2005-490, APPEAL OF WHITE MOUNTAIN REGIONAL SCHOOL DISTRICT

upcoming school year. We affirm. several of its teachers and required them to develop improvement plans for the

Association (association), when it issued letters of renewal with reservations to

bargaining agreement with the appellee, White Mountain Regional Education 273-A:5 (1999). The PELRB ruled that the district breached its collective Relations Board (PELRB) that it committed an unfair labor practice under RSA

district were parties to a collective bargaining agreement (CBA) in effect from representative of teachers employed by the district. The association and the The record supports the following facts. The association is the exclusive

(district), appeals a ruling of the New Hampshire Public Employee Labor HICKS, J. The appellant, White Mountain Regional School District

Association, NEA-New Hampshire. by brief and orally, for the appellee, White Mountain Regional Education James F. Allmendinger, of Concord, staff attorney, NEA-New Hampshire, to press. Errors may be reported by E-mail at the following address: and Jill A. Desrochers on the brief, and Mr. Elwell orally), for the appellant. Soule, Leslie, Kidder, Sayward & Loughman, of Salem (Michael S. Elwell

(New Hampshire Public Employee Labor Relations Board) APPEAL OF WHITE MOUNTAIN REGIONAL SCHOOL DISTRICT

editorial errors in order that corrections may be made before the opinion goes No. 2005-490 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Public Employee Labor Relations Board Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as however, does not resolve whether the letters of renewal with reservations and p. 2 a new CBA that specifically addresses improvement plans. The new CBA, the teachers affected by the actions of the district were renewed and are under agreement. Specifically, the association asserted that the case is moot because association moved to dismiss this case as moot due to the expiration of the old

of the observation, and a copy must be provided to the teacher. written evaluation must be prepared and placed in the teacher’s file as a result 2 year, with discretion to the administration to conduct additional visits. A

(Supp. 2005). within the exclusive prerogative of the public employer” under RSA 273-A:1, XI require improvement plans; and (3) its actions constituted “managerial policy Following submission of the briefs but prior to oral argument, the 2003-2004 school year. N.H., 138 N.H. 716, 719 (1994). order and filed this appeal. unreasonable by a clear preponderance of the evidence. Appeal of State of redacted certain portions of the teachers’ files in accordance with the PELRB will be set aside only for errors of law or if it is shown to be unjust or feedback. It provides that tenured teachers are to be observed at least once per of the letters and improvement plans from the teachers’ files. The district findings of fact are deemed prima facie lawful and reasonable, and its decision communicate teacher deficiencies. It ordered the district to remove all evidence Our review standard is governed by RSA 541:13 (1997). The PELRB’s

to RSA 189:14-a; (2) the CBA impliedly permits it to issue such letters and to On appeal, the district argues that: (1) the PELRB’s decision is contrary teachers were required to prepare improvement plans before the end of the

details the procedures for evaluating teacher performance and providing relied upon article XVI of the CBA, entitled “Employee Evaluation,” which the district breached the parties’ CBA by using new procedures to CBA concerning teacher evaluation and performance reviews. The association performance may lead to nonrenomination.” The PELRB disagreed, ruling that which requires, among other things, notice to teachers that “unsatisfactory the CBA, the past policies of the district, and RSA 189:14-a, III (Supp. 2005), The district maintained that its actions were consistent with the terms of

reservations about their performance. The letters further stated that the renominated for employment for the upcoming school year, but with superintendent of schools. These letters informed the teachers that they were

alleging that the district unilaterally changed the procedures outlined in the The association filed an unfair labor practice complaint with the PELRB,

employed by the district were given letters of renewal with reservations by the July 1, 2002, to June 30, 2004. In April 2004, several tenured teachers expiration date of that collective bargaining agreement. p. 3 of the effective date of this section shall be null and void upon the

RSA 189:14-a and RSA 189:14-b. Any such provision in force as

failed to correct such unsatisfactory performance. correct such unsatisfactory performance, and that the teacher had

grievance procedures adopted under a collective bargaining agreement. 3

teachers were all renominated, we recognize the district’s concern that were the arbitration or any other binding resolution, except as provided by While RSA 189:14-a is not directly applicable to this case because the be renewed pursuant to RSA 189:14-a shall be subject to procedures. No grievance resulting from the failure of a teacher to 30, 2004. statute precluded application of RSA 189:14-a until the CBA expired on June Laws 2003, 204:5. The association asserts that the last sentence of this RSA 273-A:4. The “effective date of this section” was August 29, 2003. See nonrenomination, that the teacher had a reasonable opportunity to teacher’s unsatisfactory performance may lead to which addresses arbitration and other binding resolution provisions under the evidence, that the teacher had received written notice that the provisions of this statute do not apply because of RSA 273-A:4 (Supp. 2005), demonstrate, at the school board hearing, by a preponderance of eventual nonrenomination of the teachers. The association counters that the did in order to comply with the terms of the statute in anticipation of the

shall be reduced to writing and shall contain workable grievance Every agreement negotiated under the terms of this chapter

may not be renewed. We disagree. RSA 273-A:4 provides that: renewals with reservations in order to provide notice to the teachers that they

performance, the superintendent of the local school district shall

August 29, 2003, and therefore the district was required to take the action it RSA 189:14-a. The district asserts that this statute applied to the CBA on

189:14-a, III (Supp. 2005) because this statute obligated the district to issue

In cases of nonrenomination because of unsatisfactory

that: RSA 189:14-a, III became effective on August 29, 2003, and provides

The district first argues that the PELRB’s decision is contrary to RSA

we deny the appellee’s motion and address the merits of the appeal. improvement plans must remain redacted from the teachers’ files. Accordingly, p. 4 PELRB. plan that is not allowed under the terms of the CBA.” We agree with the

addition, adding the requirement of participation in an undefined improvement

multiple observation device and instead issuing a conditional renewal and, in

into during the term of the CBA.

not see a negotiated right flowing to the District to unilaterally abandon the it is free to utilize such measures. The PELRB disagreed, ruling that: “[W]e do expressly preclude “the use of improvement plans and notices of reservations,” observations. The district contends that because this provision does not 4

bound to follow the ten procedures laid out in the CBA regarding teacher 536, 540 (1999). In Pittsfield, we held that the Pittsfield School District was

prohibited from negotiation, the parties must abide by the agreement entered a contrary legislative intent. Once parties to a CBA have chosen to bargain over matters not otherwise unless the language of the amendment or surrounding circumstances express law that affects existing contract rights is presumed to operate prospectively for teacher recommendations and improvement. failed to follow the procedures of the CBA, which already provided procedures issued letters of renewal with reservations and required improvement plans, it evaluation document to be prepared within ten days following such evaluating teachers and communicating teacher deficiencies. When the district observations at the administration’s discretion and requires a written The terms of the CBA are clear regarding the procedures to be used when tenured teachers to be observed at least once per year, allows multiple plans are impliedly permitted by its provisions. Article XVI of the CBA requires

provisions. June 2004. Accordingly, the district was under no obligation to comply with its 2004, while the 2002-2004 CBA was in effect. An amendment to an existing

parties’ CBA because letters of renewal with reservations and improvement Next, the district argues that the PELRB’s decision was contrary to the

performance did not apply to the district until the expiration of the CBA in at the time the notice provisions became effective. This dispute arose in April 189:14-a regarding procedures for notifying teachers of unsatisfactory RSA 189:14-a did not apply to the parties’ CBA, which was already in existence their expiration dates. Therefore, we conclude that the language in RSA requirements of the statute. However, we hold that the notice provisions of arbitration or other binding resolutions does not apply to existing CBAs prior to contract rights – the amendment specifically provides that its prohibition of to RSA 273-A:4 demonstrates the legislature’s intent not to affect existing intended to affect existing contract rights. Indeed, the companion amendment find no such language or circumstances here indicating that RSA 189:14-a was

reservations policy would be evaluated to determine if it complied with the teachers not renominated for the following school year, the renewals with public control of governmental functions.

p. 5 selection, direction and number of its personnel, so as to continue technology, the public employer’s organizational structure, and the programs and methods of the public employer, including the use of construed to include but shall not be limited to the functions,

the exclusive prerogative of the public employer” shall be adopted pursuant to statute. The phrase “managerial policy within exclusively to the public employer by statute or regulations within the exclusive prerogative of the public employer, or confided

justified by past policies.

bargaining, and therefore fall under the managerial policy exception, the 138 N.H. at 722. In order for a proposal to be a prohibited subject of a proposal is mandatory, permissible or prohibited. Appeal of State of N.H., exception and established a three-part test to determine whether negotiation of RSA 273-A:1, XI. In and other conditions of employment other than managerial policy Appeal of State of N.H., we clarified the managerial policy

CBA. Accordingly, we reject the district’s argument that its conduct can be contrary to the evaluation and recommendation procedures identified in the the Superintendent without any warning or feedback from the teachers are performance reviews. Letters of renewal with reservations issued directly by

“Terms and conditions of employment” means wages, hours

The statute provides: RSA 273-A:1, XI exempts managerial policy from mandatory negotiation.

employment, which is a mandatory subject of bargaining. procedures to be followed when addressing teacher evaluations and that teacher evaluation procedures affect the terms and conditions of ruling that the savings clause does not apply because the CBA provides for the implement these procedures without negotiation. The association counters not restricted by provisions of the CBA. The record supports the PELRB’s defined in RSA 273-A:1, XI, thereby permitting the district to unilaterally use as of the effective date of the CBA are applicable so long as the policies are and required improvement plans fall within the managerial policy exception Finally, the district asserts that the letters of renewal with reservations

the CBA.

support its actions. The savings clause provides that school board policies in Similarly, the savings clause of the CBA cannot be used by the district to

evaluations. By doing so, the district failed to follow the express provisions of implement different procedures for addressing teacher performance and finding that the terms of the CBA did not reserve to the district the right to reach the same conclusion here because the record supports the PELRB’s evaluations and could not unilaterally adopt and enforce a new plan. Id. We p. 6 6 improvement plans must be removed from the teachers’ files.

the terms of the CBA. BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

parties’ CBA and that the April 2004 letters of renewal with reservations and Accordingly, we uphold the PELRB’s ruling that the district breached the

N.H. at 722. bargaining that cannot be unilaterally implemented without negotiation. applied applicable precedent. See id.; see also Appeal of State of N.H., 138 involve “terms and conditions of employment” which are mandatory subjects of Pittsfield, 144 N.H. at 540. Thus, the PELRB correctly permitted to implement them. The association counters that the procedures exception, and the parties chose to negotiate in this area, they are bound by bargaining and that since the CBA is silent on the matter, the district is are not prohibited subjects of bargaining under the managerial policy breached the specific provisions of the CBA. Because the procedures at issue review procedures. By utilizing new procedures in this area, the district above, the CBA expressly provides for teacher evaluation and performance issue in this case are “terms and conditions of employment.” As we stated On the record before us, we decline to decide whether the procedures at

Appeal of State of N.H., 138 N.H. at 722.

managerial policy, the procedures at issue are not mandatory subjects of does not fall under the managerial policy exception. The district further argues that even if its actions are not considered

“direction” of its personnel. RSA 273-A:1, XI. adopted regulation. the “exclusive prerogative of the public employer” affecting the “selection” and 540. Accordingly, we reject the district’s argument that its actions are within will be assessed and therefore do not affect matters of managerial policy. Id. at procedures for hiring teachers or the standards by which teacher improvement renewals with reservations and required improvement plans do not involve performance review procedures. See Pittsfield, 144 N.H. at 539-40. The XI does not expressly except from bargaining teacher evaluation and

The PELRB ruled, without discussion, that the conduct of the district

authority of the public employer by the constitution, or by statute or statutorily subject matter of the proposal must be reserved to the exclusive managerial