2011-012, Appeal of Michael Silverstein

Heather G. Silverstein

(New Hampshire Public Employee Labor Relations Board)

No. 2011-012

James F. Allmendinger Public Employee Labor Relations Board

Theodore E. Comstock

a.m. on the morning of their release. T amicus curiae. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 , of Concord, by brief, for NEA-New Hampshire, as to press. Errors may be reported by E-mail at the following address:

New Hampshire School Boards Association, as amicus curiae.

O’Shaughnessy on the brief, and Mr. Teague orally), for the defendant. Upton & Hatfield, LLP, of Concord (John F. Teague and James A.

plaintiff.

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.

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

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as complaint against the School. He contends that he is entitled to a de

p. 2 terms of the CBA deprived it of jurisdiction over his unfair labor practice

The plaintiff first argues that the PELRB erred in concluding that the

otherwise violates public policy. We address each argument in turn. procedure is not “workable” as required by RSA 273-A:4 (Supp. 2011) and CBA violates the State and Federal Constitutions; and (3) the CBA’s grievance

of limitations would run on those claims if he failed to file at that time. See

provide for final and binding arbitration; (2) the PELRB’s interpretation of the

against the School with the PELRB, apparently out of concern that the statute

matter of law, over unfair labor practice complaints whenever the CBA does not

process was still underway, the plaintiff filed an unfair labor practice complaint

On appeal, the plaintiff argues that: (1) the PELRB has jurisdiction, as a

plaintiff’s motion for a rehearing, and this appeal followed. binding” hearing before the school board. While the second step of that school principal; the second before the superintendent; and a “final and process affords employees three opportunities to be heard: the first before the 2

grievance proceedings are completed.” Subsequently, the PELRB denied the

initiated a grievance against his employer arising out of the reduction. That

bargaining agreement have explicitly agreed to final and binding arbitration.”

Silverstein’s complaint during the grievance proceedings and after the jurisdiction “to interpret the Andover CBA and decide the merits of Mr. jurisdiction of that complaint”). The PELRB, however, concluded that it lacked collective bargaining agreement (CBA) governing his employment, the plaintiff health insurance. Later, pursuant to a three-step grievance process in the employee, cut his salary by approximately $7000, and increased his costs for jurisdiction over unfair labor practice disputes if the parties to a collective

months prior to the filing of the complaint with the body having original

from a full-time (five days per week) employee to a four days per week evidentiary hearing before the PELRB because that body “is only robbed of its

complaint of an alleged violation of RSA 273-A:5 which occurred more than 6

Elementary/Middle School, signed an employment contract that reduced him

RSA 273-A:6, VII (2010) (providing that PELRB shall “summarily dismiss any

In May 2010, the plaintiff, a physical education teacher at the Andover

defendant, the Andover School Board (School). We affirm. exercise jurisdiction over his unfair labor practice complaint against the

New Hampshire Public Employee Labor Relations Board (PELRB) declining to LYNN, J. The plaintiff, Michael Silverstein, appeals the decision of the p. 3 See therefore, it is binding upon both the public employee and the public employer. This language was specifically negotiated and agreed upon by the parties, and,

binding.

school days of the hearing. The Board’s decision will be final and Board . . . and a decision of the full Board will be made within 10 School Board. . . . [A] hearing shall be scheduled before the full

the Superintendent, the grievant may request a hearing before the

Step Three: If the grievant is dissatisfied with the decision of 3

within 10 school days of the hearing. . . .

their employers, mandated that public employers negotiate in good faith with schedule a hearing . . . and shall render a decision in writing

public employees the right to organize and engage in collective bargaining with submitted to the Superintendent. . . . The Superintendent shall rendered by the Principal a written request for a hearing may be Step Two: If the grievant is dissatisfied with the decision

employees . . . .” Laws 1975, 490:1. “To achieve this goal, the Act granted harmonious and cooperative relations between public employers and their The Public Employee Labor Relations Act was enacted in 1975 to “foster

the Principal for formal consideration. . . .

parties’ agreement. the problem is not reached . . . , a grievance may be submitted to

conduct a de

a final and binding grievance process, we will honor the plain language of the Step One: In the event a mutually acceptable resolution of

novo evidentiary hearing regardless of whether the CBA contains

some indication that the legislature intended the PELRB to have the power to Appeal of Berlin Board of Education, 120 N.H. 226, 230 (1980). Absent

intent. Appeal of N.H. Div. of State Police

follows:

We begin by examining the language of the CBA, as it reflects the parties’

that the school board’s decision on the grievance is “final and binding.” The CBA’s three-step grievance process, in relevant part, provides as

State Employees’ Assoc. of N.H., 156 N.H. 507, 508 (2007). PELRB if it was based upon an erroneous interpretation of law. p. 3 See Appeal of We interpret a CBA de novo, id., and we will set aside the decision of the its terms according to the common meaning of their words and phrases. Id. intent is determined from the agreement taken as a whole, and by construing

plaintiff’s case in light of the three-step grievance procedure in the CBA stating The School argues that the PELRB correctly declined jurisdiction over the p. 4 4

precondition to a union bargaining away its members’ right to de held, however, that a provision for final and binding arbitration is a necessary ‘explicitly’ waived their statutory rights to the PELRB’s review.” We have never Id

procedure, and with no explicit or implicit language in the contract

procedure allowed for advisory arbitration did not by implication make the

arbitration with a neutral third-party, whereby public employees have CBA in that case did not provide for “final or binding arbitration or other final

contract . . . .

disputes through negotiated contractual terms. In Appeal of Hooksett School

Absent a provision for binding arbitration following the grievance

N.H. 267, 270 (199 p. 4 4), we determined that the fact that a CBA’s grievance . (emphasis added). Similarly, in Appeal of Campton School District, 138 his unfair labor practice dispute, as a matter of law, “absent final and binding authority to review the union’s unfair labor practice complaint. Noting that the The plaintiff argues that the PELRB has the power to review the merits of and employees. For example, in Appeal of City of Manchester practice charge, has jurisdiction as a matter of law to interpret the binding on the parties, the PELRB, in the context of an unfair labor that the parties to a CBA are free to establish their own means of resolving stating that step four of the grievance procedure is final and

held: disposition that is binding on the parties,” id. at 20 p. 4 4 (emphasis added), we of the CBA “[a]bsent specific language to the contrary in the CBA threshold matter, to determine whether a specific dispute falls within the scope because the CBA contained a four-step grievance procedure, the PELRB lacked District, 126 N.H. 202 (1985), we rejected a school board’s argument that, enumerated unfair labor practices contained in RSA 273-A:5, I(h) (2010). have been careful to respect the bargaining process between public employers In fact, in identifying the proper limits of the PELRB’s authority, our precedents hearing on the merits of an unfair labor practice dispute, we have emphasized unions and public employers to negotiate terms of the employment contract. upholding the PELRB’s power to interpret the terms of a CBA or conduct a binding on both public employees and the public employer. Even in our cases emphasized that grievance language specifically negotiated and agreed upon is added.) Similarly, in Appeal of Berlin Board of Education, 120 N.H. at 230, we

293 (2006), we noted that the PELRB is empowered to interpret a CBA, as a

public employers. Breaching a collective bargaining agreement is one of the

review; such a holding would unduly restrict the bargaining power of both

bestows on the PELRB “primary jurisdiction” over all unfair labor practices of Facilities Subcom., 1 p. 4 41 N.H. 443, 446 (1996). RSA chapter 273-A:6 (2010) disputes between government and its employees.” Appeal of House Legislative employee organizations, and established the PELRB to assist in resolving p. 5 Appeal of Campton School Dist. last step of the grievance procedure is final and binding on the parties.’”

Appeal of City of Manchester public employer and a union over the terms and conditions of employment.”

as here, there is “‘explicit or implicit language in the contract stating that the

public employers and their employees,” and to “assist

interpret the CBA in the context of an unfair labor practice complaint is where,

adjudicating labor disputes between parties who otherwise are free to negotiate interpret the CBA.” (Quotation and brackets omitted.) However, as noted The above decisions reflect the structural role of the PELRB in of an unfair labor practice charge, has jurisdiction as a matter of law to to depart from the reasoning of those cases, and we now explicitly reiterate that agreements, but to “foster harmonious and cooperative relations between cases, nothing in Appeal of State of New Hampshire or expressly mandates final and binding arbitration, the PELRB, in the context suggests that we intended we did not recite fully the relevant language from the Campton and Hooksett

final and binding arbitration is necessary to remove the PELRB’s authority to Admittedly, one of our cases arguably suggests that a CBA provision for binding arbitration, another exception to the jurisdiction of the PELRB to quoted Appeal of Hooksett School District, makes it clear that, in addition to

expectations of contracting parties as expressed in the terms of their PELRB review followed implicitly. that: “[A]bsent a grievance process in a CBA, of which the last step implicitly N.H. at 108, we quoted Appeal of Campton School District and all employees, collectively.” Appeal of State of N.H. for the proposition

N.H. at 295-96; see also Laws 1975, 490:1, III. between government and its employees.” Appeal of City of Manchester, 153

(2001). The purpose of creating the PELRB was not to upset the legitimate public employer’s decision was “final” but not “binding,” we concluded that, 147 N.H. 106, 109 process itself “is meant to be the result of negotiations between an employer the product of their collective bargaining.” Id. The collective bargaining parties enter into a CBA, they are obligated to adhere to its terms, which are

grievance procedure allowed for advisory arbitration and provided that the in Appeal of State Employees’ Association, 139 N.H. 441, 444 (1995), where the Campton School Dist., 138 N.H. at 270 (quotation and brackets omitted). And, jurisdiction to hear the employee’s unfair labor practice complaint. Appeal of grievance procedure is final and binding on the parties,” the PELRB had no explicit or implicit language in the contract stating that the last step of the parties. Reiterating the holding in Appeal of Hooksett, we explained that “with public employer’s rejection of the arbitrator’s decision final and binding on the its members’ customary procedural rights, such as de

statutory right to form, join, or assist labor organizations]”), a union may waive

waive its members’ statutory rights in certain contexts, see

motion to supplement the record are both denied as moot. plaintiff’s motion to strike certain statements in and attachments to the School’s brief and his adjudicating his unfair labor practice complaint is a de information beyond the record of the proceedings before the PELRB. For this reason, the agree, however, that the only constitutionally acceptable procedure for outcome thereof are not at issue in this appeal, in reaching our decision we have not relied on any process fairly. Because the fairness of the hearing actually conducted by the School and the time, where employer’s ban on such activities “might seriously dilute [the because he has been deprived of a neutral government tribunal. We cannot jurisdiction to review the plaintiff’s allegations that the School did not conduct the grievance that, at the conclusion of the grievance process established by the CBA, the PELRB would have grievance procedures were unworkable, we have no occasion to address the School’s assertion School violated the CBA by reducing the plaintiff’s hours, salary and benefits and (2) the CBA’s operates as a waiver of those typical guarantees. Although a union may not 1 Because the plaintiff’s unfair labor practice complaint involved only the claims that (1) the

p. 6 693, 705, 708 (1983) (noting that Supreme Court “long has recognized that a a binding agreement subjecting both Lane Corp., 500 U.S. 20, 26 (1991); Metropolitan Edison Co. v. NLRB, 460 U.S. way of the ordinary bargaining process. See, e.g., Gilmer v. Interstate/Johnson

to distribute union literature or solicit union membership during nonworking violates his due process rights under the State and Federal Constitutions Magnavox Co., 415 U.S. 322, 324 (1974) (union may not waive members’ rights

adversarial parties were lacking, the CBA’s three-step grievance procedure . . . review.”). that the ordinary procedural requirements of a judicial -type hearing between

PELRB. The plaintiff’s due process argument overlooks the fact that the CBA is

party must hold up its end of the bargain. Cf here, they choose to have disputes resolved through that process, and each Next, the plaintiff argues that the PELRB’s interpretation of the CBA final and binding grievance procedure in their labor contract, as they have

binding grievance process internal to the employer. Thus, we reject the 1 procedures may supersede otherwise available statutory provisions for bargaining agreement that includes exclusive grievance procedures, those 983 (D.C. 2008) (“Where the government employees are covered by a collective Workers, 4 p. 6 61 U.S. 757, 764 (1983); Pitt v. Dept. of Corrections, 954 A.2d 978,

authority to review the merits of his grievance. When the parties include a that, in the absence of a CBA provision for binding arbitration, the PELRB has

grievance when the CBA to which the parties are subject includes a final and the PELRB has no authority to interpret a CBA or review the merits of a discrimination.” State v. Basinow p. 7 defense under like conditions and with like protection and without litigants similarly situated may appeal to the courts both for relief and for

This article “is basically an equal protection clause in that it implies that all

and without delay; conformably to the laws. obligated to purchase it; completely, and without any denial; promptly,

property, or character; to obtain right and justice freely, without being

recourse to the laws, for all injuries he may receive in his person, Every subject of this state is entitled to a certain remedy, by having

remedy at law under Part I, Article 14 of the State Constitution, which states:

Opinion of the Justices, Limitation on Civil Actions against arbitrary and discriminatory infringements on access to the courts.

Next, the plaintiff argues that the PELRB’s decision violates his right to a

The plaintiff has cited no authority, however, and we have found none, to

before a third party, such as an arbitrator or the PELRB, rather than before the omitted). Its purpose is to make civil remedies readily available, and to guard

Vanelli v. Reynolds School Dist. No. 7

board from affording teacher a hearing that fully comports with due process).

participated in failed collective bargaining that led to strike); Appeal of

teacher has a constitutionally-based due process right to a termination hearing

that allows the politically responsible office-holders to achieve their aims”); “the requirement of an opportunity for a hearing must be implemented in a way suspended her because it lost confidence in her leadership, and explaining that board played some role in decision to non-renew teacher did not preclude Hopkinton Sch. Dist., 151 N.H. 478, 480-81 (2004) (mere fact that school

school board making decision to fire striking teachers even though board Hortonville Ed. Assn., 426 U.S. 482, 496-97 (1976) (no due process violation in to terminate teacher); see also Hortonville Joint School Dist. No. 1 v. cited any authority, nor are we aware of any, holding that a public school post-termination hearing even though board had previously made the decision Furthermore, even putting aside the waiver issue, the plaintiff has not (Kennedy, Circuit Judge) (due process not violated by school board conducting

challenge to termination hearing held by school board which had previously 738, 741-42 (7th Cir. 2006) (rejecting school superintendent’s due process

Batagiannis v. West Lafayette Community School, 454 F.3d

clear and unmistakable). union may waive a member’s statutorily protected rights” as long as waiver is p. 8 8

agreement freely and openly entered into, and courts cannot make better

employee complaints. “Parties generally are bound by the terms of an fairly negotiated, that contains express terms governing the adjudication of employees, we will not invalidate a contract, from all appearances freely and

grievance procedure vests in the school board disproportionate power over

binding authority to adjudicate disputes. Even were we to agree that the exchange for agreeing to the procedure giving the School Board final and employment contract; presumably, union members received some benefit in

government.” Laws 1975, 490:1. The parties’ bargaining process produced an

the public employer to make the grievance procedure workable.” Appeal of

employers and their employees,” and the “uninterrupted operation of public employers, “harmonious and cooperative relations between public Relations Act: respect for the bargaining process between labor unions and under the grievance procedure need not rest with a decision-maker other than unworkable. We have previously held, however, that “the final determination agreement” violates the policy behind RSA chapter 273-A, and, thus, is

independent set of policy interests underpinning the Public Employee Labor

. . . to be the only ‘judge’ as to whether it breached a collective bargaining

However, giving effect to the terms of the grievance procedure advances an

procedures.” The plaintiff argues that “permitting one party to an agreement

unlimited power with regard to the terms of a collective bargaining agreement.” contrary to public policy because it “permit[s] a public employer to have The plaintiff argues further that the CBA’s grievance procedure runs of this chapter shall be reduced to writing and shall contain workable grievance RSA 273-A:4 provides that “[e]very agreement negotiated under the terms

“workable” pursuant to RSA 273-A:4, and violates public policy. We disagree.

the CBA’s grievance procedure is not workable under RSA 273-A:4.

Finally, the plaintiff contends that the CBA’s grievance procedure is not

compliance with technical rules. See

13 p. 8 8 N.H. at 270. As those decisions are not in doubt, we cannot conclude that State Employees’ Assoc., 139 N.H. at 444; see Appeal of Campton School Dist.,

plaintiff’s counsel”).

cases allowing plaintiffs to have their day in court despite a lack of strict

N.H. 723, 729 (1996) (allowing lawsuit to proceed despite “formal error of

alike are not the kinds of “imaginary barriers of form” contemplated by those Freely negotiated labor contracts binding on public employees and employers and binding three-step grievance process internal to the public employer. to resolve his unfair labor practice complaint despite the existence of a final support his desired outcome in this case – a de novo hearing before the PELRB p. 9 9

Affirmed

DALIANIS, C.J.