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APPEARANCES
Representing State EmPloyees Association:
Theresa DeNafio Donovan, Esq.
Representing Coos County Department of Corrections:
Thomas Flygare, Esq.
Also appearinq:
Suzanne Collins, Coos County
Norman A. Brown, Coos County
Stephen J. McCormick, State Employees Association
Robert Brown, Coos County
Scott Grassette, Coos County
Brendon K. McKeage, Coos County
Craig Hamelin, Coos County
Daniel P. Ward, Merrimack County
Heidi Silveira, State Employees Association
Richard A. Grenier, Belknap County
Dennis Martino, State Employees Association
Christine Paquette, State Employees Association
BACKGROUND
On November 5, 1997, SEA Local 1984 filed a petition to
certify a bargaining unit for Coos County correctional employees. The County
filed objections on November 18, 1997, and a hearing commenced on December 17,
1997. A question arose regarding the validity of subpoenas issued by a justice
of the peace to witnesses for the Association. On the day of the hearing, the
Association filed unfair labor practice charges pursuant to RSA 273-A:S I (b)
and (g) when the County insisted that their employees take personal time to
appear as witnesses. The hearing of December 17, 1997, was continued at the
request of the parties so that both the subpoena question and the related ULP
charges, could be briefed and decided in this one proceeding. A request for an
extension of the time for submitting briefs was granted and briefs were received
on January 15, 1998.
FINDINGS OF FACT
1. Coos County is a 'public employer" within
the meaning of RSA 273-A:1 X.
2. State
Employees Association Local 1984 seeks to become the exclusive bargaining
representative for employees who are correctional officers employed by Coos
County.
3. The
parties stipulated that certain Coos County correctional employees were desired
as witnesses by State Employees Association at the certification hearing of
December 17, 1998 and so were issued subpoenas by a justice of the peace.
4. It was
stipulated that the County told the employees who had been issued subpoenas that
they would be required to utilize their personal leave time in order to attend
the hearing.
5. It was
stipulated that the County employees attended the hearing knowing that they
would be required to charge the time against their personal time.
6. RSA 273-A:6 IV reads:
The board shall have the
power to compel the
attendance of witnesses and the production of
documents by the issuance of subpoenas, and to
take testimony under oath, as provided in RSA
516, and may delegate such powers to any persons
it may appoint.
7. The PELRB has adopted rules
pursuant to RSA 273-A:2 VI and RSA 541-A, the Administrative Procedures
Act. Among these rules is Rule Pub. 203.01 which deals with witnesses and
subpoenas. It reads:
(a) Upon request therefor or on
his own motion, the hearing examiner may compel the attendance and deposition
of witnesses and the production of documents by issuing writs and subpoenas in
the name of the board under RSA 273-A:6, IV. The hearing examiner shall
administer oaths to witnesses in the manner provided in 515:19 (sic) and 20.
In all matters pertaining to witnesses the provisions of RSA 516 shall apply.
(b) Any
party may file a written application for subpoena requesting the board to
issue a subpoena. The application shall identify the witnesses or documents
sought and shall set out a clear and concise statement of the reason for
making the application. Witnesses subpoenaed by the board shall be allowed the
same fees as those paid to witnesses in the superior court. Fees shall be
borne by the party requesting the subpoena or as the board may otherwise
direct.
(c) No
employee serving as witness or as counsel at a hearing shall suffer any loss
of pay or benefits because of his attendance; but any pay to which he may be
entitled to under this paragraph may be reduced by the amount of any witness
fee he may receive.
8. RSA 516 referred to in RSA
273-A:6 IV and in Rule 4 Pub 203.01 (a), (See Finding No. 71, is the general
long established statutory authority regarding subpoenas and witnesses. RSA
516:3 reads:
Any justice may issue such
writs for witnesses,
in cases pending before himself or any other
justice, in any case in any court, in all
matters before the general court, or before
auditors, referees, arbitrators or commissioners.
DECISION AND ORDER
The County has raised a question to
be answered preliminary to addressing the Association's unfair labor practice
charges. The County questions the sufficiency of the Association's
subpoenas issued to witnesses by a justice of the peace to appear before the
PELRB. In essence, the County argues that the PELRB has sole and exclusive
authority, under RSA 273-A:6 IV, to subpoena witnesses before the Board.
The statutory reference to RSA 516
in RSA 273-A:6 IV is echoed in Rule Pub 203.01. (See Findings 6 and 7.)
Essentially, the parties have asked for an interpretation of statute and rule
and how they are to be read in relation to RSA 516. Looking at the plain
meaning, the wording of RSA 273-A:6 IV does not suggest an exclusive authority
to issue subpoenas. Reading the rule, the last sentence of Rule Pub 203.01 (a),
taken on its face, is key. The rule in question states that, in "all"
matters pertaining to witnesses, RSA 516 shall apply. There is no qualifier or
word of limitation, such as "other," to suggest an exception. The rule
is to be read as explaining the statute. Therefore, the wordings of the rule and
the statute indicate that they are to be read as
harmonious with RSA 516.
If proper in other ways, the
subpoenas issued by a justice of the peace for the Association's witnesses are
to be honored as the provisions on witnesses stated in RSA 516 are incorporated
into RSA 273-A:6 by reference. Accordingly, the Association may cause to issue
subpoenas by justices of the peace for witnesses
to appear at PELRB hearings, not because those employees have an interest in the
outcome of the matter, but because those witnesses are necessary to provide
testimony for the record of the case.
The Association has first charged a
violation of RSA 273-A:5 I (b), domination or interference in the formation or
administration of any employee organization. An employer deterring witnesses
from testifying against its position at a hearing which is part of the process
for certifying a bargaining unit is indeed interference with formation of the
bargaining unit. For a variety of reasons, the use of personal time to attend
these hearings may be a deterrence, an obstacle to overcome and, thus
interference. But that is not enough for a ruling for the petitioner. When the
charge is made under RSA 273-A:5 I (a) through (a), illegal motivation is an
essential element to be pled and proven by the complainant. Appeal of Sullivan
County, 141 NH 82, 88 and 89 (1996). In the present case, intent has not been
pled by the Association. There is no unfair labor practice under RSA 273-A:5 I
(b).
Second, the Association has charged
a violation of RSA 273-A:5 I (g), failure to comply with the statute governing
public employee labor relations and rules adopted thereunder. Rule Pub 203.01, a
rule adopted under the statute, deals with witnesses who appear before the
Public Employee Labor Relations Board. It states, in paragraph (c), that '[n]o
employee serving as a witness or as counsel at a hearing shall suffer any loss
of pay or benefits because of his attendance,..."
The question of employer policies
requiring the use of annual time by employees subpoenaed as witnesses has been
raised from time to time. It is rarely a matter for decision. It is noted that
the question at hand was raised during a 1991 hearing, the decision from which
was subsequently appealed. Appeal of Newport, 140 N.H. 343 (1995). The first
five pages of the hearing transcript capture the discussion of such an employer
policy. Id., N.H. Supreme Court No. 92-000, Ex. No. 8. Posthearing, the
requirement that witness employees use vacation or personal time was addressed
on behalf of the Board in a letter, dated June 8, 1992, from Parker Denaco,
Executive Director, to Daniel O'Neil, Newport Town Manager. The letter read, in
part, "If either [witness were scheduled to work] during that time when
they traveled to or from or during the course of giving testimony and were
required to take vacation time or uncompensated time in order to do so, such
action would be inappropriate under RSA 273-A:5 I (d)." Though not a part
of the decision, the Board did not look favorably on the position now taken by
the County.
A published rule of this Board has
been violated. Arguments that no unfair labor practice has been committed are
not convincing. Because the public employer has adopted a policy contrary to
Rule Pub 203.01 (c), witness employees enjoy a lesser amount of a benefit,
personal leave, when they attend a hearing
under subpoena. Attending such a hearing is an employment related activity for
the County's witnesses and for the Association's witnesses. The County's error
constitutes an unfair labor practice under RSA 273-A:5 I (g). The County shall
restore the witness employees' personal leave time, a benefit reduced as a
result of attending the hearing of December 17, 1997. The County shall cease and
desist from the practice of
requiring employees who are witnesses before the PELRB to utilize personal leave
time.
So ordered.
Signed this 26th day of Februarv, 1998.
/s/ Gail C. Morrison
Gail C. Morrison
Hearing Officer
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