Appeal of Hillsboro-Deering School District , 144 N.H. 27 ( 1999 )

HORTON, J.,

dissenting: We are faced again with reviewing the line drawn by the New Hampshire Public Employee Labor Relations Board (PELRB) between the managerial prerogative of the employer and the protected rights of the employee under a collective bargaining agreement. Previously, in Appeal of City of Nashua, Board of Education, we held tnat the PELRB correctly found an unfair labor piactice ’./Lore the Nashua School Board laid off all of its unionized full-time maintenance workers and hired part-time workers at less pay to perform the same duties. Appeal of City of Nashua Bd. of Educ., 141 N.H. 768, 695 A.2d 647 (1997). We said that the reorganization was not within the managerial prerogative, but was negotiable. We said that the “reorganization primarily affect[ed] the wages and hours of employees rather than issues of broad managerial policy.” Id. at 774, 695 A.2d at 652. We acknowledged that most issues of this nature have an impact in both realms and call for a balancing to determine whether the impact is primarily on managerial matters or on the protected rights of the employees. Id. “[Determining the primary effect of the proposal requires an evaluation of the strength and focus of the competing interests.” Id. (quotation and brackets omitted).

In the case before us, an analysis of the strength and focus of these interests leads me to a different conclusion. Here, the school board decided to privatize a function of school operation that it thought could be done better and cheaper by private contractors. Unfortunately, to accomplish this privatization, the school board had to lay off the entire maintenance crew. It was not laying off to rehire new workers at a cost saving, but to put a private contractor in charge with full responsibility for the function. In my opinion, such a “reorganization” is a classic example of managerial policy and outweighs the claim of impact on the terms and conditions of employment.

I would reverse the PELRB and dismiss the unfair labor practice claim. Therefore, I respectfully dissent.

THAYER, J., joins in the dissent.