2013-0497, Appeal of Hillsborough County Nursing Home

position s would be eliminated in August 2011 due to budget reductions. After includi ng Patricia Perkins, Diana Maurice, and Joan Gendron, that their 2013. In June 2011, the County notified certain nursing home employees, are parties to a collective bargaining agreement (CBA) that expired June 30, The following facts were found by the PELRB. The County and the Union

e mployees. We affirm. AFSCME, Local 2715 (Union), the union repre senting certain nursing home refusing to participate in the arbitration of employment grievances filed by (PELRB), which found that the County committed an unfair l abor practice by decision of the New Hampshire Public Employee Labor Relations Board LYNN, J. The Hillsborough County Nursin g Home (County) appeals the

on the brief), for AFSCME, Local 2715. Law Offices of Shawn J. Sullivan, PLLC, of Concord (Shawn J. Sullivan

Nursing Home. Carolyn M. Kirby, of Goffstown, by brief, for Hillsborough County

(New Hampshire Public Employee Labor Relations Board) A PPEAL OF HILLSBOROUGH COUNTY NURSING HOME

No. 2013 - 497 Public Employ ee 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, Concor d, 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 p. 2 22 as 2

these arguments in turn. ( p. 2 2) finding that the County committed an unfair labor p ractice. We address rule on the threshold issue of the procedura l arbitrab ility of the grievances; and On appeal, the County argues that the PELRB erred by: (1) refusing to

practice and dism issed the County’s unfair labor practice complaint. Acc ordingly, the PELRB fou nd that the County committed an unfair labor raised issues of procedural arbitrability that must be decided by an arbitrator. that the County’s timeliness and fail ure to follow grievance procedure defense s because the CBA provides for final and binding arbitration. It further found committed an unfair labor practice when it ref used to participate in arbitration PELRB. After an evidentiary hearing, t he PELRB found that the County b oth the Union and the County filed unfair labor pra ctice complaints with the were therefore waived under Articles 16.1 and 16.4 of the CBA. Thereafter, timely file the m and follow the grievance procedure and that the grievanc es County refused to a rbitrate the grievances, alleging that the Union had failed to Union sent Request for Appointment of Arbitrator forms to the County. The The parties failed to resolve the grievances, and in January p. 2 2012, the

to an extension of said time limits.” will be taken with respect to such grievance unless both parties mutually agree specified in the CBA], the matter shall be deemed waived and no further action grievance is not reported and/or processed within [the applicable time limits an arbitrator to resolve the grievance. Article 16.4 of the CBA provides: “If the Commissioners; and Step 4 – submit written request to the PELRB to appoint grievance to the Administrator; Step 3 – f ile written grievance with the 1 – discuss the grievance with immediate supervisor; Step p. 2 2 – present written Article 16.1 also contains a grievance p rocedure consisting of four steps: Step

which arises und er and during the terms of th is A greement. the alleged offense(s) and the specific Contract provision(s) involved the names of the bargaining unit employees involved, the date(s) of group of employees in the bargaining unit or the Union specifying [A] grievance is defined as a complaint or claim by an employee or

Article 16. 1 of the CBA provides:

the CBA. change. All four employees filed grievances, asserting th at the changes violated informed a fourth employee, Pamela Bennett, that her work sche dule would was move d from a full - time position to a part - time position. T he County also positions in a different departmen t with different work schedules, and Gendron the m of their new positions. Perkins a nd Maurice were move d into full - time the employees exercised contractual “bumping rights,” the County informed p. 3 3

Southwestern notwithstanding, RSA 27 p. 3 3 - A:6, I (2010) grants the PELRB procedural arbitrability. The County argues instead that, our holding in dispute the PELRB’s conclusion that these challenges involve matters of arbitrability and should be decided by the arbitrator. The County does not adhered t o the CBA’s grievance procedure was an issue of procedural decision in Southwestern, t he PELRB de cided that whether the Union properly because it did not follow the CBA’s grievance procedure. Relying on our T he County argues that the Union waived the underlyin g grievances

question of ‘ procedural arbitrability ’ for the arbitrato r to decide”). properly adhere to each step of a grievance procedure presents “a classic America, 812 F.2d 750, 75 p. 3 3 (1st Cir. 1987) (reasoning that alleged failure to should be decided by arbitrator); Bechtel Const. Inc. v. Laborers’ Int. U. of N. (holding that questions concerning adherence to grievance procedure in a CBA brackets omitted)); John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964) allegations of waiver, delay, or a like defense to arbitrability” (quotation and 79, 84 (2002) (stating that “presumption is that the arbitrator should decide to decide,” i d. at 178; s ee also Howsam v. Dean Witter Reynolds, Inc. 537 U.S. matters relating to the processing of grievances are questio ns for the arbitrator Southwestern Trans. Co., 102 N.H. at 173, “preliminary and procedural a question of law for the court (or, now, the PELRB) to decide, see the scope of an arbitration clause in a collective bargaining agreement presents Transporta tion Co., Inc. v. Durham, 102 N.H. 169 (1959), we h eld that, while arbitrability has legal significance. In Southwestern New Hampshire (quotation omitted). The difference b etween substantive and procedural the unexcused failure to follow them avoids the duty to arbitrate.” Id. dispute, whether such procedures have been followed or excused, or whether whether grievance procedures or some part of them apply to a particular “Procedural arbitrability, on the other hand, concerns such issues as. . . v. Nonotu ck Resource Associates, Inc., 64 F.3d 735, 739 (1st Cir. 1995). that the parties have contractually agreed to submit to arbitration.” Local 285 “Substantive arbitrability refers to whether a dispute involves a subject matter distinction between “substantive arbitrability” and “procedural arbitrability.” To addre ss the issues before us, we must begin with a discussion of the

Regional Hosp., 1 p. 4 48 N.H. 55, 57 (2002). the PELRB’s rulings on issues of law de novo. See Appeal of Portsmouth in the record. See App eal of Dean Foods, 158 N.H. 467, 474 (2009). We review rather, to determine whether the findings are supported by competent evidence whether we would have found differently or to reweigh the evidence, but, 541:1 p. 3 3. In reviewing the PELRB’s findings, our task is not to determine findings of fact are presumed prima facie lawful and reasonab le. RSA preponderance of the evidence, that it is unjust or unreasonable. The PELRB’s the PELRB’s order except for errors of law, unless we are satisfied, by a clear A:14 (2010); RSA 541:2 (2007). Under RSA 5 41:13 (2007), we will not set aside RSA chapter 541 governs our review of PELRB decisions. See RSA 273 - 4

clause, a presumption of arbitrability exists, and in the absence of “positive assurance” standard, when a CBA cont ains an arbitration deciding whether they agreed to arbitrate; and ( p. 4 4) under the not rule on the merits of the parties [’] underlying claims when to be decided by the court, not the arbitrator; (3) a court should otherwise, the question of whether the parties agree d to arbitrate is agreed so to submit . . . ; (2) unless the parties clearly state required to submit to arbitration any dispute which he has not (1) arbitration is a matter of contract and a party cannot be

Communications Workers of America, p. 4 475 U.S. 643, 64 7 - 50 (1986): the United States Supreme Court in AT&T Technologies, Inc. v. the agreement’s arbitration clause, we adopted the four principles outlined by determining whether a dispute such as the one at issue was arbitrable under to contract non - renewals. Id. at 107. In order to guide the PELRB in agreement p rohibiting disciplinary discharges without just cause also applied 106 - 0 7. The dispute between the parties was whether the provision of the arbitration, for claims based upon alleged violations of the agreement. I d. at agreement contained a grievance procedure, which included binding Westmor e land School Bd., 132 N.H. at 107. The collective bargaining provision that prohibited discipli nary discharges without just cause. Appeal of the teacher’s non - renewal was a violation of a collective bargaining agreement non - tenured teacher and the teachers association f iled a grievance alleging that was substantive arb itrability, not procedural arbitrability. In Westmoreland, a Cou nty’s reliance on Westmoreland is misplaced because at issue in that case is to be decided by the court, not the arbitrator.” (Q uotation omitted.) The clearly state otherwise, the question of whether the parties agreed to arbitrate Board, 132 N.H. 103, 105 (1989), for the premise that “unless the parties procedura l arbitrability, the County also cites Appeal of Westmoreland School In support of its argument that the PELRB should decide the issue of

arbitrator. in that case that issues of procedural arbitrability are to be decided by the enactment of the PELRA has no effect on the continuing validity of our holding respect to procedural arbitrability issues. Therefore, we con clude that the text or purpose of the PELRA is at odds with ou r decision in Southwestern with violations of RSA 273 - A: p. 5 5 (2010). See RSA 273 - A:6, I. However, nothing in the 1975, p. 4 490:2, :6, and that it granted the PELRB primary jurisdiction over all that the PELRA, RSA ch apter 273 - A, was not enacted until 1975, see Law s be interpreted as effectively overruling our holding in Southwestern. It is true County contends that the Public Employee Labor Relations Act (PELRA) should that procedural arbitrability is a quest ion for an arbitrator to decide,” the practice charges against a union did not exist in 1959 when this Court opined an unfair labor practice. Noting that “RSA 273 - A:5’s provision for unfair labor the Union’s demand for arbitration violates the CBA and, therefore, constitutes statutory authority to decide issues of procedural arbitrability where, as here, 5

arbitrability of the grievances in this case. did not err in refusing to make a threshold determination as to the procedural is a matter to be determined by the arbitrator in the first instance, t he PELRB In sum, we conclude that beca use a procedural challenge to arbitrability

“represents the proper application of the law to the facts of this case.” final after thirty days). W e agree with the PE LRB that the de cision in this case (absent a request for review by the PELRB, a hearing officer’s decision becomes wa s n ot subject to review by the PELRB. See N.H. Admin. Rules, Pub 20 p. 5 5.01(c) as the PELRB observed, Mountain View was a hearings officer decision that 3685, PELRB Decision No. 2006 - 089, at 2 - 5 (PELRB June 1, 2006). However, arbitrability. See Mountain View Nursing Home v. AFSCM E Council 93, Local Mountain View, a PELRB hearings officer did rule on issues of procedural that the facts in Mountain View mirror those of the present case and that, in 089) is directly on point and dispositive in this case.” The County is correct Nursing Home v. AFSCME Council 93, Local 3685 (PELRB Decisi on No. 2006 - Finally, the County argues that “[t]he PELRB’s decision in Mountain View

bu t for an arbitrator, to decide.” Howsam, p. 5 537 U.S. at 84 (quotation omitted). dispute and bear on its final disposition are presumptively not for the judge, substantive arbitrability and that “procedural questions which grow out of the similarly held that the principles it outlined in AT&T apply to questions of 3657, 141 N.H. 291, 293 - 96 (1996). The United States Supreme Court has of Town of Durham, 149 N.H. 486, 487 - 88 (2003); Appeal of AFSCME Local Appeal of Police Comm’n of City of Rochester, 149 N.H. 528, 534 (2003); Appeal principles, b ut these cases also involve d issues of substantive arbitrabili ty. See The County cites other cases that have applied the Westmoreland

106. They do not speak to the issue of the procedural arbitrability of a dispute. substantive arbitrability. See Appeal of Westmor e land School Bd., 132 N.H. at Westmoreland principles dictate only h ow a court should address issu es of arbitration clause in a collective bargaining agreement. Therefore, the merely outlined the principles to be used to d etermine the scope of an court.” Southwestern Trans. Co., 102 N.H. at 173. In Westmoreland, we clause in a collective bargaining agreement presents a question of law for the consistent with our holding in Southwestern that “the scope of an arbitration statement makes cle ar that the first two Westmoreland principles are two provisions comport with existing law in our state.” Id. at 106. This brackets omitted). When we adopted these principles, we stated that “the first Appeal of Westmor e land School Bd., 132 N.H. at 10 p. 5 5 - 06 (quotations and

to exclude the claim from arbitration ca n prevail. arbitration, we think only the most forceful evidence of a purpose any express provision excluding a particular grievance from p. 6 6

DAL I ANIS, C. J., and HICKS, CONBO Y, and BASSETT, JJ., concurr e d.

arbitrate the grievances. determining that the County committed an unfair labor practice by refusing to participate in arbitration. Accordingly, we hold that the PELRB did not err in arbitrator; the assertion of such issues afford s no basis for refusing to as explained above, procedural arbitrability issues a re to be decided by the defaulted because it failed to follow the CBA’s grievance procedure. However, substantively arbitrab le. Rather, its position is that the Union is procedurally Here, the County does not ar gue that the grievances at issue were not

RSA 273 - A:5, I(h). practice. See School Dist. #42 v. Murray, 128 N.H. 417, 422 (198 p. 6 6); see also constitutes a breach of a collective bargaining agreement and an unfair labor is undisputed that a wrongful ref usal to arbitrate a legitimate demand contends, the Union waived b y failing to adhere to the grievance procedure. It enforcing its co ntractual rights by refusing to arbitrate grievances that, it The County next argues that it did not breach the CBA because it was