State Under Fire Again for Unfair Labor Practices
The State Employees’ Association of New Hampshire (SEA) has filed an additional Unfair Labor Practice complaint with the NH Public Employees Relations Board. This is the third filing since the beginning of December. The organization is charging the state with another count of violating the Collective Bargaining Agreement between the State and the more than 10,000 Executive Branch workers represented by the SEA.
On Aug. 30, Matthew Newland, manager of Employee Relations and a Gov. John Lynch appointee, issued a memo to all Executive Branch human resource and payroll representatives rescinding a long standing practice related to shift differentials that apply to hundreds of state workers.
Employers use shift differentials to adjust compensation for employees for working different shifts. Organizations with continuous, round the clock operations face the challenge of recruiting and staffing employees to work beyond standard day shifts. An effective practice used by many employers to meet this challenge, including the State, is to adjust employees’ hourly pay. There are many jobs within state agencies that require round the clock staffing, for instance road crews that provide plowing services, law enforcement, emergency services, and direct care health facilities, such as New Hampshire Hospital and Veterans’ Homes.
Following the distribution of the memo, the SEA contacted Newland and requested the memo to be rescinded immediately and that he take any concerns about shift differentials to the appropriate channel per the collective bargaining agreement (CBA) -- the State Labor Management Committee (LMC).
Under NH law, the state cannot make unilateral changes to the terms and conditions of employment, which include wages, because they are mandatory subjects of collective bargaining. The SEA contract specifically identifies what shift differential pay affected workers are to receive, and if a problem administering the contract occurs, the State and SEA are supposed to work through it together. Newland did not abide by any of these requirements.
The change imposed by the state is allegedly to comply with federal and state laws, rules and collective bargaining agreements; however no recent changes were made to these laws or the contract. Timing of the memo’s release is suspect as well, due to the fact the change went into effect just as the parties began preparing for upcoming contract negotiations, which will officially start under the upcoming Hassan administration.
Newland, and other state officials the SEA contacted in an effort to resolve the conflict, later admitted the changes imposed stemmed from a need to fit the State's compensation practices into the State’s recently purchased payroll system -- Lawson.
“Apparently, it's not such a great fit when you use an off the shelf product for state government,” said SEA President Diana Lacey. “Mr. Newland not only violated state law, he violated the Collective Bargaining Agreement by imposing these unilateral changes and misinterpreting language related to shift differentials that have been in place for decades. Not to mention the fact that he completely bypassed utilizing the contractual mechanism required of both parties to jointly ensure the correct application and administration of the CBA – the Labor Management Committee.”
On Sept. 26, Newland rescinded his earlier memo and replaced it with a new memo on shift differentials. In this latter memo, there were few changes from Newland’s earlier position but one very notable change caught Lacey’s eye: compliance with the Fair Labor Standards Act (FLSA).
“Based on our history with the State, it has previously asserted that as a state government it has sovereign immunity from the FLSA. The Newland memo essentially acknowledges the State wasn’t in compliance with the FLSA and now wants to be. This is a significant shift in policy and we are eager to explore what relief workers may be able to find with the U.S. Department of Labor.”
Prior to filing the charges against the State, on Nov. 30,the SEA consulted a final time with Mr. Newland and his supervisor, Karen Hutchins, the director of Personnel; Linda Hodgdon, commissioner of Administrative Services; as well as Mike Brown from the Attorney General’s Office and Rich Sigel, Gov. John Lynch’s Chief of Staff. The SEA again requested that the Newland memo be immediately rescinded and the matter properly discussed in LMC instead or in the upcoming contract negotiations, to no avail.
The changes Newland implemented have cut pay for workers although he has never admitted that was intentional. For affected workers paying rent, buying food and heating their home is more challenging now than ever. In January, it will be four years since their last cost of living raise and a year and a half since the Legislature imposed a two percent pay cut. They work hard providing critical services such as caring for veterans, the elderly and the mentally ill; watching over prisoners; and plowing the state’s highways.
“It seems the state is more interested in hiding the fact that its new payroll system isn’t quite right for the state than it is to pay workers what they agreed to pay them. The bottom line we have tried to stress with the State is that buying the wrong computer program doesn’t relieve the State of its obligation to abide by the law and a pre-existing contract with employees.” said Lacey.”