2011-281, Appeal of Hollis Education Association, NEA-New Hampshire

Jackson Lewis LLP

record. In 1976, the association and the district entered into a collective (New Hampshire Public Employee Labor Relations Board) APPEAL OF HOLLIS EDUCATION ASSOCIATION, NEA-NEW HAMPSHIRE

The following facts were found by the PELRB or are supported in the

the association. We affirm. School District (district) are not members of the bargaining unit represented by No. 2011-281 language pathologists and occupational therapists employed by the Hollis Public Employee Labor Relations Board

the petitioner, the Hollis School Board (board), and ruling that the speech-

relations board (PELRB) sustaining an unfair labor practice complaint filed by Hampshire (association), appeals a decision of the public employee labor ___________________________ HICKS, J. The respondent, the Hollis Education Association, NEA-New

by brief and orally, for the respondent. James F. Allmendinger, of Concord, staff attorney, NEA-New Hampshire, a.m. on the morning of their release. T 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: orally), for the petitioner.

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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

claiming that speech-language pathologists and occupational therapists are

Olszewski were members of the collective bargaining unit, filed a grievance

Teacher Contract.” Subsequently, the association, believing that Banks and the p. 2 2010-2011 school year that differed from the annual “New Hampshire In July, Banks and Olszewski received employment agreement letters for

the CBA as stipulated in the recognition clause. not violate the CBA because speech-language pathologists are not members of The superintendent denied the grievance, ruling that Fitton’s termination did

with the superintendent claiming that Fitton’s termination violated the CBA.

effective June 30, p. 2 2010. Shortly thereafter, the association filed a grievance budgetary reductions,” her employment with the district would be terminated reduction in force caused by decreasing enrollments and accompanying

In April p. 2 2010, the superintendent notified Fitton that, “due [to] a

presumed to be in the bargaining unit. board during collective bargaining negotiations; the schedule listed employees individuals were included in a salary schedule given to the association by the

every new CBA. In addition, for the years p. 2 2005, 2007 and 2009, all three

required to provide written receipts acknowledging that they received copies of the same as those received by members of the bargaining unit. They were also Contract” every year of their employment through p. 2 2009. These contracts were

Banks, Fitton and Olszewski each signed a “New Hampshire Teacher

schedule in the CBA. not negotiate a higher salary because the district had to comply with the salary

him that his position was covered by the CBA. He was also told that he could

Occupational Therapy. When Olszewski was hired, the superintendent told

Professionals and certified by the National Board for Certification in therapist. He is an occupational therapist licensed through NH Allied Health William Olszewski was hired by the district in p. 2 2003 as an occupational

to the salary schedule in the CBA. testified that, when she was hired, she was told that her salary had to conform certified by the American Speech-Language-Hearing Association. Fitton

Licensed Allied Health Professionals (NH Allied Health Professionals) and are

speech-language pathologists licensed through the New Hampshire Office of language pathologists in 1994 and p. 2 2002, respectively. Banks and Fitton are Pamela Banks and Robin Fitton were hired by the district as speech-

association as the bargaining unit’s exclusive representative. See Agreement dated October 1, 1975.” That same year, the PELRB certified the

I (Supp. 1975) (amended 1983, p. 2 2008, 2011).

School District and are employed by said district, in accordance with Article I, guidance counsellors who actively teach at least 50% of their time in the Hollis p. 3 Appeal of Londonderry School Dist. Our standard of review in this case is governed by RSA 541:13 ( p. 2 2007).

appeal followed.

of those positions. The association’s motion for rehearing was denied, and this not “recognize any right of the Association to proceed to arbitration” on behalf included within the term “certified teacher.” As a result, it found that it could

because they “are not listed in the [1976] certified bargaining unit” and are not

disputed positions are not part of the PELRB bargaining unit certification” particular just like the certified teacher position,” it concluded that “[t]he and occupational therapists “just like bargaining unit positions, and in

to 2010,” the association and the district treated speech-language pathologists

bargaining unit certification. While it found that, “for a number of years prior

pathologists and occupational therapists are not members of the 1976 Following the hearing, the PELRB ruled that speech-language

occupational therapists.

to those positions identified in the recognition clause at the time the original

for arbitration on behalf of the speech-language pathologists and the complaint, the PELRB could address the association’s grievance and demand At the hearing, the parties agreed that in connection with the board’s under RSA 273-A:10.” “The composition of a bargaining unit is limited by law

demand. On October 5, the PELRB held a hearing on the board’s complaint. and shall certify the exclusive representative thereof when petitioned to do so

Appeal of Somersworth School Dist. The PELRB has the exclusive authority to certify a bargaining unit.

supported by the record. Appeal of Town of Deerfield

and sought to have the PELRB order the association to cease and desist its I, provides that “[t]he board . . . shall determine the appropriate bargaining unit association’s demand for arbitration violated RSA 273-A:5, II(f) and (g) (2010), authority. Appeal of Somersworth School Dist., 142 N.H. at 840. RSA 273-A:8, members of the applicable bargaining unit. The board alleged that the However, it must do so according to the dictates of the statute granting that

are presumptively lawful and reasonable and will not be disturbed if they are Deerfield, 162 N.H. 601, 602 (2011); RSA 541:13. The PELRB’s findings of fact decision is unlawful, or clearly unjust or unreasonable. Appeal of Town of (2010). To succeed on appeal, the association must show that the PELRB’s

arbitration on behalf of speech-language pathologists because they are not

PELRB, claiming that the association could not file a grievance or request In August, the board filed an unfair labor practice complaint with the

unit. It then made a demand for arbitration pursuant to the terms of the CBA. entitled to the same individual contracts as other members of the bargaining quality, qualifications, fitness, or validity.” Webster’s Third New International p. 4 meaning of “certified” is “endorsed authoritatively: guaranteed or attested as to we will look to the plain meaning of the term “certified teachers.” The common Since there is no dispute that the employees in this case were “full-time,”

see

and certified in their respective fields, see 4

We disagree. titles teach and are certified, they should fall within . . . the recognition clause.” pathologists and occupational therapists.” It maintains that “[s]ince both job

pathologists may be certified by the New Hampshire Department of Education,

There is no dispute that Banks, Fitton and Olszewski are both licensed

individuals were treated, and required to perform many of the same duties, as

that the term “certified teacher” is “broad enough to include speech-

governing licensing of speech-language pathologists), and that speech-language

occupational therapists. “certified full-time teachers” does not include speech-language pathologists or speech-language specialists). Furthermore, there is no dispute that these Admin. Rules, Ed 507.23 (Board of Education certification standards for specialists who “provide speech-language pathology services for schools”); N.H. RSA 189:14-e (2008) (statute governing certification of speech-language pathologists or occupational therapists. Nonetheless, the association argues

governing licensing of occupational therapists); RSA 326-F:3 (2011) (statute

an individual with a certification to teach. By its plain language, the term occupation is to teach and who has the necessary qualifications to do so, i.e., instruct.” Id. at 2346. Thus, a “certified teacher” refers to an employee whose meaning: “one that teaches or instructs . . .; esp: one whose occupation is to district.” The recognition clause does not specifically refer to speech-language Dictionary 367 (unabridged ed. 2002). “Teacher” has the following relevant least 50% of their time in the Hollis School District and are employed by said full-time teachers, librarians and guidance counsellors who actively teach at

therapists. See

bargaining unit have been approved by the PELRB since 1976. See

1976 recognition clause defines members of the bargaining unit as “[c]ertified review de novo. See Appeal of Londonderry School Dist., 142 N.H. at 680. The Interpretation of the recognition clause is a question of law, which we

Appeal of Somersworth School Dist., 142 N.H. at 840.

by the PELRB includes speech-language pathologists and occupational the 1976 recognition clause to determine whether the bargaining unit certified 273-A:8, I, :10 (Supp. 2011). Thus, we will examine the relevant language of

version of the recognition clause, no changes to the composition of the Here, although the CBA in effect in 2010 contains a slightly modified

by the PELRB.” p. 5 Appeal of Londonderry School Dist., 142 N.H. at 680. unit is certified by the PELRB and by any subsequent modifications approved Appeal of Londonderry School Dist.

union and non-union positions without fear of enlarging the bargaining unit.”

unit. Otherwise, an employer could never provide similar compensation for thereof when petitioned to do so under RSA 273-A:10 different positions is not dispositive of an employee’s inclusion in a bargaining Moreover, “[s]imilarity in compensation between employees holding

Appeal of the Somersworth School District have acted “equitably in reaching a decision” in this case. As we stated in

appropriate bargaining unit and shall certify the exclusive representative above, pursuant to RSA 273-A:8, I, “[t]he board . . . shall determine the procedures for determining the composition of a bargaining unit. As laid out modify the bargaining unit in the absence of such a request. See

this decision. changed since 1976, the PELRB must follow the necessary statutory teachers” included these employees. As discussed above, we find no error in petition to modify been filed, the legislature did not give it the authority to history but nonetheless was not persuaded that the term “certified full-time remedies.” Appeal of Somersworth School Dist.

I; cf. Appeal of Somersworth School Dist., 142 N.H. at 841 (finding “that it was

markedly in the last 45 years.” While the teaching profession may have PELRB might have included these positions in the bargaining unit had a profession – and State Board of Education certifications – have changed unit.” A review of the PELRB’s decision reveals that it, in fact, considered this position at the same rate as a position within a bargaining unit. Id, 142 N.H. at 841. While the bargaining unit standards to 1976 requirements” because “the teaching 273-A and “the statute does not give it the ability to grant all equitable . . . applies only to those matters specifically encompassed within” RSA chapter

RSA 273-A:8, I. certain positions as though they were included within the bargaining unit. See

neither an employer nor a union can “avoid the need to satisfy the statutory

language pathologist and occupational therapist] employees in the bargaining employer cannot define the scope of the bargaining unit by compensating one The association asserts that “[t]he PELRB erred in tying certification and, 142 N.H. at 682 (citations omitted). An

parol evidence, specifically, “the long history of the inclusion of [speech- The association further contends that the PELRB should have considered

elementary education teachers). Admin. Rules, Ed 507.11 (Board of Education certification standards for “certified full-time teachers” under the 197 p. 6 6 recognition clause. See N.H. “certified full-time teachers.” However, these facts do not render them 6

Affirmed

pathologists and occupational therapists in the bargaining unit.

arguments as they are premised upon inclusion of speech-language In light of our ruling, we need not address the association’s remaining

DALIANIS, C.J.