SUPREME COURT OF NEW HAMPSHIRE
Petition of
Randall Burns & a.
Appeal of Randall Burns, et al. Pursuant to Rule 11
(On Appeal from NHRS)
Case No. 2023-0471
REPLY BRIEF OF THE PETITIONERS
National Education Association – NH
N.H. Bar #20799
9 South Spring Street
Concord, NH 03301
csullivan@nhnea.org
N.H. Bar #16491
142 Main Street, Suite 216
Nashua, NH 03060
Tony@nhlaws.com
Table of Contents
Page
TABLE OF CONTENTS……………………………………………………………. 2
TABLE OF AUTHORITIES………………………………………………………… 3
ARGUMENT…………………………………………………………………………
I. PRESERVATION…………………………………………………………….
i. Petitioners’ impossibility of consent argument was preserved……………
ii. No further factual development is required for the Court to consider
Petitioners’ argument……………………………………………………...
II. JURISDICTION……………………………………………………………….
i. This Court has jurisdiction over the question of a party’s contractual
consent…………………………………………………………………..
CONCLUSION………………………………………………………………………
CERTIFICATE OF COMPLIANCE ………………………………………………... 10
Table of Authorities
Cases
Page
Alton Sch. Dist., Appeal of, 140 N.H. 303, 306, (1995)………………..
Franklin Educ. Ass'n, NEA-New Hampshire, Appeal of, 136 N.H. 332,
336 (1992)………………………………………………………………
In re Concord Teachers, 158 N.H. 529, 539 (2009)……………………
Matthews, Appeal of, 136 N.H. 221, 226 (1992)……………………...
Saidel v. Union Assur. Soc., 84 N.H. 232 (1930)…………………………
State v. Batista-Salva, 171 N.H. 818, 822-823 (2019).............................
State v. Bruce, 147 N.H. 37, 40 (2001)…………………………………
State v. Goding, 128 N.H. 267, 270 (1986)……………………………
State v. Kardonsky, 169 N.H. 150, 152, (2016)…………………….
Van Der Stok v. Van Voorhees, 151 N.H. 679, 682 (2005)
9
RSA 273-A:5, I (e)……………………………………………………...
6, 8 RSA 273-A:11…………………………………………………………
6, 8
i. Petitioners’ impossibility of consent argument was preserved.
In its Brief, the New Hampshire Retirement System (“NHRS”) argues that Petitioners failed to preserve the argument that consent was impossible under the NHRS statutory standard because Petitioners lacked the authority to consent to delayed EFRB payments. NHRS Brief at 35-36. The NHRS admits that Petitioners have raised the validity of consent but argues that the specific theory was always tied to the consent being invalidated by fraud, not impossibility. Id. at 36. As a result, the NHRS asserts Petitioners are precluded from challenging the validity of the consent purportedly obtained on that basis. The fact that Petitioners were prohibited by law from consenting to an agreement that conflicted with the parties’ collective bargaining agreement is a corollary to Petitioners’ prior consent arguments and was therefore preserved. The appealing party bears the burden of demonstrating that she specifically raised the arguments articulated in her appellate brief before the trial court. State v. Batista-Salva, 171 N.H. 818, 822 (2019)
128
N.H. 267, 270 (1986)
150, 152
(2016) (waiving preservation requirement “because the appeal issue
constitutes a discrete question of statutory interpretation, requiring no
further factual development.”)
Here, the language of the collective bargaining agreement (“CBA”),
the Petitioners’ knowledge of its terms, their union’s knowledge of the
same, and the Petitioners’ ability to consent to the District’s representations
have been central to this case since its inception. Petitioners argued
throughout the proceedings that their “consent” to delayed EFRB payments
was invalid and impossible because of the manner it was procured, and the
affirmative representations made by the District in its notice to Petitioners.
See Appendix to Petitioners’ Brief (hereafter “Apx.”) II at 007 (“because of
the deception by the District they didn’t know to complain”). Petitioners
have previously argued it was “impossible” for them to consent to delayed
retirement payments due to the District’s misleading statements which
included as a threshold matter, an implicit assurance to Petitioners that they
could each individually consent to the delayed payments. Apx. I at
004
(noting “[i]t was impossible for the Petitioners to consent to the delayed
payments because their consent was the product of untruthful
representations by their employer” (internal quotations omitted) (emphasis
Petitioners asserted in sworn affidavits that they were given
assurances from District that led them to believe the delayed payments were
compliant with the CBA and being timed in accordance with the CBA. See
Apx. II at 21, ¶ 7 (Affidavit of Petitioner Lisa Abohatab (emphasis
supplied)).1 These assurances imply that no union involvement was
required to alter a CBA term and Petitioners had authority to consent. Just
as this Court has held a party preserves a due process argument by
questioning the fairness of a trial where exculpatory evidence is withheld,
here, where the validity of consent was questioned throughout the record,
the issue of the District’s legal right to seek and procure Petitioners’
consent was preserved. State v. Bruce, 147 N.H. at 40.
The CBA is a contract between a public employer and the union
over the terms and conditions of employment. Appeal of Alton Sch. Dist.,
140 N.H. 303, 306 (1995). As a matter of law, the District could not make
assurances regarding the delayed payments and compliance with the CBA
because the union, as the exclusive representative, was the only party who
had authority to consent to a change in the CBA. RSA 273-A:5, I (e)
(requiring a public employer to negotiate with employee’s union.) RSA
273-A:11 (granting the exclusive right to collectively bargain on behalf of
employees to the exclusive representative certified by the PELRB.) The
District fraudulently induced Petitioners to believe it had the authority to
propose the delay in EFRB payments (which is a change to the CBA) and
that Petitioners had authority to consent to that change. It was these
representations, in addition to others, that vitiates any purported “consent
“given.2 Indeed, this Court has affirmed, in factually identical
circumstances as noted in the NHRS’ Brief, an arbitrator’s decision that the
District’s practice of making the first stipend payment 60 to 120 days after
the July 1 retirement date was at odds with the plain language of the CBA
and there was an absence of mutuality to establish a past practice. Apx. II at
ii. No further factual development is required for the Court to
consider Petitioners’ argument.
Assuming arguendo, that the Court determines this argument was not preserved, the Court could waive a preservation requirement in this case. No further factual findings are required to answer the question of Petitioners’ ability to consent to a change of a term of the CBA. Petitioners were not a party to the CBA and therefore do not have the ability to waive a term (i.e. consent), and the District lacked any authority to negotiate with individual members, rather than the union, to change a term of the CBA. Id; Appeal of Franklin Educ. Ass’n, NEA-New Hampshire, 136 N.H
332, 336
(1992) (finding impermissible direct dealing when a public employer
unilaterally contacted and applied pressure to union members on topics that
were subject to renegotiation with the union.) As noted supra, this Court
has already determined that employees similarly situated to the Petitioners
were not party to the CBA and could not waive its terms. Apx. II at 16-17.
This Court can answer that question in this case, with the record it has, or it
can rely on its prior finding (relating the same CBA), that the CBA required
the EFRB payments by a certain timeframe and District never negotiated
with the union over changing the payment date to November 1. In either
avenue, the conclusion is that Petitioners had no authority to consent to
i. This NHRS has jurisdiction over the question of a party’s
The NHRS is incorrect that it lacks jurisdiction to decide the
Petitioners’ impossibility of consent argument and that it should have been
filed as an unfair labor practice claim. NHRS Brief at 34. The Petitioners
were properly before the NHRS on the issue of earnable compensation, and
the NHRS assumed sole jurisdiction over that issue by hearing the petition.
NHRS has an interest in properly administrating RSA Chapter 100-A and
“faithfully discharging its fiduciary duties in the interest of all participants
and beneficiaries.” See In re Concord Teachers, 158 N.H. 529, 539 (2009).
Notably, the NHRS never objected on jurisdictional grounds to the
proceeding continuing at the NHRS and evaluating the validity of the
alleged consent in this case. This is because under RSA 100-A:1, XVII
Petitioners are required to prove the payments were late due to no fault of
their own and without their consent. The fact that the CBA is implicated in
this case does not suddenly transform the nature of Petitioners’ claim into
an unfair labor dispute nor does it necessitate resolving the dispute at the
PELRB. The Petitioners raised the impossibility of consent theory in
service of their burden of proof on this point. They do not ask that the
NHRS, or this Court, declare the District’s actions an unfair labor practice.
The PELRB has no authority to provide the financial remedy that
Petitioners seek. As such, Petitioners brought their claim to the appropriate
venue, seeking remedies only the NHRS can provide.
Petitioners preserved the argument regarding the validity of any
consent given to a change in the CBA terms without involvement of the
Petitioners’ exclusive representative. Even if no such preservation occurred,
the Court should consider the argument because it does not involve
additional fact finding and merely involves this Court looking at the
language of the CBA and well-founded precedent regarding union
representation to reach a conclusion on these issues.
CERTIFICATION OF COMPLIANCE
I hereby certify that: (1) the within reply brief complies with Sup. Ct. R. 16 (11) and contains 3, 000 words or less (1, 876), excluding the cover page, table of contents, table of authorities, statutes, rules, and appendix.
(2) I have complied with Supreme Court Rule 16(10) and 26(2) by forwarding a copy of the foregoing Reply Brief of the Petitioners through the e-filing system of this Court on this date, to the Defendant’s Counsel, to the Intervenor’s Counsel, and to the Attorney General, at the following addresses: Peter Foley, Esq. (Counsel for the NH Retirement System) NH Bar #828 P.O.Box 2753 Concord, NH 03302 (603) 303-8176 foleypt@comcast.net
Peter Phillips, Esq. (Counsel for Keene School District) NH Bar #11030 Soule, Leslie, Kidder, Sayward &Loughman, PLLC 220 Main Street Salem, NH 03079 (603) 898-9776 phillips@soulefirm.com
Office of the Attorney General 33 Capitol Street Concord, NH 03301 attorneygeneral@doj.nh.gov
N.H. Bar No. #20799
Staff Attorney
NEA-New Hampshire
9 S. Spring St.
Concord, NH 03301
(603) 224-7751
edickinson@nhnea.org
By: /s/ Anthony Sculimbrene__
N.H. Bar No. #16491
142 Main Street, Suite 216
Nashua, NH 03060
(855) 645-2971
tony@nhlaws.com