N.H. Supreme Court: Corrections officers not entitled to pay for fitness testing
State corrections officers have lost a bid to be compensated for participating in mandatory fitness testing under a state Supreme Court opinion issued yesterday.
The court reversed a decision by the state’s Public Employees Labor Relations Board, which found the Department of Corrections had engaged in an unfair labor practice by changing a policy of compensating officers for time spent in fitness testing – about 11∕2 hours every three years – without negotiating the change in a collective bargaining agreement.
But the board didn’t have evidence that employees were given time off or awarded compensatory time for the testing in the past, the justices said in the opinion. They said compensating employees for the testing couldn’t be considered a “past practice,” meaning the department had the right to change it without negotiating.
Corrections spokesman Jeff Lyons, who didn’t comment yesterday on the opinion, said the physical fitness requirement for corrections officers is set by the state’s Police Standards and Training Council, which requires the certification.
“It’s not the job of the DOC to certify them, it’s their responsibility to remain certified through the Police Standards and Training Council,” Lyons said.
Officers have to pass the test every three years, completing a 1-and-1/2-mile run, push-ups, sit-ups and bench-press. The test is based on standards designed for law enforcement programs, and corrections officers are required to meet benchmarks based on their age and gender, with different thresholds when they are hired and when they re-certify.
“They have to do that on their own,” Lyons said. “We’ve never paid them to do that.”
Kevin Buck, the attorney who represented the corrections officers, declined comment on the Supreme Court’s opinion since the officers are no longer represented by the New England Police Benevolent Association, having voted this month to join the Teamsters.
Buck said compensation for the testing mattered to the officers “just because it has to do with compensation.”
“It was a benefit they perceived they had in the past, and then the state changed it, without going through the bargaining process,” Buck said.
According to the labor board, corrections employees filed an unfair labor practice complaint in December 2010, claiming the department had unilaterally changed a binding term compensating employees for time spent completing physical fitness testing.
The labor board found that employees had been released from duty without loss of pay to complete the testing since 2004, and sergeants had approved employee requests for compensatory time related to the testing. In an April 2011 decision, the board cited a letter from Corrections Commissioner William Wrenn allowing an employee to receive payment for time spent taking the test.
“(U)pon further consideration as to how other employees were released from their duty post to complete the physical agility test, I do recognize an inequity developed regarding the compensation of that time,” Wrenn said in the letter, according to the board’s decision. He said there would be “no authorization for release from a duty post ... or overtime approved for this purpose in the future without a formal agreement to do so.”
In reversing the labor board’s decision, the justices said the union hadn’t met its burden of demonstrating that compensation for the testing was a past practice. The union’s only witness didn’t know how many employees had been compensated, the justices said.
The corrections department’s witness, meanwhile, “testified that the DOC had no knowledge of a common practice under which employees were given time off to complete physical fitness testing or awarded compensatory time to do so,” the justices said.