2006-525, APPEAL OF MERRIMACK COUNTY

within the meaning of RSA 273-A:1, X (Supp. 2006). The union is the exclusive The record supports the following: The county is a public employer

remand. employee represented by the union. We affirm in part, vacate in part and county to implement an arbitrator’s award mandating reinstatement of an Hampshire Public Employee Labor Relations Board (PELRB) ordering the Commercial Workers, Local 1046C (union), cross-appeals a decision of the New the respondent, International Chemical Workers Union Council/United Food & DALIANIS, J. The petitioner, Merrimack County (county), appeals and

respondent. (Randall Vehar, assistant general counsel, on the brief and orally), for the Council/United Food & Commercial Workers, Local 1046C, of Akron, Ohio Ellen Purcell on the brief), and International Chemical Workers Union Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer and to press. Errors may be reported by E-mail at the following address:

the petitioner. Atlas & Atlas, P.C., of Nashua (Susan A. Atlas on the brief and orally), for

(New Hampshire Public Employee Labor Relations Board) APPEAL OF MERRIMACK COUNTY

editorial errors in order that corrections may be made before the opinion goes No. 2006-525 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 accusation that she had not attended him by pointing a finger in his face and p. 2 was called to answer this question. Foote responded to the resident’s

other was unsure. Foote, as the LNA primarily responsible for this resident, One LNA thought that the resident should be wearing an adult diaper, but the LNAs found one of the residents sitting in his wheelchair. He had defecated. every half hour and responding to their calls. At approximately 2:30 p.m., two modify any terms of this agreement.” that the arbitrator shall have no authority to add to, subtract from, or

immediate termination.” medical abuse/neglect/exploitation of any resident shall be grounds for duties included performing safety checks on certain nursing home residents On October 28, 2002, Foote was working at the nursing home where her interpretation of the specific provisions of this Agreement. It is agreed negotiations and representing bargaining unit members. provided: “The function of the Arbitrator is to determine the Foote also served as a shop steward for the union, participating in contract the Arbitrator set forth within this Agreement.” This article also assistant, and later as a licensed nursing assistant (LNA), at the nursing home. “final and binding” if it was “within the scope of authority and power of Beginning in May 1999, the county employed Melissa Foote as a resident

until after the events herein described. The CBA expired on March 31, 2002; the parties did not enter into a new CBA

be tolerated and that “[a]ny instance of physical, verbal, mental or

as specifically limited or abridged by the terms of [the CBA].”

arbitration, this article provided that the arbitrator’s decision would be ƒ Article 25 contained grievance and arbitration procedures. In the case of

ƒ Article 24 provided that “[r]esident abuse/neglect/exploitation” would not CBA: (CBA). Particularly relevant to this appeal are articles 1, 2, 24 and 25 of the home, including the right to discipline or discharge employees, “[e]xcept ƒ Article 2 gave the county the exclusive right to manage the nursing

with “any such law, the provision(s) of law shall prevail.” CBA and that, to the extent that any CBA provision was inconsistent Annotated or other law shall in no way be abridged or limited” by the authority existing by virtue of the New Hampshire Revised Stat[ut]es ƒ Article 1 contained the parties’ agreement that “any rights, duties or

The county and the union were signatories to a collective bargaining agreement bargaining representative for certain workers at the county’s nursing home. followed.

p. 3 policy. The PELRB ruled in the union’s favor. This appeal and cross-appeal because it exceeded his authority under the CBA and because it violated public county asserted that the arbitrator’s award was void and unenforceable

unfair labor practice by demanding Foote’s reinstatement. Specifically, the

The county filed a counterclaim alleging that the union had engaged in an prompting the union to file an unfair labor practice charge with the PELRB. the order is unjust or unreasonable. abuse/neglect training programs. The county refused to reinstate Foote, the appealing party demonstrates by a clear preponderance of the evidence that

benefits, conditioned upon Foote’s taking anger management and and, absent an erroneous ruling of law, we will not set aside its decision unless arbitrator ordered the county to reinstate Foote, without back pay or other lost When reviewing a decision of the PELRB, we defer to its findings of fact,

cause standards.” further agreed that “good cause would be examined under traditional just to a ‘good cause’ standard of discharge.” According to that brief, the county and unreasonable penalty” for which the county lacked just cause. The Therefore, the arbitrator found that terminating Foote was an “overly harsh Department of Health and Human Services (DHHS). having verbally abused the resident, she would not have been terminated. have continued to work at the Nursing Home,” and that had Foote admitted to found, however, that her conduct “was no more serious than employees who neglected the resident, she had verbally abused him. The arbitrator further on Foote’s behalf. After five days of hearing, the arbitrator found that while Foote had not upon Foote’s refusal to admit to wrongdoing. The union then filed a grievance administrator testified that he based his recommendation, at least in part, to terminate Foote’s employment effective November 23, 2002. The

County employees who have been employed for more than one year are entitled be?” In its brief to the arbitrator, the county agreed that “under RSA 28:10-a, Foote under the collective bargaining agreement? If not, what shall the remedy to discuss what had happened. It was also reported to the New Hampshire stipulated was: “Whether there was just cause for the County to terminate Ms. interview the resident, and called Foote and a union representative to her office The parties proceeded to arbitration. The arbitration issue to which they nursing home, who filled out a complaint form, asked a social worker to

administrator of the nursing home, the county’s board of commissioners voted Based upon recommendations from the administrator and assistant

Ultimately, this incident was reported to the assistant director of nursing at the yelling, or loudly interrupting him, to emphasize what she had done that day. p. 4 4

limited.

arbitrator.” See Georgia-Pacific Corp. v. Local 27, 86 p. 4 4 F.2d 940, 944 (1st Cir. choose to have disputes concerning constructions of the CBA resolved by the Our review of the arbitrator’s interpretation of the CBA is similarly agreement is within the CBA.” parties have agreed to arbitrate a particular dispute, not whether the interpretation of CBA 108. provides for final and binding arbitration. Appeal of State of N.H., 147 N.H. at PELRB does not regularly have jurisdiction to interpret the CBA when it Truck Drivers, Local 170, 247 F.3d 8, 10 (1st Cir. 2001). For this reason, the Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987); see Keebler Co. v. the facts and of the meaning of the contract that they have agreed to accept.” arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of omitted). “Because the parties have contracted to have disputes settled by an

Appeal of State of N.H., 1 p. 4 47 N.H. at 109 (quotation and brackets

(same). “[W]hen the parties include an arbitration clause in their CBA, they

(quotation omitted)). [T]he overriding concern is whether the contracting CBA to determine whether claim was arbitrable, we review PELRB’s and to the submission of the issue to the arbitrator to determine his authority.” Manchester, 153 N.H. 289, 29 p. 4 4 (2006) (where PELRB had authority to interpret actually submitted an issue to an arbiter, we must look both to their contract Appeal of State of N.H., 147 N.H. 106, 109 (2001); see Appeal of City of certain exceptions recognized by our case law” that are not relevant here. interpretation of a CBA is within the province of the arbitrator, subject to of Town of Durham, 149 N.H. 486, 487 (2003), “the general rule [is] that the While ordinarily we interpret contractual provisions de novo, see Appeal

1 p. 4 49 N.H. at 534 (quotation and citation omitted).

(“Once the parties have gone beyond their promise to arbitrate and have 238 Intern. Broth. Teamsters v. Cargill, Inc., 66 F.3d 988, 991 (8th Cir. 1995) parties may agree to submit even question of arbitrability to arbitrator); Local of arbitrator’s jurisdiction is determined by parties’ agreement to arbitrate; Appeal of Police Comm’n of City of Rochester, 1 p. 4 49 N.H. 528, 534 (2003) (extent submission.” Larocque v. R.W.F., Inc., 8 F.3d 95, 96 (1st Cir. 1993); see requires the reviewing court to consider both the CBA and the arbitral therefore, was not final and binding. “A judicial challenge to arbitral authority arbitrator’s award because the award exceeded the arbitrator’s authority and, The county first argues that the PELRB erred by enforcing the

determinations. Appeal of City of Laconia, 1 p. 5 50 N.H. 91, 93 (2003). are presumptively lawful and reasonable, we require that the record support its 688, 689 (2003); see also RSA 5 p. 4 41:13 (2007). Though the PELRB’s findings of fact 5

parties’ submission is so implausible as to require reversal.

employee’s past record. whether [the county] had just cause to discharge [Foote], both parties conferred relation of the degree of discipline to the nature of the offense and the Comm’n, 149 N.H. at 689. “By requesting that the arbitrator determine interpretation is either unjust or unreasonable. See Appeal of Nashua Police preponderance of the evidence that the PELRB’s decision to uphold this U.S. at 38. Nor can we say that the county has demonstrated by a clear

We cannot say that the arbitrator’s interpretation of the CBA and the express provisions of the CBA and reach a final decision.” the maximum penalty under the CBA, and determined that it did not. with this standard, the arbitrator examined whether Foote’s conduct warranted Manchester, 1 p. 5 53 N.H. at 293 (citing seven criteria with approval). Consistent

evidence against the employee; (6) the possibility of discrimination; and (7) the the investigation undertaken; (4) the fairness of the investigation; ( p. 5 5) the the employer’s position; (2) the notice given to the employee; (3) the timing of seven criteria for analyzing whether just cause exists: (1) the reasonableness of collective bargaining agreement.” Manchester, 153 N.H. at 293. The United States Supreme Court has identified same deference normally accorded to the arbitrator’s interpretation of the Appeal of City of issues and surrounding circumstances necessary to interpret and apply the standard, “the arbitrator . . . has the authority to consider the underlying cause standard” applied to his review of the county’s decision. Under this reference “just cause,” the arbitrator determined that the “traditional just formulate a remedy, and in light of the parties’ expired CBA, which did not decide whether the county had “just cause” to terminate Foote and, if not, to In looking to the parties’ submission, which asked the arbitrator to

misread the contract.” ellipses omitted); see Pelletier v. Auclair Transp. Co., 109 N.H. 302, 304 (1969). language, “a court should not reject an award on the ground that the arbitrator Larocque, 8 F.3d at 97 (quotation and

U.S. p. 5 57 (2000). “[A]n arbitrator’s view of the scope of the issue is entitled to the interpretation of the CBA simply because the court disagrees with it. other grounds by Eastern Associated Coal Corp. v. United Mine Workers, 531 v. Esso Workers’ Union, Inc., 118 F.3d 841, 844 (1st Cir. 1997), abrogated on arbitrator’s construction of the [CBA] is to any extent plausible.” Exxon Corp. court’s task is thus “ordinarily . . . limited to determining whether the to overturn his decision.” Id.; see Georgia-Pacific Corp., 864 F.2d at 944. The authority, that a court is convinced he committed serious error does not suffice construing or applying the contract and acting within the scope of his

the CBA, because the parties authorized the arbitrator to give meaning to that Misco, 484 U.S. at 38. While the arbitrator cannot ignore the plain language of

because it disagrees with them, neither may the court reject the arbitrator’s 1988). Just as the court may not reject the arbitrator’s factual findings simply standards or principles.” In keeping with this concession, the county argued

p. 6 this arbitration, good cause would be examined under traditional just cause

did. In its brief to the arbitrator, the county conceded that “for the purposes of argue now that the arbitrator acted improperly by analyzing just cause as he the decision to terminate Foote under those standards, the county cannot

just cause standards” and, in its brief to the arbitrator, having itself analyzed Similarly, here, having agreed that the arbitrator would apply “traditional

lacked authority to decide this issue); Cargill, Inc., 66 F.3d at 990-91 (same). had just cause to discharge employee, employer cannot argue that arbitrator at 680 (where employer requested arbitrator to determine whether employer [the employer] asked it to undertake.” Id.; see Homestake Min. Co., 153 F.3d argue now that the arbitrator acted improperly by conducting the very analysis entered into the just cause stipulation, it is disingenuous for [the employer] to [the employer] agreed to stipulate to the just cause analysis. . . . Having reasonable. Id. at 825. As the court explained: “For reasons known only to it, analysis and that the arbitrator’s interpretation of the submission was submission conferred authority on the arbitrator to conduct a just cause and by conducting a just cause analysis. Id. The court ruled that the parties’ provided that the remedy for thirteen unexcused absences was termination, authority by ignoring the plain language of the attendance policy, which On appeal, the employer contended that the arbitrator had exceeded his

her. Id. had accrued thirteen absences, the employer lacked just cause for terminating 824 (quotation omitted). The arbitrator concluded that although the employee employment of the grievant . . . , and if not, what should be the remedy?” Id. at arbitration as: “Whether the Employer had just cause to terminate the this case, the parties in Bureau of Engraving framed the issue for the unexcused absences constituted just cause. Id. at 825. As did the parties in of Engraving, 284 F.3d at 824. It did not, however, state that thirteen here, the CBA in Bureau of Engraving included a just cause provision. Bureau terminated for accruing thirteen unexcused absences. Unlike the CBA at issue arbitrator ordered the employer to reinstate an employee who had been Union, 284 F.3d 821, 823-24 (8th Cir. 2002), for instance, as here, the (citing cases). In Bureau of Engraving v. Graphic Communication International Our conclusion is consonant with the decisions of other courts. See id.

Local 285, 260 F.3d 16, 22 (1st Cir. 2001), cert. denied, 534 U.S. 1083 (2002). was just cause for a lesser discipline.” Boston Medical v. Service Employees, conclude that there was no just cause for discharging [Foote], but that there terminate Foote and, if not, to provide a remedy, “[t]he arbitrator was free to brackets omitted). Having been asked whether there was just cause to United Steelworkers, 153 F.3d 6 p. 7 78, 680 (8th Cir. 1998) (quotation and authority upon the arbitrator to decide that issue.” Homestake Min. Co. v. 7

not warrant termination but rather warrants some lesser penalty.” cause for termination, the arbitrator is not free to determine that the act does

provision, terminating an employee for verbally abusing a resident constituted termination” was akin to a reference to “just cause,” and that under this according to the county, the reference in Article 24(B) to “grounds for employer . . . demonstrate ‘cause,’ ‘just cause’ or ‘good cause.’” Thus,

Co., 24 p. 7 7 F.3d at 13. When confronted with the CBA and the parties’

employee committed some act specifically listed in the [CBA] as providing just set forth in Spring, which stand “for the proposition that, once an arbitrator finds that an termination to a lesser sanction. In short, the county argued the seven criteria cause.” The instant case is, thus, unlike Georgia-Pacific Corp. and Poland F.3d at 31. The CBA in the instant appeal does not even use the phrase “just just cause. See Georgia-Pacific Corp., 864 F.2d at 942; Poland Spring, 314 existence of a collectively bargained labor agreement mandates that the just cause and expressly included the employee’s act within the definition of authority to disagree with the county’s decision to terminate her. articulation of a just cause standard,” the county asserts that “the mere unambiguously provided that employees could not be terminated except for cause.” While the county concedes that the CBA “was silent with respect to the these cases are distinguishable from this case. The CBAs in those cases 864 F.2d at 945-46, and cause principles, but rather to apply the CBA’s implied definition of “just Poland Spring Corp., 314 F.3d at 34-35. Both of To support its assertions, the county relies upon Georgia-Pacific Corp.,

per se just cause. See Georgia-Pacific Corp., 864 F.2d at 945. provided in the parties’ agreement.” termination,” he was “not free to fashion a separate remedy apart from the one no mitigating circumstances existed that would warrant reducing Foote’s

arbitrator found that Foote had verbally abused the resident, he lacked the

that the parties’ submission did not ask the arbitrator to apply traditional just The county also contends, contrary to its argument before the arbitrator,

Foote committed an act listed in the CBA as “grounds for immediate discharged because of anti-union bias; Foote was not disparately treated; and denied, 540 U.S. 818 (2003). To the county, once the arbitrator found that corrective action as such action would have been futile; Foote was not Spring Corp. v. United Food, Local 1445, 314 F.3d 29, 35 (1st Cir. 2002), cert. result in discharge; Foote was not entitled to progressive disciplinary or See Poland

The county argues that under articles 2, 24 and 25 of the CBA, once the

the arbitrator for engaging in the same analysis. terminate Foote under traditional just cause principles, the county cannot fault

Misco, 484 U.S. at 34 n.5. Having itself analyzed its decision to

not be tolerated; Foote knew or should have known that her conduct would that: the CBA permitted the county to discharge Foote; Foote’s conduct could p. 8 8

err as a matter of law by enforcing the arbitrator’s award. arbitrator’s domain.” For all of the above reasons, therefore, we hold that the PELRB did not reasonable as well and the interpretation of [the stipulation] [was] within the

F.3d at 1200. Ind. Workers, p. 8 8 F.3d 1104, 1108 (6th Cir. 1993); see LB & B Associates, 461 the parties bargained for him to do.” Bruce Hardwood Floors v. So. Coun. of arbitrator arguably construed and applied [them], and this is precisely what stipulation] was strained or even seriously flawed . . . is irrelevant. The be disturbed here.” Id. “Whether the arbitrator’s reading of the [CBA and termination, . . . the arbitrator concluded otherwise. That conclusion will not assumes that engaging in one episode of verbal abuse “equaled just cause for

parties’ stipulation “gave him the authority to conduct a just cause analysis is interpretation was not unreasonable). The arbitrator’s decision that the interpretation, arbitrator read these provisions differently and his interpretation of CBA’s just cause and immediate discharge provisions was one International Broth., 461 F.3d 1195, 119 p. 8 8 (10th Cir. 2006) (while employer’s award[ ] in this case.” Pelletier, 109 N.H. at 304; see LB & B Associates v. militate against an interpretation of the submission which would upset the interpretation, and the . . . limitations upon review of arbitration awards plausible, “[w]e do not agree that the submission to arbitration requires this Further, while the county’s interpretation of the submission may be

making a purely factual finding.” Trailmobile Trail., 223 F.3d at 747. precipitated the dismissal constitutes just cause”). complain that the arbitrator performed the analysis that it requested instead of arbitrator is empowered to determine whether the employee’s action which was discharged for just cause, the county should “not now be heard to except for just cause and does not equate certain behavior with just cause, “an publication). Having requested that the arbitrator determine whether Foote Fed. Appx. 3 p. 8 87, 391 (6th Cir. 2006) (not recommended for full-text provision of CBA); that he lacked the authority to answer it.” Hartco Flooring v. Local 14597, 192 [the county] submitted a single question to the arbitrator and now complains why not frame the issue as whether [Foote] committed [abuse]? In essence, the issue accordingly. “If the factual finding were the only bone of contention, had engaged in the conduct of which she was accused, it could have framed Had the county wanted the arbitrator to determine only whether Foote

(1st Cir. 19 p. 8 87) (when CBA contains general clause prohibiting termination

was up to arbitrator to harmonize management rights clause with just cause Inter. Un. of Elec. Workers, 223 F.3d 744, 747 ( p. 8 8th Cir. 2000) (holding that it that the arbitrator unreasonably harmonized the two. See Trailmobile Trail. v. submission asking him to determine whether just cause existed, we cannot say p. 9 9

C.F.R. § 483.13(c)(ii). neglect, mistreatment of residents or misappropriation of their property.” 42 had a finding entered into the State nurse aide registry concerning abuse, of abusing, neglecting, or mistreating residents by a court of law; or . . . [h]ave

support this argument, the county relies upon 42 C.F.R. § 483.13 (2006). resident and who fails to understand the wrongful nature of her conduct. To

nursing home, must “[n]ot employ individuals who have been . . . [f]ound guilty C.F.R. § 483.13(b). It also provides that a long-term care facility, like the and mental abuse, corporal punishment, and involuntary seclusion.” 42 like the nursing home, “has the right to be free from verbal, sexual, physical, 42 C.F.R. § 483.13 provides that a resident of a long-term care facility,

against reinstating an LNA who has been found to have verbally abused a The county argues that there are strong and dominant public policies

dominant public policy.” Id. at 345. facts as found by the arbitrator, contravenes an explicit, well-defined, and F.3d at 344. Thus, we examine “only whether the reinstatement award, on the here, [we are] bound by [the] arbitrator’s findings of fact.” Mercy Hospital, 42 p. 9 9 Corp., 531 U.S. at 65. Further, “[w]ith a few limited exceptions not relevant Mercy Hospital, 429 F.3d at 344 (quotation omitted); Eastern Associated Coal through arbitration when chosen as a result of labor-management negotiation.” background labor law policy that favors determination of disciplinary questions determination, “we must read the pertinent statutes and regulations in light of (2006); see Eastern Associated Coal Corp., 531 U.S. at 62-63. In making this and other applicable authority.” Nurses Ass’n, 429 F.3d 338, 343 (1st Cir. 2005), cert. denied, 126 S. Ct. 1939 public policy as expressed in controlling statutes, regulations, common law, order for reinstatement -- gives offense.” Mercy Hospital v. Massachusetts must conclude that the PELRB’s order contravenes a strong and dominant been preferable. Rather, the sole question is whether the award itself -- the whether some remedy short of unconditional reinstatement . . . might have the question is not whether the charged conduct offends public policy, or “In the context of an arbitration award that reinstates a fired employee,

(1 p. 9 983). interests.” Id.; see W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 confines of positive law, rather than general considerations of supposed public (2006) (quotation omitted). “[I]n such cases our review is limited to the

arbitrator’s award because the award violated public policy. “To so find, we The county next asserts that the PELRB erroneously enforced the

C.F.R. § 483.13 does not “establish a public policy prohibiting [Foote’s]

N.W.2d 560 (Mich. 1995). In that case, unlike the instant appeal, the State v. AFSCME Local 992, 531 N.W.2d 728 (Mich. Ct. App.), appeal denied, 549 Similarly misplaced is the county’s reliance upon Gogebic Medical Care as Foote. State’s nurse aide registry, it is silent with respect to reinstating an LNA such have engaged in one episode of verbal abuse. We therefore conclude that 42 Associated Coal Corp., 531 U.S. at 62-63. employing those for whom the State has entered an adverse finding into the having in its employ an LNA, such as Foote, who was found by an arbitrator to reinstate her violated that policy.” Boston Medical, 260 F.3d at 23; see Eastern occurrence.” Thus, under federal law, a nursing home is not precluded from public policy in favor of competent nursing care, but whether the order to or neglect; and . . . the neglect involved in the original finding was a singular discussed previously, “the question is not whether [Foote’s] conduct violated a facility have “[t]he right to be free from physical or mental abuse”). As e.g., 42 U.S.C.A. § 1395i-3(c)(1)(A) (Supp. 2007) (residents in skilled nursing against abuse of nursing home residents as support for its arguments. See, The county mistakenly relies upon the strong and dominant public policy

Foote’s conduct meets it. mistreating residents, as those terms are defined elsewhere, and from

personal history of the nurse aide does not reflect a pattern of abusive behavior the registry “upon a determination by the State that . . . the employment and 2007), a nurse aide may petition the State for removal of his or her name from of verbal abuse is not precluded. Pursuant to 42 U.S.C.A. § 1395i-3(g) (Supp. hiring (and, by extension, reinstating) an LNA who engages in a single episode provisions in the same statutory and regulatory scheme, however, reveal that Moreover, the regulation is silent with respect to reinstatement. Other

arbitrator did not use this definition and we express no opinion as to whether individuals who have been found guilty by a court of abusing, neglecting or necessary to avoid physical harm, mental anguish, or mental illness.” The wrongdoing. While the regulation precludes nursing homes from employing mental anguish . . . or . . . deprivation . . . of goods or services that are to have engaged in one episode of verbal abuse and/or who fails to admit her intimidation, or cruel punishment with resulting physical harm, pain, or “abuse” as the willful “infliction of injury, unreasonable confinement, used in 42 U.S.C.A. § 3002(1) (Supp. 2007). 42 U.S.C.A. § 3002(1) defines Foote was not found by a court to have engaged in abuse as that term is

public policy against reinstating an LNA who has been found by an arbitrator We disagree that 42 C.F.R. § 483.13 expresses a strong and dominant are moot.

p. 11 decision upholding the arbitration award, we conclude that issues (2) and (3)

another position in the county. In light of our decision to affirm the PELRB’s reinstatement to her former position is improper, Foote may be reinstated to taken actions to permit Foote to practice as an LNA; and (3) whether, if

agencies with primary responsibility to protect the public interest had recently

further reveals that on March 24, 2006, the union filed a request for further files a request for further PELRB proceedings within 30 days.” The record notice of the union’s evidence that would have reinforced its position that State the Reserved Issues would be “administratively dismissed unless either party applied the wrong legal standard when it failed to admit or take administrative reveals that the hearing officer’s March 2, 2006 decision notified the union that opportunity for the union to address those matters; (2) whether the PELRB dismissed the Reserved Issues sua sponte. The record submitted on appeal PELRB erroneously dismissed the bifurcated “Reserved Issues” without an With respect to issue (1), the union argues that the PELRB erred when it

and dominant public policy against reinstating her. long-term care facility residents from abuse, not whether there was a strong In its cross-appeal, the union raises the following issues: (1) whether the

Appeal of Town of Pelham, 154 N.H. at 131. matter of law by ordering the county to comply with the arbitrator’s award. See reinstating an employee such as Foote, we hold that the PELRB did not err as a Because we find that no strong and dominant public policy exists against

underlying conduct violated the general public policy in favor of protecting Medical Care, 531 N.W.2d at 731, by contrast, examined whether the nurse’s reinstating untruthful police department employees. The court in Gogebic examined whether there was a strong and dominant public policy against narrow approach in Appeal of Town of Pelham, 154 N.H. at 129-31, where we see Eastern Associated Coal Corp., 531 U.S. at 62-63. We embraced this Review of Arbitration Awards, 16 Ohio St. J. on Disp. Resol. 297, 301 (2001); issue, violated public policy.” Glanstein, A Hail Mary Pass: Public Policy reviewing court must find the terms of an award, not the underlying conduct at narrow approach applied by . . . most . . . federal circuit courts, namely that a Corporation, the United States Supreme Court “adhered to the so[-]called of Town of Pelham, 154 N.H. at 129-31. In Eastern Associated Coal Eastern Associated Coal Corporation and conflicts with our decision in Appeal Care Facility was decided before the United States Supreme Court decided registry. Gogebic Med. Care, 531 N.W.2d at 731. Moreover, Gogebic Medical had entered an adverse finding against the nurse on the State’s nurse aide terminated Foote, not whether it did so when it refused to reinstate her. p. 12 only whether the county engaged in anti-union discrimination when it

determine the level of discipline for Foote’s conduct.

majority’s analysis, and then set forth how I would resolve this case. jurisprudence, I respectfully dissent. I first explain why I disagree with the threatens to create unnecessary uncertainty in our state’s labor law just cause standard’” to essentially exercise his independent judgment to “did not reference ‘just cause’” allowed the arbitrator to apply a “‘traditional The majority holds that this submission, combined with the fact that the CBA under the collective bargaining agreement? If not, what shall the remedy be?”

While the county asserts that the arbitrator already addressed the union’s antiunion discrimination by failing to reinstate Foote does not appear to be moot. including attorney’s fees and costs. Thus, whether the county engaged in antidiscrimination would “strengthen [its] request for additional remedies,” his own brand of industrial justice, and that affirming the PELRB’s decision

BRODERICK, C.J.