2005-436, APPEAL OF THE TOWN OF PELHAM

The appellant, Town of Pelham (town), appeals a decision

Chiefs of Police, as amicus curiae. Minton and Andru Volinsky on the brief) for the New Hampshire Association of Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Dawnangela

appellee. Goodwin and Jennifer Springer on the brief, and Ms. Goodwin orally), for the AFSCME Council, Local 3657, of Boston, Massachusetts (Erin L. to press. Errors may be reported by E-mail at the following address:

Jennifer M.N. Koon on the brief, and Mr. Broth orally), for the appellant. Devine, Millimet & Branch, P.A., of Manchester (Mark T. Broth and

(New Hampshire Public Employee Labor Relations Board) APPEAL OF THE TOWN OF PELHAM

editorial errors in order that corrections may be made before the opinion goes No. 2005-436 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 ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 or gratuities.

p. 2 April 2002 for violating departmental rules regarding solicitation of discounts September 24, 2001, to March 14, 2002, received a five-day suspension in which require that “[o]n any official matter whatsoever, employees shall not investigation, Desmarais, who had been on administrative leave from

concluded that Desmarais had violated the PPD’s “General Rules of Conduct,” solicited discounts on ten to thirty separate occasions. As a result of the

and received discounts. Following the second investigation, the town only once. Various restaurant employees, however, claimed that she had testimonial disparities regarding the number of times Desmarais had solicited The town re-interviewed Desmarais and the employees, and found the same

report of an event will rise to the level of essential testimony for a prosecution.

discounts “three to four times,” she claimed that she had requested a discount allegedly demanded the discounts. Though Desmarais acknowledged receiving into whether Desmarais had been truthful during the original investigation. interviews with Desmarais and employees of the McDonald’s where she

misconduct. language mandating discipline, such as termination, for any particular form of author written reports in criminal matters, it is improbable that a dispatcher’s Though dispatchers such as Desmarais are, at times, required to testify and a sworn officer; she did, however, wear a uniform shirt with the PPD logo on it.

that of the restaurant employees, the town initiated a separate investigation discount” at a local McDonald’s restaurant. The investigation included

severe to merit immediate suspension or discharge.” The CBA contained no

performing computer research regarding criminal records. Desmarais was not

Because of the discrepancies between the testimony of Desmarais and Desmarais had, on numerous occasions, solicited and accepted a “police

provides that the sequence “need not be followed if an infraction is sufficiently disciplinary action, ranging from a verbal warning to termination, though it RSA 273-A:4 (Supp. 2005). The CBA included several progressive levels of those that monitored the lock-up area; recording walk-in 911 reports; and

In September 2001, the PPD began investigating allegations that

of their relationship, including a workable grievance procedure as required by receiving members of the public at the PPD; watching video monitors, including her normal responsibilities included: answering and initiating telephone calls; 1998 until June 2002, when her employment was terminated. As a dispatcher, The town employed Debra Desmarais as a PPD dispatcher from June

collective bargaining agreement (CBA) that governed the terms and conditions (PPD), including dispatchers. The town and the union were signatories to a bargaining representative for certain members of the Pelham Police Department within the meaning of RSA 273-A:1, X (Supp. 2005). The union is the exclusive The record supports the following facts. The town is a public employer subsequently filed a motion for reconsideration, which the PELRB denied.

p. 3 immediately reinstate Desmarais as a police dispatcher. The town to implement the arbitrator’s award. The PELRB ordered the town to finding, instead, that the town committed an unfair labor practice by refusing

order is unjust or unreasonable.” 2005, issued a decision denying the town’s complaint against the union and

appealing party demonstrates by a clear preponderance of the evidence that the evidentiary hearing in the matter on September 23, 2004, and on March 16, absent an erroneous ruling of law, we will not set aside its decision unless the “When reviewing a decision of the PELRB, we defer to its findings of fact, and,

official duties and in her sworn testimony.” The PELRB conducted an the reinstatement of “an individual proven to have been untruthful in her department employees” and by applying an incorrect standard of review. asserted that the arbitrator’s award was violative of public policy, as it required

2004, that the town comply with the award and reinstate Desmarais.

defined and dominant public policy against reinstating untruthful police practice by demanding Desmarais’ reinstatement. Specifically, the town

688, 689 (2003); see also RSA 541:13 (1997). Though the PELRB’s findings of reinstatement. The union thereafter requested, in a letter dated February 17, Appeal of Nashua Police Comm’n, 149 N.H. benefits for the unemployment period beginning June 10, 2002, he did award harsh a penalty. Accordingly, while he did not order back pay or other contract

On appeal, the town argues that the PELRB erred by “ignor[ing] the wellcharge with the PELRB, alleging that the union committed an unfair labor

express provisions of the CBA and reach a final decision. issues and surrounding circumstances necessary to interpret and apply the authority, in the context of a just cause grievance, to consider the underlying

and received discounts at McDonald’s, he concluded that termination was too

Rather than reinstate Desmarais, the town filed an improper practice

arbitrator rendered a decision on February 6, 2004. An arbitrator has the

that Desmarais deliberately misrepresented the number of times she requested holding in State v. Laurie, 139 N.H. 325 (1995). Though the arbitrator found prohibiting false statements in connection with official matters, and our considered, among other things, the testimony of witnesses, the PPD’s rule her employment as a dispatcher effective June 10, 2002. be just cause, the town notified Desmarais that she would be terminated from Manchester, 153 N.H. ___, ___, 893 A.2d 695, 698 (2006). The arbitrator

award. A one-day arbitration was conducted on November 5, 2003, and the the arbitration with the understanding that it would yield a final and binding pursuant to the CBA. The town, without objection, voluntarily participated in As a result of the termination, the union proceeded to arbitration

withhold information that would assist in resolving the matter.” Finding this to knowingly make any false statements or misrepresentations of the facts, nor central to the proper functioning of our democracy. The

. . . and the public invest in [police officers] a confidence and trust that is

in future criminal matters. It finds support for its position in potentially jeopardized prosecution of criminal defendants.”

No. 11 390 00871 95 (Dec. 21, 1995), the arbitrator noted that “[j]udges, juries, Police Association I.B.P.O, Local p. 4 466 and City of Dover, New Hampshire, AAA trial. Id. at 11. In Dover due process of law and remanded the matter to the superior court for a new untruthful and who may, however unlikely the possibility, be required to testify authority to require the Town of Derry to “retain a police officer who has been used to impeach that testimony, we held that the defendant was denied in a criminal case.” Id. at 10. The arbitrator concluded that he had no officer’s permanent record “may have an impact if he were called as a witness the arbitrator noted that, in light of Laurie, an incident of untruthfulness in an of Police Officers and Town of Derry Franklin Police Department detective who was a key prosecution witness., AAA No. 11 390 00173 98 (Oct. 26, 1998), termination of police officers in New Hampshire. In conduct that reflected negatively upon the character and credibility of a International Brotherhood two arbitration awards that cite Laurie as support for the just cause public policy” justifying the reversal of the PELRB’s decision, the town proffers To buttress its assertion that Laurie gave rise to a “strong and dominant applicable authority.” policy as expressed in controlling statutes, regulations, common law, and other Id. at 333. conclude that the PELRB’s order contravenes a “strong and dominant public against the reinstatement of police department employees who are found to be the defendant’s guilt,” and noting that the undisclosed evidence could have at 330-32. Finding that the detective’s testimony “went directly to the issue of nonstatutory origin). Id.

withheld pre-employment and personnel files detailing numerous instances of law, rather than general considerations of supposed public interests. to the defense. Laurie, 139 N.H. at 329-33. In Laurie, the State knowingly murder after concluding that the State had failed to disclose evidence favorable case in which we ordered a new trial for a defendant convicted of first-degree

law by issuing a decision in contravention of public policy. To so find, we must The town argues that there is a “strong and dominant public policy”

refuse to enforce contract that contravenes public policy of statutory or Harper v. Healthsource New Hampshire, 1 p. 4 40 N.H. 770, 775 (1996) (court may

327 (1999). Thus, in such cases our review is limited to the confines of positive

We first address the town’s assertion that the PELRB erred as a matter of

93 (2003). support the PELRB’s determinations. Appeal of City of Laconia, 1 p. 5 50 N.H. 91, fact are presumptively lawful and reasonable, we require that the record dominant public policy only within the confines of positive law, including

other applicable authority.”

incorrect. However, as discussed above, we are compelled to look for strong,

might possibly be required to testify in future criminal matters. In

public policy to the extent posited by the town.

jurisdiction.” employment of police officers who are known to be untrustworthy. While

a policy is “expressed in controlling statutes, regulations, common law, and exculpatory evidence from the State. certain misconduct, are deemed to be untrustworthy is, on an intuitive level, against the reinstatement of police department employees who, as a result of civilian police department employees who are found to be untruthful and who We do not mean to suggest that the town’s assertion of a “public policy”

hiring and disciplinary policies, it does not express a strong and dominant of these categories. Laurie, as a practical matter, may influence a police department’s internal matters necessary to resolve questions arising within the scope of their dispositive of our decision, and we did not address the issue of terminating the the potentially impeachable witness in Laurie was a police officer was not violates a strong and dominant public policy, we must first conclude that such Laurie, 139 N.H. at 327. The fact that addressed only a defendant’s right under the State Constitution to receive jurisdiction when reviewing such arbitral determinations. conclude that the PELRB erred by enforcing an arbitration decision that arbitrator’s award in a labor grievance as an expression of public policy. To Laurie, we

expresses a strong and dominant public policy against the reinstatement of limited jurisdiction. More importantly, we disagree with the town’s assertion that Laurie

no precedential effect upon this court, such an award does not fall within any statutes, regulations, common law, and other applicable authority, to address Id. at 327-28. Because an arbitrator’s award has

a “quasi-judicial capacity,” is granted only limited and special subject matter termination exists. The PELRB, however, as an administrative agency acting in Therefore, when reviewing a decision of the PELRB, we cannot look to an general notions of the public interest when determining whether just cause for

term that contravenes public policy, it may only do so within the confines of its

Id. at 327-28. Though the PELRB may refuse to enforce a CBA from

applying only “strong and dominant public policy as expressed in controlling Amalgamated Transit Union, 144 N.H. at 327. Thus, the PELRB is limited to

In the context of a labor grievance, an arbitrator is free to consider

be called as witnesses in criminal prosecutions for a variety of reasons. Laurie” is easily extended to encompass police dispatchers, who may also The town contends that “[t]his well defined and dominant public policy derived the importance that the New Hampshire Supreme Court places on this fact.” p. 6 6

by ordering the town to comply with the arbitrator’s award.

argument to be without merit. In its order, the PELRB plainly identifies violates positive law. Having reviewed the record before us, we find the town’s

DUGGAN, GALWAY and HICKS, JJ., concurred. arbitration awards as set forth in

and dutifully applies that standard in reaching its conclusion. such public policy exists, we hold that the PELRB did not err as a matter of law of Amalgamated Transit Union as setting forth the pertinent standard of review,

the “public policy exception” is limited to instances where an arbitration award relied upon Eastern Associated Coal Corp., 531 U.S at p. 6 62, in concluding that standard of review.” Specifically, the town asserts that the PELRB improperly N.H. at 327, and instead “looked to federal labor law and derived a new

The town next argues that the PELRB ignored the standard of review for

general considerations of supposed public interests”). Because we find that no must be ascertained “by reference to laws and legal precedents, and not from (explicit, well-defined, and dominant public policy barring enforcement of CBA Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, p. 6 62 (2000) common law. See Appeal of Amalgamated Transit Union, 144 N.H. at 327; cf.