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Bar Journal - Fall 2006

Collective Bargaining in New Hampshire's Public Sector: Thirty Years of Contentious Labor Peace

By:

Introduction

This article has two parts. The first, Sections I-IV, is a review of New Hampshire Supreme Court decisions on the public sector bargaining law. The second, Section V, discusses recurring problems under the bargaining law. The Public Employee Labor Relations Board’s many significant decisions are too numerous for this article.

I.    A Brief History

Public employees in New Hampshire gained the right to bargain collectively in the Public Employee Labor Relations Act of 1975.1  Before 1975, collective bargaining in New Hampshire’s public sector was “permissive,” not mandatory.2  The public employer decided if  it would bargain and what it would bargain. If a public employer decided it had had enough of bargaining, the public employees had little choice but to give up or strike. Some public employees decided to strike.3 

In 1974, a unanimous New Hampshire Supreme Court surprised many by refusing to enjoin a teachers strike in the Timberlane School District. The Court concluded that stopping the strike would frustrate bargaining, since “the essence of the collective bargaining process is that the employer and the employees should work together in resolving problems relating to employment.”4  The Court made it clear that it thought the time had come for a bargaining law.5

A House-Senate conference committee created a labor-management committee to draft a bill dealing with bargaining and strikes.6  That bill took effect in 1975 when Governor Meldrim Thompson signed the bill into law. The Act declared that the State must “protect the public by encouraging the orderly and uninterrupted operation of government.”7  The Act made bargaining mandatory and created a Public Employee Labor Relations Board “vested with broad powers to assist in resolving disputes between government and its employees.”8

The new agency’s broad powers focused on holding secret ballot votes to determine whether employees wanted to be represented by a union, and then, if the union won the vote, requiring public employers to bargain collectively in good faith with the union. In the main, the law has worked. It has largely ended strikes and otherwise preserved labor peace. But more than one hundred Supreme Court decisions since 1975 attest to the fact that labor peace has been restive.

II.   Structure of the Public Employee Labor Relations Board

The legislature declared that “the policy of the state [is] to foster harmonious and cooperative relations between public employers and their employees” and to that end created the Public Employee Labor Relations Board (the Board or the PELRB). The Board has the duty to carry out two broad policies:

I. Acknowledging the right of public employees to organize. . . . [and]

II. Requiring public employers to negotiate in good faith . . . with employee organizations that have been certified as representing their public employees.9 

As a result, the PELRB primarily deals with two broad responsibilities—representation cases, in which a union is certified as the exclusive representative of public employees following a secret ballot vote; and unfair labor practice cases, mostly regarding the duty to bargain in good faith. The Board has “broad powers to assist in resolving disputes between government and its employees.”10

There is, of course, more to it than that, but that is the core. In representation cases, the PELRB must also decide, for example, which employees belong in a union and which employers are subject to the Act.11  In unfair labor practice cases, more is at stake than just refusals to bargain in good faith when, for example, a union organizer is fired or a union goes on strike. But the core is still certifying unions for bargaining, and then requiring public employers to bargain in good faith with that certified representative. All else is in aid of those two purposes.

The PELRB itself is made up of five members and four alternates appointed by the Governor and Council.12  Two board members must have extensive experience representing organized labor and two members must have extensive experience representing management. The fifth member serves as the chairman and represents the interests of the public at large. Labor, management and the public must all be represented in Board decisions.13 

III. The Coverage and Jurisdiction of the PELRB

Under the Act, public employers are broadly defined as the state and any political subdivision thereof, any quasi-public corporation, council, commission, agency or authority, and the state university system.14 

Public employees are broadly defined as any persons employed by a public employer. However, a person is not considered a public employee if elected by popular vote or if appointed to office by the chief executive or legislative body of the employer.15  Probationary employees have limited rights,16 and other particular types of employees such as confidential or temporary employees17 may be excluded from union representation by statute or Board decision.

Court personnel are covered by the Act, RSA 273-A:9-a, but employees of the legislature are not.18 

IV. “The Union Comes to Town”—Representation Elections under RSA 273-A

Collective bargaining is democracy in the workplace, and secret ballot votes determine whether employees will be represented for purposes of collective bargaining. Under the Act, the PELRB must certify an employee organization as the exclusive representative of a bargaining unit, and the PELRB may not do so unless a representation election is held pursuant to RSA 273-A:10, V.19  The procedure is summarized as follows.

First, a petition is filed by employees seeking an election. Under PERLB rules, the petitioning employees should try to reach agreement with the public employer on the make-up of the bargaining unit. Second, a hearing is held to determine what is the appropriate bargaining unit and which employees are eligible to vote in the secret ballot election. Third, an election is held among those employees in the appropriate bargaining unit. Fourth, if a majority vote is for the union, the union is certified as the exclusive representative unless there are challenges to the conduct of the election. And fifth, an order is issued certifying the union and requiring the employer to bargain.

      A.   The Representation Petition

A representation election is held when a group of at least thirty percent of the employees files a petition for election with the PELRB.20  In most instances, the Board will then schedule a hearing to determine the appropriate bargaining unit. However, elections are barred if there is an existing collective bargaining agreement, RSA 273-A:11, I (b), or if an election has been conducted within the preceding year. RSA 273-A:10, III. Where there is no certified representative, petitions for certification may be filed at any time.21

Public employers may also file petitions with the Board when they have a good faith doubt about the majority status of the union.22  These limitations preserve administrative resources and minimize the disruption in the workplace caused by elections.23   An employer’s agreement on election procedures and bargaining units is binding.24

      B.   The Appropriate Bargaining Unit

What is “appropriate” can be hotly contested. The inquiry is fact-specific and no one factor is necessarily determinative.25  Disputes generate numerous appeals. Public employers vigorously “protect” employees they believe to be confidential or supervisory. Unions often want the same employees in the bargaining unit, if for no other reason than to reach the 10 employee minimum. Other issues arise where the employees organized a union prior to RSA 273-A, because such units are “grandfathered” and may be at odds with later decisions on appropriate bargaining units.26 

1.   “Community of Interest”

The first issue in determining an appropriate bargaining unit is whether “there exists a community of interest in working conditions such that it is reasonable for the employees to negotiate jointly.”27  In determining community of interest, factors such as skills, duties, working conditions, benefits, the organizational structure of the employer and the extent to which work is integrated are considered.28  Additionally, the Board considers the geographic location of the work, common work rules and common salary structures, the self-felt community of interest, and the potential for division of loyalties within the proposed bargaining unit.29  Exclusions are required for employees of limited tenure, such as those in a probationary or temporary status, those employed seasonally, or those on on-call status.30  The Court has more often than not deferred to the PELRB’s application of the community of interest factors.31 

2.   The ten employee minimum

Public employers can avoid bargaining altogether if there are fewer than ten employees in an “appropriate” bargaining unit. RSA 273-A:8 (d). In an early case, the town lost its argument that probationary employees should not be counted towards the minimum ten employees before the PELRB. The Supreme Court reversed, but the legislature amended the statute to conform to the original PELRB ruling. Ultimately, the town had to bargain with its police officers.32  The ten employee question continues to be litigated.33  There is inevitably a tension between the small numbers of employees in rural towns and the risk of small, overly fragmented bargaining units.34

3.   Confidential employees

RSA 273-A:1, IX(c) excludes persons “whose duties imply a confidential relationship to the public employer” from the definition of public employee, making a confidential employee ineligible to be a member of the bargaining unit. The PELRB limited that to “persons who formulate, determine and effectuate management policies in the field of labor relations;”35 or “one whose functional responsibilities or knowledge in connection with the issues involved in the collective negotiating process would make her membership in the employee organization incompatible with her official duties.”36 

The Court and the PELRB do not always agree. In Appeal of City of Laconia, 135 N.H. 421 (1992), the Court reversed the PELRB, holding that the city personnel director’s administrative secretary was a confidential employee. The administrative secretary was privy to the personnel director’s thoughts about collective bargaining, and it would be unreasonable, said the Court to require the personnel director to keep secrets from his secretary.

4.   Professional and supervisory employees

Bargaining units that include professional and supervisory employees have statutory limitations:  professional employees may vote to have a bargaining unit separate from non-professional employees;37 and supervisory employees must have a separate bargaining unit.38  Disputes over professional status are rare, but disputes over supervisory status are common.

In deciding who is a supervisor, the PELRB and the Court look to an employee’s authority to evaluate other employees, the extent of their supervisory role, and their disciplinary authority. In Appeal of the University System of New Hampshire, 131 N.H. 368, 376 (1988), the Court reversed the PELRB, because the Court found the university’s police lieutenants evaluated patrolmen—the employees—and responsibly assigned and disciplined the patrolmen. These three factors combined meant that the officers were in fact supervisors and therefore should not be in the same bargaining unit with the other police officers.39 

      C.   The Representation Election

When the PELRB orders an election, the employees in the proposed unit are given a ballot which contains a space to vote for the union(s) and a space for “no representative.”40  The union which receives a simple majority of the votes cast will be certified by the board as the exclusive representative of the bargaining unit.41  If more than one union is on the ballot, and a simple majority is not reached, a run-off election will be conducted between the two options receiving the most votes.42  Challenges to the conduct of the election and unfair labor practices based on improper pre-election conduct by either the employer or the union may be filed, and a hearing will be held by the PERLB.43

D.   Exclusive Representation and Accompanying Rights

Certification by the PELRB gives unions significant rights. The exclusive representative of a bargaining unit has the right to represent all employees in collective bargaining negotiations and in the settlement of grievances, regardless of whether those employees are dues paying members of the union.44  No others may speak on behalf of the employees.45  Certification also gives the union the right to represent the bargaining unit without challenge during the full term of a collective bargaining agreement.46  A union’s change in affiliation need not trigger a PELRB-conducted representation election.47

In short, certification means that the public employer must deal with that union on matters of wages, hours and other terms and conditions of employment—the mandatory subjects of bargaining—and that the public employer cannot deal with other representatives or deal directly with individual employees.

      E.   Post-election Changes In Bargaining Units

The appropriate bargaining unit is the bargaining unit described at the time the original unit was certified by the Board and any subsequent modifications approved by the Board.48  Thus the Court has held that the PELRB has the sole authority to modify a certified bargaining unit. Therefore, neither an employer nor a union has the unilateral power to modify scope of a bargaining unit.49 The Board’s rules set procedures for modifying bargaining units.50

     

V.   Unfair Labor Practices and the Duty to Bargain in Good Faith          

A.   The Protection of Individual Rights and Unfair Labor Practices, Generally

First, a brief introductory note. A public employer may not interfere with or discriminate against employees on the basis of their organizing activities, and may not retaliate against employees for filing charges or otherwise participating in PELRB proceedings. RSA 273-A:5, I (a), (c), (d). Before certification of a union, RSA 273-A:5 I(a), states that employees have the right to self-organization, generally understood to mean forming, joining, or assisting a labor organization, and engaging in other concerted activities for mutual aid and protection.51  Thus, the right to organize exists even if there is no union. RSA 273-A:5, I(c), protects employees against anti-union discrimination, although proving discrimination can be difficult.52  Those rights are protected even if an employee is probationary.53 

Second, there are union unfair labor practice provisions that parallel the employer unfair labor practice provisions. Compare RSA 273-A:5, I and II. Union unfair labor practice cases are typically:  (i)  strikes and other unlawful job actions, (ii)  union demands for arbitration that the public employer contests, and (iii)  duty of fair representation cases. Strikes are illegal in New Hampshire, and the Supreme Court has applied that prohibition broadly to encompass not only strikes but also lesser job actions, such as “blue flu” and “work to rule.”54 Refusals to arbitrate are so frequent that they are discussed separately below. Duty of fair representation cases—that is, cases where an employee complains of unfair treatment by the union—have been decided by the PELRB, but the only Supreme Court “duty of fair representation” decision pre-dates the passage of RSA 273-A.55 

Third, unfair labor practice charges must be filed within six months of when one knows or reasonably should know of the unlawful conduct. Exactly when that might be is not always certain. For example, a public employer who refuses to provide requested information may toll the running of the six months, and time periods can get confused when both arbitrators and the PELRB have jurisdication over a dispute.56  Once a charge has been filed, the PELRB will schedule a pre-hearing conference and a hearing, following its procedures.57

      B.   Good Faith, Generally

The law requires the employer and the union to bargain in good faith for the purpose of reaching a collective bargaining agreement that sets working conditions:

“Good faith” negotiation involves meeting at reasonable times and places in an effort to reach agreement on the terms of employment, and to cooperate in mediation and fact-finding required by this chapter. . . .

RSA 273-A:3, I. The law does not compel either party to agree to a proposal or make a concession.58 

Typically a union begins bargaining by giving the public employer notice of intent to bargain; bargaining ends with the public employer’s submission of “cost items” to the legislative body and a favorable vote on those “cost items.”59  Negotiations are not open to the public unless both the union and the employer agree to public bargaining.60  “Reasonable times” for bargaining includes meeting during working hours. RSA 273-A:11, II.

“Good faith” is a term of art. Subjective good intentions are not a defense. Certain actions are per se violations of the duty to bargain in good faith.

1.       Direct dealings with employees prohibited

First, the employer must deal with the union, and not with individual employees. In Appeal of Franklin Education Association, 136 N.H. 332, 335 (1992), the Court stated that “the school board must not only negotiate with the association’s exclusive representative, but also must refrain from negotiating with anyone other than the exclusive representative.”  Similarly, in Appeal of White Mountain Regional School Board, 125 N.H. 790 (1984), the Court found that a meeting between the school administration and cooks threatened with layoffs was no substitute for bargaining with the union.

The same is true in disciplinary matters. Employees are entitled to union representation upon request in investigatory interviews which the employee reasonably believes could result in disciplinary action. This is the Weingarten rule.61  The PELRB has followed that rule in a number of cases. The New Hampshire Supreme Court has yet to rule on that issue.

2.       Unilateral changes in mandatory subjects of bargaining

As stated previously, the goal of the Act is for employers and employees to bargain in good faith to reach a bilateral agreement. Consequently, employers are prohibited from making unilateral changes on mandatory subjects of collective bargaining. As the Court in Appeal of Alton said, “a public employer’s unilateral change in a term or condition of employment is tantamount to a refusal to negotiate that term and destroys the level playing field necessary for productive and fair labor negotiations.”62  In Appeal of Watson, 122 N.H. 664 (1982), the Court held that even when a term of employment has been set by some practice or agreement independent of the collective bargaining agreement, an employer may not change that term unilaterally without bargaining about the change. The employer must restore the prior working conditions and then bargain to remedy the unlawful conduct.63   

3.   Subcontracting during the term of a contract

Public employers often believe, sometimes mistakenly, that money can be saved by subcontracting for work done by its employees. In Appeal of Hillsborough-Deering School District, 144 N.H. 27 (1999), the Court condemned subcontracting, holding that the school district could not lawfully terminate bargaining unit employees during the term of the collective bargaining agreement and subcontract with private companies to perform their work. The same result was reached in Appeal of City of Nashua Board of Education, 141 N.H. 768 (1997), where the school board laid off custodial and maintenance staff who were members of a bargaining unit, at the same time hiring part-time personnel to replace the laid-off employees. In the Court’s view, that amounted to a unilateral reduction in the wages paid, and that was unlawful.

C.      Mandatory Subjects of Bargaining

The Act states that employers and employees must bargain over the terms and conditions of employment, which means wages, hours, and other conditions of employment that do not fall under the managerial policy or merit system exceptions.64  Managerial policy includes, but is not limited to, the functions, programs and methods of the public employer including the use of technology, organizational structure, and the selection, direction, and number of personnel.

All aspects of wages, hours and terms and conditions of employment have a “match” somewhere in “managerial prerogatives.”  For example, the amount paid in wages limits an employers ability to hire new employees and may require layoffs if revenues fall short of expectations.65  “Hours,” and by extension the number of days an employee works, are generally considered mandatory subjects of bargaining.66 The school calendar, on the other hand, is generally considered managerial prerogative. The former gets bargained, the latter does not, and fights arise over what falls in between, such as changes to the calendar because of snow days.67 

For nearly twenty years, the Court grappled with defining mandatory subjects of bargaining. In SEA v. PELRB, 118 N.H. 466 (1978), the Court held that the managerial policy exception should be interpreted broadly, but that only managerial policy within the sole prerogative of the employer is excluded from negotiation. In Appeal of Keene State College Education Association, 120 N.H. 32 (1980), the Court recognized the managerial prerogative of the public employer to control its organizational structure, but cautioned that the managerial policy exception could not be used as a pretext to hide violations of unfair labor practices. In Appeal of Berlin Education Association, 125 N.H. 779 (1984), the Court held that wages for extracurricular activities were a mandatory subject of bargaining, but that the decision whether to offer extracurricular activities was within management’s prerogative. In Appeal of Pelham, 124 N.H. 132 (1984), the Court held grievances regarding the dismissal of employees were a mandatory subject of bargaining.

The Court’s ad hoc approach to determining mandatory subjects of bargaining was dramatically altered with the 1994 decision Appeal of State.68  In Appeal of State, the Court reviewed bargaining proposals on promotions, layoffs, and discharges. The State had refused to bargain any part of the union’s proposals, the union filed unfair labor practice charges, and the PELRB held that the proposals were mandatory subjects of bargaining. The Court thought otherwise and reversed the PELRB.

Appeal of State created a three-part test. First, to be negotiable, “the subject matter of the proposed contract provision must not be reserved to the exclusive managerial authority of the public employer by the constitution or by statute or regulation.”  Second, the proposal must “primarily affect the terms and conditions of employment, rather than matters of broad managerial policy.”  Third, if the proposal were “incorporated into a negotiated agreement, neither the resulting contract provision nor the applicable grievance process may interfere with the public control of governmental functions contrary to the provisions of RSA 273-A:1, XI.”   The Court noted that a proposal which fails to satisfy the first step is a prohibited subject of bargaining. A proposal that satisfies step one, but fails either step two or three is a permissive subject of bargaining, and a proposal that satisfies all three steps is a mandatory subject of bargaining.69

Public employers read Appeal of State broadly to exclude bargaining on promotions, layoffs, discharges, and arbitration of those subjects. For some public employers, Appeal of State slammed the door on union efforts to negotiate those matters. That door was cracked open a little in Appeal of City of Concord,70 which required parties to negotiate standards of disciplinary action. And the Court has rejected other expansive Appeal of State arguments in subcontracting cases in Nashua and Hillsborough-Deering.71 The question is sure to be raised again. The issues are too important for unions to give up on them.

Legislative history, discussed below, suggests that the law was intended to put subjects of bargaining on the table, but not require any agreement, on the view that required discussion of such matters was good public policy. As the Supreme Court said in 1974, “the essence of the collective bargaining process is that the employer and the employees should work together in resolving problems relating to employment.”72 

      D.   Impasses in Contract Negotiations

A bargaining impasse means that the parties have exhausted, at least for the time being, all avenues of bargaining. Under RSA 273-A:12, mediation and fact finding are required. Both have detailed time periods. The time periods are tied to “budget submission dates,”  RSA 273-A:1, III, and those time periods depend upon whether the public employer is a city or town, and whether it has adopted Senate Bill 2.73 

Fact finding has been the most disputed. In Appeal of Derry Education Association, 138 N.H. 69 (1993), the Court held that RSA 273-A:12  required that the fact finder’s report be submitted in its entirety to the legislative body for review, but that the legislative body could not bind the parties by a vote on non-cost items. In Appeal of Interlakes School Dist. 147 N.H. 28 (2001), the Court concluded that the entire report must be voted up or down as a single question.

      E.   “Cost Items” and Funding Contracts

The Court has zealously guarded the voters’ prerogative to approve cost items in contracts. Therefore, the legislative body of a public employer is bound by a multi-year contract only if it knew about the cost items for each year of the collective bargaining agreement at the time it voted to appropriate money for the contract’s first year. In Appeal of Sanborn Reg. School Dist., 133 N.H. 513, 521 (1990), the Court noted that voters should not have to “buy a pig in a poke.”  This process of sufficiently informing the legislative body of the economic consequences for each year of the agreement is often referred to as being “Sanbornizing.”  Whether an agreement has been “Sanbornized” or not gets close attention.74

Cost items, and only cost items, are submitted to the legislative body for approval.75  Once cost items have been approved, the contract is binding on successors.76  Budget committees cannot amend cost items, and town and school district meetings may reconvene from time to time as necessary to vote on cost items.77

      F.   The Status Quo Doctrine

Often “cost items” are not approved by legislative bodies. While the parties re-enter bargaining, the public employer must maintain the status quo.78  In practical terms, the expired collective bargaining agreement continues in effect and the conditions under which the employees worked endure throughout the collective bargaining process.79                                               Step increases and health insurance have gotten the most attention under the status quo doctrine, because of their impact on spending and bargaining. Step increases are the new rates of pay employees covered by a salary schedule get for an additional year’s experience; public employees in New Hampshire do not get step increases during a bargaining impasse.80  On the other hand, public employers generally must pay for increases in health insurance premiums during a bargaining impasse.81

Some collective bargaining agreements contain an automatic renewal, or “evergreen” clause. An automatic renewal clause is a cost item itself, and therefore is not legally effective unless it has been ratified by the legislative body.82 During negotiations for a new agreement, and in the absence of a binding automatic renewal clause, a collective bargaining agreement ends on its termination date.83 

      G.   Other Unfair Labor Practices

Although particular unfair labor practices are spelled out in some detail, the words used in others are broad enough to cover many circumstances. Public employers and unions are prohibited from restraining, coercing, or interfering with rights. They may not retaliate against anyone for speaking out or testifying about union matters. These and the other enumerated unfair labor practices are broad proscriptions.

      1.   Unfairness, generally

The Court has been quick to affirm that RSA 273-A:5 does not prohibit every act by a public employer that might seem “unfair.”  Instead, the law proscribes only certain enumerated “unfair labor practices.”84  Thus in cases alleging discrimination on the basis of union activities, the union must prove some degree of anti-union animus on the part of the employer.85 

 

      2.   “Free speech” issues

“Free speech” issues arise in several contexts. One context is bargaining, when a public employer wants to make its stance known directly to employees, presumably on the view that the union is not doing a good enough job of telling employees where the employer stands. Such issues can also arise during the term of a contract and in the context of union organizing.

“Free speech” issues in the public sector are complicated by the fact that the speakers are elected officials and public employees. The Court has addressed these issues in several cases.86

      3.   Strikes and other “job actions”

RSA 273-A codified the common law rule that strikes by public employees are illegal.87

Thus, engaging in a strike or other job action is an unfair labor practice, RSA 273-A:5, II(e), giving the PELRB jurisdiction. Unions also are subject to Superior Court jurisdiction under RSA 273-A:13, which also makes strikes and other forms of job action by public employees unlawful.88 

VI.  Enforcing the Contracts: Grievance Arbitration, the Board and the Courts

      A.   The Collective Bargaining Agreement

A collective bargaining agreement must have a “workable” grievance procedure. Most collective bargaining agreements contain express provision for the resolution of contract disputes not through a lawsuit, but through internal grievance procedures. Complaints, called grievances, are typically brought by the union or an individual employee, called the grievant. Typically, that means a multi-step grievance process that ends with a binding decision from a neutral arbitrator, but each contract needs to be looked at closely, for each is different. Binding arbitration is not mandated as part of a “workable” grievance procedure.89  Contracts may also limit who can file grievances.90

B.   Grievance Arbitration and Alternative Dispute Resolution

The Court has held that grievance procedures must be strictly followed.91  This means that time limits appeal procedures in the grievance procedure must be followed. Generally speaking, “he who snoozes loses.”

Binding arbitration is not always the final step of the grievance procedure. Some contracts make the PELRB the final step of the grievance procedure. As discussed below, the PELRB has jurisdiction over breaches of collective bargaining agreements under RSA 273-A:5, I(g), and the PERLB has made the final decision in grievances left unresolved by the parties’ grievance procedure.92  Such charges, like other charges, must be filed within six months.93

Other contracts make Superior Court the final step of the grievance procedure. RSA 273-A:15 gives the Superior Courts jurisdiction over disputes between unions and public employers. And at least one contract gives the union the right to a resolution in three forums—arbitration, the PERLB and Superior Court—raising a question about the role of the PELRB in maintaining lists of neutrals.94 Still other contracts have advisory arbitration, which gives the employer the power to decide whether to abide by an arbitrator's advice.

      C.   Arbitrability Disputes

The Supreme Court has laid out four guiding arbitration principles in disputes over whether a grievance should go to arbitration, also referred to as “arbitrability” disputes. These principles are that (i) arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit; (ii) unless the parties clearly state otherwise, the question of whether the parties agreed to arbitrate is to be decided by the PELRB or a court, not the arbitrator; (iii) neither the PELRB nor a court should rule on the merits of the parties’ underlying claims when deciding whether they agreed to arbitrate, because the parties bargained for the arbitrator’s ruling, not a court’s; and (iv) when a collective bargaining agreement contains an arbitration clause, a grievance should be submitted to an arbitrator unless it can be said with “positive assurance” that the claim is excluded from arbitration, and only the most forceful evidence of an intent to exclude the claim from arbitration can prevail.95 

How “much” interpretation is required to determine whether the parties have agreed to arbitrate a particular matter is a matter of some debate.96  In one case, In re Lincoln Woodstock,97 the Court found that the non-renewal of a teacher was “disciplinary” and thus covered by a “just cause” collective bargaining agreement. In another, the Court concluded that the matter could not be arbitrable, because the word “work” could not mean union time spent processing grievances.98  In the former, the Court left the final interpretation open to an arbitrator. In the latter, the Court decided the case, and arguably overstepped the line set in the Steelworkers Trilogy, the United States Supreme Court's arbitration rulings.

The arbitrator deciding the merits of the dispute considers not only words of the contract, but practices of the parties to the contract. As the late Chief Justice Kenison said in an opinion that anticipated the Steelworkers Trilogy, it is “difficult, if not impossible, to try in advance to tie square knots for all the bundles of rights and privileges of both labor and management that are collected in the collective bargaining package.”99 

Deferral to arbitration when both a grievance and an unfair labor practice charge have been filed is discussed below, along with more general concerns about the sheer number of arbitrability disputes.

      D.   Concurrent Jurisdiction

There are a number of areas where the PELRB and the Superior Courts have concurrent jurisdiction. That is true for strikes under RSA 273-A:13 and true for other disputes under RSA 273-A:15. The Supreme Court has expressed a general preference for parties exhausting administrative remedies before the PELRB, stating that the PERLB’s “primary jurisdiction” over unfair labor practice charges “requires judicial abstention.”100  However, in some cases, the Court has not interfered with Superior Court jurisdiction.101 

V.   What’s Next?

A.   PELRB Deferral and Arbitrability

      1.   PELRB Deferral to arbitration

Recently the Court decided Appeal of City of Manchester (“Desilets”), ___ N.H. ___  (No. 2005-264, February 24, 2006). Desilets raised at least three significant and interrelated issues before the PELRB:  (1) what is the relationship between a grievance filed on behalf of an employee and parallel unfair labor practice charges filed by that employee alleging breach of a collective bargaining agreement; (2) whether an employee in a disciplinary interview is entitled to union representation; and (3) what role does the employee’s “duty of fair representation” charges against his union play in these disputes. These three issues got varied treatment by the PELRB and, on appeal, the Court.

First, the PELRB’s Hearing Officer decided that the PELRB should not defer to arbitration. One reason for not deferring to arbitration was the denial of union representation. The PELRB concluded, as it has in a number of cases, that employees are entitled to union representation in disciplinary interviews. This is the familiar Weingarten rule.102  Both before the NLRB and before the PELRB, the right to union representation and the remedy for a denial of union representation, has gotten much attention, some of it mixed. the Hearing Officer for the PELRB overturned the employee’s discipline based on the denial of union representation.

The PELRB’s refusal to defer to arbitration was also based on the employee’s “duty of fair representation” charges against his union. Duty of fair representation charges arise when an employee alleges that the union has unfairly refused to represent him. The PELRB concluded that a union which allegedly breached its duty of fair representation by refusing to represent an employee, because he was not a member of the union, was not the right party to represent the non-member in grievances and arbitration. The employee had offered to join and pay dues, and the union had refused to take those dues. The PELRB’s point has merit.

Accordingly, the PELRB did not defer to arbitration, and overturned disciplinary action based on the investigatory interviews conducted in violation of Weingarten rights. In doing so, the PELRB cited a long line of its own Weingarten decisions, including Weingarten decisions involving the Manchester Police Department, the employer in Desilets.

The Supreme Court reversed. The Court looked to another long line of cases, those “arbitrability” cases deciding whether a dispute ought to be submitted to arbitration. Citing its more recent arbitrability decisions, the Court concluded that (1) the unfair labor practice charge and the grievance were in substance the same; and (2) that in such circumstances, the PELRB's role is limited to deciding whether the matter should be submitted to arbitration. Therefore, the Court concluded, the PELRB erred by deciding the merits of the grievance. The Court declined to rule on the question of Weingarten rights.

The Court and the PELRB need to find a common set of usages for discussing the relationship between grievance-arbitration procedures on the one hand and unfair labor practice procedures on the other. The Court and the PELRB work at cross-purposes. For example, the arbitrability rulings relied on by the Court arise in the context of public employers refusing to go to arbitration. Arbitrability disputes, by definition, involve a public employer’s refusal to go to arbitration. The policy issues there are not complex, and the question—as the Court has said in a number of cases—is whether it can be said with “positive assurance” that the grievance is excluded from arbitration. Appeal of Westmoreland School District, 132 N.H. 103 (1989).

But the policy issues are very different in Desilets.. The employer does not want to avoid arbitration as it would in an arbitrability dispute. Instead, the employer wants to go to arbitration. The employer seeks arbitration, because the employer presumably expects that the PELRB will again rule against it on Weingarten. The PELRB has in past decisions held that the Manchester Police Department violated Weingarten. The employer seeks a more favorable forum.

The union in Desilets is not in a position to make the counter-argument, because the union is here—like the employer—charged with an unfair labor practice. Hence the union must defend itself,  and is unable to argue forcefully on behalf of an employee, because the employee has filed charges against the union. The complications do not end there.

The employee, fearing discipline, offered to join the union. The union refused. Instead, the union told the employee it would not represent him, because he was not a member, and told the employer the same thing. The employer, hearing that, gave the employee fifteen minutes to get a union representative. Otherwise, said the employer, the disciplinary interview will go forward without a union representative. And later, the union told the employee it would not help him file a grievance over his firing.

The union was probably well advised not to appeal from the findings of violations of the duty of fair representation. But should the Court, in that context, conclude that the employee, “by initiating the just cause grievance . . . indicated his intent to be bound by the terms of the [collective bargaining agreement] including union representation during the arbitration process.”103  One can understand the Court’s decision to defer to arbitration without agreeing with the Court on this point.

Indeed, the PELRB’s Hearing Officer probably got it right when he concluded that a union accused of a breach of the duty of fair representation should not be counted on to carry a grievance to arbitration when that union refused in the first instance to file a grievance on behalf of the employee. A union in such circumstances may later be able to represent an employee, if adequate assurances of fair representation are made. But the NLRB is probably correct as a matter of policy in refusing to defer to arbitration in cases where legitimate duty of fair representation issues are raised.

The question of whether and when the PELRB should defer to arbitration needs more scrutiny. The PELRB holds that it will decide these issues on “a case by case basis.”  As is well understood by all parties before the PELRB, choosing a forum can be outcome determinative. Hence neutral principles for making such forum-choosing decisions are needed.

Deciding what neutral principles should apply to deferral to arbitration is not an easy question. The NLRB has adopted not one but three tests for deferral to arbitration. Its tests depend on where the grievance is at the time the unfair labor practice charges are filed.

  • If no grievance has been filed, the NLRB will decide whether to defer to arbitration based on whether a resolution of disputed contract language is necessary to resolve the unfair labor practice charge. If the answer to that question is “yes,” then the NLRB will order the parties to go to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971).
  • If a grievance has been filed, but no arbitration award has yet been issued, then the NLRB will defer to the grievance arbitration process under Dubo Mfg. Corp. 142 NLRB 431 (1963), on the view that the parties are entitled to the forum chosen. This is basically what the Court did in Desilets.
  • If an arbitration award has been issued, then the NLRB will review that award to see whether it is repugnant to the National Labor Relations Act under Spielberg Mfg.Co., 112 NLRB 1080 (1955). Parties can ask the NLRB for Spielberg review following deferral to arbitration under either Collyer or Dubo.

There is no “magic” to Collyer, Dubo and Spielberg. But some common usage needs to be reached between the PELRB and the Court.

Otherwise, parties will continue to take inconsistent positions on questions of arbitrability and of deferral to arbitration before the PELRB. Those questions are different and ought to have different answers, depending upon the context. Those same parties, when dissatisfied with PELRB “case by case” rulings, will ask the Court to sort out issues that are not necessarily familiar to the Court and are not necessarily easily answered. In Desilets, the Court used a wrench to pound a nail. It may work, but sometimes both the wrench and the nail are ill-used in the process. Even if one disagrees with NLRB deferral policies, one can hope the PELRB and the Court will find some common ground.

2.   Arbitrability

The other major area of contention regarding arbitration is arbitrability. The Board relying on the “positive assurance” test tends to send disputes to arbitrators. The Court relying on its inherent power to say what a contract means tends to overrule the Board. This has happened with such frequency that public employers routinely appeal from PELRB decisions finding a grievance dispute arbitrable. Such decisions number fifteen or twenty, depending on how you count them.104  That  public employers in New Hampshire resist arbitration at the same time private sector employers nationwide—both union and non-union—increasingly use arbitration is hard to understand.105

Chief Justice Kenison ought, in this writer’s view, be heeded:  “While the scope of an arbitration clause in a collective bargaining agreement presented a question of law for the court, we must not lose sight of the principle that not all contracts are the same and each must be interpreted in light of its purpose and policy.”106  Thus,

The scope of interpretation necessary for a contract to purchase a horse or sell an automobile would be more confined than that of a collective bargaining agreement which involves multiple transactions, many people, and many problems under a continuing arrangement for arbitration and which inevitably will give rise to some unforeseen disputes that must be resolved with the general framework of the basic agreement.107

As a matter of simple judicial economy, the Court might well consider letting arbitrators do what they do best—”weed out” frivolous claims and put the parties’ dispute in the context of the parties’ bargaining relationship. Parties are litigating these disputes anyway, and giving them the “benefit of the bargain”—that is, the opinion of an arbitrator—is consistent with the letter of the parties’ agreements. If the arbitrator errs, review is available.108

      B.   Revisiting Appeal of State

The Court revisits Appeal of State often for the simple reason that the Court’s opinion gives public employers a platform for arguing that “management rights” should prevail over the duty to bargain. Public employers tend to read Appeal of State so broadly that it threatens to make bargaining permissive, not mandatory. The subcontracting decisions Hillsboro-Deering and Nashua illustrate such managerial policy arguments.109  The Court’s response has been to treat core matters of collective bargaining—”just cause,” seniority-based layoffs, and binding arbitration—as “permissive” or “procedural” subjects of bargaining. That does not work, and the legislature knew it when it passed RSA 273-A.

The legislature rejected the notion that “permissive” subjects of bargaining would solve the problems the legislature faced with strikes and collective bargaining in 1975. The legislature also discarded a “procedural” definition for mandatory subjects of bargaining. By 1975, New Hampshire had had twenty years of “permissive”  and “procedural” bargaining, and it changed the rules with the new bargaining law.

The legislature specifically abandoned “permissive” bargaining when it enacted RSA 273-A. The Senate deleted language that would have permitted the parties themselves to agree on subjects of bargaining:

the words as the parties may mutually agree upon” were stricken because in effect what that would do would say that if nobody agreed to discuss anything there wouldn’t be any negotiations.

1975 S. Journal at 966 (May 29, 1975) (emphasis added). “Therefore it [RSA 273-A] makes it so that it will be mandatory to have negotiations on the subjects which are subject to negotiation.” 1975 S. Journal at 966 (May 29, 1975).

Neither party to bargaining should be able to dictate what the subjects of bargaining will be, but that is often the case following Appeal of State. When unions raise “just cause” or layoffs at the bargaining table, the management representatives simply reply, “Appeal of State” without elaboration. That is short-hand for a refusal by a public employer to bargain “just cause” or seniority or binding arbitration. That is not what the legislature intended.

The legislature also rejected a “procedural” standard for deciding what subjects are mandatory subjects of bargaining. House Bill 516 initially defined as mandatory subjects of bargaining:

salaries, wages and other direct economic benefits, grievance procedures and such other procedures to be followed in dealing with the employment of public  employees . . . .

1975 H. Journal at 976 (May 29, 1975) (emphasis added). The predecessor to RSA 273-A for state employees made “procedures” mandatory subjects of bargaining. Procedures were to be bargained for the adjustment of grievances, for establishing arbitration, for dealing with personnel policies, and for settling disputes over the negotiation of new contracts.110  The legislature did not re-adopt those procedural provisions when it enacted RSA 273-A.     

Appeal of State seemingly resurrects the rejected “procedural” standard for mandatory bargaining in the following statement:

In general, although not always, proposals that provide procedures  for implementing the public employer’s policy will satisfy steps two and three, while those that propose to establish policy, standards  or criteria for decision-making will not pass either step.111

The Court later noted in Appeal of State that procedural protections alone are “meaningless” without substantive protections.112  But that really is the crux of the matter. When negotiators for public employers say, “Appeal of State,” and refuse to elaborate, they in fact refuse to bargain.

Issues like seniority and just cause are not just “procedures;” they go to the core of what unions bargain.113  Flat employer refusals to bargain do not do justice to public employees seeking meaningful protection from sometimes arbitrary actions by public employers. The Senate was right:  “if nobody agreed to discuss anything there wouldn’t be any negotiations.”  1975 S. Journal at 966 (May 29, 1975) (emphasis added).

The legislature did not balk at the prospect that binding arbitration procedures would be used to settle grievances over disputes like these.114 In fact, the legislature repealed a law that prohibited binding arbitration for state employees when it adopted RSA 273-A.115  The initial House bill required binding arbitration for grievances. 1975 H. Journal at 669 (April 30, 1975). That was also deleted from the final bill, leaving it up to the parties to decide whether to agree to binding arbitration. That accords with the Court’s decision in Appeal of Campton School Dist., 138 N.H. 267 (1994), holding that binding arbitration is not required by RSA 273-A:4.

But that is a long ways from what management bargainers now say, that Appeal of State means they do not have to bargain binding arbitration. And it is a far cry from the long line of cases addressing arbitrability issues with no hint that binding arbitration was not a mandatory subject of bargaining.116  The Court made that quite clear in Appeal of Town of Pelham, 124 N.H. 131, 136-67 (1983):

The legislative history of RSA chapter 273-A indicates that the hiring, firing, demotion and promotion of an employee is within the scope of bargaining under the grievance clause. The legislative history provides in part:

“Sen. BRADLEY: Regarding the scope of bargaining, I see that this has been broadened to include terms and conditions of employment. That is potentially a very broad term. As I understand it, there is also a very broad general exception to exclude from terms and conditions so-called management rights, managerial policy. What I am interested in doing is flushing out if we can for the legislative history a little more concretely what is being reserved to managerial policy and management rights. I understand that the scope of bargaining in this will, for example, not include the hiring, the firing, the demotion, the promotion of employees?

Sen. JACOBSON: No, that is managerial policy, except under the grievance procedure a person may lodge a grievance. For example, if a person is to be dismissed for some reason, he may lodge a grievance, and that may be heard.

Sen. BRADLEY: Perhaps I already covered this when I said hire, fire, demote, promote, but it is clear isn’t it that the scope of bargaining would not extend to the dismissal of a public employee?

Sen. JACOBSON: It would not, except under the terms of the grievance procedure.”

N.H.S. JOUR. 1108—09 (1975) (emphasis added).

Id. This is sharply at odds with how public employers view Appeal of State.117

This history should be compelling. Prior to 1975, municipal and school employees enjoyed access to binding arbitration for disputes over grievances. Tremblay v. Berlin Police Union, 108 N.H. 416, 420-21(1968). In Tremblay the Court approved of binding arbitration for breach of work rules, seniority-based layoff, recall and assignment language in the police contract in Berlin.

The Court’s decisions since the enactment of RSA 273-A were not different, until Appeal of State. The Court had held expressly and by implication that just cause job protections and seniority-based layoff and recall were mandatory subjects for bargaining.118  Both the legislature and the Court had told employees to bargain over job protections and layoffs. Such matters should continue to be mandatory subjects of bargaining. Otherwise, the risk is too great that a public employer will simply refuse to bargain over those “permissive” matters

The duty to bargain in good faith is not onerous. It is not the same as the duty to agree to anything, either under RSA 273-A or under any of its counterparts in the public sector or the private sector. The rule is the same: “the obligation to negotiate in good faith shall not compel either party to agree to a proposal or to make a concession.” RSA 273-A: 3, I. Bargaining over matters relating to employment is mandatory, but agreement is not.

The duty to bargain in good faith is “at the core” of the collective bargaining process. Rochester School Board v.PELRB,119 N.H. 45, 51 (1975). When an employer can take items off the bargaining table, that frustrates bargaining just as much as walking away from the bargaining table altogether. Thus the legislature did not favor permissive subjects of bargaining or procedures as a means to resolving labor disputes. Neither should the Court. The Court should revisit Appeal of State.

Endnotes

1.   N.H. Rev. Stat. Chap. 273-A (1975).

2.   See, e.g., AFSCME v.Keene, 108 N.H. 68 (1967)(city council decides whether to bargain, and city may lawfully fire union organizer); AFSCME Loc. 572 v. Dover, 115 N.H. 491 (1975); Manchester v. Teachers Guild, 100 N.H. 507, 511 (1957).

3.   Id.  See also Manchester Educ. Ass’n v. Superior Court, 109 N.H. 513 (1969).

4.   See generally Timberlane Regional Education Association v. Timberlane Regional School District, 114 N.H. 245, 251 (1974); see also Timberlane Regional Education Association v. Crompton, 114 N.H. 315 (1974); and Timberlane Regional School District v. Farrelly, 114 N.H. 560 (1974).

5.   Id., 114 N.H. at 248-51.

6.   1975 Sen.J. at 1109 (June 17, 1975).

7.   “Statement of policy.”  1975, 490:1, eff. Dec. 21, 1975.

8.   Id.

9.   Id.

10. “Statement of policy,” supra.

11. RSA 273-A:6; RSA 273-A:8.

12.  In addition to the regular board members, the Governor appoints four alternative board members. Like the other board members, one alternative member must have experience representing organized labor, and one member must have experience representing management.  The two other alternate members represent the public at large.  All members serve six year terms and each member serves until his or her successor is appointed and qualified. Three members of the board constitute a quorum provided that no meeting shall be held unless organized labor, management, and the public at large are each represented by at least one board member; and in the absence of two regular board members representing organized labor, or two regular board members representing management, their respective alternates act in their place to constitute a quorum.   RSA 273-A:2.

13. Id.  Different Board member may decide the same case. Appeal of Alton Sch. Dist., 140 N.H. (1995).  See gen’ly Flygare and Reidy, A Survey of New Hampshire Municipal Labor Law, 34 N.H. Bar J. 60 (June 1993).

14. RSA 273-A:1, X.

15. RSA 273-A:1, IX(a) and (b); “Legislative body” means that governmental body having the power to appropriate public money.  The legislative body of the state university system shall be the board of trustees.  RSA 273-A:1, VII. The town clerk is not a “chief executive officer.” Appeal of Litchfield,  147 N.H. 415 (2002).

16. Appeal of Police Officers, 148 N.H. 194 (2002).

17.  RSA 273-A:1,X(c)(confidential).  Regarding temporary employees, see Appeal of Litchfield, 147 N.H. 415 (2002)(“on call” firefighters); Appeal of Stratham,  144 N.H. 429 (1999)(“on call” police); and Appeal of University System, 147 N.H. 626 (2002)(adjunct faculty).

18. Appeal of House Legislative Facilities Subcommittee, 141 N.H. 443 (1996).

19. Dept. of Rev. Admin. v. PELRB, 117 NH 976 (1977).  An exception is made for “grandfathered” bargaining units.  See n. 26, infra.

20.  The PELRB shall order an election if: (1) at least thirty percent of the employees in the bargaining unit seeking recognition allege that they wish to be represented by an employee organization as their exclusive representative; or (2) at least thirty percent of the employees in the bargaining unit assert that the employee organization which was certified by the PELRB is no longer representative of the majority of employees in the bargaining unit; or (3) the public employer alleges that one or more employee organizations has petitioned to be recognized as the exclusive representative of a majority of the employees in a bargaining unit.  RSA 273-A:10.

21. Appeal of Manchester, 149 N.H. 283 (2003).

22. Id.

23. Gorman, Robert A., Labor Law, Unionization and Collective Bargaining, West Publishing Co. St. Paul, MN, 1976, p. 52.

24. Appeal of SAU #21, 126 N.H. 95 (1985).

25. Appeal of Town of Stratham, 144 N.H. 429, 431 (1999). 

26. Laws 1977, 437:4, eff. Sept. 3, 1977.  SEA v. PELRB, 116 N.H. 653 (1976).

27. See Appeal of University System of New Hampshire, 131 N.H. 368 (1989).

28. Id.

29. PELRB Rules Pub. 302.02.

30. See n. 17, supra.

31. See e.g., University System of New Hampshire v. State of New Hampshire, 117 N.H. 96 (1977) (upholding the PELRB’s determination that librarians should be included in full-time academic faculty bargaining unit); Appeal of University System of New Hampshire, 120 N.H. 853 (1980) (upholding the PELRB’s decision that Physical Plant Operations and Maintenance Department (PPOMD) was an appropriate bargaining unit with its own budget, department newsletter, social events, uniforms, and “department espirit de corps”); Appeal of University System of New Hampshire, 131 N.H. 368 (1989) (upholding PELRB ruling that university firefighters had a separate community of interest).

32. Appeal of Town of Conway, 121 N.H. 372 (1981) (improper to count probationary employees for purposes of determining requisite number of employees for a bargaining unit); but see amended RSA 273-A:8, I stating “For purposes of this section, probationary employees shall be counted to satisfy the 10 employee minimum requirement.” 

33. Appeal of Litchfield, supra; Appeal of E. Derry Fire Precinct, 137 N.H. 607 (1993); Appeal of Plymouth, 125 N.H. 735 (1984).

34. See, e.g., Town of Bristol, PELRB Dec. No. 2003-034.

35. University System of New Hampshire v. State of New Hampshire, 117 N.H. 96, 101 (1977); Keene State College Education Association v. PELRB, 119 N.H. 1 (1979).

36. Dept. of Rev. Admin .v. PELRB, 117 N.H. 976 (1977);  Appeal of Newport, 140 N.H. 343 (1995).

37.  RSA 273-A:8, II.  Cf.  Appeal of Bow Sch. Dist. 134 N.H. 64 (1991)(school nurses are “professional” employees under RSA 273-A:1, VIII.

38. See 273-A:8, II and City of Concord v. Public Employee Labor Relations Board, 119 N.H. 725 (1979)(bargaining teams) and Appeal of Manchester Bd. of Sch. Committee,121 N.H. 151 (1987)(principals and teachers). 

39. See also Appeal of East Derry Fire Precinct, 137 N.H. 607 (1993).

40. RSA 273-A:10, III.

41. RSA 273-A:10, IV.

42. Id.

43. Rule Pub 303.11.  See also KSCEA v. PELRB, 119 N.H. 1 (1979)(final order appealable regarding challenged ballots).

44. RSA 273-A:11, I(a).  Unions may impose “fair share” or “agency fee” dues obligations on employees who do not join the union. Nashua Teachers Union v. Sch. Dist., 142 N.H. 683 (1998).

45. See, e.g., Appeal of White Mtns. Sch. Bd, 125 N.H. 790 (1985)(discussions with groups of employees are not a substitute for bargaining with the exclusive representative); see also Appeal of Franklin Educ. Ass’n, 136 N.H. 332 (1992).

46. RSA 273-A:11, I(b).

47. See PELRB Rule 301.04 and Appeal of Hinsdale Fed. of Teachers, 133 N.H. 272 (1990).

48. Appeal of Londonderry School District, 142 N.H. 677 (1998).

49. Id. 142 N.H. at 682.  Accord:  Appeal of Somersworth Sch. Dist., 142 N.H. 837 (1998); but see Appeal of City of Laconia, 150 N.H. 91 (2003)(laches).

50. Rule PUB 302.05.  Disputes over the application of this rule are not uncommon.

51. There are no decisions defining exactly what those rights are.  This description is drawn from Section 7 of the National Labor Relations Act, 29 U.S.C. §157.

52. See, e.g.,  Appeal of Sullivan Cty, 141 N.H. 82 (1996); Appeal of White Mtns. Educ. Ass’n, 125 N.H.771 (1984); Appeal of E. Derry Firefighters, 138 N.H. 142 (1993).

53. Appeal of Police Officers,148 N.H. 194 (2002).

54. See, e.g., City of Manchester v. Firefighters, 120 N.H. 230 (1989);

AFSCME v. Dover, 115 N.H. 491 (1975); Appeal of Hinsdale Fed’tn of Teachers, 138 N.H. 88 (1993).

55. O’Brien v. Curran, 106 N.H. 252 (1965); the Court has recognized a union’s duty to represent the entire bargaining unit, Nashua Teachers Union v. Nashua Sch. Dist., 142 N.H. 683, 688 (1998).

56.  Appeal of Lisbon Reg. Sch. Dist., 143 N.H. 390 (1999)(tolling of limitations period) and Appeal of Belknap Cty. Comm’rs, 146 N.H. 757 (2001)(six months begins when arbitrability is challenged, not when arbitration award issues).

57. PELRB Rule Pub 202.01 et seq.

58. RSA 273-A:3, I.

59. RSA 273-A:3, II(a), (b), & (c).

60. Appeal of Exeter, 126 N.H. 685 (1985).

61. NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). 

62. 140 N.H. 303, 307-308 (1995).

63.        SEA v. Prison Bd of Trustees, 118 NH 466 (1978)(status quo ante); Appeal of Pittsfield School Bd, 144 NH 536 (1999)

64. RSA 273-A:I, XI.

65. See, e.g., Appeal of International Association of Firefighters, 123 N.H. 404 (1983), (holding that the number of firefighters in a platoon was excluded from the public employer’s obligation to negotiate by the managerial policy exception). 

66. Appeal of Wt. Mtns. Sch. Bd., supra;  SEA v. Prison Trustees, supra.

67. See, e.g., Ass’n of Portsmouth Teachers v. Sch. Dist., 113 N.H. 659 (1973).

68. 138 N.H. 716 (1994).

69. Id. at 722-23; See also Appeal of City of Concord, 139 N.H. 277, 282-283 (1994).

70. 139 N.H. 277 (1994).

71. Appeal of Nashua Bd. of Educ., 141 N.H. 768 (1997) and Appeal of Hillsborough-Deering Sch. Dist. 144 N.H. 27 (1998).

72. Timberlane Regional Education Association v. Timberlane Regional School District, supra, 114 N.H. at 251.

73. RSA 40:12 et seq.  The detailed notice provisions for town and school district meetings are beyond the scope of this article.

74.  Appeal of Timberlane Sch. Dist., 142 N.H. 830 (1998); Appeal of Rye, 140 N.H. 323 (1995); Appeal of City of Franklin, 137 N.H. 723 (1993).

75. Appeal of Derry Sch. Dist., supra; City of Portsmouth v. Ass’n of Teachers,134 N.H. 642 (1991).

76. Appeal of SAU No. 16, 143 N.H. 97 (1998).

77. See RSA 32:19 and 19-a;  see also RSA 197:3 and Appeal of Mascoma Valley Reg. Sch. Dist., 141 N.H. 96 (1998)(defining “emergency”) and comment at n.73, supra.

78. Appeal of Milton School District, 137 N.H. 240 (1993).

79. Id.  Accord:  Appeal of Belknap Cty. Comm’rs, 146 N.H. 757 (2001).

80. Appeal of Milton Sch. Dist., supra.

81. Appeal of Town of Conway, 140 NH 303 (1995).

82. Appeal of Milton School District, supra, 137 N.H. at 243-244 (1993); see also Appeal of Rye, 140 N.H. 323 (1995) (holding that town voters were sufficiently informed of the financial consequences of the accumulated sick leave buyback provision—it had been Sanbornized, but an evergreen clause, which is also a cost item, had not been Sanbornized).

83. Id. at 245.

84. See Bouchard v. Rochester, 119 N.H. 799 (1979) (standing for the proposition that just because something is unfair does not make it an unfair labor practice); Appeal of Wt. Mtns. Reg. Sch. Dist., 125 N.H. 771 (1984)(same).

85. See, e.g.,  Appeal of White Mountains Education Association,  125 N.H. 771 (1984) (must be at least a minimal degree of retaliatory motivation).  Accord:  Appeal of Sullivan Cty, 141 N.H. 82 (1996); Appeal of E. Derry Firefighters, 138 N.H. 142 (1993).

86. Goss v. Manchester, 140 N.H. 449 (1995); Appeal of Portsmouth Fire Comm’rs, 137 N.H. 552 (1993); AFSCME Loc. 298, 121 N.H. 944 (1981).

87. See, e.g., City of Manchester v. Manchester Firefighters Association, 120 N.H. 230, 234 (1980), and cases cited at n. 3, supra.

88. See, e.g., Appeal of Hinsdale Federation of Teachers, 138 N.H. 88 (1993) (“work to rule”); City of Manchester v. Manchester Firefighters, 120 N.H. 230 (1980) (sickout).  But see Appeal of Manchester, 144 N.H. 320 (1999)(officers lawfully refused voluntary extra detail work).

89. Appeal of Campton Sch. Dist., 138 N.H. 267 (1994).

90. In Appeal of Berlin.Bd. of Educ., 120 N.H 226  (1980), the Court decided that, based on the language of that  grievance procedure, only an employee who suffered a “personal loss” could file a grievance, not the union.

91. Appeal of Berlin Board of Education, supra; see also Appeal of Town of Pelham, 124 N.H. 131 (1983)(holding that grievance procedures are not only to be strictly construed, but are also binding on the parties).

92. Appeal of Hooksett Sch. Dist.,126 N.H. 205 (1985) and Appeal of SEA (Town of Exeter), 139 N.H. 441 (1995).

93. See Lisbon, supra  at n. 55.

94. Appeal of Nashua Police Comm. 149 N.H. 688 (2003).

95. Appeal of Westmoreland, 132 N.H. 103 (1989).

96. See Appeal of  City of Manchester, 144 N.H. 386 (1999) (finding that interpretation of a contract, including whether a contract term or clause is ambiguous is ultimately a question of law for a court to decide and that a contract clause is ambiguous when the contracting parties reasonably differ as to its meaning); see also Appeal of Bedford, 142 N.H. 637 (1998) (finding that since the collective bargaining agreement did not explicitly give the arbitrator authority to determine whether a dispute was arbitrable, the PELRB and the Supreme Court had authority to determine whether the agreement covered the dispute in question).  As noted in the text, there are some 15 to 20 Supreme Court decisions, depending upon how one counts.

97. 143 N.H. 598 (1999).

98. Appeal of Town of Bedford, 142 N.H. 637 (1998).

99. Southwestern New Hampshire Transportation Co. v. Durham, 102 N.H. 169, 174 (1959).

100.      Bd. of Trustees v. KSCEA, 126 N.H. 339, 342-43 (1985); Sch. Dist. No. 42 v. Murray, 128 N.H. 417 (1986); Konefal v. Hollis-Brookline Coop. Sch. Dist., supra.

101.      See, e.g., Fowler v. Seabrook, 145 N.H. 536 (2000)(wage and hour law); Collins v. City of Manchester, 143 N.H. 708 (1999)(non-bargaining unit employees);  Hudon v. City of Manchester, 141 N.H. 82 (1996)(decertified bargaining unit employees); and City of Portsmouth v. Ass’n of Teachers, supra (city charter dispute).

102.      NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).

103.      Desilets, supra, slip opin. at 6.

104.      See, e.g., Appeal of Londonderry Police, 141 N.H. 291 (1996); Appeal of Rochester Police Comm., supra; Appeal of Bedford, 142 N.H. 637 (1998); Appeal of Manchester, 144 N.H. 386 (1999); Appeal of Durham, N.H. (2003); Appeal of Londonderry Sch. Dist., supra; Appeal of Somerworth Sch. Dis., supra; Appeal of Nashua Sch. Dist., 132 NH 699, 707 (1990).

105.      See, e.g., Circuit City Stores, Inc., v. Adams, 523 U.S. 105 (2001).

106.      Southwestern N.H. Transp. Co. v. Durham, supra, 102 N.H. at 173.

107.      Id., 102 N.H. at 174.

108.      See, e.g., Appeal of Campton Sch. Bd., supra (advisory arbitration); Appeal of Bd. of Trustees, 129 N.H. 632 (1987)(promotion grievance); Appeal of Amalgamated Transit Union, 144 N.H. 325 (1999)(public policy).

109.      See n. 71, supra.

110.      See SEA v. Mills, 115 N.H. 473, 477 (1975)(quoting prior statute).

111.      I34  N.H. at 100; emphasis added.

112.      134 N.H. at 727.

113.      Indeed, in Desilets, the Court cites a “just cause” decision in the private sector that weighs heavily in favor of arbitrating employee terminations.  Desilets, supra, slip opin. at 4, citing Paperworkers v. Misco, Inc., 484 U.S. 29, 34 n. 5 (1987)(listing seven tests for “just cause”).

114.      Grievance, or “rights,” arbitration is used to settle disputes over existing collective bargaining agreements.  It is very different from “interest” arbitration which is used to settle disputes over the terms of new, or successor, collective bargaining agreements.  Interest arbitration would be the rough equivalent to binding factfinding under RSA 273-A: 12.  Cf. City of Portsmouth v. Ass’n of Portsmouth Teachers, 134 N.H. 642 (1991).

115.      SEA v. Mills, supra, 115 N.H. at 479-80 (1975).

116.      See, e.g., Appeal of City of Nashua, 132 N.H. 699 (1990) and cases cited.

117.      Appeal of State, supra at 724, states as follows:  “the discipline proposal provides a standard, just cause, rather than a procedure for implementing or enforcing discipline based on the employer’s policy. Thus, the proposal would infringe on the State’s prerogative to establish policy if the State, as employer, were not free to define “just cause.” For instance, if the proposal were incorporated into the contract and were subject to binding arbitration, the arbitrator, rather than the State, could have the authority to define “just cause” and thereby set the policy for discipline of State employees. In addition, because the arbitrator is not subject to public control, that result would impermissibly interfere with public control of governmental functions. Consequently, we hold that the SEA’s discipline proposal is not subject to mandatory bargaining, although the State may choose to bargain the proposal, and we reverse the PELRB’s ruling as to that proposal.”  The Court overlooks an important reality in the workplace.  In deciding who and when to discharge, the employer—here the State—in fact does define “just cause” in the first instance.

118.      With regard to seniority-based layoff and recall, in both Appeal of Gorham Sch. Bd., 121 N.L. 878, 881 (1981), and Appeal of Watson, 122 N.H. 664, 667-68 (1982), the Court held that if employees wanted “bumping” rights, then the employees should bargain such rights into their collective bargaining agreements.  “Bumping” rights are nothing more than seniority-based protection against layoffs.  The same is true with regard to protections against termination.  In both Brown v. Bedford School District, 122 N.H. 123 (1982), and Appeal of Watson, supra 122 N.H. at 667, the Court held expressly and by implication that protection against termination was a mandatory subject of bargaining.  See also Appeal of Town of Pelham, supra.


Author

James F. AllmendingerAttorney James F. Allmendinger is a Staff Attorney with NEA-New Hampshire and represents school employees in collective bargaining matters.  The author wishes to acknowledge the substantial assistance he received from Megan Werner, Pierce Law Class of 2006, for her exhaustive research and excellent writing assistance.

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