HR REPORT: New Hampshire Supreme Court Decision Provides Policy Implementation Guidance to Public Employers with Unionized Employees
Public employers in New Hampshire are required to negotiate with their unionized employees over “wages, hours and other conditions of employment.” This requirement does not extend to “terms and conditions” that are within the employer’s “exclusive prerogative” or “confided exclusively to [them] by statute or regulation[.]” Employers are generally familiar with this framework and understand what terms and conditions are subject to bargaining. However, employers seeking to implement new health and safety policies—for example, vaccine mandates, travel restrictions, or licensing requirements—often question whether they can do so unilaterally, without negotiating with the union. The New Hampshire Supreme Court’s recent decision in Appeal of New Hampshire Department of Transportation provides guidance on this question.
Under federal law, private sector employers employing CDL drivers are required to assure that the drivers have a CDL medical card. CDL medical cards are issued by federally-approved medical examiners and are intended to ensure that drivers are fit for duty. Public sector employers are exempt from the federal CDL medical card requirement and there is no New Hampshire law requiring public employees holding CDL licenses to have a medical card.
In an effort to address general concerns about roadway safety and employee health, the New Hampshire Department of Transportation (DOT) unilaterally imposed a requirement that CDL drivers have a medical card. The DOT applied its new medical card requirement to new hires and to existing employees who were promoted, demoted, or transferred to positions requiring a CDL license. Employees were responsible for scheduling the medical examination and paying for the card ($65 to $150).
The State Employees’ Association (SEA) took issue with the unilateral implementation of the medical card requirement and filed an unfair labor practice at the Public Employee Labor Relations Board (PELRB). The SEA alleged that the DOT had failed to negotiate over a mandatory subject of bargaining and improperly implemented a unilateral change in the terms and conditions of employment for affected employees. The SEA did not challenge the CDL medical card requirement for new hires.
In its decision, the New Hampshire Supreme Court reaffirmed and applied its three-step analysis to determine whether DOT’s policy was a mandatory subject of bargaining (in other words, to determine whether the DOT had to negotiate with the Union over adopting the policy). Under this analysis, DOT’s policy would be a mandatory subject of bargaining if: (1) its authority to issue the policy was not reserved to it by the constitution, statute, or regulation; (2) the policy primarily affected the terms and conditions of employment, rather than matters of broad managerial policy; and (3) the policy would not interfere with public control of governmental functions.
The Court held that the medical card requirement was a mandatory subject of bargaining. The Court found no provision in the State’s constitution, laws, or regulations that reserved to the DOT the exclusive managerial authority to adopt the medical card requirement. The Court upheld the PELRB’s finding that the DOT did not submit sufficient evidence to show that a CDL medical card was imperative to reduce the risk to safety of the travelling public such that the policy “primarily affect[ed]… broad managerial policy” rather than “the terms and conditions of employment for employees.” Finally, the Court explained that absent a showing that the policy was necessary to protect employee health and public safety, the policy “would not interfere with public control of governmental functions.”
The Court’s opinion offers two important lessons for public employers that are considering unilateral policy implementation. First, to successfully classify a policy as a prohibited subject of bargaining (meaning that the employer does not have to negotiate over implementation or administration of the policy), the employer must point to a specific statute or place in the law that reserves to it the right to implement the policy. For instance, if New Hampshire passed a law requiring all commercial vehicle drivers to possess a CDL medical card, then the DOT could have successfully argued that its medical card requirement for employees was a prohibited subject of bargaining. Second, if the employer cannot prove that the policy is a prohibited subject of bargaining, it must be prepared to show that the policy primarily affects broad managerial policy or that negotiation would interfere with public control of governmental functions. To do so, the employer must present compelling evidence that its interest in implementing the policy outweighs the policy’s effect on employees.
For example, consider a nursing home that wished to implement a vaccine mandate without negotiation. As the federal vaccine mandate for health care providers receiving Medicare and Medicaid funds has been enjoined by the federal courts, there is currently no law or regulation requiring New Hampshire nursing home employees to be vaccinated. To implement a mandate without first bargaining, the nursing home must have evidence establishing that the policy is necessary to keep employees and residents safe. The nursing home must further demonstrate that its need for the policy outweighs the policy’s effect on employees. In SEA v. Coos County Board of Commissioners, PELRB Decision No. 2021-034 (2021), the PELRB determined that the employer had sufficiently evidenced the health and safety value of a 14-day employee quarantine following out of state travel (earlier in the pandemic) so as to allow its adoption without bargaining. Without such a showing, as Appeal of New Hampshire Department of Transportation explains, the nursing home would have had to bargain with the union over implementing the mandate.
Appeal of New Hampshire Department of Transportation provides helpful guidance to employers on whether new policies will be considered mandatory, permissive, or prohibited subjects of bargaining. The decision also explains what evidence the employer must present to avoid mandatory classification. As this area of the law is constantly evolving, employers contemplating unilateral policy implementation should consult with counsel before adopting their policies.
Patrick Landroche is a member of Drummond Woodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2021 Drummond Woodsum. These materials may not be reproduced without prior written permission.”