The town’s police department was certified as a bargaining unit in 2001, and at that time had at least ten employees. A collective bargaining agreement expired on December 31, 2011 at which time the town refused to continue to bargain because the unit had fewer than ten employees. An unfair labor practice complaint was filed with the Public Employees Labor Relations Board (PELRB), regarding the refusal to bargain.
The PELRB heard the matter, and found that the town had committed an unfair labor practice by refusing to engage in bargaining. The issue was appealed to the NH Supreme Court. The town argued that when a bargaining unit falls below the statutory minimum of ten members, the PELRB automatically and immediately loses jurisdiction over the unit, and the unit is “...deemed to have dissolved.”. The union responded that the unit need only have ten members at the time of initial certification of a bargaining unit, after which time the number of members is no longer relevant.
The Court rejected both arguments, finding that neither was consistent with the language of the statute. Instead, it held that once a bargaining unit has been certified, the PELRB retains the ability to adjudicate petitions for modification of that bargaining unit. The legal standard to be met in such a case is found in an administrative rule of the PELRB, Pub 302.05, which requires either “circumstances surrounding the formation of an existing bargaining unit are alleged to have changed”, or where a prior unit having recognition is alleged to be “incorrect to the degree of warranting modification”.
A town may not unilaterally make the determination to refuse to continue to bargain. Instead, the PELRB does have the authority, upon a petition filed with it for that purpose, to determine if a unit of less than ten members should be decertified. A temporary fluctuation in membership below ten may not warrant decertification, a more permanent reduction in membership may warrant that action.