, and the Union withdrew its request to include them in the CBA in order to reach an agreement during the mediation phase. No inference could be made that the parties intended the practice to remain. As a result, the Court did not need to consider the impact of the letter notifying the Union of the intent to terminate the enhancements after mediation. The removal of the salary enhancements was a bargained-for result and, therefore, not an unfair labor practice.


Glenn R. Milner, State Employees’ Association of New Hampshire, Inc., SEIU, Local 1984, Concord (on the brief) and John S. Krupski, Milner and Krupski, Concord (orally), for the petitioner. Gordon J. MacDonald, attorney general (Nancy J. Smith, senior assistant attorney general), for the State.