|
PRE-HEARING CONFERENCE MEMORANDUM AND ORDER
BACKGROUND
These parties have filed what amount to counter-complaints.
The Bow School District (hereinafter referred to as the "District")
filed a complaint with the Public Employee Labor Relations Board (PELRB) on
January 29, 2003 alleging that the "Bow Educational Support Staff / NEA-NH/NEA"
(hereinafter referred to as the "Association") has improperly filed
for arbitration of an alleged grievance. The underlying grievance initiated by
the Association alleged that a school principal's communication indicating that
she planned to randomly use multiple administrators to participate in teachers'
performance observations. The Association alleged that such an action would
violate a provision of the parties' collective bargaining agreement (CBA)
regarding teacher evaluation and past practice. The District denied to process
the grievance and alleges that the Association has committed an unfair labor
practice by filing a demand for arbitration. The District's position is that the
grievances that have been filed are not arbitrable because the teachers lack
standing, and alternatively that if multiple administrators were used in the
observation process it is not prohibited by the terms of the parties' CBA and is
a matter within the scope of the managerial policy contained within that
agreement. As relief, the District seek a cease and desist order from the PELRB.
The District also sought a temporary order to stop the arbitration process.
The Association filed its answer to the District's complaint
on February 10, 2003. The focus of their objection is their assertion that the
event giving rise to the grievances was the notice issued by the principal of
her intent to undertake a procedure which the Association whether or not the
practice of multiple observers of the grievants' performance took place.
Further, the Association asserts in its answer that as the terms of the parties'
CBA limits the ability to file grievances only to individual unit members and
not the Association. Therefore, the Association asserts that to permit a
management practice that would allow management to issue communications to
individuals of alleged unilateral actions and recant those proposed changes,
upon the filing of a grievance by an individual, would defeat the individual's
right to grieve and create in management an unfettered right to change terms of
the CBA at will. Their own complaint was filed on February 19, 2003. It alleged
the commission of unfair labor practices by the District for refusing to process
the grievances that were filed in connection with the same principal's notice
regarding multiple observers. The Association asks that the PELRB find the
underlying grievances arbitrable.
The District filed its answer to the Association's complaint
on March 6, 2003 in which it asserts that since the teachers who filed the
grievances were not observed by multiple administrators, they were not
aggrieved, suffered no injury in fact and therefore they lacked standing to file
grievances. They reiterate their request for PELRB relief in the form of a cease
and desist order.
A pre-hearing conference was conducted on March 3, 2003 at
which both parties were represented by counsel. With agreement of the parties,
the Hearing Officer indicated that he would order the consolidation of the
parties' complaints, Case No. T-0265-14 and Case No. T-0265-15, for the purposes
of the pre-hearing conference and for the final evidentiary hearing before the
PELRB. The Hearing Officer inquired of the parties as to the probabilities of
settlement and both indicated after private discussions between the
representatives that the probability of settlement was low.
PARTICIPATING REPRESENTATIVES
For the
District:
Thomas T. Barry, Esq.
For the
Association: Steven
Sacks, Esq.
ISSUES FOR DETERMINATION BY THE BOARD
1. Whether the individual teachers have standing to file a grievance based upon
the e-mail distributed by the principal of the Bow Elementary School to teachers
on October 2, 2002 involving "teacher observations"?
2. Whether the grievances of the teachers are arbitrable?
3. Whether the actions of the District in refusing to process
the grievances at the Superintendent and School Board level constitute a failure
to bargain in good faith or constituted restraint, coercion, or interference
with its employees in the exercise of their rights in violation of RSA 273-A:5,
I (a), (e), (g) and (h)?
4. Whether a change in "past practice" is grievable?
WITNESSES
For the District (Complainant and Counter-Respondent):
1. Patricia Bechard
2. Diane Gerhardt
3. Elaine Meilcarz
4. Deborah Gibbens
5. Ralph J. Minichiello
6. Donna Girard
7. James Vulgamore
8. Robert H. Wester, Jr.
For the Association (Respondent and Counter-Complainant)
1. Patricia Bechard
2. Diane Gerhardt
3. Elaine Meilcarz
4. James Vulgamore
Both parties reserve the right to amend their List of
Witnesses in conformity with the schedule contained in the DECISION SECTION
appearing at the conclusion of this order, or upon proper showing, later
reasonable notice to the other party. It is understood that each party may rely
on the representations of the other party that witnesses appearing on their
respective list will be available at the hearing.
EXHIBITS
Joint Exhibits
1. Master Agreement by and between the Bow School Board and
the Bow Education Association for the period of July 1, 2000 through June 30,
2003.
2. October 2, 2002 e-mail from Deborah Gibbens to Bow
Elementary School Teachers.
3. October 21, 2002 grievances of (a) Patricia Bechard, (b)
Diane Gerhardt, and (c) Elaine Meilcarz, submitted to Principal Deborah Gibbens.
4. October 29, 2002 decision of the Principal concerning the
grievances of (a) Patricia Bechard, (b) Diane Gerhardt, and (c) Elaine Meilcarz
5. November 5, 2002 grievances of (a) Patricia Bechard, (b)
Diane Gerhardt, and (c) Elaine Meilcarz, submitted to Superintendent Ralph J.
Minichiello.
6. November 18, 2002 letters from Superintendent Minichiello
to (a) Patricia Bechard, (b) Diane Gerhardt, and (c) Elaine Meilcarz.
7. November 26, 2002 grievances from the Bow Education
Association referred to the Bow School Board, dated November 26, 2002 of (a)
Patricia Bechard, (b) Diane Gerhardt, and (c) Elaine Meilcarz.
8. December 9, 2002 letters from Robert H. Wester, Jr., Chair
of the Board School Board, to (a) Patricia Bechard, (b) Diane Gerhardt, and (c)
Elaine Meilcarz.
9. (a) November 15, 2002 Observation Report of Diane Gerhardt;
(b) November 19, 2002 Observation Report of Patricia Bechard; and (c) December
6, 2002 Observation Report of Elaine Meilcarz.
Both parties reserve the right to amend their List of Exhibits
in conformity with the schedule contained in the DECISION SECTION appearing at
the conclusion of this order or, upon proper showing, later reasonable notice to
the other party. Copies of all exhibits are to be submitted to the presiding
officer in accordance with Pub 203.02. It is to be understood by the parties
that each party may rely on the representations of the other that the exhibits
listed above will be available at hearing.
STIPULATION OF FACTS
1. The Bow Education Association ("Association") and
the Bow School District ("District") entered into a Collective
Bargaining Agreement ("CBA") for the period of July 1, 2000 through
June 30, 2003.
2. On October 2, 2002 Deborah Gibbens, Bow Elementary School
Principal, distributed an e-mail dated October 2, 2002.
3. On October 29, 2002 Principal Gibbens denied each
grievance.
4. On November 8, 2002, District Superintendent Ralph J.
Minichiello received a grievance and request for hearing from three teachers
employed by the District: Patricia Bechard, Diane Gerhardt and Elaine Meilcarz.
5. Superintendent Minichiello responded to the grievances by
letter dated November 18, 2002.
6. On November 26, 2002 the Association referred the grievance
to the Bow School Board.
7. The Bow School Board voted to deny the teachers requested
hearings.
8. On January 10, 2003 the Association filed a demand for
arbitration with the American Arbitration Association on the consolidated
evaluation grievances of the three teachers.
9. Diane Gerhardt was observed on November 15, 2002; Patricia
Bechard was observed on November 19, 2002; and Elaine Meilcarz was observed on
December 6, 2002.
LENGTH OF HEARING
The time being set aside for the consolidated hearing is one
day. If either party believes additional time is required, written notice of the
need for additional time shall be filed with the PELRB no later than ten (10)
days from the date of this Order.
DECISION
1. Case T-0265-14 and Case No. T-0265-15 are consolidated for
hearing before the PELRB.
2. Counsel for the District shall draft a document for
submission to the PELRB on or about March 14 that shall include a facts and
exhibits to which the parties have stipulated.
3. The parties shall exchange any outstanding documents
reasonably requested by the opposing party no later than January 17, 2003. In
the event that either party has a good faith belief that he has not received any
such document, that representative shall immediately inform the PELRB, in
writing, identifying the document requested, the date of the request, and the
purpose for which the document is sought. A copy of that notice shall also be
provided to the opposing representative who shall, upon receipt, provide the
document or inform the PELRB in writing of his reasons for not providing the
document to the requesting party.
4. Not later than five (5) days before the scheduled date of
the evidentiary hearing, as required by Rule Pub 203.01(b), the party
representatives shall exchange any modifications to their Exhibit List and final
Witness List. At the same time, each shall deliver or a copy of their respective
lists to the PELRB.
5. The party representatives shall meet, or otherwise arrange,
to pre-mark all exhibits, for identification, prior to the time of hearing and
have sufficient copies available for distribution at the hearing as required by
Pub 203.02.
6. The presentation of the District's cases shall precede the
presentation of the Association's cases. testimony shall be
7. Any additional preliminary, procedural or dispositive
motions shall be filed by the parties no later than fourteen (14) days prior to
the scheduled date of the hearing as appears below.
Unless otherwise ordered as a result of the filing of any
subsequent motion, an evidentiary hearing between the parties is scheduled to be
conducted on both of the above referenced cases at the Office of the Public
Employee Labor Relations Board in Concord on Thursday, May 8, 2003 beginning at
9:30 A. M.
Signed this 21st day of March 2003
/s/ Donald E. Mitchell
Donald E. Mitchell, Esq.
Hearings Officer
Distribution:
Thomas T. Barry, Esq
Steven Sacks, Esq.
Back
|
