Published by New Hampshire Town and City
View article online at: https://www.nhmunicipal.org/town-city-article/hr-report-rsa-15926-re-revisited-new-superior-court-opinion-finds-public-employer
RSA 159:26, enacted in 2011, stripped local governments of their ability to regulate firearms in their communities, and gave exclusive regulatory authority to the Legislature.1 Previous articles in this space2 have discussed whether the statute prevents local governments, acting in their capacity as employers, from adopting workplace rules and policies that prohibit public employees from possessing firearms at work. While the question still has not been answered directly, a recent Superior Court decision strongly suggests that the statute was not intended to interfere with a local government’s ability to regulate employee conduct.
In Brendan O’Connor v. Manchester Housing and Redevelopment Authority (MHRA), the plaintiff, a former MHRA employee, was fired when, in violation of both MHRA policy and a collective bargaining agreement (CBA), he brought handguns and live ammunition onto MHRA property. The CBA provided that:
No employee of the MHRA is authorized to carry or otherwise possess on his or her person, MHRA premises or vehicles, a firearm, or other deadly weapon while the employee is employed during regular working hours of the MHRA…. Violation of this section shall constitute just cause for dismissal of the employee.
The local union filed a grievance on the employee’s behalf, but later decided not to take the case to arbitration. In his lawsuit, the plaintiff alleged, in part, that the MHRA policy and CBA language were both preempted by RSA 159:26. The MHRA moved to dismiss the complaint on the grounds that 1) the court lacked subject matter jurisdiction as the plaintiff had not exhausted his administrative remedies (the grievance process); and 2) the plaintiff’s conduct was grounds for termination under the CBA. The plaintiff countered that the grievance had been withdrawn against his will and that RSA 159:26 pre-empted the MHRA’s ability to regulate firearms.
In a decision issued on June 17, 2019, the Superior Court agreed that it lacked jurisdiction to hear the case, as the plaintiff failed to exhaust his administrative remedies under the CBA grievance procedure. (The court’s analysis on this point — where the union withdrew the grievance over the employee’s objection and effectively prevented him from pursuing his administrative remedy — will be the subject of an upcoming column.)
Upon finding that it lacked jurisdiction, the court could have holstered its pen and declined to reach the RSA 159:26 issue. Instead, the court took aim at the firearm regulation issue and ruled that RSA 159:26 did not nullify the CBA’s prohibition of employee possession of firearms. The court found that a CBA is a form of employment contract, and that employment contracts are not “an ordinance or regulation” within the meaning of RSA 159:26. As the statute only limits the ability of local government to adopt rules of general application, the CBA’s prohibition of employee possession of firearms was enforceable.
This decision is extremely helpful for those employers who, like the MHRA, expressly incorporate some or all of their code of workplace conduct into a CBA, including restrictions on possession of firearms. But many CBAs do not contain similar language; instead, the code of conduct is contained in a personnel manual, departmental operating procedures, or administrative codes separate from any CBA. Should the O’Connor decision give those employers confidence that their firearms policies, not incorporated into a CBA, may yet be enforced?
We believe that the answer is yes. In its 1988 decision in Panto v. Moore Business Forms, which was authored by then Justice David Souter, the New Hampshire Supreme Court held that employee personnel handbooks and manuals were forms of unilateral contracts—essentially, “take it or leave it” offers of employment, with the employee having little or no negotiating power. The Court held that if an employee accepted employment subject to the policies and promises set forth in a manual or handbook, then the relationship between the employer and employee was contractual in nature, even if the contract is for “at will” employment.
Employers of unionized employees have the right to adopt workplace policies not inconsistent with a CBA. Employers can also adopt work policies for their non-union employees. Applying the Panto analysis, those policies would likely be considered to be a form of unilateral employment contracts. Applying the O’Connor analysis in turn, those employment contracts are not ordinances or regulations of general application, and are therefore outside the prohibition of RSA 159:26.
Mark Broth is a member of DrummondWoodsum’s Labor and Employment Group. His practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. Matthew Decker is a member of the firm’s Municipal Law Group representing clients in a wide range of municipal law matters.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2019 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
1 RSA 159:26 provides that: [N]o ordinance or regulation of a political subdivision may regulate the sale, purchase, ownership, use, possession, transportation, licensing, permitting, taxation, or other matter pertaining to firearms, firearms components, ammunition, or firearms supplies in the state.