Appeal of State Employees’ Association of New Hampshire, Inc.

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This is Case 2017 0 5 1 4. Appeal of State Employees Association of New Hampshire, Inc. SCIU, local 1 9 8 4. May I please the court? Good morning. My name is John Kresky. I'm with the law firm of Miller and Kresky, and I have the, uh, honor and pleasure of representing the SEA in this appeal. And today we come before you to ask you to correct legal error committed by the PLRB in the underlying case. The PLRB committed legal error by adopting the National Labor Relations Act Notice and Bargain Rule as it applies to wages, a mandatory subject of bargaining. This is in contradiction of New Hampshire law, statutory common, and PLRB precedent in New Hampshire. The law is clear. Mandatory subjects of bargaining may only be changed by mutuality of the parties after bargaining. This is listed and codified in RSA 2 73 a a nine cases cited in our brief as well as prior decisions of the PLRB in this matter. There was a trilogy of cases surrounding negotiations between the state and the SEA all about the same common matter, which is the payment of wage enhancement to employees. So if I'm understanding what, what your argument really comes down to, if I understand Mr. Krosky, is that if there's a past practice, you can't eliminate the past practice by simply having, um, language that doesn't incorporate it. You have to have language that specifically says, we are eliminating this past practice, Um, in, in this case, yes. But I think the focus, your Honor, is more on mutuality between the parties and, and the alteration of a mandatory subject bargaining can only happen after meaningful negotiations between the parties. Well, I, but if I understand correctly that in the negotiations there was a proposal for the enhancements in this, in the new contract, the state rejected it. You then went to impasse and the state and the union then reached agreement that didn't include the enhancements. Why isn't that enough? You didn't include the enhancements and that's what was Well, well, I I I'll tell you why, your Honor, um, because you have to look at it in the context of the entire negotiations. And this, while it is true that a proposal was put forward, the parties stipulated that they had no substantive that discussions on that particular proposal. And in the previous case, and by the previous case, I mean case number one, the SEA did provide a proposal, withdrew that proposal, and the PLRB provided guidance and said, the mere issuance of a proposal and withdrawal of that proposal is not in and of itself enough to wipe out the past practice. And they said it was merely a attempt to codify what the parties agree, and that's not enough to change the mutuality. And that would be in, in case one, um, uh, that was in 2014. And in addition to that, your Honor, the same set of facts, if I might, were in case two, that was decided in 2016. In 2016 also dealt with this issue where the SEA put in a proposal, that proposal was withdrawn, and then thereafter, uh, the, uh, state attempted after bargaining was done to withdraw the past practice, but they had no substantive discussions in that case. The PLRB said, look, our decision in case one applies not only to current employees, but also applies to new prospective employees. And we wanna make that clear. However, they dismissed case two not on a substance, but rather because it was not ripe. What had happened is the state had advertised cases in, in December and January, not advertised cases, advertised positions in December and January, but never filled those positions thereafter, while this case was pending, they actually hired somebody and didn't give them the, the enhancements. But the idea that there must be mutuality is the most important concern, and there was no evidence of mutuality to discontinue that past practice, your Honor. Well, I, but I guess, I mean, why I'm having trouble understanding, if you make a, you really seem to be saying if you make a proposal and then withdraw it, the, your opponent can't rely on the fact that you've withdrawn it. Because what what you're really saying is, even though we made a proposal and we, and then we withdrew it, we really didn't withdraw it. And if you're, and if you on the other side aren't, you know, you don't sort of catch that, you need to say affirmatively on the other side some language that like we are, we're, you know, we're, we are not, we, we are not agreeing to what you've, what you've withdrawn that there's, then they're stuck with it. That doesn't seem like A process to me. Well, well, that, that, that is the, that is the process, your Honor, because if you want to change to a mandatory subject bargaining, you have to affirmatively place it in the collective bargaining agreement. And I asked Your Honor to take a look at the actual proposal that was submitted. What the state did is they said, they didn't say they're wiping out the enhancement for everybody. They simply said, we're not gonna do the enhancements going forward. The the proposal put forward by the SEA said, just make this part of an, and it's in the record, and you can look at the proposal, but the proposal in general said, you know, wage enhancements are part of the salary schedule. But you know what, even, I mean, even if we, even if that, even if that was, if we sort of were inclined to interpret the law the way you say, right. What about the fact that before the agreement is, is sort of finalized before there's a vote, the state specifically sends you a notice saying, look, we're not, we're not paying this. Well that notice, you know, and that consider the second error whether or not there was an, you know, appropriate application of the bargain of the notice and bargain rule. And what the state did here was the opposite. They did bargain and notice collective bargaining under the statutory framework of 2 73 A is a process. Okay? And what, you have your beginning, you have your middle, you have your end, and the end of the process for the parties is when they reached agreement in January of 2000. The agreement That was reached though included no future enhancements, correct? What's that? The Agreement that was reached though included no future enhancements. No, that's, that's the, that's not accurate, your Honor. The agreement that was reached did not change the enhancements, and that agreement was reached and it negotiation was closed. They, it was already sent out for ratification. So the, the bargaining aspect was done. And in support of that, your Honor, I, I point to the fact of the matter is that even when you look at the letter written, but on February 26th, the state Though, says that the proposal was rejected at the bargaining table. Is that inaccurate? It It's in it's inaccurate in terms of there was no substantial, um, discussions on it. They, the, the SEA withdrew that proposal because it really had no effect in terms of the negotiations. And like I said, it has to be looked at in context. The same thing happened in the prior previous case and the direction of the PLRB was that if you simply withdraw a proposal, that's not enough to waive a past practice. And that's in the 2014 case where exactly the same thing happened. Well, The state distinguishes the 2014 case by saying that was, uh, during a contract term, That's does that matter. But, but there's two different issues. Um, one is, you know, um, whether or not, if I might, providing a proposal and withdrawing it, um, constitutes sufficient notice. And number two, when that takes place, it really is a distinction without a difference in this case because, um, as the PLRB points out, uh, the parties have an evergreen clause, so they're basically in contract until the next contract. So they never technically go out of contract. Well, but haven't we said, I mean, in, in another kind, in the Nashua School board case, didn't we say that, that, you know, that you can't, this can't kind of go on forever. That they, that, that there is a difference between trying to make a change in the middle of a contract and saying, you, you know, we're gonna, we're gonna do, I think there it was, uh, going from, uh, employees to, uh, uh, subcontractors, but you, as long as you can do that for a new, a new contract. Well, it's, it's interesting, your Honor, because I, I just, um, yesterday I was reviewing the Nashua, the Slip opinion Nashua case, um, in October of 2017. And as I read that case, this court reaffirmed that for mandatory subjects of bargaining mandatory, you have to do negotiations to alter the terms and conditions of employment, whether during or during the status quo evergreen, they may only be altered by mutuality. They made a distinction for permissive areas of bargaining, and they distinguished the earlier UA cases based on three different things. In the first issue, they said in the first UA case that reorganization was a mandatory subject of bargaining. This court at least overturned that aspect of it and said, reorganization is a permissive subject of bargaining. And number two, they said, in that particular case, this was one of our arguments for permissive, not necessarily for mandatory, but in support of our argument, that you have to have notice prior to, um, negotiations. They said a huge difference was that in the recent case, the employer provided notice of before the commencement of negotiations, where as opposed in Nashua, it was during negotiations. And what this court said is, doing it during negotiations or after negotiations are done skews the level playing field necessary for true and fruitful negotiations. Because if you think about it, it's true. You reach an agreement and you've traded back and forth and you think you're done. And in the 11th hour, the other side says, oh yeah, there's one, one more issue. There's one more issue. Now we've already traded out that it gives an unfair advantage to the employer to be able to do that. Well, you Know what, can lemme just ask you this though. I guess this is the thing I have, if when you make a proposal, you're, you're in negotiations with the, with the other side, right? You make a proposal Mm-Hmm. And then you withdraw it, Right? Isn't it reasonable for the other side to think that that's gone? That, that, that's not, now, that's no longer something I have to worry about. But you seem to be saying that, well, if this is a past practice, you know, we can sort of, we can sort of say, well, we're, we're, we wanna incorporate this past practice and then you withdraw it. But, you know, we really didn't. And, and the other side is so, and the other side, they have to be a student enough, I guess to say we are, we're specifically you understand that there's gonna, there's no longer gonna be any enhancements. That seems to, well, well, It, it, it appears to me, your Honor, that that, you know, as I said, the important aspect here is mutuality. Okay? Both sides have to agree that there's going to be a remove for mandatory issues of bargaining, okay? Like wages, et cetera. So if the o if there is new, not mutuality, which is distinguished through collective bargaining, and Why Isn't, Why isn't mutuality accomplished by, I make a proposal to the other side, right? The other side makes some proposals to me, and then I withdraw my proposal. Why isn't that, you know, I've, I from my side have made a proposal and now backed away from it, right? And the other side has said, okay, you've backed away from it. So I don't have to deal with that. Maybe they've backed away from some of Their proposals because in what? For it to be mutual, okay? That's where the, the burden comes in. Whose side is it responsible to get it in writing? And in New Hampshire, the the burden is on the side. Who wants to change a change, a past practice or change, a mandatory issue bargaining to come forward and do it affirmatively? Once again, you a look at If's the case. If that's the case, why is it necessary to put a proposal when there's a binding past practice? Well, like I said, is that if, if we look at it from the perspective of what had happened in these cases, like I said, in case one, the SEA did exactly the same thing. They put forward a proposal during collective bargaining withdrew it, and the PLRB found in the first case that that wasn't enough to waive the, uh, the past practice. And they were relying upon that when the SEA and the parties have stipulated, there weren't any substantive negotiations. Now, I would agree with Chief justice, if they had said, listen, you understand by withdrawing that we take the position that this has gone and there are no enhancements, that would be a different story. But they didn't do that until after there was an agreement. They raised the issue on February 26th. So that one side had an advantage in the collective bargaining process. They had to articulate that at the table to reach the intent of the parties so that there was mutuality, other words that you don't have the mutuality in order to change a negotiated past practice. So with that being said, don't forget that we had three cases here that all ran together. And in the second case, all of these facts, all of these facts existed including the withdrawal of that proposal. And in case two, like I said, the PLRB ruled that not only that the offering of a position without the wage enhancements was inconsistent with their prior order and then somehow did a 180. And if you look at the facts and the facts that are found, um, they were aware of all of these facts in case two. So it seems to me that, um, at this point in time, and, and when you look at the record, that's not what the, um, the PLRB did not find as, as, as Chief Justice has articulated that, you know, that pulling of that proposal constituted a, a waiver. What they said is once you received that notice post post negotiations, once you received that notice, you could have stopped everything and reopened negotiations and started all over again. They based it on that February 26th letter, not on the earlier, uh, withdrawal. And quite frankly, at that point, it became a rule of bargain. Then notice as opposed to notice and bargain, which would be required, the notice would be required prior to commencement of no negotiation. But the SCA knew that, uh, the enhancements were subject that the state wanted to to Stop. Right. Um, based on prior negotiations. Yeah. Yeah. But, but if you know that form, form over substance, no, it's not, your Honor, because, because once again, they've got the affirmative obligation to get it written out of the contract or having mutual understanding that it wouldn't be in the contract any further. And may I point out, your Honor, that once again, looking at the letter that Matt Newland wrote on February 26th, it didn't eliminate the, um, uh, the, uh, wage enhancement. It only did it prospectively for new hires. That really is a huge distinction that you'd have to come forward and say, look, this is like almost a totally new proposal that they're just unilaterally implementing, which is unfair since it was never bargained. I see. My time is up if there's no further questions. Thank you, Mr. Thank you, your honor. Counsel, Good morning.

May it please the court. I'm Nancy Smith. I am here on behalf of the state. And this case, I think for the first time, uh, in New Hampshire presents the issue in a public relations setting of how something that has been deemed to be a past practice can be ended. Um, there has been a several cases previously about what establishes a past practice, but we were confronted in this case with how do you end a past practice once it's been created? And it's our position that the PLRB correctly found that on the facts of this case where for a mandatory subject of bargaining, which this is about salary enhancements for teachers at the Sununu Youth Center, that when during collective bargaining, not in between bargaining, when during a collective bargaining session, the enhancements were on the table to be written into the contract, and the state said no, and the union subsequently withdrew the proposal that we take the position, that would've been enough, but we went one step further and be, and after they had withdrawn the agreement and come to an agreement. So when you talk about mutuality, they agreed to A CBA without the enhancements in it after it had been on the table that there's your mutuality. We took one step further and before the CBA was ratified, we sent an additional notice reminding them that they had agreed to A CBA without the enhancements, and that it was our position that that would end specifically for new hires. Why did you send that notice? Why was the notice sent? I'm, I'm sorry? Why was the notice sent? The notice was sent, um, before the union membership would vote on the CBA. Right. But why, why did the state feel that it needed to write that letter if in fact everything had already happened? There was mutuality. So we're all set. Uh, I mean, I think that goes back to the fact that this is a new area. So we don't have much guidance. Um, past practice is a judicially created doctrine. Um, it's not spelled out in statute. Um, so we're faced with, we want to be absolutely clear so that they know what they're getting into. So we went that extra step and sent that additional notice. Did the PLRB flip flip's position as Mr. Kresky said, between the second and the second decision? And this one, They did focus because at the PLRB, the union had, um, had complained that that letter, um, was, was not timely. Um, the PLRB, I think did recite the other facts of what happened during the negotiation, but they also did say what Attorney Kresky um, mentioned, which was that that notice was still, that that letter was still, um, effective because the union could have broken off and gone back into negotiations. Therefore, it was still a meaningful notice, um, of the state's position even at that time. And you would say the rejection of the salary enhancements was clear in the record the state's position that they were rejecting the proposal of the union? Yes. Um, that was a stipulate at the PLRB. There were stipulated facts, and it was stipulated between the union and the state that as to what happened in the collective bargaining, the proposal was presented, um, at the subunit level. The union and the state agreed that because it dealt with wages, it had to be elevated to the master level of negotiations in the master level. It was a stipulated fact that the state rejected that proposal. There's kind of a back and forth. They got to proposal number and I don't recall what the number is, proposal number, um, 22, uh, the state said we don't accept proposal number 22, and then the discussion went on. So when counsel says there was no substantive discussion that wasn't back and forth after the state said, no, that's agreed. So I mean, it sounds, correct me if I'm wrong, but it sounds like if it, that what your opponent would be suggesting is in that situation, the final agreement that that that is reached would have to at least arguably would have to say, you know, and, and during the course of negotiations side, the, the union side proposed A, B, C, and D, those are, you know, not included in this collective bargaining agreement. And the state proposed, uh, uh, proposals X, Y, and Z. And those are not concluded unless, and, and unless those that sort of affirmative language was used, whatever past practices there were would continue. I mean, is that, is that sort of a, a fair understanding of what the state, uh, what your opponent is saying? I believe that is correct. That, that they are elevating a past practice above negotiated terms of an agreement. And I think that's inconsistent with a statute that requires manda at least mandatory terms of employment to be negotiated. So I think for past practices, um, about at least particularly mandatory subjects of bargaining, uh, where they don't get in, we, we don't disagree that the PLRB found this to be a past practice. So at the next bargaining, because it was a mandatory subject of bargaining, it had to be on the table. And if it wasn't memorialized, then it doesn't go past that next CBA unless the state keeps doing it. And at least for existing employees, the state has said, we're not going to take away something they've been getting for 20 years, but we're not going to continue this practice for new hires because of all the reasons we argued in the first, the first case. Um, so here, the mutuality that counsel has said, um, was for, um, where the, the propo, it's about a mandatory subject of bargaining. The proposal is on the table, it's undisputed. The state said no to that proposal during the collect, during the collective bargaining. And then in order to reach an agreement, the union withdrew it. And so it's a little bit, uh, incomprehensible to us how they could think that it would keep going when they had had it on the table and made the choice to withdraw it, um, and agreed to a collective bargaining agreement, which did not contain it. So under these circumstances, I, we think that the, um, language that they agree on page 11 of their brief, they union actually says that, um, when they're made aware of the state's position about whether, um, something would continue, um, after being so notified, they must get the past practice into the contract to prevent its discontinuance. So we believe that that was the obligation the union had to get this past practice into the contract at the collective bargaining. They did not do that. Um, we made it very clear to them what would, what would cease if they accepted the con the collective bargaining agreement without the salary enhancements, and therefore the state has on these facts successfully ended this past practice. As to the New you, you write in your brief that the PLRB correctly found that the SEA had a meaningful opportunity to negotiated the enhancements and failed to do so, is if the PLRB did make that, is that a factual, is that a factual finding to which we owe deference? I believe it is. Um, they, um, the, the factual findings are prima facial lawful, and the PLRB certainly, uh, has a understanding of the various stages of negotiation. And they made the finding that the union still had, that the notice was meaningful and they had a meaningful opportunity to negotiate it during the CBA. So, yes. Um, I think the other factual finding of the PLRB that is entitled to deference, um, is the union argues that the prior decisions of the PLRB um, decided this, whereas the PLRB very specifically found, um, that they had not decided this issue and ordered further briefing on it. And I think that's a factual finding that, contrary to what counsel has argued about what the PLRB said about, um, the second and third cases, uh, was, uh, was these issues were not decided. But do we Owe said that de, regardless of what the PLRB decided in past orders, do we owe deference to their interpretation of the legal issues? Uh, you, um, We don't do we You do de novo review of legal issues. So, um, unless there's any further questions, um, as we have, um, argued, we believe that there, this was negotiated during the collective bargaining session. It was rejected, um, it was knowingly accepted by the SEA, uh, and therefore in this instance, this past practice was appropriately ended. And we would ask you to affirm the decision of the PLRB. Thank you counsel. Pardon? Okay. Submit it. Alright, thank you.