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ORDER GRANTING RESPONDENT'S STAY OF
PROCEEDINGS
The Board has reviewed the pending Motion to Stay
Adjudicative Hearing, dated January 5, 2006 by the Respondent, Pinkerton
Academy, reviewed the Association's objection thereto, filed on January 19,
2006, and reviewed the Order of the Supreme Court, dated December 2, 2005 and
has undertaken the following actions regarding these consolidated matters:
1. It noted that it had previously denied a previous
request by the Respondent to stay proceedings (see PELRB Decision #
2005-117) filed on August 11, 2005.
2. It noted that at that time the Respondent's appeal of
its interim order was pending, however, the appeal had not been accepted and
indeed the Supreme Court declined to accept the appeal by its decision dated
October 19, 2005, Case No. 2005-0627.
3. It noted that both of the parties, having been informed
by the PELRB on the morning of October 20, 2005 of the decision of the
Supreme Court the day before, orally requested a continuation of the hearing
on the merits of the Association's initial complaint of unfair labor
practices and later filed a written joint motion on October 26, 2005
confirming the previous oral request for a continuation of the hearing on
the merits of the Association's complaint that was granted by the PELRB.
4. In denying the previous request for a stay, the PELRB
recognized its primary jurisdiction and responsibility to hear such matters
concerning its jurisdiction and the merits of unfair labor practice
complaints pursuant to RSA 273-A and render decisions necessary thereto. The
PELRB also recognized in that previous order the role of the Supreme Court
as the final arbiter and the court's authority to stay proceedings if it
believes justice compels such action.
5. In reviewing the instant request to stay proceedings
pending the decision of the Supreme Court, the majority of the Board finds
that a significant and distinguishing event has occurred in the form of an
infrequent Supreme Court decision to grant a reconsideration request by a
party of its October 19, 2005 declination of appeal and its decision now to
accept the appeal.
6. With present knowledge that the PELRB's earlier
determination of jurisdiction is being reviewed by the Supreme Court and
will result in a final order of affirmation or reversal, the majority of the
Board finds it would not be appropriate to schedule the continuation of the
adjudicative hearing in this matter until such time as the Supreme Court has
had the opportunity to rule.
7. While the majority believes that its initial decision
regarding its interpretation of RSA 273-A (Decision # 2005-062) is correct
and will be affirmed by the Supreme Court, the majority does not believe
that judicial economy would be served by conducting further evidentiary
hearings at this time.
8. Additionally, the majority is reluctant in this
particular case to create a situation by which there could be conflicting
decisions by two forums that would have direct and immediate impact upon the
parties that would make it difficult, if not impossible, to restore the
status quo ante. (see PELRB Decision #2005-
9. Further, the majority does not find that the public
interest, to the extent it has been articulated by the Association as the
"threat of further disciplinary action against [the employees] hangs
ever present" outweighs, at a minimum, the modification of personnel
rules or the application of existing personnel rules throughout the
Respondent's administration vis a vis educational personnel.
10. In addition, the alleged conduct that has given rise
to the underlying complaint by the Association occurred over one and one
half years ago and there has been no allegation via supplemental filings
that such conduct has continued or that the same or other individuals have
been subject to similar conduct.
11. Lastly, the majority agrees that in this case where
the PELRB's original jurisdiction is at issue, where its authority to
interpret a "definitional" term within its own statute is also
called into question, labor relations jurisprudence is served and therefore,
also, the public's interest in harmonious labor relations and the orderly
and uninterrupted operation of government services by ordering as follows:
A. The Respondent's Motion to Stay these proceedings is
GRANTED.
B. The parties shall maintain the status quo until such
time as the Supreme Court shall issue its order.
C. This stay shall toll the limitations on actions as
contemplated in RSA 273-A: 6 VII until the Supreme Court issues its order.
D. This matter shall remain pending on the PELRB Docket
and, if appropriate following the Supreme court's order, the hearing on
the merits of the Association's complaint shall be scheduled forthwith.
So Ordered.
Signed this 1st day of February, 2006
/s/ Jack Buckley
JACK BUCKLEY
Chairman
By majority vote. Chairman Jack Buckley presiding, with
Board Member Seymour Osman also voting with the majority. Member Richard E.
Molan dissenting.
MINORITY DECISION
The undersigned member has reviewed the pending Motion to
Stay Adjudicative Hearing, dated January 5, 2006 by the Respondent, Pinkerton
Academy; reviewed the Association's Objection thereto, filed on January 19,
2006; and reviewed the Order of the Supreme Court dated December 2, 2005 and
opines as follows:
1. This Board issued an Interim Decision and Order on May
18, 2005 (PELRB Dec. No. 2005-062) and inter alia, ordered that "…
[a] notice of the continuation of this hearing to consider the issues raised
by the unfair labor practice complaint will be issued to the parties in due
course." Id. pg. 11.
2. After a series of motions, the Respondent filed an
appeal pursuant to RSA 541 with the New Hampshire Supreme Court.
3. The Respondent also requested a stay of proceedings of
the Board which was denied by the Board on August 11, 2005. (See, PELRB Dec.
No. 2005-117).
4. Thereafter, the Respondent filed a motion with the New
Hampshire Supreme Court seeking a suspension of the Order pursuant to RSA
541:18 on September 20, 2005. The Court denied the requested suspension of
the Order on October 6, 2005.
5. The Court declined to accept the appeal by the
Respondent by a decision dated October 19, 2005, Case No. 2005-0627.
6. Thereafter, the Court, on a motion for reconsideration,
agreed to hear the appeal on December 2, 2005.
7. The Respondent again renews its motion to suspend the order of the Board
and the majority finds that the intervening acceptance of the appeal by the
New Hampshire Supreme Court militates in favor of granting the current
request for a stay of proceedings.
8. While the undersigned member has sympathy for the Board's desire to
conserve the very limited resources of this Board in a judicious manner, the
Board's long-held policy has been to defer such requests for a stay of
proceedings to the New Hampshire Supreme Court where it rightfully belongs
pursuant to RSA 541:18.
9. RSA 541:18 Suspension of Order states in pertinent part that "[n]o
appeal or other proceedings taken from an order of the commission shall
suspend the operation of such order; provided, that the supreme court may
order a suspension of such order pending the determination of such appeal or
other proceeding whenever, in the opinion of the court, justice may require
such suspension;…." (Emphasis supplied).
10. Because this member believes that the jurisdiction
over suspension of the proceedings has now shifted to the Supreme Court, any
stay granted by this Board would be done so improvidently.
11. This member offers no opinion as to whether or not the
Supreme Court should order a suspension of further proceedings although the
question of original jurisdiction may offer merit to the request but bases
this opinion on the belief that the jurisdiction to suspend further
proceedings in this matter lies with the Court and not with the Board.
Therefore, this member would deny the Respondent's Motion to Stay these
proceedings and order the continued hearing to be scheduled.
/s/ Richard E. Molan
RICHARD E. MOLAN
Member
Distribution:
James F. Allmendinger, Esquire
Linda S. Johnson, Esquire
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