In 2005, Hampton voters rejected a proposed warrant article appropriating money for outside police details. As a result, town officials notified the police union that no outside police details would be assigned for the remainder of the year. In May 2005, town officials met with the representative of the police union to negotiate an alternative solution, but the parties failed to reach agreement.
In response to an article in the local newspaper about the bargaining session, the president of the police union sent an e-mail message, using the police department’s official e-mail system, to all department personnel, union and non-union, describing inaccuracies in the newspaper story. The next day, the police chief posted a message on the department’s bulletin board, addressed to “All Hampton Police Officers,” correcting misinformation in the police union representative’s e-mail message. The chief’s posted message described the alternative police detail payment plan that had been the subject of the failed negotiation session, noting that it had been rejected by the union.
The union then filed an unfair labor practice charge with the New Hampshire Public Employee Labor Relations Board (PELRB). After an evidentiary hearing, the PELRB ordered the town to cease “directly dealing” with the union membership rather than with the union’s leadership. After its motion for reconsideration was denied, the town appealed the PELRB order to the New Hampshire Supreme Court, claiming that the PELRB erred in finding that the police chief’s memorandum constituted direct dealing with union membership in violation of RSA 273-A:5, I(e).
The Court has held in the past that public employers must refrain from negotiating with union members who are not designated as the exclusive representative because direct dealing “seriously compromises the negotiating process and frustrates the purpose” of RSA Chapter 273-A, the Public Employee Labor Relations Act. The Court has also held, however that “the mere act of communication by an employer with its employees is not a per se unfair labor practice under RSA 273-A:5.”
The Court held that the PELRB erred in finding that the town had dealt directly with union members. It noted that the union representative’s e-mail message went to all department employees, not just union members, did not indicate it was being sent in his official capacity as union representative, did not communicate information regarding ongoing collective bargaining and instead commented on inaccuracies in a newspaper article. In addition, the Court noted, the police chief’s response provided information about a failed proposal to fund police details. “Nothing in the response indicates that collective bargaining pertaining to private police details was ongoing … and does not suggest that it would be available for future consideration.” Previous cases had found direct dealing “when a public employer unilaterally contacted and applied pressure to union members with regard to contracts that were to be the subject of renegotiation.” Since negotiations were not ongoing between the police union and the town, the police chief’s posted memorandum to all department employees was not direct dealing. The Court reversed the PELRB order.