## Facts

- In June 2010, the New England Police Benevolent Association (union) petitioned the New Hampshire Public Employee Labor Relations Board (PELRB) to certify a bargaining unit of all Town police department employees, excluding only the chief of police.
- The proposed unit included 14 employees across seven positions: sergeant, corporal, patrol officer, prosecutor, executive assistant, communications specialist/dispatcher (including part-time/on-call), and animal control officer.
- The Town objected, citing RSA 273-A:8, I’s minimum-unit-size requirement (at least ten employees) and arguing that sergeants and the corporal were “supervisory employees” who could not be in the same unit as those they supervised under RSA 273-A:8, II.
- The Town also challenged inclusion of several non-sworn or distinct positions (including the executive assistant, communications specialist/dispatcher positions, animal control officer, and prosecutor), asserting they lacked a sufficient community of interest with the rest of the unit.
- After an evidentiary hearing, a PELRB hearing officer certified a bargaining unit that included the sergeants and the corporal along with the other identified positions.
- PELRB denied the Town’s request for review/rehearing and approved the hearing officer’s certification.
- The record showed that sergeants performed written performance evaluations of patrol officers and also completed background-check tasks for job candidates.
- Sergeants reviewed and completed use-of-force documentation before forwarding it to the chief of police.
- The sergeants and corporal shared responsibilities for completing written evaluations; however, they lacked final authority to set pay, advance employees in rank, terminate employment, or impose final discipline.
- The Town appealed to the New Hampshire Supreme Court, challenging PELRB’s inclusion of the sergeants and corporal and renewing objections to other unit-composition determinations, including objections tied to late identification of certain communications-specialist positions.

## Issues

1. Whether PELRB erred in determining that the police sergeants and corporal were not “supervisory employees” under RSA 273-A:8, II and thus could be included in the same bargaining unit as the employees they directed.
2. Whether PELRB erred in concluding that the unit (including positions such as executive assistant, communications specialist/dispatcher, animal control officer, and prosecutor) shared a sufficient community of interest under RSA 273-A:8, I and related administrative rules, and whether PELRB’s handling of the late-identified communications-specialist positions required reversal.
3. Whether, after excluding any supervisory employees, the unit met RSA 273-A:8, I’s minimum requirement of at least ten employees.

## Decision

- The court reversed PELRB’s determination on supervisory status, holding that the Town’s police sergeants and corporal were supervisory employees within the meaning of RSA 273-A:8, II and therefore could not be included in the same bargaining unit as their subordinates.
- The court affirmed PELRB’s community-of-interest determinations and the inclusion of the remaining, non-supervisory positions challenged by the Town.
- The court rejected the Town’s argument that PELRB’s consideration of the part-time/on-call communications-specialist positions was improper due to late disclosure, concluding the Town had not shown prejudice warranting reversal.
- The court remanded to PELRB for further proceedings consistent with the ruling that sergeants and the corporal must be excluded, including reconsideration of unit composition and whether the resulting unit satisfied the ten-employee minimum.

## Legal Principles

- Under RSA 273-A:8, II, employees who exercise supervisory authority— including the ability to discipline or to effectively recommend discipline or other significant personnel actions—may not be placed in the same bargaining unit as the employees they supervise; final authority is not required if recommendations are effective and tied to supervisory duties.
- Whether an employee is supervisory is determined from actual job functions and the chain of command, including day-to-day direction, evaluative responsibilities, and participation in discipline processes that can influence outcomes.
- Community of interest under RSA 273-A:8, I and N.H. Admin. Rules (Pub 302.02(b)) is assessed through multiple, non-exclusive factors (such as similarity of duties, supervision, workplace rules, working conditions, and operational integration), and PELRB is not required to find every factor satisfied.
- On appeal, the appellant bears the burden to show PELRB’s order is unlawful or clearly unjust or unreasonable; the court defers to supported factual findings and will not replace PELRB’s judgment on unit composition when the record supports the result.

## Conclusion

The New Hampshire Supreme Court held that the Town’s police sergeants and corporal were supervisory employees who could not be included in the same bargaining unit as subordinate police employees, affirmed PELRB’s remaining unit-composition and community-of-interest determinations (including the communications specialist/dispatcher positions), and remanded to PELRB to reconfigure the unit and determine whether it still met the statutory minimum size.


Appeal of Town of Moultonborough, 55 A.3d 965, 164 N.H. 257 (2012)