Appeal of New Hampshire Department of Corrections
55 A.3d 1005
N.H.2012Background
- DOC appeals a PELRB ruling that a past practice of compensating employees for fitness testing existed and was unilaterally changed by the DOC.
- Union alleged a long-standing practice since 2001 allowing testing during work time or compensatory time for non-work testing, making the change a unilateral change in a term/condition of employment.
- PELRB found in the Union’s favor, prompting DOC to challenge the ruling on appeal under standard of review for unlawful or clearly unreasonable decisions.
- On review, the court held that the record did not establish a regular, long-standing past practice by the DOC.
- Union’s sole witness could not show how many employees benefited from the practice and no documentary evidence supported the claim.
- DOC witness testified there was no knowledge of any such common practice, leading to the conclusion that the past practice was not proven and the unilateral-change theory failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a demonstrable past practice regarding fitness testing compensation? | Union asserts a long-standing practice existed since 2001. | DOC contends no regular, long-standing practice existed. | Past practice not proven; record insufficient. |
| Was the court correct to apply the standard of review for unlawful or clearly unreasonable PELRB rulings? | Standard of review requires deference to PELRB findings. | Court reviews law, not PELRB rulings, for errors of law. | Court applied correct law-of-review framework and reversed on past-practice finding. |
Key Cases Cited
- Sunoco, Inc. v. NLRB, 349 N.L.R.B. 240 (2007) (regularity and longevity establish a term/condition when not in a CBA)
- University System v. State, 117 N.H. 96 (1977) (guidance from NLRA decisions on past practice)
- Eugene Iovine, Inc., 353 N.L.R.B. 400 (2008) (burden on showing unilateral changes with regular past practice)
- Caterpillar, Inc., 355 N.L.R.B. 521 (2010) (need concrete evidence of past changes and frequency)
- BASF Wyandotte Corp., 278 N.L.R.B. 173 (1986) (implicit requirement that the employer be aware of the practice)
- Appeal of City of Laconia, 150 N.H. 91 (2003) (standard for reviewing PELRB decisions; error of law standard)