2013-0690, Appeal of Professional Fire Fighters of Hudson, IAFF Local 3154

RSA 273 - A:1, X (201 0). The Union is the certified exclusive bargaining otherwise undisputed. The T own is a public employer within the meaning of The following facts are dr awn from the record, the PELRB decision, or are

I. Background

Hudson (T own), did not commit an unfair labor practice. We affirm. Labor Relations Board (PELRB) finding that the respondent, the Town of Local 3154 (Union), appeals a decision of the New Hampshire Public Employee CONBOY, J. The petitioner, Professional Fire Fighters of Hudson, IAFF

respondent. and Laurel A.V. McClead on the brief, and Mr. Broth orally), for the Drummond Woodsum & Mac M ahon, PA, of Portsmouth (Mark T. Broth

and orally), for the petitioner. Molan, Milner & Krupski, P LLC, of Concord (John S. Krupski on the brief

(New Hampshire Public Employee Labor Relations Board)

No. 2013 - 690 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

Town violated the p. 2 2006 CBA and past practice between the parties when it continuation of a past practice. Accordingly, t h e arbitrator concluded that the expiration of the parties’ most recent collective bargaining agreement was the arbitrator found that the initiation of step increase payments following the capable, in concert with the Union, of creating a binding past practice.” The and, “[t] herefore, if the employer chooses to fund and pay step increases it is required to, refrain from paying step increases during the status quo period, The arbitrator determined that a public employer may, but is not

during status quo perio ds. increases because there was a binding past practice of paying such increases expired. The Union contended that the Town was required to pay the step law, a public employer is not required to pay step increases after a CBA has p. 2 2006 CBA did not have an evergreen clause and, under the applicable state The Town argued that it had a right not to pay the step increases because the

p. 2 2011? If so, what shall the remedy be? failed to pay in accordance with the step schedule after August of Bargaining Agreement or past practice between the parties when it Whether the Town of Hudson violated the Collective

that the issue in dispute was: At the hearing before the arbitrator, the Town and the Union stipulated

matter ultimately proceeded to arbitration. the Union filed a grievance pursuant to the procedure s in the p. 2 2006 CBA. T he longer pay w age increases, including step increases. In response to the letter, August 2011, the Town informed the Union by letter that the Town would no members received step increases between July 2009 and August 2011. In Union members in each of the budget years 2010, 2011, and 2012. All Union the Town’s voters, included monies sufficient to fund step increases fo r eligible After the 2006 CBA expired in 2009, the Town ’s budget, which is approved by step increases, despite the absence of an evergreen clause in the expired CBA. entered into a successor agreement, the Town provided Union members with When each of the four earlier CBAs expired, but before the parties

past its expiration date. (“evergreen” clause) extending the terms of the agreement, in whole or in part, the agreement. The p. 2 2006 CBA did not contain an au tomatic renewal clause based upon their length of service, as outlined in a wage schedule appended to June 2009 (“2006 CBA”), the Union employees were eligible for step increases Under their most recent C BA, which covered the period of July 2006 through parties to five collective bargaining agreements (CBA s) dating back to 1991. dispatchers, lieutenants, and firefighters. The T own and the Union have been representative of certain members of the T own’s fire department, including p. 3 3

payment of step increases during the status quo period violated a “strong and The Union first argues that the PELRB incorrect ly concluded that the

A. Payment of Step Increases

presented at the arbitration hearing. We address each argument in turn. address the Union’s equitable arguments and by admitting evidence not stipulated i ssue. The Union further asserts that the PELRB erred by failing to a rbitrator of the powers that the parties granted to him in the ir CBA and public policy and that the PELRB exceeded its authority by divesting the of step increases during the status quo period violated a strong and dominant The Union argues that the PE LRB erred in determining that the payment

II I. Analysis

N.H. at ___. We review the PELRB ’s rulings on issues of law de novo. Id. competent evidence in the record. Hillsborough County Nursing Home, 166 evidence, but, rather, to determine whether the findings are supported by not to determine whether we would have found differently or to reweigh the and reasonable. RSA 541:1 p. 3 3. In reviewing the PELRB’s findings, our task is unreasonable. The PELRB ’s findings of fact are presumed prima facie la wful satisfied, by a clear preponderance of the evidence, that it i s unjust or we will not set aside the PELRB ’s order except for errors of law, unless we are see RSA 273 - A:14 (2010); RSA 541:2 (2007). Pursuant to RSA 541:13 (2007), Hillsborough County Nursing Home, 166 N.H. ___, ___ (decided Sept. 12, 2014); RSA cha pter 541 governs our review of PELRB decisions. Appeal of

I I. Standard of Review

therefore, dismissed the Union’ s complaint. This appeal followed. unfair labor practice by failing to comply with the arbitrator’s award and, agreements.” Accordingly, the PELRB found that the Town did not commit an contr act’s express term and during any interval between collective bargaining fund benefits like step increases for bargaining unit employees both during a approval by the local legislative body of the expenditure of public monies to arbitrator’s award violates a strong and dominant policy, namely the need for public policy. The PELRB agreed with the Town, conclu ding that “[t]he requirements of RSA 27 p. 3 3 - A:3, II(b) (2010) (amended 2013) and was contrary to award.” In response, t he Town argued that the arbitration award violated the asking, in part, t hat t he PELRB “order the T own to comply with the arbitrator’s constituted an unfair labor practice, see RSA 273 - A:5, I(h), (i) (2010), a nd complaint with the PELRB alleging that the Town ’s failure to comply The T own failed to comply with the arbitrator’s award. T he Union filed a

Town to pay the increases that had accrued since August 2011. failed to pay in accordance with the step schedule. The arbitrator ordered the p. 4 4

expired CBA continues in effect; rather, it means that the conditions under expired.” Id. (quotation and brackets omitted). “This does not mean that the employment remain the same during collective bargaining after a CBA has maintaining the status quo demands that all terms and conditions of doctrine of maintaining the status quo.” Id. at 307. “T he principle of a current CBA, the parties’ “obligations to one another [we] re governed by the acquired through collective bargaining also expired. See id. In the absence of Here, when the 2006 CBA expir ed, the benefits that the parties had

bargaining. See Alton School Dist., 1 p. 4 40 N.H. at 311. the benefits, including cost items, that were acquired through collective Laconia Patrolman Assoc., 164 N.H. 552, 557 (2013). When a CBA ends, so do employer for approval ... .” RSA 273 - A:3, II(b) (emphasis added); s ee Appeal of “Only cost items shall be submitted to the legislative body of the public knowledge of the financial terms of the collective bargaining agreement.”). 513, 520 (1990) (“[W]hether express or implied, ratification ... requires full (quotation omitted); see also Appeal of Sanborn Regional School Bd., 133 N.H. them with “full knowledge of their terms.” Alton School Dist., 140 N.H. at 307 legislative body r atifies them, which occurs only if the legislative body approves See i d. The parties to a CBA are not bound by its cost items unless the they do not include financial payments made by the employer in its discretion. items” are limited by statute to benefits acquired through collective bargaining; employer” is considered a “[c] ost item.” RSA 273 - A:1, IV (2010). Thus, “co st implementation requires an appropriation by the legislative body of the public (1995). “[A]ny benefit acquired through collective bargaining whose conditions of employment. Appeal of Alton School Dist., 140 N.H. 303, 306 contract between a public employer and a union concerning the terms and We begin with an overview of the current state of the law. A CBA is a

a rbitrator’s award. Id. at 328 (quotation and citation omitted). may, within the confines outlined above, do the same” and may overrule an enforce a contract or contract term that contravenes public policy, agencies their jurisdiction.” Id. at 327 - 28 (citation omitted). “Just as this court will not to address matters necessary to resolve questions arising wi thin the scope of controlling statutes, regulations, common law, and other applicable authority, jurisdiction to apply strong and dominant public policy as expressed in agencies act in a quasi - judicia l capacity, agencies inherently have limited (1999) (quotation, brackets, and ellipsis omitted). “Because administrative matter jurisdiction.” Appeal of Amalgamated Transit Union, 1 p. 4 44 N.H. 325, 327 “Administrative agencies are granted only limited and special subject

disagree. past practice, to pay step increases during the status quo period.” We not prohibited by law; therefore, the Town could and did “bind itself, through a increases during the st atus quo period did not constitute a “cost item” and wa s dominant” public policy. The Union contends that the payment of step p. 5 5

their actions — a binding obligation to a n expenditure of funds that otherwise To conclude otherwise would allow the parties to a CBA to create — by

them.” Laconia Patrolman Assoc., 164 N.H. at p. 5 557. grant the step increases was discretionary, the [Town] remained free to rescind N.H. Dep’t of Corrections, 164 N.H. at 309. Here, “[b] ecause the decision to increases a binding term and condition of public employees ’ employment, cf. increases during the status quo period can not, as a matter of law, render such Assoc., 164 N.H. at 557, we hold that a “past practice” of granting step re quire payment of ste p increases after a CBA expires, Laconia Patrolman Given our well - established rule that the status quo doctrine does not

(2012) (defining past practice). binding obligation. See Appeal of N.H. Dep’t of Corrections, 164 N.H. 307, 309 practic e,” remains a discretionary matter and does not subject the Town to a we agree with the Town that the paymen t of step increases, even if a “past waiver of that right.” We are not convinced by the Union ’ s argument; rather, paying step increases “created an obligation that was... tantamount to a argues, instead, that, under the facts of this case, the Town ’s past practice of contest the fact that the T own had the right not to pay [the] step increases.” It Town was not obligated to continue paying them. See i d. The Union “does not Consequently, b ecause t he step increases were discretionary payments, the items under the statute. See Laconia Patrolman Assoc., 164 N.H. at p. 5 557. increases were not acquired through collective bargaining, they were not cost period, in the absence of an approved evergreen clause; thus, because the The step increases at issue here were granted during the status quo

evergreen clause was cost item that requir ed ratification to be enforceable). legislative body. See Alton School Dist., 140 N.H. at 312 (concluding that mandated in an evergreen clause and such cost items have been ratified by the to pay s tep increases following the expiration of a CBA if the increases are of collective bargaining. See id. However, a public employer may be required items within the meaning of RSA 273 - A:1, IV, because they are not the p roduct discretion during the status quo period are discretionary payments, not cost Patrolman Assoc., 164 N.H. at p. 5 557. Step increases granted at the employer’s obligation, to grant step increases during th e status quo period.” Laconia N.H. at 307. Thus, “a public employer retains the discretion, but not the Milton School Dist., 137 N.H. 240, 245 (1993). S ee Alton School Dist., 140 but not schedules of projected salary increases contained within the CBA, see period, the employer must maintain salary levels at the expiration of the CBA N.H. at 557 (quotation and brackets omitted), because, during the status quo payment of ste p increases after a CBA expires,” Laconia Patrolman Assoc., 164 We have consistently held that “[t]he status quo doctrine does not req uire

bargaining process.” Id. (quotation omitted). which the [Union employees] worked endure throughout the collective p. 6 6

employee.” necessary for full and fair negotiations between a public employer and a public [the] agreed upon and funded increases destroys the level pla y ing field are also unconvinced by the Union’s argument that the Town ’s “failure to pay mandate that the Town make the payments during the status quo period. We step increases with full knowledge of their financial terms, such action did not W e, therefore, conclude that, even assuming that the voters funded the

acquired through collective bargaining and, thus, were not cost items. See id. above, the step increases that the voters arguably funded were not benefits bargaining process set forth in RSA chapter 273 - A.” Id. Here, as discussed benefits the public employees will enjoy, “would frustrate the entire collective in the firs t instance — outside the collective bargaining process — which binding only with respect to cost items.” I d. Allowing the voters to determine into collective bargaining agreements, and “[t]he vote of the legislative body is employer, not the legislative body, that has the authority to negotiate and enter Alton School Dist., 140 N.H. at 311. This is so because it is the public status quo period do not obligate a public employer to pay the increases. See previously held, Town votes approving funding for step increases during a however, their funding of the step increases is not d ispositive. A s w e have status quo step increases. Regardless of the voters’ knowledge of the costs, to conclude that the Town properly warned the voters about the cost of the asserts that the Board correct ly concluded that there was insufficient evidence sufficient to fund the step increases for bargaining unit members. The Town 2012 — after it had ceased paying th e step increases — that included monies I t is undisputed that the Town published an approved operating budget for was obligated to pay the increases in this case because the voters funded them. We disagree with the Union to the extent that it argues that the Town

enforceable. violates this po licy, the PELRB correctly concluded that the award is not during the status quo period. Accordingly, b ecause the arbitrator’s award 200 p. 6 6 CBA expire d, even though it ha d previously provided such increases doctrine did not require the T own to continue pay ing ste p increases after the policy” expressed in RSA chapter 273 - A and our case law, the status quo W e conclude that, in accordance with the “strong and dominant public

support this result. require [funding of the step increases] as a matter of law.” The law does not acknowledges as much, recognizing that “a finding of a p ast practice would provisio ns ‘require[d] an appropriation ’” (quotation omitted)). The Union CBA were “cost items because, in the literal sense, implementation of the Franklin, 13 p. 7 7 N.H. 723, 727 (1993) (concluding that monetary provisions in would require approval by the Town ’s legislative body. Cf. Appeal of City of 7

arbitrability of the Union’s complaint. Because the Town did not contend that the Town’s filings before the PEL RB can be read to challenge the substantive did not argue that the dispute was not substantively arbitrable, and nothing in increases during the status quo period. Also, as the arbitrator noted, the Town arbitrate. Rather, it alleged that it had the discretion to stop paying the step arbitrator. The Town did not allege that the Union made a wrongful demand to The Union mischaracterizes the assertions that the Town made to the

dominant publi c policy. jurisdiction to decide whether the arbitrator’s award violated a strong and established in RSA chapter 2 p. 7 73 - A, and, therefore, the PELRB was without Town did not contest the arbitration within the statutory time limits arbitrator’s award. The Union argues that, under each of these theories, the contends that the Town did not timely challenge the enforceability of the challenge the substantive arbitrability of the dispute. Finally, the Union timeframe. In the alternat ive, t he Union asserts that the Town did not timely demand to arbitrate but failed to oppose the arbitration within the necessary Union first argues that the Town alleged that the Union made a wrongful time - barred from contesting the enforceability of the arbitrator’s award. The Next, t he Union raises three arguments asserting that the Town wa s

public policy). Therefore, the PELRB did not err in deciding the issue. ordering county to comply wit h arbitrator’s award because it did not violate Appeal of Merrimack County, 156 N.H. 35, 4 p. 7 7 (2007) (affirming PELRB decision and affirming PELRB ’s finding that arbitrator’s award violated public policy); employer committed unfair labor practice by rejecting the arbitrator’s decision Union, 144 N.H. at 327 - 30 (finding without merit Union’s argument that public that violates a strong and dominant public policy. See Amalgamated Transit above, the PELRB has the authority to decline to enforce an arbitrator’s award agreed to be bound by a decision that violates public policy. A s we explained Town agreed to submit a stipulated issue to arbitration does not mean that it its ability t o contest the arbitrator’s decision. We disagree. Simply because the the Town authorized the arbitrator to bind the parties, and, therefore, waived determine if a past practice existed and to fashion a remedy.” It asserts that “PELRB erred when it contravened the stipulated power of the arbitrator to ability to contest the arbitrator’s award. The Union first argues that the The Union next advances several arguments challenging the Town ’s

B. Right to Contest Arbitrator’s Award

oblig ated to pay the increases at all. PELRB’s decision would contravene our determination that the Town was not Requiring the Town to retroactively pay step increases for the period before the August of 2011, although [its] decision was not rendered until July 11, 2013.” PELRB erred in allowing the “discontinuance of step increase [s] retroactive to Finally, given our holding, we reject the Union’s argument that the p. 8 8

growth.” prejudiced by “forever be [ing] artificially retarded in their economic and wage Union].” Because of these actions, the Union argues that its members were playing field” and “gain ed an economic advantage over the members of [the the face of tumultuous collective bargaining negotiations,” “alter[ed] the level contends that the Town, by ultimately deciding not to grant step increases “in step increases absent a contractual obligation as early as 1993.” The Union The Union asserts that “the Town had knowledge of their right not to pay

law. conclude that, on the facts of this case, the issue can be decided as a matter of instance. See Appeal of Belair, 15 p. 8 8 N.H. 273, 279 (2009). However, we equitable doctrine, is a question of fact for the trier of fact to decide i n the first equitable remedies). We recognize that the application of laches, as an statutes, and that those statutes do not give the PELRB the ability to grant all applies only to those matters specifically en compassed by the pertinent 142 N.H. 837, 841 (1998) (recognizing that the PELRB’s broad jurisdiction decide such an equitable claim. But see Appeal of Somersworth School Dist., assume, with out deciding, that the PELRB would have had jurisdiction to address its laches argument. Because neither party argues otherwise, we argument based upon laches. The Union is correct that the PELRB did not The Union further argues that the PELRB erred by failing to address its

C. Laches

grounds by not raising the issue earlier. that the Town did not waive its right to challenge the award on public policy occurr ed more than six months before complaint was filed). Thus, we conclude (requir ing PELRB to dismiss complaints regarding alleged violations that Union’s attempt to enforce the arbitrator’s award. See RSA 273 - A:6, VII (2010) it would not have been time - barred because the claim arose only upon the assume that the Town ’s allegation constituted an unfair labor practice charge, and defense ... and not an unfair labor practice charge.” Ev en if we were to filing of a counterclaim,” treated these allegations “as part of the Town’s answer public policy.” The PELRB, however, noting that its rules “do not allow for the seek enforcement of an arbitration award that is unlawful” or “contrary to asserted a “counterclaim” that “[i]t is an unfair labor practice for the Union to We recognize that t he Town ’s answer to the Union’s PELRB complaint

Town wa s not time - barred from contesting the enforceability of the decision. necessarily could not arise until after the arbitrator issued his decision, the arbitrator’s decision on public policy grounds. Because such a challenge Instead, a s the PELRB noted, the Town challenge d the validity of the substantive arbitrability, it wa s not restricted by the statutory time frames. the Union made a wrongful demand to arbitrate and did not challenge p. 9 9

s ee Hillsborough County Nursing Home, 166 N.H. at ___. unreasonably in failing to address the Union’s disparate treatment argument, PELRB. Consequently, we decline to hold that the PELRB act ed unjustly or cursory, undeveloped treatment in the closing brief that it submitted to the complaint, did not address it in the hearing before the PELRB, and gave it only importantly, the Union did not raise the iss ue of disparate treatment in its Northern New England Tele. Operations, LLC, 165 N.H. 267, 275 (2013). More treatment” but provide s no developed argument on this issue. See Appeal of fail ing “to address the properly raised equitable doctrine[] of ... disparate In its brief to this court, t he Union also assert s that the PELRB erred by

D. Disparate Treatment

barred the Town from denying the step increases. conclude, as a matter of law, that the PELRB could not have found that laches Town’s discretion, throughout the intervening status quo periods. Thus, we Union benefited from receiving the status quo step increases, granted at the to articulate how it was injured by this delay. Rather, it would appear that the in 1 p. 9 993 when it first had knowledge of its ability to do so, the Union has failed that the Town unreasonably delayed by not declining to give the step increases defendants benefited from delay). Here, assuming that the Union’s argument is plaintiff’s delay in filing suit did not further prejudice de fendants and (affirming trial court conclusion that laches did not bar relief, in part, because from the alleged delay. See Miner v. A & C Tire Co., 146 N.H. 631, 634 (2001) laches contemplate s. The laches doctrine requires that the prejudice stem status quo step incre ases. However, this is not the type of prejudice that members’ future wage growth will be restricted by the Town’s cessation of the an unreasonable delay in its actions. T he Union asserts prejudice in that its continue paying step increases, we conclude that the Town did not engage in Based up on our holding that the Town was under no obligation to

the delay.” Id. proving both that the delay w as unreasonable and that prejudice resulted from 18, 24 (2012). The Union, as the party asserting laches, “bears the burden of prejudicial.” Prof. Fire Fighters of Wolfeboro v. Town of Wolfeboro, 164 N.H. laches will constitute a bar to suit only if the delay was unreasonable and 500, 505 (1 p. 9 985) (quotations omitted). “Because it is an equitable doctrine, conditions or relations of the... parties involved.” Appeal of Plantier, 126 N.H. the claim to be enforced — an inequity founded on some change in the mere matter of time, but is principally a question of the inequit y of permit ting N.H. 148, 151 (2012) (quotation omitted). “Laches, unlike limitation, is not a plaintiff has slept on his rights.” In the Matter of LaRocque & LaRocque, 164 “Laches is an equitable doctrine that b ars litigation when a potential p. 10 10

DAL IANIS, C. J., a nd HICKS, LYN N, and BASSETT, JJ., concurred.

Therefore, the additional evidence was irrelevant to the outcome of this case. N.H. at 3 p. 10 10 - 11; see also Laconia Patrolman Assoc., 164 N.H. at 557. whether the voters had appro ved their funding. See Alton School Dist., 140 bargaining, the Town had no obligation to continue paying them, regardless of because the status quo step increases were not the result of collective the voters approved the m with the full knowledge of their terms. Rather, required to pay the status quo step increases is not dependent upon whet her the Union was not prejudiced by the error. Our holding that the Town was not PELRB to admit the additional evidence, reversal is not warranted inasmuch as We need not address this issue because e ven if it was error for the

increases. public had been adequately warned and had gi ve n its approval to fund those whether the Town had budgeted for the increases, but rather whether the arbitrator’s award because, from the Town ’s perspective, the issue was not establish the public policy consideration underlying its objections to the voting each year. The Town argued that the exhibits were necessary to of the Town ’s financial records that were made available to vo ters prior to At the hearing before the PELRB, t he Union objected to the Town ’s submission allowing the Town to present evidence that was not presented to the arbitrator. Finally, t he Union argues that the PELRB exceeded its authority by

E. Admission of Evidence by PELRB