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Superior Court blocks change in Wolfeboro firefighters' status


Union petition claims selectmen acted illegally and in bad faith


September 30, 2010
WOLFEBORO — Carroll County Superior Court Justice Steven M. Houran issued a temporary restraining order on Sept. 27 that blocks the town of Wolfeboro from making changes to the pay and benefits for firefighters set to go into effect this Friday, Oct. 1.

A full hearing on the merits of the underlying arguments has yet to be scheduled, and the town has not filed a formal written response to the claims made in the suit filed by the union.

Last Friday, Sept. 24, Justice Houran heard oral arguments on a petition filed by Professional Fire Fighters of Wolfeboro IAFF Local 3708 as an organization and its nine members individually asking for "a temporary restraining order, temporary and permanent injunctive relief, an award of attorney fees and costs associated with the bad faith actions of the Town of Wolfeboro." The suit claims that the town acted in bad faith when it broke off negotiations by canceling a negotiating meeting scheduled for July 23 and on Aug. 4 voting to rescind recognition of the union. Even though it has been working without a new contract since Dec. 31, 2007, the union claims a clause in the contract calls for maintaining a "status quo" on terms until a new contract is put in place. The suit also claims the Aug. 4 decision to rescind was improperly noticed and thus illegal.

For its part, the board of selectmen took the position at its Aug. 4 meeting that while a warrant article passed in 2002 authorized the board to recognize the union and to negotiate, it did not direct the board to do so and that the broad authority to do this cited in the warrant article (RSA 3:13) is modified by a special section of the RSAs concerning labor relations, specifically 273-A:8, which called for the bargaining unit to be 10 members or larger unless voters gave prior approval for a smaller unit (three-10 members). The Wolfeboro union had nine members in 2002 and still consists of six firefighters and three lieutenants.

The underlying cause for the impasse in negotiations and the board's decision to rescind recognition is a disagreement over health insurance. The board had decided to get the town's health insurance costs under control by reducing the number of available plans from six to three and by requiring employees to pay part of the cost of premiums. Since that decision was made, all other town employees, including members of the one other union in place at the time (ASCME) had agreed to pay seven percent of the premiums. The firefighters union balked at making that change, and as a result there has been no new contract in place since the last one expired in 2007.

The town also had a Pay and Classification Study done in 2008 that compared salaries and benefits for all town employees with comparable New Hampshire towns. Based on that study, the town had planned to adjust the pay of most of the firefighters upward on Oct. 1 while deducting the seven percent share of health insurance. This change, which was to take effect this Friday, would have resulted in a net increase in pay for most union members.

The union's suit argued that an injunction is needed because the union members will suffer "immediate and irreparable harm" if the town is allowed to ignore the terms of the last contract and put the new pay arrangement in place and take away the union's ability to negotiate the terms and conditions of employment.

Background

The town's relationship with the firefighters' union began when Article 19 was added to the 2002 warrant by petition and approved by voters with a margin of 735 to 625. Article 19 stated: "To see if the Town, pursuant to RSA 31:3 will vote to authorize the Board of Selectmen to recognize a collective bargaining unit comprised of the full time Fire Fighter and Officer positions of the Wolfeboro Fire-Rescue Department and make and enter into collective bargaining contracts with such bargaining unit concerning the terms and conditions of employment."

The town did recognize the union and entered into a collective bargaining agreement that expired on Dec. 31, 2006. That agreement was extended by mutual consent to Dec. 31, 2007. Negotiations in 2008, 2009 and 2010 failed to produce a new agreement because of the impasse on changing the terms of health insurance. Currently firefighters do not pay any premiums for health insurance.

Wolfeboro selectmen met on July 21 in non-public session and, according to the text of Justice Houran's decision, decided then to rescind recognition of the union, based on the lack of explicit approval of a union of fewer than 10 employees in the 2002 vote, and directed the Town Manager to put in place a new compensation plan for firefighters "effective the first payroll day of October 2010." That decision was made publicly at the board of selectmen's next regular meeting on Aug. 4 when the board voted unanimously to make the change. The union's suit claims the decision was not properly noticed and was therefore illegal.

Justice Houran's Sept. 27 order reads as follows: "The Town's rescission of recognition of the Fire Fighters union, and its determination that the collective bargaining agreement is null and void and that all members of the union will be placed under the Town's personnel plan effective the first payroll date of October 2010 are temporarily stayed pending preliminary hearing and preliminary order. Consideration of all other requests is deferred to the preliminary hearing."

As of press time no date has been set for the preliminary hearing.

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