On March 26, 2025, the New Hampshire Supreme Court reversed a September 2023 decision by the State Public Employee Labor Relations Board (PELRB) and, in doing so, clarified the “community of interest” standard required by RSA 273-A to combine employees within a certified bargaining unit.
Background
NH RSA 273-A governs public employee labor relations in New Hampshire. Relevant to this case, RSA 273-A:8(I) prohibits the PELRB from certifying new bargaining units if such unit would be comprised of less than ten (10) employees who share a community of interest. Per the statute, a community of interest may be exhibited by the following criteria: (a) employees with the same conditions of employment; (b) employees with a history of workable and acceptable collective negotiations; (c) employees in the same historic craft or profession; and/or (d) employees functioning within the same organizational unit. More specifically, PELRB regulations set forth additional factors for consideration such as a common geographic location of the proposed unit, common work rules and personnel practices, common salary and benefit structures, a self-felt community of interest among employees, and more.
Supreme Court Decision – Appeal of Barnstead, 2025 N.H. 14.
In February 2023, AFSCME Council 93 filed a petition with the PELRB to certify a bargaining unit consisting of thirteen (13) employees holding various positions within the Town’s police and fire departments. The Town objected, arguing that the duties of the employees in the proposed bargaining unit “are so dissimilar that they lack the essential community of interest.”. After consideration of written record provided by the parties, the hearing officer concluded that the “employees in the proposed unit have a sufficient community of interest such that it is reasonable for them to negotiate jointly.” See Appeal of Barnstead, p.2. The hearing officer recognized a difference in training requirements, job duties, and standard operating procedures, but concluded a community of interest exists based on the fact that the employees work in public safety and are subject to the Town’s employment terms and conditions. On appeal, the Supreme Court reversed the PELRB decision, holding, in summary, that the PERLB’s analysis had essentially eschewed the “community of interest” standard and instead certified the unit based on the finding that the employees merely worked for the same employer.
Specifically, the Court held that the PELRB’s reliance on geographic proximity and common personnel policies (which could have been used to justify a unit of any of the Town’s employees) was inconsistent with the Court’s preexisting decision in Appeal of Town of Newport (140 N.H. 343 (1995)), which stands for the proposition that “employees with different schedules, duties, responsibilities, and chains of command do not share a community of interest despite having a common employer and common set of generally applicable personnel policies.” The Court further noted that, while both police and fire personnel both provide emergency services and public safety functions to the Town, the duties between the departments differ significantly, and the employees work in different locations and follow different operating procedures.
Accordingly, the Court concluded that the record did not support the PERLB’s finding of a community of interest, and reversed the PERLB’s decision approving the proposed collective bargaining unit.
Impact
What does this mean for you? For those towns, cities, and other public employers with longstanding mixed bargaining units who have a history of workable negotiations, it is unlikely that this decision will have a significant impact. However, this is an important decision for smaller communities who may be seeing union drives seeking to combine employees between departments in order to reach the statute’s ten (10) employees minimum to form a bargaining unit. This decision clarifies for unions and public employers alike that a mere demonstration that all of the employees in a proposed unit share an employer is not sufficient. Instead, the decision returns to a stricter interpretation of the “community of interest” standard, requiring the proposed exclusive representative to make a more thorough showing that the duties, training, schedules, chain of command, etc. of the employees in the proposed unit are sufficiently communal such that it will make sense for the employees in the proposed bargaining unit to negotiate jointly.
If you have questions about unionization efforts or the impact of this decision on your community, you are encouraged to reach out to your Town attorney.
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.