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| Londonderry
School District Complainant v. Londonderry Education Association, NEA-New Hampshire Respondent |
Case
No. T-0262-10 Decision No. 2000-046 |
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APPEARANCES Representing Londonderry Education
Association: Also appearing: BACKGROUND The Londonderry School District ("District") filed unfair labor practice (ULP) charges on October 4, l999, against the Londonderry Education Association, NEA/NH ("Association") alleging violations of RSA 273-A:5 II (d) and (f) for failure to bargain and breach of contract resulting from the District's attempting to arbitrate a grievance, the disposition of which was otherwise covered by Article 5 (A) of the parties' collective bargaining agreement (CBA). The Association filed its answer on October 15, l999. Contemporaneously, criminal proceedings were initiated which may have been dispositive of this ULP before the PELRB, thus causing the parties to make a joint request to the PELRB to have this matter continued on its docket until those criminal proceedings shall have been concluded. The PELRB concurred and granted that continuance. See Decision No. 1999-124 dated December 3, l999 and Decision No. 2000-1l5 dated February 15, 2000. By letter of March 15, 2000, counsel for the Association advised the PELRB that the criminal proceedings had been concluded, that the accused/grievant had been acquitted of charges against him and that the Association was prepared to have this matter docketed for hearing by the PELRB. Counsel conferred and advised their respective availability for hearing on May 30, 2000. The hearing was then docketed and conducted on that date, with post-hearing briefs due to be filed by the parties on or before June 14, 2000, upon receipt of which the record was closed. FINDINGS OF FACT 1. As an employer of teachers and other personnel, the Londonderry School District is a "public employer" within the meaning of RSA 273-A:1 X. 2. The Londonderry Education Association, NEA-New Hampshire, is the duly certified bargaining agent for all professionally certified teachers of the District. 3. The Association and the Londonderry
School Board
(Board) are parties to a collective bargaining
A "Grievance" shall mean a
complaint by a Article 18 is entitled "Rights of the Parties." Section G thereof provides:
No teacher shall be disciplined unless for "Just cause" is also referenced in Article 18, Section A, to wit:
The Board, subject to the language of this 4. Dennis Sheehan began his employment in the Londonderry School District in l982 and was continually employed there until removed by a 2:1 vote of the Londonderry School Board dated August 17, l999. (District Exhibit No. 2) Previously, on July 6, l999, Superintendent Richard Lates informed Sheehan by letter (District Exhibit No. 1) of his intent to terminate him under the provisions of RSA 189:13 for incompetence, immorality and failure to conform with regulations resulting from (1) an incident of alleged masturbatory conduct in the presence of student MB on June 4, 1999, (2) an incident of alleged masturbatory conduct in the presence of student AT on April 23, 1999, (3) an inappropriate touching and kissing incident with student AB on May 25, l992 and (4) and "multiple occasions" of inappropriately touching female students. Sheehan was scheduled for a hearing before the Board, subsequently held on August 4, 1999, and placed on removal status in the meantime under RSA 189:31. 5. The Association, on behalf of Sheehan,
filed a
grievance dated July 27, l999 alleging violations 6. The Board held a hearing on August 4,
1999 which
considered both the Superintendent's recommendation for removal and the grievance. Witnesses
were called, inclusive of students MB and AT, and
both the grievants and the Board were represented
by counsel. After finding cause to disregard items
3 and 4 of District Exhibit No. 1, the Board, by
a vote of 2 to 1, found credible evidence that the
grievant had engaged in the conduct complained of
in items 1 and 2 of the Superintendent's letter
(District Exhibit No. 1) and affirmed the recommendation to dismiss Sheehan. The Board also
dismissed the grievance, finding the dismissal to have
been a disciplinary action (not an evaluation or 7. Sometime thereafter, on or about September 15, 1999 according to the District's ULP, Sheehan was charged criminally with lewd conduct and indecent exposure for masturbating in the presence of two female students. Sheehan has since been to trial and acquitted in one incident and had the charges dropped in the other because the female student did not want to pursue the matter further through public testimony. 8. By letter of September 10, 1999 from
Broad counsel Elwell to Association counsel Allmendinger, the
Board sought to have the Association drop the arbitration request. (District Exhibit No. 5.) By 9. Superintendent Richard Lates testified
that RSA l89: 14 provides appellate rights and access to the 10. Bernard Ellis was superintendent in Londonderry from l968-1979 when the 1971-72 CBA (District Exhibit No. 7) was negotiated. Article 4 (A) of that agreement contained the same qualifying language, namely, "(a) any matter for which a specific method of review is prescribed by law." Ellis explained that this provision was proposed by the Board to keep appellate reviews limited to "one bite at the apple," with the initial decision being in the hands of the school board with the appeal going to the superior court. Arbitration provisions in the CBA at that time were only advisory, not binding. He believed the selection options for review after the school board were either the state board or the courts. This was not tested inasmuch as there were no dismissals during his tenure. 11. Penelope Felix has been employed in Londonderry since l967 and is presently Association president. She was on the negotiating team for District Exhibit No. 7 and pointed out that it was not by error that the CBA referenced just cause in two places outside of what was then Article 4, namely in Article 3 (E) and Article 17 (c), both of which translate to Article 18 (G) and (A) of the current CBA. Her belief then and now was that the two avenues available for review were through the school board or under the procedures of the agreement, contrary to the approach taken by Ellis. She said, "Our understanding...that everything was covered by the grievance procedure....The avenues available were statutory process or [the] provisions of this agreement." "They never said there was any language we could not file a grievance over a dismissal or non-renewal." 12. Rick Nagy has been employed in Londonderry since l978 and has used his skill as chair of the Math Department to assist his "number crunching" on the Association's negotiating team. He was on the team in the early l980's when the grievance process changed from advisory to binding arbitration (Article 5 of Association Exhibit No. 6). He said that employee suspensions, dismissals and non-renewals conceptually provided the impetus to get binding arbitration. Without it the school board was perceived as both "judge and jury," "equivalent to Russia." The Association pushed for binding arbitration in order to get a final impartial decision maker. Likewise, the reference to "just cause" was specifically maintained in Article 18 (A) of Association Exhibit No. 6, in the same sentence which applied to suspensions, demotions and discharges. There was no discussion that any of these three disciplinary procedures were intended to be excluded from the grievance procedure. Nagy said the board had tried to remove just cause from the contract and, when the Association balked, the board relented. The board also attempted to remove binding arbitration from the CBA in the early l990's but was unsuccessful in doing so at the bargaining table. 13. Stephen Tallo, employed by the District
since l986,
was on the negotiating team for a l999 and thereafter CBA. He testified that item 13 of a
counter-proposal from the District called for the Association
to agree if HB 341 (1999 session) or a successor
bill were passed (which would have eliminated the
use of negotiated grievance and arbitration procedures in teacher non-renewal cases), then the contract
language would make the provisions of such legislation
effective thirty days after the bill became law, as opposed to
the effective date of the legislation which could be as late
as the termination date of the CBA. The parties reached no
agreement on this
proposal. Tallo said, "there was no way I would want
this provision in our contract." It would place teachers
in an "unfair position of having to go to the state board
of education whereas non-renewals, in his opinion, are covered
currently by contract language
currently. When all is said and done, the hoopla gone and the notoriety forgotten, this is a simple case of arbitrability. Does Dennis Sheehan have the right to have his dismissal (distinguished from non-renewal) grievance heard and adjudicated under the contractually agreed-to provisions of the collective bargaining agreement. We believe he does. First, the hearing and adjudication of the pending grievance involves only Sheehan's dismissal as an employee of the District and alleges unfair evaluation in violating of Article 3, unfair treatment in violation of Article 4 and discipline without just cause in violation of Article 18. We need not examine or determine the merits of the case under the foregoing contract articles in order to reach the issue of Sheehan's access to the grievance process and its final step of binding arbitration. That may be accomplished by an examination of the CBA and the grievance procedure (Article 5) in particular. In Article 5, as noted in our Finding No. 3, a "grievance" is defined as a "violation, misinterpretation or inequitable application" of the contract. Sheehan's claims of violations of Articles 3, 4 and 18 meet that standard. Article 5 then continues to say that the term "grievance" shall not apply to "any matter for which a specific method of review is prescribed by law...," the language being relied upon by the District in its assertion that the Association is breaching the CBA by pursing the instant grievance. We disagree based on three reasons. First, a clear and quantifiable reading of the contract as a whole reveals the concerns with "just cause" appearing not in one location, but two. We escape the issue of whether this dismissal was "discipline" within the meaning of Article 18-G by examining Article 18-A which reserves to the District and its Board the right "to hire promote, transfer....and suspend, demote, discharge or take other disciplinary action against employees for just cause..." Thus, the issue is joined as the result of Sheehan's alleging that his dismissal violated the just cause provisions of the contract. This language alone is the requisite "positive assurance" that the parties intended such disputes to be arbitrated notwithstanding the provisions of Article 5 (A) (a) or, to be more accurate and within the presumption, it provides the "positive assurance" that the parties did not intend to exclude the subject matter of this grievance from arbitration. Appeal of Westmoreland School Board, 132 N.H. 103, 105 (1989). Second, the general and non-specific language of Article 5 A (a) pertaining to "specific methods of review prescribed by law" is not of a certainty or specificity sufficient to show an intent to limit or eradicate the authority of Article 18 A and G. Turning again to Westmoreland, supra, "under the positive assurance standard, when a CBA contains an arbitration clause, a presumption of arbitrability exists and in the absence of any express provision excluding a particular grievance from arbitration, ...only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." In this case, there is neither an express provision excluding the subject matter from arbitration nor forceful evidence of the requisite purpose to do so. "Unless a contrary intention appears from the contract construed as a whole, the meaning of a general provision of the contract should be restricted by the more specific provisions of the contract. Labor and Employment Arbitration, Bornstein and Gosline, §9.02 [3][d]. The specific language of Article 18 must be read to control over the generality of the Article 5 A (a) language being relied upon by the District. It is well-settled and of long standing that "through the mechanism of collective bargaining, public employees have the opportunity to expand upon or otherwise make binding agreements concerning rights which they feel may be granted to them by other provisions of law." Brown v. Bedford School Bd., 122 NH 627, 632 (1982). Third, this assessment is borne out by the
negotiating history presented to us. While each side was able
to produce witnesses who interpreted the provisions of the CBA
in general and Article 5 A (a) in particular in a way which
was favorable to their respective desired outcomes of this
case, the progression of the CBA language over the past 29
years squares with the testimony offered by the Association.
According to Penny Felix, just cause was a pre-eminent issue
from the time of the 1971-72 CBA. Richard Nagy said without
the just cause language, the school board was perceived as
"judge and jury," causing a need to initiate
"just cause" standards and to keep the binding
arbitration provision, even though the school board tried
unsuccessfully to negotiate them out of the contract. (Finding
Nos. 11 and 12.) Finally, Stephen Tallo's testimony about the
school board's attempt to accelerate the effective date of HB
341, were it to have passed several sessions ago, clearly
demonstrates that the school board believed the Association
had the authority in the contract to arbitrate terminations,
dismissals and non-renewals, otherwise they would not have
sought the added protection of an accelerated effective date. Signed this 19th day of July, 2000. /s/ Jack Buckley By unanimous vote. Chairman Jack Buckley presiding. Members Seymour Osman and E. Vincent Hall present and voting. |
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