New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

PELRB May Not Refuse to Enforce Its Own Rule that Requires Disclosure of Employee Names and Addresses to Union in Bargaining Unit Election

Appeal of State Employees’ Association of New Hampshire, Inc.
No. 2007-105, 11/9/2007

Certain employees of the Public Utilities Commission (PUC) filed a petition with the Public Employees Labor Relations Board (PELRB) to decertify the State Employees’ Association of New Hampshire, Inc. (SEA) as their exclusive representative. PELRB issued an order for an election. New Hampshire Administrative Rules, Pub 303.01 (b) requires the public employer in such an election immediately to forward to the SEA a complete list of the names and home addresses of the employees in the bargaining unit. The SEA filed a motion to obtain the list, which was denied by the PELRB Executive Director, whose ruling stated that it was “the PELRB’s strong belief that an employee’s privacy interest in their home address is an interest that may be breached, if at all, only after sufficient proof is offered of the blanket inability of any union or other party to otherwise reasonably communicate with employees.” At the election a majority voted to decertify the SEA as exclusive representative. The SEA appealed the Executive Director’s decision to the full PELRB, which affirmed the decision, stating that “his decision reflects the position of the board in this era of elevating the privacy rights of employees over the ability of competing interests in organization activities to obtain the same.” The SEA appealed to the Supreme Court.

The PELRB decision resembled the type of case-by-case balancing of public and private interests called for in determining whether records may be withheld on privacy grounds under the Right to Know Law, RSA Chapter 91-A. For example, Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106 (2005). However, in this case the Supreme Court held that the PELRB had no such authority because Pub 303.01 (b) unequivocally requires timely disclosure of the names and addresses. The Court then ruled that the violation constituted grounds for setting aside the election.

The PELRB may yet implement a policy that offers more privacy to employees in an election under RSA 273-A. As the Supreme Court observed in its decision, if Pub 303.01 (b) “no longer reflects the PELRB’s views, the PELRB may seek to amend it by following the proper rule-making procedures.”

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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