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APPEARANCES
Representing the Faculty of Wheelock Laboratory School of
Keene State College:
Robert J. Lupien
Representing Keene State College, University System of New
Hampshire:
Ronald F. Rodgers, Esq.
BACKGROUND
The Faculty of Wheelock Laboratory School of Keene State
College (complainant) filed unfair labor practice (ULP) charges against Keene
State College, (respondent) University System of New Hampshire on July 9, 2002
alleging a violation of RSA 273-A: 5 I (i) resulting from the employer's
failure to provide employment, or continued employment, to certain employees
at the Wheelock School in violation of an agreement, sometimes referred to in
there proceedings as an Additional Retirement Contribution ("ARC")
agreement, which, complainant asserts, provided the assurance of continued
employment to age 62.
The University System of New Hampshire (USNH) filed an
answer and motion to dismiss on behalf of Keene State College on July 24,
2002. The motion to dismiss was predicated on (1) the complainant's failure to
state a claim as to any agreement entered into by the public employer which
had been invalidated by its adopting a law, rule or regulation to the
contrary, (2) the complainant's failure to assert and prove that the ARC's
were an "agreement" within the definition and contemplation of RSA
273-A: 5 I (i), (3) the ULP being prematurely filed because no employment
actions had been taken or were scheduled to be taken until June 30, 2003, (4)
the complainant's lack of standing to pursue this action because of its lack
of certification as an exclusive representative for the bargaining unit as
referenced in RSA 273-A:11, (5) the complainant's failure to exhaust
"internal grievance procedures" and (6) the actions complained of
being protected by RSA 273-A:1 XI.
Subsequent to the exchange of pleadings, the parties jointly
sought and were granted a request to hold the hearing for this matter in
abeyance to allow for further discussions between them which might obviate the
need for further proceedings, Decision No. 2002-103 (September 11, 2002).
Thereafter, they sought and were granted a further continuance until February
10, 2003 "at which time these proceedings shall be administratively
dismissed under either party has filed a written request to schedule a
preliminary hearing on the respondent's pending Motion to Dismiss."
Decision No. 2003-003 (January 8, 2003) By letter of January 28, 2003, Robert
J. Lupien requested such a hearing on behalf of the complainant. The Motion to
Dismiss was heard by the PELRB on March 20, 2003.
FINDINGS OF FACT
1. In furtherance of a Supreme Court remand in University
System of New Hampshire, 117 N.H. 96 (1977), this Board conducted supplemental
unit determination hearing and found that there was no community of interest
between the faculty of the "Wheelock School" and the faculty members
of Keene State College. (Case No. U-0601 dated March 15, 1977) Thus, there is
no bargaining unit of record for the employees about whom the instant ULP has
been filed.
2. There is no bargaining agent of record for the Faculty of
the Wheelock Laboratory School of Keene State College. Thus, neither the named
representative nor the named organization has standing to be advocating on
behalf of the complaining employees as their sole and exclusive bargaining
agent within the meaning of RSA 273-A: 11.
3. We find no collective bargaining agreement (CBA) of
record between the complainant herein and the respondent herein as is required
by RSA 273-A: 16.
DECISION AND ORDER
Based on the foregoing findings of fact we find that the
complainant lacks standing to pursue this ULP. Respondent's Motion to Dismiss
is GRANTED.
So ordered.
Signed this 1st day of April, 2003.
/s/ Bruce K. Johnson
Bruce K. Johnson
Alternate Chairman
By unanimous decision. Alternate Chairman Bruce K. Johnson presiding. Members
E. Vincent Hall and Richard W. Roulx present and voting.
Distribution: Robert J. Lupien
Ronald F. Rogers, Esq.
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