2017-0115 Appeal of State Employees’ Association/Service Employees’ International Union, Local 1984

(2) compensate an adjunct faculty member for lost tutoring income resulting over wages for on-campus tutoring services performed by adjunct faculty; and that the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain the Community College System of New Hampshire (CCSNH). The Union argues

appeals an order of the New Hampshire Public Employee Labor Relations Board Hampshire/Service Employees’ International Union, Local 1984 (Union)

The petitioner, the State Employees’ Association of New

on the brief, and Joseph P. McConnell orally), for the respondent. Morgan, Brown & Joy, LLP, of Boston, Massachusetts (Jeffrey S. Siegel

orally), for the petitioner. No. Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and Public Employee Labor Relations Board

(New Hampshire Public Employee Labor Relations Board)

THE SUPREME COURT OF NEW HAMPSHIRE INTERNATIONAL UNION, LOCAL 1984 APPEAL OF STATE EMPLOYEES ’ ASSOCIATION/SERVICE EMPLOYEES ’

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: 2017-0115 Opinions are available on the Internet by 9:00 a.m. on the morning of their

reported by E-mail at the following address: reporter@courts.state.nh.us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well of bargaining unit work.”

found that CCSNH was not obligated to bargain over wages for these services. withi n the scope of the adjunct faculty’s “bargaining unit work,” the panel

like CCSNH are only obligated to bargain over wages paid for the performance Association, 1 p. 2 25 N.H. 779, 780-84 (1984), maintained that “public employers order, the panel, construing our decision in Appeal of Berlin Education the PELRB issued an order dismissing the complaint in its entirety. In its in good faith over the “terms of employment”). CCSNH chapter 273-A. Following an adjudicatory hearing, a three-member panel of PELRB, alleging that CCSNH had violated its bargaining obligations under RSA As a result, t he Union filed an unfair labor practice complaint with the

“during work ing hours without loss of compensation or benefits”). (requiring public employers to meet with a bargaining unit’s representatives attend collective bargaining negotiations. See RSA p. 2 273-A:11, II (2010) CCSNH refused to reimburse Watrous for ACE tutoring hours he forewent to among the duties adjunct faculty are hired to perform. For the same reason, maintaining that tutoring was not “bargaining unit work” — i.e., tutoring is not

(requiring a public employer and a bargaining unit representative to negotiate paid to adjunct faculty bargaining unit members. See RSA p. 2 273-A:3, I (2010) successor agreement in 2016, the Union sought to bargain over tutoring wages compensation for tutoring specifically. Accordingly, while negotiating a The CBA does not address the subject of tutoring generally, or

within the last five years. team.” ACE since p. 2 2010, and currently serves as a member of the Union ’s bargaining English at CCSNH as an adjunct professor since the 1990s, tutored students at Center for Excellence (ACE). This includes Rick Watrous, who has taught students — to provide tutoring services to its student body at the Academic from the bargaining unit — along with full-time faculty and, occasionally, “before or after class, or by appointment.” CCSNH also hires adjunct faculty assigned courses and making themselves available for student consultation employees and delineates that they are responsible for teaching specific through June 30, 2016. The CBA classifies adjunct faculty as “part - time” (CBA) between the parties covered the period from September 25, 2013,

currently begun their fifth semester of teaching and have taught four semesters who have taught at least five semesters in the last five years or who have bargaining representative of adjunct faculty “who are employed by CCSNH and The record supports the following facts. The Union is the exclusive

remand. from his participation in collective bargaining negotiations. We reverse and p. 3 3

services need not be negotiated. adjunct faculty’s “bargaining unit work” and, thus, wages paid for such argues that we should defer to its findings that tutoring is not part of the of employment. Maintaining that the PELRB properly recognized this distinction, CCSNH for the performance of “bargaining unit work” that must be negotiated. CCSNH reasons, our decision in Berlin dictates that it is only those wages paid whether the work being performed is “bargaining unit work.” This is because, According to CCSNH, however, “first and foremost” it must be determined That the foregoing is well- established is not questioned by CCSNH.

employers and employee organizations. Berlin, 125 N.H. at 78 p. 3 3. unit, therefore, constitute a mandatory subject of negotiations between public emp loyment.” RSA 273-A:1, XI (2010). Wages paid to members of a bargaining employment,” in relevant part, as “wages, hours, and other conditions of

RSA 27 p. 3 3-A:3 (2010). The Act defines “t erms and conditions of

employee organizations to negotiate in good faith over the terms and conditions The Public Employee Labor Relations Act obligates public employers and

members for ACE tutoring. obligated to bargain over compensation paid to adjunct faculty bargaining unit The Union first challenges the PELRB ’s determination that CCSNH is not

PELRB’s rulings on issues of law de novo.” Id. record.” Prof’l Fire Fighters of Hudson, 167 N.H. at 51. “We review the whether the findings are supported by competent evidence in the have found differently or to reweigh the evidence, but, rather, to determine reviewing the PELRB’s findings, our task is not to determine whether we would presumed prima facie lawful and reasonable.” Id.; see also RSA 541:1 p. 3 3. “In Fire Fighters of Hudson, 167 N.H. at 51. “The PELRB’s findings of fact are a clear preponderance of the evidence, that it is unjust or unreasonable.” Prof’l set aside the PELRB’s order except for errors of law, unless we are satisfied, by A:14 (2010); RSA 541:2 (2007). “Pursuant to RSA 541:13 (2007), we will not Prof’l Fire Fighters of Hudson, 167 N.H. 46, 51 (2014); see RSA 273- “RSA chapter 541 governs our review of PELRB decisions.” Appeal of

lost income. This appeal followed. commit an unfair labor practice when it refused to reimburse Watrous for his was outside the scope of the bargaining unit’s work, CCSNH also did not In turn, by a two-to-one decision, the panel determined that, because tutoring loss of compensation or benefits.” RSA 27 p. 3 3 -

p. 4 to meet with the employer or his representatives during working hours without

including the following:

of compensation or benefits,” id., to encompass only lost compensation or

representatives of the bargaining unit shall be given a reasonable opportunity

to the exclusive representative of a bargaining unit, in this case the Union, RSA 273 -A:11 (2010) requires a public employer to extend certain rights

hours he forewent to participate in collective bargaining negotiations. unfair labor practice when it refused to compensate Watrous for ACE tutoring because tutoring was not “bargaining unit work,” CCSNH did not commit an The Union next challenges the PELRB’s consequent conclusion that,

here. Either way, the PELRB erred as a matter of law. Thus, the result reached in Berlin applies a fortiori to control the outcome extracurricular activities in Berlin were related to the teachers’ regular duties. more closely related to the normal adjunct faculty members ’ duties than the advocates, we conclude that the tutoring services at issue here are, if anything, bargaining. Even if we construe that case in the latter fashion, as CCSNH “within the scope” of, the employees’ duties that are already the subject of concerning wages, the subject matter must be work that is closely related to, or bargaining encompassed within the term ‘wages.’” Id. at or to be paid to the employee by the employer, or whether, in addition to that bargaining is mandatory any time the topic at issue concerns wages paid W e need not consider whether Berlin should be interpreted to require

duties” — or constitute “bargaining unit work” as CCSNH terms it. Id. at 782. jurisdictions, “that extracurricular activities are within the scope of a teacher’s the school board’s primary argument, but consistent with a number of ot her mandatory subject of bargaining. Id. at 784. We also concluded contrary to sought to be negotiated fell within the term “wages” and, thus, was a omitted). Given this expansive definition, it followed that the salary scale

severance pay, shift differentials, and pensions are mandatory subjects of as overtime pay, extra duty pay, vacation and holiday pay, bonus or merit pay, also recognized that other courts had “rather consistently held that such items employer for labor or services.” Id. at 783 (quotation and ellipses omitted). We term “wages” its plain and obvious meaning of “monetary remuneration by an Because the Act did not define the statutory term, we ascribed to the

matter that the teachers sought to negotiate — a salary scale. Id. at 783-84. extracurricular duties. Id. at 780. Thus, our decision rested upon the subject obligated to negotiate with teachers over a salary scale for performance of In Berlin , we were called upon to determine whether a school board was that we affirm the PELRB’s determination on this issue, I respectfully dissent.

concurred in part and dissented established by RSA p. 5 541:13 (2007). Because this standard of review dictates specially assigned under RSA 490:3, concurred; HANTZ MARCONI, J., this conclusion, the majority fails to adhere to the standard of review LYNN, C.J., and BASSETT, J., concurred; DALIANIS, C.J., retired, issue do not fall within the scope of an adjunct professor’s duties. In reaching Association, 125 N.H. 779 (1984), and determined that the tutoring services at when it conducted the inquiry set forth in Appeal of Berlin Education majority’s conclusion in Section IIA that “the PELRB erred as a matter of law” interpretation of RSA 273-A:11, II (2010). I disagree, however, with the concur in Section IIB of the majority’s opinion regarding the correct HANTZ MARCONI, J., concurring in part and dissenting in part. I

Because

well and remand for proceedings consistent with this opinion. therefore, that the PELRB erred as a matter of law with regard to this finding as tutoring hours he missed while attending such negotiations. We conclude, we agree with the Union that CCSNH must compensate Watrous for the ACE negotiations “during working hours without loss of compensation or benefits,” bargaining unit . . . a reasonable opportunity to meet” for collective bargaining afford “[a] reasonable number of employees who act as representatives of the

the plain language of RSA 273-A:11, II obligates CCSNH to

statutory provision. require us to do. The term “bargaining unit work” is simply not found in the asserts, that is exactly what the PELRB’s interpretation of RSA 273 -A:11 would fit to include.” Laconia Patrolman Assoc., 164 N.H. at p. 5 555. Yet, as the Union the legislature might have said or add language that the legislature did not see Nor, when engaging in statutory interpretation, will we “consider what

(2011). is clear and unambiguous.” Appeal of Town of Deerfield, 162 N.H. 601, 603 beyond the language of a statute to determine legislative intent if the language of Laconia Patrolman Assoc., 164 N.H. p. 5 552, 555 (2013). “We do not look considered as a whole and will set aside erroneous rulings of law. See Appeal final arbiters of legislative intent as expressed in the words of a statute reasonable and will not be disturbed if supported by the record, we are the Although the PELRB’ s findings of fact are presumptively lawful and

Watrous was not entitled to reimbursement. benefits deriving from “bargaining unit work,” the PELRB concluded that constituted “wages” under RSA chapter 273 - p. 6 6

such activities an integral fundamental part of a child’ s education, making the supervision of

“wages” (quotation omitted)). in a child’ employment” and defines “terms and conditions of employment” to include community of interest of teach ers would be to limit a teacher’s role public employer and union to negotiate in good faith over “terms of (quotation omitted); see id. at 782 (noting that RSA chapter 273-A requires compensation was leadership. “a mandatory subject of bargaining.” Id. at 783-84

compensation for teachers who performed these extracurricular duties Id. (quotation and citations omitted). Based upon that conclusion, we held that

within the scope of a t eacher’ s duties. There is general agreement that extracurricular activities are a Consequently, we conclude that extracurricular activities are s education merely to classroom instruction.

extracurricular activities are dissimilar, distinct and outside the falling “within the scope of” those duties. that training. To hold[, as the school board suggests,] that Id.

Extracurricular activities can be a significant part of

involves the complete training of a child for citizenship and Teaching is not limited to classroom instruction, but also her students.

student activities.” who performed “extracurricular duties such as coaching and supervising part of a teacher’s duties. Id. We reasoned: We then concluded that the extracurricular duties at issue were an integral extracurricular duties at 781-82 (quotation omitted). defined activities constituting “an integral part of” an employee’s duties as issue in Berlin were “within the scope of a teacher’s duties.” Id. at 782. We On appeal, we first considered whether the extracurricular duties at

the school board. Id. at 780. “filed an unfair labor practice charge with the PERLB,” which ruled in favor of

public schools” sought to negotiate a salary scale for bargaining unit members that represented “all permanent full -time teachers employed by the Berlin

obligated to negotiate with teachers over a salary scale for performance of in Berlin, “we were called upon to deter mine whether a school board was the adjunct faculty bargaining unit. As the majority’s opinion correctly notes, to bargain over compensation for tutoring services performed by members of precedent with respect to the first issue, which is whether CCSNH is obligated The PELRB concluded, and the parties agree, that Berlin is controlling p. 7 7 prospectively). was not “erroneous or unreasonable,” but overruling that prior case

it is unjust or unreasonable.” Appeal of Prof’l Fire Fighters of Hudson, 16 p. 7 7 decision “unless we are satisfied, by a clear preponderance of the evidence, that not erroneous. Absent an error of law, we cannot overturn the PELRB’s PELRB applied the correct inquiry from Berlin, its ruling of law on this issue is distinguishable from the extracurricular duties involved in Berlin. Because the concluded, based upon its factual findings, that the tutoring in this case is Here, the PELRB conducted the “integral part” inquiry from Berlin and

because its reliance upon prior case with very similar “legally significant facts” Assoc. of N.H., 156 N.H. 50 p. 7 7, 510-11 (2007) (affirming PELRB’s decision standard of review set forth in RSA 541:13”); cf. Appeal of Stat e Employees’ including statutory interpretation, and “adopt[ing] a strict adherence to the (abandoning this court’s “policy of deferring to the PELRB on issues of law,” statutory interpretation); Appeal of State of N.H., 138 N.H. 716, 719-20 (1994) Transportation, 144 N.H. 555, 556-58 (1999) (reversing PELRB on issue of statutes and precedent, de novo. See id.; Appeal of N.H. Dep’t of (2014). We review the PELRB’s legal rulings, including its interpretation of however. See Appeal of Hillsborough County Nursing Home, 166 N.H. 731, 733 to RSA chapter 541). We do not owe deference to the PELRB on issues of law, RSA 273-A:14 (2010) (aggrieved party can appeal PELRB’s final order pursuant (standard of review governing appeals brought pursuant to RSA chapter 541); the standard of review established by the legislature. See RSA 541:13 We must also afford deference to the PELRB on certain matters due to

for performance of extracurricular duties Brannigan v. Usitalo, 134 N.H. 50, 53 (1991). holding in Berlin, which the parties agree is controlling precedent. See subject of bargaining.” Id. at p. 7 784 (emphasis added). We owe deference to our teacher’s duties, is within the term ‘wages’ and is therefore a mandatory activities, which is remuneration for services constituting an integral part of a N.H. at 782-84. Specifically, we held that “compensation for extracurricular the scope of the bargaining unit member employee’s duties. See Berlin, 125 (2010 & Supp. 2017), the compensation must be for activities that are within “wages” under the Public Employee Labor Relations Act, see RSA ch. 273-A language of Berlin ’s holding makes clear tha t, to fall within the definition of bargaining under RSA chapter 273- A.” Id. at 781-82 (quotation omitted). The

within the statutory definition of “wages,” but, rather, whether a salary scale the dispute between the parties in Berlin was not whether “a salary scale” fell public employers and employee organizations.” (Quotation omitted.) However, bargaining unit . . . constitute a mandatory subject of negotiations between citing Berlin as support for the proposition that “[w]ages paid to members of a Berlin as a case about whether “a salary scale” constitute s “wages,” and by The majority attempts to diminish Berlin ’s holding by characterizing p. 8 8

school children in Berlin. Id. this court cannot substitute its judgment for that of the PELRB on this issue. “training of a child for citizenship and leadership,” as was the case with the Educ. Assoc., 163 N.H. at 340 (emphasis added). Under the circumstances, community college adjunct professors at CCSNH are not responsible for the PELRB’s decision on this issue is “clearly unjust or unreasonable.” Hollis my view, the Union has failed to meet its burden of demonstrating that the Appeal of Town of Moultonborough, 164 N.H. 257, 261 (2012). Accordingly, in say that the PELRB’s conclusion on this issue is unjust or unreasonable. See Based upon these findings, which are supported by the record, I cannot

adjunct’s duties.” concluded that “tutoring cannot fairly be classified as ‘ an integral part ’ of an

adjuncts. Finally, and perhaps most importantly, the PELRB found that director of ACE testified that “most” of the tutors she hires are not current professors, plus students “occasionally” serve as “‘peer’ tutors.” Indeed, the omitted), whereas tutors at CCSNH are not only adjuncts but full-time bargaining unit,” even though this was permissible, id. at 7 p. 8 81 (quotation the superintendent’s “practice” to “fill extracurricular positio ns outside of the class assignments.” Another factual distinction is that, in Berlin, it was not merely a service CCSNH offers to students who would like help completing activity like a sport or other student activity at issue in [Berlin]. Instead, it is also noted that the activity at issue, tutoring, “is clearly not an extracurricular through the Academic Center for Excellence (ACE) or otherwise. The PELRB Berlin were related to the teachers’ regular duties.” omitted.) There is no expectation that adjuncts tutor any of the students, normal adjunct faculty members’ duties than the extracurricular activities in with their students — “before or after class, or by appointment.” (Quotation making themselves available for what the PELRB termed “limited consultation” assigned course” to college students. The adjuncts are also responsible for CCSNH are “part - time faculty” who “are responsible for teaching a specific Berlin public school district, see Berlin, 125 N.H. at 780, the adjuncts at respects.” Unlike the full -time teachers who taught school children in the case is “factually distinguishable” from Berlin “in a number of significant Yet the PELRB explained in detail the basis for its conclusion that this

tutoring services at issue here are, if anything, more closely related to the “the PELRB erred as a matter of law” because, in the majority’s view, “the the PELRB’s decision on the first issue. T he majority’s opinion concludes that at the outset of its analysis, it does not adhere to that standard in reviewing Although the majority acknowledges this deferential standard of review

that the PELRB’s decision is unlawful, or clearly unjust or unreasonable.”). 163 N.H. 337, 340 (2012) (“To succeed on appeal, the association must show N.H. 46, 51 (2014); accord RSA 541:13; see also Appeal of Hollis Educ. Assoc., p. 9 9

IIA of the majority’s opinion. decision.” (quotation omitted)). Therefore, I respectfully dissent from Section the wisdom of an administrative decision for that of the agency making the 164 N.H. 552, 555 (2013) (“This court is not free to substitute its judgment on See Moultonborough, 164 N.H. at 261; Appeal of Laconia Patrolman Assoc.,