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APPEARANCES
Representing Citv of Berlin:
Susan Chamberlin, Esq.
Representing A.F.S.C.M.E.Local 1444:
Steven Torres, Esq., AFSCME, Council #93
Also appearinq:
Mitchell Berkowitz, City of Berlin
Harriett Spencer, Staff Representative
BACKGROUND
On January 1, 1998, the City of Berlin (City) filed unfair
labor practice charges alleging that A.F.S.C.M.E. Local 1444 (Union) had
violated RSA 273-A:5 II (a), (f) and (g) by filing suit in Coos County Superior
Court over a subject being bargained. On January 21, 1998, the Association filed
its answer denying the charges. A hearing was held before the Board on February
10, 1998. Briefs were received on March 2, and March 4, 1998.
FINDING OF FACTS
1. The City of Berlin employs personnel in the operation of
municipal government and thus, is a "public
employer" within the meaning of RSA 273-A:I X.
2.
A.F.S.C.M.E. Local 1444 is the duly certified exclusive
bargaining representative for certain employees of the City of Berlin.
3.
The Union and the City are parties to a collective bargaining
agreement (CBA) for the period, July 1, 1993,
through June 30, 1996. Article 30 makes reference to a retirement plan and
contains a schedule of increases
and a clause to allow reopening of the contract to discuss the pension plan.
4.
Employees of the City of Berlin who qualify have had the benefit
of a City sponsored pension plan since
September 1, 1962. (City Exhibit No. 6).
5.
By letter dated December 31, 1996, Maurice L. Daneault, Deputy
Executive Secretary of the New Hampshire Retirement System, informed the City of
its obligation to enroll City employees in the New Hampshire Retirement System
in accordance with RSA 100-A. (Association Exhibit No. 1).
6. The parties agree that implementation of the transfer from the
City Pension Plan, which is a group annuity
policy administered by New England Mutual Life Insurance Company, to the New
Hampshire Retirement System is a subject for bargaining and bargaining has been
ongoing. In March, 1997, representatives of the
Union, the O.P.E.I.U. bargaining unit and the City met to discuss the process of
conversion from the present
pension plan to the New Hampshire Retirement System. The tentative
agreement between the Union and the City lists the matter as a work in process.
7.
On September 11, 1997, more than two dozen individual employees
of the City, who are members of the A.F.S.C. M.E. bargaining unit, filed suit in
Coos County Superior Court seeking an injunction that would require immedate
enrollment of the plaintiffs in the New Hampshire Retirement System. Alva R.
McKenzie et al. V. City of Berlin et al., No. 97-E-0098, (Coos County).
8. Harriett Spencer, A.F.S.C.M.E. staff representative, denied
that the Union had filed suit for the employees
Her unrebutted testimony was that she had tried to dissuade plaintiffs from
pursuing any course but negotiations. Mitchell Berkowitz, Berlin City
Manager, testified that he had no evidence that the Union supported the suit by
the employees. There is no nexus between the filing of the action in Coos County
Superior Court and the Union.
DECISION AND ORDER
The fact that A.F.S.C.M.E. Local 1444 is not a named plaintiff to
the action filed in Coos County Superior Court (See Finding No. 7) does not, in
and of itself, require dismissal of these unfair labor practice charges.
Evidence concerning the context of the filing could well prove such .charges.
But, no evidence or testimony was presented which tended to support the City's
charges that that Union was responsible for the filing of the petition for
injunctive relief. The Union has committed no unfair labor practice. Therefore,
the charges against the Union are hereby DISMISSED.
Signed this 25th day of March, 1998.
/s/ Jack Buckley
JACK BUCKLEY
Alternate Chairman
By unanimous decision. Alternate Chairman Jack Buckley presiding.
Members Seymour Osman and E. Vincent Hall present and
voting.
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