2005-264 APPEAL OF CITY OF MANCHESTER

The petitioner, the City of Manchester (City), appeals a New

brief and orally), for the respondent. McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the Errors may be reported by E-mail at the following address:

and orally), for the petitioner. City Solicitor's Office, of Manchester (Daniel D. Muller, Jr. on the brief

(New Hampshire Public Employee Labor Relations Board) APPEAL OF THE CITY OF MANCHESTER

errors in order that corrections may be made before the opinion goes to press. No. 2005-264 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial 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 of an employee’s p. 2 of all violations of RSA 273-A:5, pursuant to RSA 273-A:6, I; and (2) the denial

City’s motion to dismiss, finding that: (1) the PELRB has primary jurisdiction

not a matter is appropriate for arbitration.”

grievance.

complaint, the hearing officer determined that the City violated Desilets’ and the Union. By order dated October 22, 2004, the hearing officer denied the

PELRB has the authority to determine “on a case-by-case basis . . . whether or

final and binding arbitration, and Desilets had raised the same issues in his (a). While acknowledging that it, asserting that the PELRB lacked jurisdiction because the CBA provides for employment was terminated. complaint against the Union. The City moved to dismiss the complaint against terminated. After a disciplinary hearing on November 10, 2003, Desilets’ of unlawful conduct. The letter recommended that Desilets’ employment be Weingarten rights during both investigative interviews, and that the Union

Having concluded that it had jurisdiction to consider Desilets’ ULP City’s motion to dismiss and Desilets’ ULP complaints against both the City

cause grievance arbitration proceeding, the hearing officer concluded that the

during an investigative interview, constitutes a ULP and violates RSA 273-A:5, I (1975), or, more specifically, the denial of the right to a union representative investigative interviews. On January 28, 2004, Desilets also filed a ULP Weingarten rights, see NLRB v. Weingarten, Inc., 420 U.S. 251

October interviews, one count of conduct unbecoming an officer, and one count

arbitration. The arbitration hearing was scheduled for June 25, 2004. The PELRB conducted a hearing in May 2004, at which it considered the representation during both interviews.

by obstructing or interfering with his Union representation during the October against the City, alleging that the Department violated RSA 273-A:5, I (a) & (g) intent charging Desilets with two counts of untruthfulness arising from the On December 22, 2003, Desilets filed a ULP complaint with the PELRB

section 3.1 of the CBA. The grievance was processed and the Union filed for either interfered with or denied him the opportunity to obtain Union 7 of the CBA, alleging he was terminated without just cause in violation of officers on October 30 and 31, 2002. Desilets alleges that the Department On December 20, 2003, Desilets initiated a grievance pursuant to article the course of that investigation, Desilets was interviewed by investigating

On November 3, 2003, the Department issued a letter of disciplinary

October 2 p. 3 3, 2002, the Department initiated an internal affairs investigation. In In response to a citizen complaint made against Desilets on or about of this appeal.

collective bargaining. cause grievance has been postponed, at the City’s request pending the outcome

terms and conditions of employment.”

Labor Relations Act.

believes might result in disciplinary action. arbitration under the CBA. Desilets counters that the PELRB properly grievance encompassing the same claims that was subject to final and binding procedure. RSA 27 p. 3 3-A:4 (Supp. 2005). The extent of the parties’ agreement to consider Desilets’ ULP complaint because Desilets had already initiated a Id. Every CBA must contain a workable grievance CBA, they are obligated to adhere to its terms, which are the product of their rehearing, the instant appeal followed. The arbitration hearing on Desilets’ just Dist., 144 N.H. 27, 30 (1999) (citations omitted). When parties enter into a hearing officer’s decision. After the PELRB denied the City’s motion for Appeal of Hillsboro-Deering School and/or omissions. By order dated January 6, 2005, the PELRB sustained the “A CBA is a contract between a public employer and a union over the

the order is unjust or unreasonable.” and was not based upon provisions in the CBA. the appealing party demonstrates by a clear preponderance of the evidence that constitutes an unfair labor practice in violation of section 8(a)(1) of the National Weingarten rights because his ULP complaint alleged violations of RSA 27 p. 3 3-A:5

representation during an investigatory interview that the employee reasonably

On appeal, the City first argues that the PELRB lacked jurisdiction to

October investigatory interviews under Weingarten. without deciding, that Desilets had a right to union representation during the unjust, and unreasonable; and (2) based upon factual misrepresentations, to this right. Therefore, for the purposes of this appeal, we will assume,

and, absent an erroneous ruling of law, we will not set aside its decision unless Court held that a denial of union representation during such an interview

the National Labor Relations Act accords employees the right to union Inc., the United States Supreme Court held that the language of section 7 of to “Weingarten rights” in the context of this appeal. In NLRB v. Weingarten, As a preliminary matter, we note that both parties and the PELRB refer

495, 496 (2004); see RSA 541:1 p. 3 3 (1997). the hearing officer’s decision, asserting that the decision was: (1) unlawful, Appeal of Laconia Sch. Dist., 150 N.H.

“When reviewing a decision of the PELRB, we defer to its findings of fact,

On November 19, 2004, the City timely requested that the PELRB review

Union did not appeal the ruling against it. violated its duty of fair representation during the October p. 3 30 interview. The p. 4 Desilets’ grievance and the ULP complaint alleged substantively identical violations of during both October 2002 investigative interviews. Thus, both the just cause

of p. 4 Desilets’

whether an alleged violation of p. 4 Desilets’

alleged that the Department denied or interfered with his Union representation

RSA 273-A:5 is sufficient, in and of itself, to preclude a determination that the

Therefore, the PELRB had the authority to determine, as a threshold matter,

represented during a disciplinary interview.” Similarly, his ULP complaint employment without just cause; and (2) had violated his “right to be arbitration, Desilets alleged that the Department: (1) had terminated his just cause grievance was awaiting arbitration, the PELRB, in essence, was

We are not persuaded by p. 4 Desilets’ assertion that alleging a violation of Department. of City of Rochester, 149 N.H. at 533. of the CBA and was appropriate for arbitration. See Appeal of Police Comm’n express provisions of the CBA and reach a final decision. Weingarten rights fell within the scope

arbitrator’s authority to determine the arbitrability of a disputed issue.

Weingarten rights. In this case, the CBA is silent regarding the

complaint encompass the same substantive issue. In his demand for In ruling that it had jurisdiction to consider p. 4 Desilets’ ULP claim while the

investigation that ultimately resulted in p. 4 Desilets’ termination from the CBA to the extent necessary to determine whether a dispute is arbitrable. Weingarten rights. Furthermore, they both arose during an

issues and surrounding circumstances necessary to interpret and apply the

We first consider whether the just cause grievance and the ULP

Appeal of State, 147 N.H. at 109.

533. Thus, as a threshold matter, the PELRB is empowered to interpret the scope of the CBA. Appeal of Police Comm’n of City of Rochester, 149 N.H. at grievance, the arbitrator also has the authority to consider the underlying determine as a threshold matter whether a specific dispute falls within the language to the contrary in the CBA, however, the PELRB is empowered to arbitration. dispute.” Appeal of State of N.H., 147 N.H. 106, 108 (2001). Absent specific jurisdiction to interpret the CBA when the CBA provides for final binding violations of RSA 273-A:5, see RSA 273-A:6, I, it does not generally have While the PELRB has primary jurisdiction of all ULP claims alleging

context of a just cause grievance). Misco, Inc., 484 U.S. 29, 34 (1987) (identifying seven criteria considered in the

(2003) (quotations and citations omitted). In the context of a just cause

Appeal of Police Comm’n of City of Rochester, 149 N.H. 528, 534

is whether the contracting parties have agreed to arbitrate a particular arbitrate determines the arbitrator’s jurisdiction, and “[t]he overriding concern that the p. 5 appropriate in this instance because: (1) “there is no evidence at this stage the CBA, the PELRB incorrectly concluded that arbitration would not be

underlying investigation. CBA.” Furthermore, instead of considering and interpreting the language of proceeding necessarily encompasses issues pertaining to the propriety of the

provides for final and binding arbitration of alleged violations of Desilets’ addressed in that forum;” (2) an inherent conflict existed since the Union would cause provision in section 3.1 of the CBA. Therefore, we conclude that the CBA interpretation” of the CBA. grievance procedure to be followed for claims “arising out of the application or

incorrectly concluded that “it is not necessary . . . to interpret the parties’ express provisions of this agreement.” Therefore, Desilets’ just cause grievance while the just clause grievance was proceeding to arbitration, the PELRB

proceeding, nor is there any concrete assurance that the issue would be fully would unreasonably limit the arbitrator’s ability to interpret and apply the just Weingarten claim has been raised within the context of the arbitration

against an employee except for just cause.” The CBA sets forth a multi-step

consider and decide “what is necessary for the interpretation and application of In ruling that it had jurisdiction to consider Desilets’ ULP complaint of the CBA. The express language of section 7.6 allows the arbitrator to provides for final and binding arbitration of grievances arising under the terms Weingarten rights in the context of his just cause grievance.

including the timing and fairness of the investigation). To conclude otherwise seven criteria an arbitrator may consider during just cause discipline cases, 3.1 of the CBA. Section 3.1 states that “no disciplinary action shall be taken See Misco, 484 U.S. at 34 (specifically identifying

(A) (July 1, 2002- June 30, 2004). Pursuant to article 7, section 7.6, the CBA N.H. and the Manchester Police Patrolman’s Association, Article 7, Section 7.1

requires the PELRB to interpret the CBA to the extent necessary to determine arbitration demand and a ULP complaint were identical). This determination arose in the context of the investigation of a “disciplinary action” under section arbitrability of the claim. Here, the underlying allegations regarding Desilets’ Weingarten rights claims, authority rests with the PELRB to determine the threshold matter of initiated under a CBA and a ULP complaint allege substantively identical N.H. 699, 703 (1990). arbitrability was correct. Our review is de novo. Appeal of City of Nashua, 132 relevant portions of the CBA to determine whether the PELRB determination of the arbitrator’s jurisdiction over the subject matter of a dispute, we look to the Appeal of State, 147 N.H. at 109. Because the parties’ agreement determines

(upholding PELRB ruling to proceed to arbitration when the substance of an

jurisdiction of all violations of RSA 273-A:5. However, when a grievance issue falls within the scope of the CBA. RSA 273-A:6, I, grants the PELRB p. 6 City’s remaining arguments.

including union representation during the arbitration proceeding.

was proceeding to arbitration. In light of our ruling, we need not address the

CBA, would not be in accord with the legislative purpose of RSA chapter 273-A. grievance, Desilets indicated his intent to be bound by the terms of the CBA, PELRB after agreeing to submit it to final and binding arbitration under the requirements of the grievance procedure. Moreover, by initiating the just cause pending claim against the Union and the Union has complied with all the

exercising jurisdiction over the ULP complaint while the just cause grievance determining that Desilets’ ULP complaint in this case was not arbitrable and by

BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

underlying purpose of arbitration, by raising a substantive issue before the Reversed.

powers to precludes arbitration of this issue. At this juncture, Desilets does not have a employees by, among other things, establishing a PELRB “vested with broad harmonious and cooperative relations between public employers and their

economical dispute resolution. Accordingly, we conclude as a matter of law that the PELRB erred by

See Appeal of Police Comm’n of City of Rochester, 149 N.H. at 535.

Laws 1975, 490:1, III (emphasis added). Allowing Desilets to contravene the

assist in resolving disputes between government and its employees.” of Desilets in the just cause grievance presents such an inherent conflict that it

149 N.H. at 535. The legislative purpose behind RSA chapter 273-A is to foster

The primary purpose of the arbitration process is expeditious and

Furthermore, we are also not persuaded that the Union’s representation

were not arbitrable in the instant case. we conclude the PELRB erred when it determined that the Weingarten rights adjudicated in arbitration within the context of just cause grievances. Thus, determination, the PELRB acknowledged that Weingarten rights are often rights during the two October 2002 interviews. Furthermore, in its encompassed the dispute regarding alleged violations of Desilets’ Weingarten State, 147 N.H. at 109. In the context of the just cause grievance, the CBA Weingarten rights, the PELRB was required to interpret the CBA. See Appeal of order to determine the threshold matter of the arbitrability of Desilets’ For reasons previously stated, we find no merit to these conclusions. In

provision of the CBA. 273-A:5, I (a) & (g), and did not require an interpretation of the just clause or inactions; and (3) Desilets’ Weingarten claim was statutory, pursuant to RSA be required to arbitrate Desilets’ Weingarten issue based upon its own actions