The town’s fire department employees were represented by the Professional Fire Fighters Union subject to a collective bargaining agreement. The Union and the Town had attempted to negotiate the creation of a new position of paramedic firefighter, but the parties were unable to reach an agreement. Nonetheless, the Board of Selectman unilaterally voted to establish a paramedic program including that position's initial wages (stipend) and working conditions. The Union objected and filed an unfair labor practice complaint with the Public Employee Labor Relations Board (PELRB) asserting that the Town was obligated to bargain over the increase in pay for firefighters obtaining additional training to become a paramedic. The PELRB agreed with the union that the Town committed an unfair labor practice for its unilateral adoption and establishment of a wage schedule and other conditions of employment for a firefighter EMT with a paramedic licensure level. The Town appealed to the NH Supreme Court primarily arguing that the PELRB decision was in error because the decision to create the firefighter paramedic position was a managerial prerogative that was not subject to collective bargaining
In order to determine whether the ability to create a new employment position and the initial wages for that position was not subject to collective bargaining, the Court employed a three part test. “First, to be negotiable, the subject matter of the proposed contract provision must not be reserved to the exclusive managerial authority of the public employer by the constitution, or by statute or statutorily adopted regulation. Second, the proposal must primarily affect the terms and conditions of employment, rather than matters of broad managerial policy. Third, if the proposal were incorporated into a negotiated agreement, neither the resulting contract provision nor the applicable grievance process may interfere with public control of governmental functions contrary to the provisions of RSA 273-A:1, XI.”
“A proposal that fails to satisfy the first step is a prohibited subject of bargaining. A proposal that satisfies step one, but that fails either step two or step three, is a permissible topic of negotiations. A proposal that satisfies all three steps is a mandatory subject of collective bargaining.”
The Court concluded the Town has failed to identify any statute that reserves establishing the initial wages, hours, and other conditions of employment" of firefighter/paramedics to the Town's exclusive managerial authority. Under the second step the Court found that the matters of wages, hours, and conditions of employment for firefighter/paramedics may be considered separately from other aspects of the program. That while it is within the Town's managerial prerogative to determine that it wants to promote the provision of EMT services at the paramedic leve the Town is obligated to bargain with the Union over the compensation and other conditions of employment for an EMT who holds a paramedic license. Under the third step the Court found that if the proposed paramedic program were incorporated into a negotiated agreement, the resulting contract provision would not interfere with public control of governmental functions
A town may not unilaterally decide to create a new employment position that would be part of a designated bargaining unit and set the wages and conditions of employment for that new position without first bargaining with the union organization.