2009-635, Appeal of Town of Pittsfield

vacation leave, and the use of unpaid leave under the federal Family Medical effect from January 1, 2008, to December 31, 2010, and governs sick leave, (Union), are parties to a collective bargaining agreement. The agreement is in

some of its employees, represented by AFT-NH, Local #6214, AFT, AFL-CIO The following facts appear in the administrative record. The Town and

order. find that Girard’s dispute was not properly before the PELRB, we vacate the employee, James Girard, in violation of RSA 273-A:5, I(h) (1999). Because we that the Town committed unfair labor practices in its treatment of a town of the New Hampshire Public Employee Labor Relations Board (PELRB) finding DUGGAN, J. The petitioner, Town of Pittsfield (Town), appeals an order

orally), for the respondent. Krasner Law Offices, of Farmington (Emmanuel Krasner, on the brief and

to press. Errors may be reported by E-mail at the following address: Thomas J. Flygare on the brief, and Mr. Schwarz orally), for the petitioner. Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz and

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

No. 2009-635 editorial errors in order that corrections may be made before the opinion goes Public Employee Labor Relations Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 as an unfair labor practice complaint.” p. 2 complaint.” The Union stated that it was now submitting “the same complaint “it did not have authority to act other than on an unfair labor practice

appeal and request for arbitration,” but that the PELRB had rejected it because

if it was dissatisfied with the Town’s decision, it did not do so.

submitted a request to the PELRB asking for the appointment of an arbitrator. “submitted the grievance within seven days to the [PELRB] characterized as an Walter, referenced only Walter’s grievance. In it, the Union stated that it had an existing practice governing working conditions. The complaint, signed by with the PELRB, arguing that the Town, in its July 22 memorandum, changed On October 29, 2008, the Union filed an unfair labor practice complaint

bargaining agreement required the Union to submit the grievance to the PELRB Selectmen, which they denied on September 2, 2008. Although the collective unpaid FMLA leave. Girard filed a grievance with the Town Board of request, but required him to exhaust his accrued vacation time before taking apparently attempting to comply with the collective bargaining agreement, In the meantime, Girard applied for FMLA leave. The Town approved his Board of Selectmen’s decision final. On August 21, 2008, the Union, Failure to submit the grievance to the PELRB within seven days renders the pursuant to RSA chapter 273-A. [PELRB] within seven (7) calendar days [of] the receipt of the written decision.” Union must file an unfair labor practice complaint with a $60 filing fee proceedings on an informal basis,” and that in order to initiate proceedings, the Counsel for the PELRB replied that the PELRB “cannot institute adjudicatory pursuant to the collective bargaining agreement’s grievance procedure. disregard its request for an arbitrator and to schedule the matter for a hearing On September 2, 2008, the Union emailed the PELRB, asking it to

leave. paid vacation leave and then accumulated sick leave before taking unpaid stated that employees who sought FMLA leave would first have to exhaust their employee’s grievance, the Union may “submit the grievance in writing to the the Union wishes to contest the Town Board of Selectmen’s denial of an on August 13, 2008. Under the terms of the collective bargaining agreement, if conditions of employment. The Town Board of Selectmen denied his grievance bargaining agreement because it was a unilateral change in the terms and grievance with the Town, alleging that the new policy violated the collective The Union, on behalf of Richard Walter, a Town employee, filed a

memorandum clarifying the application of FMLA leave. The memorandum Leave Act (FMLA). On July 22, 2008, the Town Board of Selectmen issued a p. 3 3

earlier attempt to file a grievance with the PELRB.”

complaints.

is filed. Here, the complaint filed on October 29 was filed on behalf of Walter, PELRB cannot exercise its jurisdiction until an unfair labor practice complaint grievance because “the issue in dispute is the same as was the basis for the Under the plain language of the statute and administrative rules, the

all persons involved.” N.H. Admin. Rules, Pub. 201.02(b)(4). concise statement of the facts giving rise to the complaint . . . and the names of The complaint, and the accompanying affidavit, must set out “[a] clear and $60 filing fee. See N.H. Admin. Rules, Pub. 102.01(c), 201.17; RSA 27 p. 3 3-A:6, II. the parties must file an unfair labor practice complaint by affidavit and pay a

See RSA 27 p. 3 3-A:5, :6, I. To initiate proceedings with the PELRB,

The PELRB has primary jurisdiction over all unfair labor practice

N.H. at 542. the order is unjust or unreasonable. it for further indications of legislative intent. Appeal of Garrison Place, 159 PELRB issued its decision, finding that it had jurisdiction over Girard’s the appealing party demonstrates by a clear preponderance of the evidence that When a statute’s language is plain and unambiguous, we need not look beyond Selectmen’s decision regarding Girard’s leave was final. On April 7, 2009, the Vector Mktg. Corp. v. N.H. Dep’t of Revenue Admin., 156 N.H. 781, 78 p. 3 3 (2008). apply the same principles of construction in interpreting administrative rules. complaint on his behalf. The Town argued that, as a result, the Board of Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. 539, 542 (2009). We grievance, we do not reach the Town’s other arguments. where possible, we ascribe the plain and ordinary meanings to words used. Because we agree that the PELRB did not have jurisdiction over Girard’s construing a statute, we first examine the language found in the statute and RSA chapter 273-A and the administrative rules governing the PELRB. When Resolution of this dispute requires that we interpret various provisions of

158 N.H. 258, 260 (2009); see RSA 541:1 p. 3 3 (2007).

and, absent an erroneous ruling of law, we will not set aside its decision unless When reviewing a decision of the PELRB, we defer to its findings of fact, submitted his grievance to the PELRB, nor filed an unfair labor practice

Girard’s grievance because the Union never submitted it to the PELRB. On appeal, the Town first argues that the PELRB lacked jurisdiction over

PELRB involved Girard’s use of sick and vacation leave, the Union neither in March 2009. Although the parties stipulated that the dispute before the complaint be dismissed as untimely. The PELRB held an evidentiary hearing denying that it had committed an unfair labor practice and requesting that the The Town answered the complaint as if it pertained to Walter’s grievance, p. 4 4

Accordingly, we vacate the PELRB’s decision as it relates to Girard.

Girard’s behalf, the PELRB did not have jurisdiction to decide his grievance.

the Union never filed an unfair labor practice complaint with the PELRB on testified that the Union had not filed a complaint on Girard’s behalf. Because Union initially filed on his behalf in August. In addition, the Union president

BRODERICK, C.J.