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APPEARANCES
Representing Town of Hooksett:
Renny Perry, Consultant
Representing Hooksett Permanent Firefighters AssociationI IAFF
Local 3264:
John Krupski, Esq.
Also appearing:
Thomas Flygare, Esq.
Steve LaDuke, Chief, Hooksett Fire Department
Gary Lambert, Deputy Chief, Hooksett Fire Department
Dean Jore, President, Hooksett, Local 3264
Gerald Covey, Hooksett, Local 3264
Jim Anderson, Hooksett, Local 3264
Richard Molan, Esq., Hooksett, Local 3264
Richard Mooney, Hooksett, Local 3264
Stephen Dillman, Hooksett, Local 3264
Michael Farrell, Tom of Hooksett
BACKGROUND
The Town of Hooksett Fire Department (Town) filed unfair labor
practice (ULP) charges against the Hooksett Permanent Firefighters Association,
Local 3264, IAFF (Union) on December 3, 1997 alleging violations of RSA 273-A:
II (b) and (f), a breach of contract, resulting from the Union's attempting to
arbitrate a non-arbitrable and untimely grievance. On December 5, 1997, the Town
filed a motion to stay arbitration in these proceedings. The Union filed an
objection to the Town's motion to stay arbitration on December 15,
1997 and its answer to the ULP on December 18, 1997. This matter was then
scheduled for hearing on January 6, 1998, continued at the request of the
parties and then heard by the PELRB on April 7, 1998. At the conclusion of
the hearing, the parties requested and were given until April 30, 1998 to file
post-hearing memoranda.
FINDINGS OF FACT
1. The Town of Hooksett employs regular full time
firefighters, fire lieutenants and fire inspectors and, thus, is a 'public
employer" within the meaning of RSA 273-A:l X.
2. The Hooksett Permanent Firefighters Association, Local
3264, I.A.F.F., is the duly certified bargaining
agent for regular full time firefighters, fire lieutenants and other personnel
employed by the Town of Hooksett Fire Department.
3. The Town and the Union are parties to a collective
bargaining agreement (CBA) for the period July 1, 1995 through June 30, 1998.
(Joint Exhibit No. 2.) That document contains three sections which are germane
to these proceedings:
Article II - Management Clause:
"Except as specifically limited or
abridged by the terms of this Agreement, the management of the Hooksett Fire
Department in all its phases and details shall remain exclusively in the
Employer and its designated agents. The Employer and its agents shall have
jurisdiction over all matters concerning the management of the Hooksett Fire
Department, including, but not limited to,...the right to hire, supervise,
discipline or discharge, relieving employee from duty for lack of work or
funds....It is further specifically agreed that this Article and the exercise
of any management rights herein shall not be subject to any grievance
proceeding as hereinafter set forth.
Article IX - Discipline and Discharge:
"The Town agrees it shall only discipline
or discharge Union members for just cause. For purposes of this
Agreement, 'just cause' for discipline or discharge shall be deemed to be
unsatisfactory performance or
. misconduct as determined by the Fire Chief..."
Article XVI -Grievance Procedure:
"For the purpose of this contract a
grievance is defined as a written dispute, claim or complaint which is filed
and signed by an Employee in the Bargaining Unit who alleges an actual
instance of aggrievement and which arises under and during the term of this
Agreement. Grievances are limited to matters of interpretation or application
of specific provisions of this Agreement and must specify the Article and
Section of this Agreement
which has allegedly been violated, the date of the alleged violation, all
witnesses to same and the relief requested..."
******
If the Employer or the Union is not satisfied
with the decision of the Town Administrator, or if the Town Administrator has
not issued a decision within the appropriate timeframe, the Union may file,
within twenty (20) days following the expiration of the timeframe or receipt
of the decision...a request to the New Hampshire Public Employee Labor
Relations Board that a neutral arbitrator be appointed to resolve the dispute.
The arbitrator shall not have the power to add to, ignore or modify any of the
terms or conditions of this Agreement....The arbitrator's decision shall not
go beyond what is necessary for the interpretation and application of express
provisions of this Agreement. The arbitrator's judgement[sic] shall not
substitute
for that of the parties in the exercise of rights granted or retained by this
Agreement. The decision of the arbitrator shall be final and binding on the
parties.
4. Firefighter Stephen Dillman, a member of the
bargaining unit, was discharged on September 6, 1997 by the Town. There is a
dispute in the pleadings whether this was for misconduct. Thereafter, Dillman
was terminated again by a letter of discharge from Chief Steve LaDuke dated
September 18, 1997 for an incident on September 5, 1997. This letter said, in
pertinent part, "Disobeying a direct order, this incident along with others
in your file leave me no choice but to terminate you from Employment with the
Hooksett Fire Department effective immediately." (Attachment 2 to Answer.)
On September 21, 1997, the Union grieved Dillman's discharge saying it violated
the just cause provisions of Article IX, that it was excessive discipline
and that it was inconsistent with discipline imposed in other cases of
insubordination. (Attachment
1 to ULP.) By letter of October 14, 1997, LaDuke denied Dillman's grievance,
saying "Based on a hearing held on October 18, 1997[sicl, your grievance of
September 21, 1997 is denied. Article IX of the CBA states just cause, and I
have determined just cause." No issue of arbitrability was raised.
(Attachment 2 to ULP.
5. On October 16, 1997, the union appealed the
grievance to Mike Farrell, Town Administrator. Farrell conducted a hearing on
this appeal on October 23, 1997 in which he addressed two issues, whether the
termination violated the just cause provisions of Article IX and whether there
was adequate notice of the termination hearing in order to comply with union
representation rights under Article IX, Section 3. Farrell issued a decision
denying the grievance on both grounds on October 27, 1997. '(Attachment 4 to ULP.)
In it, he said, iter alia, "three firefighters witnessed Fire fighter
Dillman act in an insubordinate manner toward Lt. Carignan on September 21,
1997" and "in the incident on September 21, 1997 Chief LaDuke, based
on reports of the four other firefighters who were witness to the incident,
determined Firefighter Dillman was guilty of misconduct in the form of
insubordination toward an officer." The Union then requested a list of
arbitrators from the PELRB by a request dated November 4, 1997 (Attachment 5 to
ULP) consistent with Article XVI of the CBA, as shown in Finding No. 3,
above.
6. When it filed the ULP, the Town claimed, in
item 11 of its pleadings, that the Union cormnitted an unfair labor practice
"in violation of RSA 273-A:5 I1 (b) and (f) by attempting to raise issues
that were not timely raised at Steps One [Chief's level] and Two
[Administrator's level] of the Grievance Procedure."
7. The Town also claimed, in item 12 of its
pleadings, that the parties "clearly intended" that issues of just
cause" would not be submitted to arbitration as the result of the wording
chosen and utilized in Article
5 IX, more particularly set forth in Finding No. 3,
above.
8. Town negotiator and labor counsel, Thomas
Flygare, testified that he worked on the first CBA between
the parties in 1991 and that, post fact finding, the Town Council rejected
putting both just cause and binding arbitration in the first contract. Thus, the
grievance procedure language in the original (Joint Exhibit No. 1) and successor
(Joint Exhibit No. 2) CBAs concludes with 'This Article shall be subject to the
provisions of N.H. RSA 542." Flygare said he proposed the discipline and
discharge language with the intent to remove it from the arbitration provisions
of the CBA. Notwithstanding this intent, the Town has arbitrated discipline and
discharge cases for this bargaining unit at least two times during the past five
years, e.g., a stipulated arbitration award on September 14, 1995 (Union Exhibit
No. 1) and a full decision and award on January 28, 1997 (Town Exhibit No. 3).
The issue of arbitrability was not raised in Union Exhibit No. 1. It was raised
and litigated in Town Exhibit No. 3 with the result that the Town lost on that
issue.1 Attorney
Flygare acknowledged that the parties have traditionally allowed discipline
cases to proceed to the first two steps (Chief and Town Administrator) of the
grievance procedure.
9. Former firefighter, member of the first
negotiations team and now Deputy Chief Gary Lambert said the first CBA
represented a trade where just cause was given up for binding arbitration. He
said he believed the first CBA made discharge and discipline non-arbitrable.
Conversely, James Anderson, currently a firefighter and also a member of the
first negotiating team, said he understood everything in the first CBA was
subject to the grievance and arbitration language unless it was specifically
excluded. He supported his recollection of this matter by saying that given the
former chief, the union would not have left such serious matters to his sole
discretion. Union president Jore, in his testimony, supported Anderson's
interpretation because of the provisional language in the Management Clause,
"Except as specifically limited or abridged..." Jore referenced
Article XIX, Section 3 of the CBA where the parties conspicuously and
specifically excluded
certain items from the grievance procedure, e.g., "Issues and complaints
related to the administration or modification of rules, regulations or SOPS
shall not be subject to the Grievance Procedure."
10. Chief LaDuke, called as a Union witness,
confirmed Attorney Flygare's testimony, namely, that discipline
and discharge matters have traditionally been subject to the grievance procedure
but that he, personally,
did not believe that they should go on to arbitration. Union Exhibit Nos.
2 and 3 show where a former chief's
decisions were reviewed by a former town administrator and affirmed or modified,
as appropriate, as part of
that review process in 1995 and 1996, respectively. There is nothing in
the CBA which directs or suggests
that discipline and discharge disputes are limited to only the first two steps
of the grievance procedure as
found in Article XVI.
DECISION AND ORDER
It is axiomatic that an arbitrator's authority
is controlled by the extent of the parties' agreement to arbitrate. Nashua
School District V. Murray, ,128 NH 417 at 420 (1986) citing to Steelworkers
V. Warrior and Gulf Nav. Co. , 363 U.S. 374, 582 (1960). Our assessment of
this case is predicated on that agreement as measured by the "clear
meaning" of the words of the CBA, the parties' practices and their history
of dealing with discipline and discharge cases under the contract. All three of
these elements lead us to the conclusion that this matter is arbitrable.
"While custom and past practice are used
very frequently to establish the intent of contract provisions that are so
ambiguous or so general as to be capable of different interpretations, they
ordinarily will not be used to give meaning to a provision that is clear and
unambiguous." Elkouri, How Arbitration Works, Fifth Edition,
p. 651. (Bureau of National Affairs, 1997). But for the testimony of Town
witnesses as to what they thought the contract meant relative to discipline and
discharge grievances or thought they were accomplishing when that language was
crafted prior to 1993, the practice of the parties since then and the language
of the contract appear to be in harmony.
The "clear meaning" test shows us that
Article II recites certain management rights, inclusive of the right to
discipline or discharge employees, and says the exercise of those rights shall
not be the subject of grievances. That clause also says that it shall apply
'except as specifically limited or abridged" by terms of the contract. When
we turn to Article IX we find such a limitation inasmuch as the parties have
agreed that the Town will not discipline or discharge members except "for
just cause." Thereafter, Article XVI defines a grievance as "an actual
instance of aggrievement" and limits them "to matters of
interpretation or application of specific provisions" of the contract. The
Union's grievance in this matter concerns an issue of just cause. (Attachment 1
to ULP.)
At this point, the Town says it is protected by
the wording of Article II from proceeding to grievance arbitration. The 'clear
meaning" provision is not as clear as the Town would have us believe
because of the provisions of Article IX and XVI, cited above. Thus, we turn our
attention to the practice and history of the parties in dealing with discipline
cases and grievances.
The operative CBA during the acts complained of
is the 1995-98 contract (Joint Exhibit No. 2) which became effective July 1,
1995. There is evidence that disciplinary matters were being grieved as early as
November of 1994 and being adjusted at the Town Administrator's level in January
of 1995 (Union Exhibit No. 2). This occurred before the current 1995-98 CBA went
into effect. There is no evidence about dissatisfaction with the handling or
processing of disciplinary grievances, at least through Level 11, prior to the
implementation of the 1995-98 agreement or that the parties changed those
procedures during negotiations for that agreement.
Next, in looking at history, we note that two
cases, both involving
matters of discipline, have been processed to and including arbitration under
the current CBA. Finding No. 8. The parties have openly continued the practice
of permitting discipline disputes to be processed through the grievance
procedure. It is not until the
instant case that the Town has been heard to complain, after losing its
arbitrability argument in Town Exhibit No. 3.
Finally, in addition to these practices and the
history of the parties, we note that there is evidence that the parties were
able to identify and specifically exclude certain matters from grievance
arbitration. Finding No. 9. Such was not the case with just cause; there is no
exclusionary language excepting just cause claims from the
grievance procedure. In conjunction with this observation, there also is no
language limiting discipline and discharge grievances to the first two steps of
the grievance procedure. Processing of grievances under the CBA cannot be or
become a "pick and choose so long as we are winning" procedure. The
parties have bound themselves by contract, by practice and by how they have
conducted their business in the past. This has continued over the duration of
two CBAs. The stability of labor management relations cannot now be disturbed or
diluted by a unilateral interpretation to the contrary.
The Town must have persuaded us that there was
"positive assurance" that the parties did not intend to process
alleged violations of the just cause clause, Article IX, through the contract
grievance procedure. Appeal of Westmoreland School Board, 132 N.H. 103,
105 (1989). They have failed to do so, either in their reading of the contract
language or in how they have handled similar disciplinary complaints involving
the current and former CBAs. Both of those contracts are, indeed,
"susceptible of an interpretation that covers the asserted dispute."
Id. The ULP is DISMISSED and the Motion to Stay Arbitration is DENIED.
So ordered.
Signed this 13th day of May, 1998.
/s/ Jack Buckley
JACK BUCKLEY
Alternate Chairman
By unanimous decision. Alternate Chairman Jack
Buckley presiding. Members E. Vincent Hall and Seymour Osman present and
voting.
1This series of
events and the results of the arbitration proceedings cited were also confirmed
in testimony of Dean Jore, unit member and current local president, appearing as
a Union witness
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