2010-438 Appeal of Matthew Kennedy & a. (New Hampshire Public Employee Labor Relations Board)

No. 2010-438

Public Employee Labor Relations Board

music teacher in the Hinsdale Middle and High Schools for approximately ten The administrative record supports the following facts. Kennedy was a

Drummond Woodsum & MacMahon

its reduction-in-force policy. We affirm. subcontracting; and (2) dismissed their claim that the school district violated denied their claim that the school district had engaged in impermissible district). On appeal, the petitioners argue that the PELRB erred when it: (1) ___________________________ practice claims against the respondent, the Hinsdale School District (school Public Employee Labor Relations Board (PELRB) denying their unfair labor James F. Allmendinger Federation of Teachers (union), appeal the decision of the New Hampshire CONBOY, J. The petitioners, Matthew Kennedy and the Hinsdale

the brief, and Matthew H. Upton orally), for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE

by brief and orally, for the petitioners.

(New Hampshire Public Employee Labor Relations Board)

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Kennedy appealed the decision to the Hinsdale School Board and, forth appeal procedures available to a teacher who has been non-renewed, Rather, pursuant to RSA 189:14-a and RSA 189:14-b (Supp. 2010), which set decision to not renew Kennedy’s employment for the 2009-2010 school year. The petitioners did not file a grievance concerning the school district’s

music classes through the Virtual High School program. band program, though not for credit. The school district also offered online addition, Hinsdale students could participate in the Winchester community training courses at Brattleboro because of declining interest at Hinsdale. In previously entered into a similar arrangement for students to take vocational madrigal groups, and music festival ensembles. The school district had band and choral programs, music theory electives, after-school jazz band and could receive credit for participation in Brattleboro’s music offerings, including with Brattleboro (Vermont) High School whereby interested Hinsdale students district eliminated the Hinsdale band program and entered into an agreement Prior to the commencement of the 2009-2010 school year, the school

only fourteen students indicated interest in participating in band. be held after the end of the normal school day. For the 2009-2010 school year, overturned, the union and the school district had agreed that the class would scheduling the band class after the petitioner’s earlier non-renewal was participated on a “drop-in” basis, receiving no credit. Due to difficulties in restudents participated in the band. Of these, five received credit, and fifteen students participated. During the 2008-2009 school year, only twenty participated in the band program. During the 2007-2008 school year, forty marked by steadily declining enrollment. In 1996, nearly seventy students renew Kennedy’s employment for the 2008-2009 school year. See employed by the district. The history of the school’s band program has been Citing lack of student participation, the school district attempted to not teacher who headed the choral program. This second teacher continues to be teachers: Kennedy, who was in charge of the band program, and a second Prior to Kennedy’s non-renewal, the school district had two music

enrollment. district again notified Kennedy that he was not being renewed due to declining failed to provide timely notice of non-renewal. On March 26, 2009, the school by the state board of education on the grounds that the school district had a (the “re-nomination” or “non-renewal” statute). This action was overturned

273-A:1, XI (2010); RSA 189:14-a (2008). procedure were management prerogatives and teacher non-renewals. See RSA binding arbitration. The only matters excluded from the required grievance which contained a grievance procedure providing for, among other things, district and the union were parties to a collective bargaining agreement (CBA), years and a member of a bargaining unit represented by the union. The school term. Appeal of Hillsboro-Deering School Dist. employee wages and hours are a mandatory subject of negotiation. See p. 3 a term or condition of employment is tantamount to a refusal to negotiate that While managerial policy may include position creation and elimination, of employment. RSA 273-A:3 (2010). A public employer’s unilateral change in employee organizations to negotiate in good faith over the terms and conditions The Public Employee Labor Relations Act requires public employers and

clearly unreasonable or unlawful. RSA 541:13 (1997); Appeal of Lisbon Reg. The petitioners have the burden of proving that the PELRB’s decision is of City of Nashua Bd. of Educ., 141 N.H. 768, 775 (1997) (“[A] public

governmental functions.” Id. direction and number of its personnel, so as to continue public control of technology, the public employer’s organizational structure, and the selection, management of schools . . . are vested exclusively in the [school] [b]oard.” functions, programs, and methods of the public employer, including the use of parties’ CBA, which states that “educational policy, [and] the operation and managerial policy is defined in the Act as including, but not limited to, “the services), RSA 194-C:5 (2008) (school board organization and duties), and the prerogative of the public employer.” RSA 273-A:1, XI (emphasis added). Such curriculum under RSA 194-C:4 (Supp. 2010) (required superintendent conditions of employment “other than managerial policy within the exclusive The school district asserts that it properly exercised its right to change its “Terms and conditions” of employment are defined as wages, hours, and other band, and the Virtual High School constituted impermissible subcontracting., 144 N.H. 27, 30 (1999). PELRB’s rulings on their outsourcing and reduction-in-force claims. Kennedy’s position with the Brattleboro offerings, the Winchester community The petitioners first argue that the school district’s action in replacing force claim, and denied the remaining claims. The petitioners appeal only the the PELRB granted the school district’s motion to dismiss the reduction-inemployment; and (3) outsourcing the school band program. After a hearing, district’s reduction-in-force policy in connection with Kennedy’s termination of renewing Kennedy in retaliation for his union activity; (2) violating the school PELRB, alleging that the district had violated RSA 273-A:5, I (2010) by: (1) non- The petitioners also filed an unfair labor practice complaint with the

Appeal of Lisbon, 143 N.H. at 393. preponderance of the evidence that it is unjust or unreasonable. RSA 541:13; unless it is erroneous as a matter of law or we are satisfied by a clear deemed prima facie lawful and reasonable, and we will not disturb its order School Dist., 143 N.H. 390, 393 (1999). The PELRB’s findings of fact are

renewal after a hearing. subsequently, to the state board of education. Each board affirmed the nonthat the school district’s action primarily p. 4 we cannot conclude that the second is satisfied; this is, we cannot conclude regulation.” Appeal of State of New Hampshire the public employer by the constitution, or by statute or statutorily adopted Here, even assuming the first and third prongs of this test are satisfied, 4 of the [proposal] must not be reserved to the exclusive managerial authority of a mandatory subject of bargaining. First, “[t]o be negotiable, the subject matter reduced wages and benefits constituted an unfair labor practice. Id articulated for determining whether a particular proposal or action constitutes. at 776. In and subsequent hiring of part-time employees to perform the same duties at which we held that a school board’s dismissal of unionized custodial workers contractor. Thus, this case is distinguishable from Appeal of City of Nashua, in the fact that Kennedy’s job duties were not simply transferred to an outside employment, rather than matters of broad managerial policy. Of significance is

prongs are met. Appeal of City of Nashua, 141 N.H. at 774. Negotiation over the public employer’s action is mandatory only if all three Relevant to our analysis here is the three-pronged test we have 273-A:1, XI [reserving matters of managerial policy to the employer].” Id. with public control of governmental functions contrary to the provisions of RSA right to substitute subcontracted work for bargaining unit work. In Appeal of resulting contract provision nor the applicable grievance process may interfere The prerogatives afforded to management, however, do not include the the proposal were incorporated into a negotiated agreement, neither the employment, rather than matters of broad managerial policy.” Id. “Third, if “Second, the proposal must primarily affect the terms and conditions of

unfair labor practice claim. See id. layoff or reorganization is within managerial policy and is not subject to an wages and hours of its employees.” Id. However, we also noted that a true benefits had “[i]n essence . . . created a wholesale change in the bargained-for independent contractors to perform the same duties at reduced wages and recognized that the employer’s actions in replacing union employees with to perform their work.” Appeal of Hillsboro-Deering, 144 N.H. at 30. We employees during the term of the CBA and subcontract with private companies performed by its bargaining unit, it [can]not lawfully terminate bargaining unit management prerogative to change the amount or nature of the work Hillsboro-Deering, we held that “[w]hile the school district may have . . . the

of such programs were a matter of managerial policy). bargaining, but the decision to offer extracurricular programs and the number scale for extracurricular duties of teachers was a mandatory subject of N.H. at 30; Appeal of Berlin Educ. Ass’n, 125 N.H. 779, 784 (1984) (a salary hours for the position or program.”); see also Appeal of Hillsboro-Deering, 144 necessarily include the ‘lesser’ power to unilaterally determine wages and employer’s ‘greater’ power to create or eliminate a position or program does not labor practice claims under RSA 273-A:5, see p. 5 We have held that while the PELRB has primary jurisdiction over unfair

procedure.” in-force policy are not expressly excluded from the contractual grievance reduction-in-force policy, despite the fact that . . . violations of the reductionrenewal appeal’ statute, rather than filing a grievance as to the violation of the non-renewal by utilizing an appeal procedure under RSA 189:14-b, the ‘nonstated, “The [petitioners] themselves treated Mr. Kennedy’s termination as a Kennedy’s termination was a non-renewal, not a reduction-in-force. The board In granting the school district’s motion to dismiss, the PELRB ruled that

binding arbitration. Appeal of City of Manchester, 153 N.H. 289, 293 (2006). generally have jurisdiction to interpret the CBA when the CBA provides for final

force claim because the petitioners had failed to exhaust the required grievance argued that the PELRB lacked jurisdiction over the petitioners’ reduction-inover the reduction-in-force claim. In its dismissal motion, the school district because the PELRB did not address the question of whether it had jurisdiction renewal rather than a reduction-in-force (RIF), and that a remand is necessary that the PELRB erred in determining that Kennedy’s termination was a non- Kennedy’s employment in violation of its reduction-in-force policy. They assert that the school district committed an unfair labor practice by terminating The petitioners next argue the PELRB erred in dismissing their claim

decision on this issue. Kennedy’s duties to another provider. Accordingly, we affirm the PELRB’s program was to alter the district’s curricular offerings, not to transfer unlikely to rebound. Thus, the primary effect of the elimination of the band and sophomores and middle school students, which indicated that interest was viability” was a lack of participation in music offerings by high school freshmen graduation ceremony. Further, “a crucial factor in determining program students and members of the community in order to play at the 2008 example, it was necessary for the band to be augmented with graduated offered to the band were of particular concern to the administration. For Middle/High School principal noted that the limited performance opportunities program lack[ed] viability.” A memorandum written by the Hinsdale Moreover, the record supports the school district’s conclusion that “the music contractor was hired to replace Kennedy as the Hinsdale band instructor. the district’s managerial prerogative. As the PELRB noted, no outside elimination of the Hinsdale band program was part of a reorganization within On the record before us, we agree with the PELRB’s conclusion that the

hours. Id. at 774. remained the same, the action was one that primarily affected wages and so holding, we recognized that, because the actual job duties to be performed p. 6 Affirmed

as a matter of law or that it is unjust or unreasonable. Accordingly, we do not conclude that the PELRB’s decision is erroneous

DALIANIS, C.J.