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APPEARANCES
Representing Teamsters Local 633 of New Hampshire:
John D. Burke, Esq.
Representing City of Manchester:
Daniel D. Muller, Jr., Esq.
BACKGROUND
Teamsters Local Union No. 633 of New Hampshire (Union) filed
unfair labor practice (ULP) charges against the City of Manchester, Public
Library (City) on August 9, 2002 alleging violations of RSA 273-A: 5 I (e) for
refusing to bargain in good faith after having been ordered to negotiate on
April 4, 2002. (See Decision No. 2002-040) The City filed its answer and
motion to dismiss on August 23, 2002. The Union filed objections thereto on
August 30, 2002, which prompted the City to file a "replication" to
the Union's objection on September 5, 2002. The Union filed an objection to
the City's replication on September 11, 2002. This matter then went to a
pre-hearing conference on September 20, 2002, as memorialized in Decision No.
2002-110. Thereafter, on September 30, 2002, the City filed an amended motion
to dismiss and to clarify the pre-hearing order. That clarification was
forthcoming in a "corrected copy" version of Decision No. 2002-110
dated October 3, 2002. The Union filed an objection to the City's amended
motion to dismiss and cross motion for summary judgment on October 9, 2002,
which prompted an objection thereto filed by the City on October 24, 2002.
This case was heard by the PELRB on October 24, 2002. At the close of those
proceedings, the parties agreed to file post-hearing briefs on or before
November 15, 2002. Both briefs were timely filed on that date.
The PELRB issued its decision (Decision No. 2002-157) in
this matter on December 31, 2002, which found a "technical
violation" of RSA 273-A: 5 I (e) but, due to the circumstances, directed
no further remedy. Thereafter, the City filed a motion for rehearing on
January 30, 2003 and the Union filed objections thereto on February 18, 2003.
The PELRB granted rehearing in Decision No. 2003-014, dated February 25, 2003,
which provided for additional oral arguments based on the assertions in the
motion for rehearing and the objections thereto. After a requested continuance
to accommodate an attorney scheduling conflict, the PELRB heard the parties'
additional oral arguments on April 1, 2003. No post-hearing submittals were
sought or received, whereupon the record was closed on April 1, 2003.
FINDINGS OF FACT
1. Findings of fact No's. 1, 2, 3, 4, 5, 7 and 8 of Decision
No. 2002-157 are reviewed, affirmed and incorporated here by reference.
2. Finding No. 6 of Decision No. 2002-157 is redacted and
omitted herefrom because of the characterization attributed to it in
paragraphs 3, 4, 5, 6 and 7 of the city's motion for rehearing, because it
appeared merely as a chronological linkage between the events referenced in
the pleadings and in the pre-hearing conference Memorandum and Order (Decision
No. 2002-110) and because it was not an essential finding or pivotal in the
course of the PELRB's finding a technical violation of RSA 273-A: 5 I (e) in
Decision No. 2002-157. The PELRB's conclusion relating to a "technical
violation" would have been the same whether Finding No. 6 appeared, or
did not appear, in Decision No. 2002-157 because the complained of refusal to
bargain occurred within the facts enumerated in Finding No's. 1 through 5,
inclusive.
3. The act for which the PELRB found the City to have
committed a "technical violation," contrary to the provisions of RSA
273-A: 5 I (e), occurred on or about July 8, 2002, prior to the date of any of
the acts recited in Finding No. 6 of Decision No. 2002-157.
DECISION AND ORDER
The City articulated three particular areas in its oral
argument before the PELRB. For purposes of analysis, we will consider them
separately, namely, as jurisdiction, reliance and mootness, in that order.
The City would have us find that, because it filed an appeal
of the bargaining agent election and the PELRB's order to negotiate, as found
in Decision No. 2002-053, with the Supreme Court on or about June 5, 2002, and
because that appeal also included a request to stay the PELRB's order to
negotiate, we were thus incapacitated, or lacked jurisdiction, to determine if
an after-occurring refusal to bargain was a violation of RSA 273-A: 5 I (e).
Relevant to the circumstances of this situation are two dates: the Union's
request to negotiate on or about July 3, 2002 (Finding No. 5, Decision No.
2002-157) and the court's denial of the city's motion to stay on August 19,
2002. In its response to the Union's demand of July 3, 2002, the City
articulated on July 8, 2002, that "…negotiations are not appropriate at
this time, pending the action of the Court on the City's Motion to Stay."
(Union Ex. No. 6 to Decision No. 2002-157)
In support of the foregoing position, the City relies upon Appeal
of the University System of N.H., 120 N.H. 853, 856 (1980). In pertinent
part, it said:
[T]he refusal of the [PELRB] to stay negotiations
pending an appeal on the question of unit determination was
unreasonable. Although elections usually are not stayed pending an appeal
of unit determination…, the public employer should not be forced
to bargain while it has a good faith appeal pending. In the absence of
irreparable harm to the employees, it is better to maintain the status quo
pending appeal….(Emphasis added.)
We believe the City's reliance on University System
is misplaced. First, that was a case appealing a unit determination and the
PELRB's order to negotiate. Second, and unlike the instant case, the
University System had filed a separate proceeding with the PELRB seeking to
stay its order to negotiate. After the PELRB denied the request to stay, both
proceedings were consolidated on appeal to the Supreme Court.
When these circumstances are compared to the case at hand,
we find no issue of unit composition being challenged at the Manchester
Library. The City's appeal document dated June 5, 2002 presented a single and
very succinct issue: "Was the PELRB's decision to entertain the
Teamster's petition for certification unlawful, unreasonable and/or unjust
under N.H. Administrative Rule Pub 301.01 (6) and the PELRB's interpretation
of that rule?"1
Essentially, then, the Manchester Library case is totally divorced from a unit
composition issue and involves a question not of whether the parties must
negotiate, but when they must start those negotiations. Failure to commence
negotiations in a timely manner may create the "irreparable harm" of
University System because of timing requirements to fund collective
agreements, although that timing is less crucial in cities with continuing, as
apposed to annual, funding capabilities. Thus, if and as applicable, we
believe we have fulfilled the "reasonable" standard of University
System.2 One must note
that the Union's demand to negotiate on July 3, 20023
was not its first demand to do so. It was, however, its first demand to do so
after the completion of the election review process referenced in Decision No.
2002-053, which concluded on May 6, 2002.4
Finally, as for subject matter jurisdiction, the issues in this case fit
precisely within the mandate to the PELRB found in RSA 273-A.
The City next asserts that we placed undue, inappropriate and unjust reliance
on Finding No. 6 as it appeared in Decision No. 2002-157. Our findings (No. 2,
above) explain the limited purpose for which No. 6 was included in Decision
No. 2002-157 and show (No. 3, above) that the act complained of occurred on a
date prior to any of the chronology of dates referenced in No. 6. Union
counsel (Brief, p. 2) summarized Finding No. 6 as follows:
[I]n making Finding No. 6, [the Board] did not attach
any significance to the disputed conversation, nor did it make any
credibility determination or decide which version of the disputed event
was accurate. Further, the Board simply noted there was a dispute. The
Board did not rely on the substance of the disputed conversations in
making its decision.
The City's last concern was that, when the PELRB first heard
the case (Decision No. 2002-157) on October 24, 2002, it should have granted
the City's motion to dismiss on grounds of mootness. The theory was, since the
parties had resumed bargaining as per Hodgen's letter to Noonan (City Ex. No.
4, dated August 29, 2002 in Decision No. 2002-157) as of and not later than
September 24, 2002 (Finding No. 8 in Decision No. 2002-157), the Union no
longer had cause to complain that the City had refused to bargain. We disagree
and think the City missed the point.
One may relate to the parable of the two boys at the
elementary school who engaged in a fight at recess. During the fight, one boy
threw a stone at the other, missed and broke a classroom window. Fearing this
would catch the attention of the teacher, the boys quickly settled their
differences by themselves and went back into the building. When the teacher
found out about the scuffle, she commended the boys for finding a way to
resolve their differences and end their fighting. When she learned which boy
threw the rock, however, she still sent him to the principal's office.
Self-help and self-initiative to stop the fight still did not erase the damage
caused to the broken window, or, in the context of this case, to the
obligation to bargain.
RSA 273-A: 3 creates a clear and unequivocal obligation to
bargain and to do so in good faith. At the time of the July 3, 2002 demand to
bargain, the City had filed its appeal and request for a stay. The Court had
yet to act on the request for a stay even as of the date the Union filed its
ULP on August 9, 2002. That was not to happen until ten days later. Thus, the
Union's ULP was not moot when it was filed on August 9, 2002, any more than it
was moot on the date complained of, July 3, 2002.
To the extent this case presents an issue of whether a per
se refusal to bargain can be remedied by the alleged violator subsequently
agreeing to and then participating in the process, the answer has to be
"No." The perpetrator cannot have the benefit of engaging in
prohibited conduct or prohibited acts for a period of time and then be able to
absolve itself from charges pertaining to those acts merely by subsequently
complying with the law, RSA 273-A in this case.
It is apparent to us that the triggering mechanism, which
caused the City to agree to bargain, was the Court's rejection of the request
to stay negotiations on August 19, 2002. This was clear from Hodgen's letter
to Noonan on August 29, 2002 (City Ex. No. 4 in Decision No. 2002-157).
Regardless of the City's characterization of its behavior, such a delay has
the potential for the "irreparable harm" discussed in University
System.5 Whether intended or not, delaying the negotiating (RSA 273-A: 3)
and/or impasse resolution (RSA 273-A: 12) processes into another funding
period may deprive bargaining unit members of benefits which have been
bargained. Worse still, such undue delay can deteriorate the parties'
confidence in the bargaining process and compliance with the "harmonious
labor relations" purposes of the act.
If we were to accept the City's position about
self-correcting remedies by those who commit violations of RSA 273-A, whether
intentionally or not, at anytime before the matter comes to hearing before the
PELRB, we would be sanctioning chaos relative to compliance with
Chapter 273-A and with the timelines contemplated therein.
One who does malfeasance should not profit from it. Refusal
to bargain is one such manifestation. The obligation to bargain is paramount
even when "the going gets rough." In the private sector, that
obligation may continue even during strikes. When it does, management cannot
refuse to bargain as long as the strike lasts, go to the bargaining table
after the strike stops and then absolve itself from "failure to
bargain" charges by doing so.6 The same principles are applicable here.
One side cannot refuse to bargain contrary to RSA 273-A: 5 I (e), have the
benefit of delay that it has caused and then remedy its conduct by agreeing to
go to the bargaining table after the ULP has been filed and the damage done.
Having concluded this analysis after rehearing sought by the
City, we AFFIRM our finding in Decision No. 2002-157 that the City committed a
technical violation of RSA 273-A: 5 I (e) by the manner in which it refused to
bargaining after receiving demand to do so, after receiving a PELRB order
directing it to do so and then not securing an order from the PELRB or the
Court to permit it to do otherwise. No other remedies are directed.
So ordered.
Signed this 8th day of May , 2003.
/S/ Bruce K. Johnson
BRUCE K JOHNSON
ALTERNATE CHAIRMAN
By unanimous decision. Alternate Chairman Bruce K. Johnson
presiding. Members E. Vincent Hall and Carol Granfield present and voting.
1 The Pub 301.01 (6) issue
was both a narrow and a technical one involving filings of certification
petitions 150 days prior to the budget submission date, holding a bargaining
agent election 120 days prior to that budget date, preserving this 120 day
notice period under RSA 273-A: 3 II, the applicability or lack thereof of the
contract bar rule, and resolving, if the 120 day limit is a minimum, if there
then is any maximum. These issues were addressed in Appeal of the City of
Manchester, N.H. , (Slip op., April 5, 2003). See also Union brief, p. 6.
2 The Union's brief, p. 5,
notes that Appeal of Seacoast Anti-Pollution League, 125 N.H. 708 (1985)
chronologically followed University System and upheld commission orders where
an "appeal is properly filed with and granted by [the Supreme
Court]."
3 Absent the applicability
of the circumstances and resulting standards of University System, we believe
the more general "not stayed by an appeal" of RSA 541:18 is the
standard to be applied here to the facts of this case as of July 3, 2002,
nearly a month after the appeal was filed, during which time a stay could have
been ordered by the Supreme Court.
4 The record shows the
Union made earlier demands to bargain on March 26, 2002 and April 12, 2002,
both prior to Decision No. 2002-053 on May 6, 2002, but, in the latter
instance, after the certification and order to negotiate in Decision No.
2002-040 dated April 4, 2002. See also Union brief, p. 5.
5 University System suggests that
"irreparable harm" can be worked on either party, depending on the
circumstances.
6 See, for example, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO, 221 NLRB 876, 1975
NLRB Lexis 1158, Case 12-CA-6376 (November 26, 1975) which also explains the
usage of "technical violations," a process known to the collective
bargaining process since 1975 and before, notwithstanding the City's position
the PELRB must either issue a cease and desist order or issue no order. We
believe the authority for remedies we may order is found in RSA 273-A: 6 VI
and that a "technical violation" falls within that scope of
authority.
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