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Bow Educational Support Staff/NEA-NH Complainant v. Bow School District Respondent |
Case No. M-0713-2 Decision No. 2005-054 |
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PRE-HEARING MEMORANDUM AND ORDER BACKGROUND The Bow Educational Support Staff, NEA-New Hampshire (hereinafter "the Association") filed an unfair labor practice complaint on February 14, 2005 alleging that the Bow School District (hereinafter "the District") committed an unfair labor practice in violation of RSA 273-A:5, I (a), (e), (g) and (h). More specifically, the Association contends that in preparing a warrant article for the annual meeting of the legislative body, the District included cost items that were not acquired through collective bargaining and were not part of the negotiated 2005-2008 successor agreement. On the contrary, the Association states that it initiated a grievance in October 2004 relating to the cost item in question, namely eligibility for New Hampshire Retirement System (NHRS) benefits. As set forth in its' complaint, the grievance cited a violation of Article 6.6.1 of the parties' collective bargaining agreement ("CBA"), a long standing provision that reads as follows: "All employees who meet the minimum eligibility for membership in the New Hampshire Retirement System (NHRS) shall be enrolled in the NHRS." According to the Association, when the New Hampshire Legislature promulgated a rule change effective July 1, 2002 and thereby modified the NHRS eligibility requirements for paraprofessional and support positions, District employees holding these positions who work between 30 and 35 hours per week became eligible for NHRS benefits. Subsequent to the filing of the grievance, the Association indicates that the parties commenced negotiations for a successor agreement. Although it did not make any proposals regarding Article 6.6.1, the Association claims that the District made a proposal to change the article with the expressed intent being to exclude approximately thirty-three (33) paraprofessionals, who work 30 to 34 hours per week, from eligibility in the NHRS. During a December 21, 2004 grievance meeting, the Association states that it made a settlement offer to waive retroactivity affecting eligible employees back to July 1, 2002 and conveyed to the Superintendent that enrollment in NHRS at the beginning of the next school year (July 1, 2005) would satisfy the grievance. However, as alleged by the Association, the Superintendent denied the grievance by letter of January 3, 2005 and, in acknowledgement of the Association's settlement offer waiving NHRS retroactivity, stated that "such changes are, in my view, part of our current contract negotiations and not the appropriate subject of a grievance." On January 4, 2005 the parties agreed to proceed to mediation in contract negotiations and on January 24, 2005 held a mediation session that resulted in a settlement. The Association states that at one point during the January 24th session, the District withdrew its proposal to change the language of Article 6.6.1, thereby resulting in no change to that portion of the parties' contract. It also alleges that at this time the mediator made an announcement that "the District is going to put the 30 hour employees in the NHRS." The Association alleges that it inquired as to when such inclusion would be effective, and that the mediator, after meeting again with the District, stated that the inclusion of the 30-34 hour employees would be effective on July 1, 2005. (The Association points out that this is the same date that it had earlier offered to settle the grievance.) When its' representative contacted District counsel two days later via e-mail, the Association claims that for the first time District counsel falsely categorized the inclusion of 30 hour employees in the NHRS as a "proposal." The Association indicates that its representative then contacted the Superintendent seeking clarification that the Association's grievance settlement offer had been accepted and that, accordingly, it was not the result of any proposal in contract negotiations. According to the Association, the Superintendent responded in agreement that the grievance is not subject to voter approval, but also stated "if the voters don't approve the fiscal portion of the contract, I expect the grievance will go forward." Based upon the foregoing, the Association asserts that the inclusion of the 30-34 hour employees in NHRS as of July 1, 2005 is a reversal of the Superintendent's denial of the grievance, an acceptance of the Association's grievance settlement offer, and is not a cost item acquired through collective bargaining of the 2005-2008 successor agreement. It therefore contends that by adding the cost of the inclusion of the 30-34 hour employees in the NHRS to the warrant article containing cost items acquired through collective bargaining, the subject warrant article was unduly inflated by added unauthorized costs. As remedies, the Union requests that the PELRB issue (1) a finding that the cost items associated with including 30-34 hour employees in the NHRS on July 1, 2005 were not acquired through collective bargaining, and (2) a cease and desist order compelling the District to comply with RSA 273-A with respect to the submission of cost items in warrant articles. The District filed its answer denying the Association's charge on February 28, 2005. It disputes the Association's factual contentions and asserts that the basic legal premise of its' unfair labor practice is incorrect. At the outset, the District states that it is clear that the legislative body never ratified "with full knowledge" the monetary impact of the Association's desired inclusion of paraprofessionals in the NHRS as of July 1, 2002. To the contrary, it points out that the 2002 annual school district meeting took place on March 15, 2002 - approximately 45 days before the law was changed regarding NHRS eligibility requirements for paraprofessionals. The District cites case law supporting its contention that a CBA must be interpreted in accordance with traditional principles of contract interpretation, including the proposition that an agreement must be given the meaning "intended by the parties when they wrote it." (Citation omitted). In this regard, the District states that the Association is under an incorrect assumption that a statutory amendment that took effect after ratification of the parties 1999-2002 CBA governs the contract's interpretation. While the District admits to the general chronology of events as described by the Association in its complaint, it specifically denies that it has committed any unfair labor practice. The District submits that it does not have information that allows it to respond to alleged discussions between the Association and the mediator, but refers the Board to Mediator McCausland's February 9, 2005 letter in which he indicates that no grievance was settled during contract negotiations. The District describes as preposterous the Association's position that it has allegedly settled a grievance that it nonetheless continues to schedule for resolution. Accordingly, the Town requests that the PELRB (1) dismiss the instant improper practice charge and (2) award the District those costs and expenses that it has incurred in responding to this matter. A pre-hearing conference was conducted before the undersigned-hearing officer on April 1, 2005 at PELRB offices, Concord, New Hampshire. PARTICIPATING REPRESENTATIVES For the Association: Steven R. Sacks, Esquire For the District: Edward M. Kaplan, Esquire ISSUES PRESENTED FOR BOARD REVIEW (1) Whether or not the District committed an unfair labor practice in violation of RSA 273-A:5 I (a), (e), (g) and/or (h) by the inclusion of certain cost items in the warrant article for a new collective bargaining agreement. (2) If so, what shall be the remedy? WITNESSES For the Association: For the District: 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 with 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: For the Association: For the District: 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 with 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 understood that each party may rely on the representations of the other party that the exhibits listed above will be available at the hearing. LENGTH OF HEARING The time set aside for this hearing will be one (1) day. If either party believes that additional time is required, written notice of the need for additional time shall be filed with the PELRB at least twenty (20) days prior to the date of the evidentiary hearing. DECISION AND ORDER 1. In accordance with discussions between the parties counsel and the hearing officer, Association counsel contacted District counsel by April 8, 2005 regarding District counsel being called as a witness in this matter. As indicated in his April 12, 2005 letter to Attorney Kaplan, a copy of which was furnished to the Board, Attorney Sacks confirmed that the Association would not be calling him to testify. Nonetheless, the parties are reminded that the PELRB generally does not accept narrative testimony from a party representative. Therefore, in the event that either party later elects to call a party representative as a witness, they are directed to identify who will conduct the questioning of that witness at least five (5) days prior to the scheduled hearing date. 2. The parties' representatives shall meet, or otherwise confer, on or before June 3, 2005 in order to compose a mutual statement of agreed facts. The parties' representatives shall memorialize those facts upon which they can so stipulate and file that document with the PELRB by June 6, 2005. 3. The party representatives shall forward any amendments to, or deletions from, their Witness and Exhibit lists, as detailed above, to the opposing representative or counsel, and to the PELRB, at least five (5) days prior to the scheduled hearing date. The party representatives shall meet, or otherwise arrange, to pre-mark any 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. 4. The parties shall file any additional preliminary, procedural or dispositive motions no later than twenty (20) calendar days prior to the scheduled hearing date. 5. During the pre-hearing conference, the Association requested that the May 5, 2005 Board hearing be postponed due to a pre-existing scheduling conflict for Mr. Cumings. In response, the District indicated that it had no objection to a continuance. Therefore, unless otherwise ordered as a result of the filing of any subsequent motion or for other good cause shown, the May 5, 2005 evidentiary hearing between the parties is postponed and is rescheduled for: Tuesday, June 21, 2005 @ 9:30 AM at the offices of the Public Employee Labor Relations Board, Concord, New Hampshire. So ordered. Signed this 14th day of April, 2005.
Distribution:
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