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PRE-HEARING MEMORANDUM and ORDER
BACKGROUND
On March 20, 2003, the Farmington Teachers Association/NEA-NH,
(hereinafter referred to as the "Association") filed an improper
labor practice charge pursuant to RSA 273-A:5 I (a), (c), and (g) alleging
that certain actions of the Farmington School District, (hereinafter referred
to as the "School District"), acting through its agents, including
the Superintendent of Schools, sent a letter on January 16, 2003 to a member
of the bargaining unit. The Association alleges that the act of communicating
that letter and its content referring to that unit member's discussion of a
recent air quality report at an Association meeting interfered with her
exercise of rights provided to public employees under the provisions of RSA
273-A:5,I(a); discriminated in her tenure or the terms and conditions of her
employment for the purpose of discouraging her membership in the Association
in violation of RSA 273-A:5,I(c); and, otherwise failed to comply with the
provisions of RSA 273-A:1, et seq. or rules promulgated thereby in violation
of RSA 273-A:5,I(g). The Association requests relief in the form of an award
of attorney' fees and other non-specific relief.
The District filed its answer on April 4, 2003 wherein it
admitted that the Superintendent sent the January 16, 2003 letter to the unit
member and denied other relevant allegations of which the Association had
complained. Further, the District asserts that the matter at issue is time
barred from consideration as it occurred more than six (6) months prior to the
complaint being filed. Also, the District asserts that the matter is moot by
reason of a retraction of the correspondence and is that the unit member's
conduct was not "protected" conduct under the statute. The District
also requested further detail as to the nature of the practices and pattern
that are alleged and the dates of acts alleged to comprise the practices and
pattern. For its part, the District requests the PELRB to dismiss the
Association's complaint without prejudice.
PARTICIPATING REPRESENTATIVES
For the Association: James
Allmendinger, Esquire, Staff Attorney,
For the
District:
Michael S. Elwell, Esquire
ISSUE FOR DETERMINATION BY THE BOARD
After discussion at the Pre-Hearing Conference, it was the
determined by counsel that the following issues were relevant to the Board's
consideration of this matter
1. Is the Association's complaint barred by the six month
statute of limitations provided by RSA 273-A:6, VII?
2. Does the subsequent Superintendent's letter of February 19, 2003 cause the
Association's complaint to be moot?
3. Did the District's actions undertaken by the
Superintendent, or other agents, constitute either: (letter references are to
subsections of RSA 273-A:5, I)
a. Interference with its employees in the exercise of the
rights conferred by RSA 273-A;
c. Discrimination in the tenure, or terms and conditions
of employment of its employees for the purpose of discouraging membership in
the Association; or
g. A failure to comply with RSA 273-A or any rule
promulgated thereby?
WITNESSES
For the Association (Complainant):
1. AnnMarie Conley, recipient of the 1/16/03letter
2. Barbara Post
3. Jim Taylor
4. Ted Wells
5. Stacy Dailey
6. Matt Cahillane, Office of Community & Public Health
For the District (Respondent):
1. Brian Blake
2. David Miller
3. Sharon Turner
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. Letter from Superintendent to Ms. Conley, dated 1/16/03
For the Association:
1. Unspecified background documents regarding "media
circus", so-called (to be specifically identified in the Association's
Final Exhibit List).
For the District:
1. Air quality reports
2. Nurse's office log.
3. Parent complaint re: "falsified log"
4. Superintendent letter dated 2/19/03
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.
LENGTH OF HEARING
The time being set aside for this hearing is one-half day.
If either party believes additional time is required, written notice of the
need for additional time shall be filed on or before June 2, 2003.
DECISION
1. The Association shall file an amended complaint adding
additional detail consisting of the other acts and practices referenced in the
unnumbered second paragraph in Section 3 of its original complaint on or
before May 16, 2003 and provide a copy to the District's counsel at the same
time and by the same method as used to file the amended complaint with the
PELRB.
2. The District's counsel shall thereafter file any
necessary answer to the amended complaint on or before June, 2, 2003 and
provide a copy to the District's counsel at the same time and by the same
method as it used to file the amended complaint with the PELRB. By that same
date and manner, the District's counsel shall forward a copy of its Final
Witness and Exhibit Lists to the Association's counsel.
3. The Association's counsel shall file its Final Witness
and Exhibit Lists on or before June 9, 2003 and provide a copy to the
District's counsel at the same time and by the same method as it used to file
the amended complaint with the PELRB.
4. The party representatives shall also 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.
5. Any party that believes that it has properly and
seasonably requested the production of any relevant document from the other
party which it believes that party is in possession of, or has control over
said document and has not been provided with that document, that party shall
immediately inform the PELRB, in writing, of the document(s) requested, the
date of the request, the date of the refusal to respond or to failure to
comply with the request by the other party, and the purpose for which the
party seeks the document from the other.
6. Any additional preliminary, procedural or dispositive
motions shall be filed by the parties no later than June 2, 2003. Any
objection to the same shall be filed no later than June 9, 2001.
7. Unless otherwise ordered as a result of the filing of any
subsequent motion, an evidentiary hearing between the parties is scheduled to
be conducted at the Office of the Public Employee Labor Relations Board on
Thursday, June 19, 2003 beginning at 9:30 A. M.
So Ordered.
Signed this 30th day of April, 2003.
/s/ Donald E. Mitchell
Donald E. Mitchell, Esq.
Hearing Officer
Distribution:
James F. Allmendinger, Esquire, Staff Attorney, NEA-NH
Michael S. Elwell, Esquire, Farmington School District
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