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APPEARANCES
Representing Association of Portsmouth Teachers/NEA-NH
James F. Allmendinger, Esq., NEA-NH, Concord, New Hampshire
Representing Portsmouth Police Commission:
Daniel P. Schwarz, Esq., Flygare, Schwarz & Closson, PLLC Exeter, New
Hampshire
BACKGROUND
The Association of Portsmouth Teachers/NEA-NH (the
“Association”) filed improper practice charges on June 18, 2007. The
Association claims that the Portsmouth School District (the “District”)
violated RSA 273-A:5, I (a) (e) and (h) by failing to negotiate a new
evaluation system for coaches and by its non-renewal of Martin James, the
boys varsity soccer coach who was evaluated under the new evaluation system.
As remedies, the Association requests that the PELRB: 1) Find that the
District has committed an Unfair Labor Practice; 2) Order that Mr. Martin be
re-employed as the boys’ high school soccer coach, (3) Order that Mr. Martin
suffer no loss of pay or other benefits; 4) Order the District to negotiate
with the Association over the new evaluation system for athletic coaches;
and 5) Grant such other and further relief as may be just.
The District filed its Answer on July 3, 2007. The District contends that
the complaint is untimely, that the District only determined that Mr.
Martin’s non-renewal was not subject to the grievance procedure, and the
complaint should be dismissed.
The District requests that the PELRB: 1) Dismiss the instant Unfair Labor
Practice Charge with prejudice; 2) Order the Association to reimburse the
District for all costs associated with responding to the ULP; and 3) Grant
such other relief as may be just and proper.
The board held a hearing on August 14, 2007 at the PELRB offices in Concord.
The parties had a full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. The record was held open until
September 14, 2007 to allow the parties to file briefs. Both parties have
filed briefs, and the record is now closed.
FINDINGS OF FACT
1. The Association of Portsmouth Teachers/NEA-NH is the
board certified exclusive representative for Portsmouth Teachers.
2. The District is a public employer within the meaning of RSA 273-A:5, I.
3. Martin James is a Portsmouth middle school teacher and a member of the
Association of Portsmouth Teachers bargaining unit.
4. Article 55 of the parties July 1, 2003 to June 30, 2006 collective
bargaining agreement (“CBA”) contains compensation schedules for coaching,
extra-curricular, and special services.
5. Dr. Robert Lister is the school superintendent for Portsmouth schools. In
early 2006 he was involved in New Hampshire Interscholastic Athletic
Association (“NHIAA”) meetings concerning topics such as Portsmouth’s lack
of an athletic director, a handbook, and coaching evaluations.
6. Subsequent to these meetings Rus Wilson was hired as the new high school
athletic director. By July, 2006 Mr. Wilson had prepared a formal athletic
handbook and formal coach evaluation procedures.
7. The District did not negotiate the evaluation procedures with the
Association.
8. Martin James is a Portsmouth middle school teacher who in the fall of
2006 was in his fourth year as the boy’s high school varsity soccer coach.
9. Mr. Wilson testified that his office distributed and he implemented the
new handbook and evaluation process during the fall sports seasons, although
Mr. Martin disputes receiving the handbook or the evaluation forms until
after the season was over.
10. On or about December 19, 2006 the athletic director provided Mr. Martin
with an evaluation for the 2006 season and notified Mr. Martin that he would
not be coaching soccer at the high school in 2007.
11. In early 2007 the Association grieved the athletic director’s decision
that Mr. Martin would not coach soccer in 2007 and the District’s failure to
negotiate the new evaluation procedures. The Association filed an unfair
labor practice complaint on June 18, 2007
DECISION AND ORDER
JURISDICTION
The PELRB has primary jurisdiction of all violations of RSA 273-A:5. RSA
273-A:6 I. PELRB jurisdiction is proper in this case as the Association has
alleged violations of different provisions of RSA 273-A:5.
DISCUSSION
The board declines to dismiss the complaint as untimely, since it was filed
within 6 months of December 18, 2007, the date when the athletic director
used the new evaluation to review with Mr. Martin his performance and when
he told Mr. Martin that he would not be coaching the soccer team in 2007.
See RSA 273-A:6, VII.
The District also contends that the subjects of the complaint are subject to
final and binding arbitration under the parties’ CBA and should be dismissed
on that basis. The board finds that the central issue in this case is
whether the teacher-coach evaluation is a mandatory subject of bargaining.
This is a question to be decided under RSA 273-A, not the parties’
collective bargaining agreement. Additionally, the parties’ collective
bargaining agreement does not reflect an intention to resolve this statutory
issue through the grievance and arbitration process. The board finds with
positive assurance that the CBA is not susceptible of an interpretation that
covers this dispute. Appeal of Town of Bedford, 142 N.H. 637, 640
(1998).
The District argues that the varsity soccer coach position
is outside the bargaining unit and the District has no obligation to bargain
with respect to the coaching evaluation process on that basis. However,
extracurricular activities, such as the coaching position at issue in this
case, are within the scope of a teacher’s duties and therefore the terms and
conditions of such extracurricular activities constitute a mandatory subject
of bargaining. Appeal of Berlin Education Association, NHEA/NEA, 125
N.H. 779, 782 (1984)(holding that the salary scale for teachers performing
extracurricular activities such as coaching and supervising student
activities is a mandatory subject of bargaining).
Whether the coaching evaluations are a mandatory subject of bargaining
requires the application of a three part test (the “bargaining” test):
First, to be negotiable, the subject matter of the
proposed contract provision must not be reserved to the exclusive
managerial authority of the public employer by the constitution, or by
statute or statutorily adopted regulation. Second, the proposal must
primarily affect the terms and conditions of employment, rather than
matters of broad managerial policy. Third, if the proposal were
incorporated into a negotiated agreement, neither the resulting contract
provision nor the applicable grievance process may interfere with the
public control of governmental functions contrary to the provisions of
RSA 273-A:1, XI.
Appeal of City of Nashua Board of Education, 141
N.H. 768, 773-74 (1997)(citations omitted). Under the three step bargaining
test, a proposal is a prohibited subject of bargaining if it fails to
satisfy the first step, it is a permissive subject of bargaining if it fails
to satisfy the second or third step, and it is a mandatory subject of
bargaining if it satisfies all three steps. Id.
As to the first step, it is settled that teacher evaluations are not
reserved to the exclusive managerial authority of a public employer and are
not a prohibited subject of bargaining provided they do not contain hiring
standards or evaluation standards. In re Pittsfield School Dist., 144
N.H.536, 539-540 (1999); Appeal of White Mountain Regional School
District, 154 N.H. 136, (2006). Accordingly, the evaluations at issue in
this case satisfy the first step of the bargaining test as long as they
avoid delving into these prohibited areas. The court has not, however,
decided whether evaluations are permissive or mandatory subject of
bargaining, as such a determination was not required in the Pittsfield or
White Mountain cases.1 In this regard, the
court in Pittsfield provided some useful guidance:
Often, both the public employer and the employees will
have significant interests affected by a proposal. Determining the
primary effect of the proposal requires an evaluation of the strength
and focus of the competing interests. For example, although a school
district’s decision about whether or not to offer extracurricular
programs is part of broad managerial policy, staff wages, hours, and
other specifics of staff obligations and remuneration primarily affect
the terms and conditions of employment.”
Id. At 539.
The board’s earlier decision in the case of Contoocook Valley Education
Association, NEA-New Hampshire v. Contoocook Valley School District,
Case No. T-0275-15 indicates that certain aspects of the disputed
teacher-coach evaluation process may likely constitute mandatory subjects of
bargaining. In that case, the board construed RSA 273-A:XI to mean that the
employer is:
Protected in its right to determine if it will conduct
evaluations of its employees. Once it makes that determination, however,
if the implementation of the unilaterally, non-negotiated evaluation
program impacts terms and conditions of employment of the evaluatees
then there must be negotiations about this change to those terms and
conditions of employment.
PELRB Decision No. 2000-116. In general, procedures to
implement an employer’s policy choice satisfy steps two and three of the
bargaining analysis, making such procedures a permissive subject of
bargaining. The procedures are only mandatory subjects of bargaining if they
satisfy all three steps of the bargaining analysis. Appeal of the State
of New Hampshire, 138 N.H. 716, 722 (1994). In Appeal of the State of
New Hampshire, the court considered whether an SEA discipline proposal
was a mandatory subject of bargaining:
Next, we must assess whether the discipline proposal
primarily affects the terms and conditions of employment or matters of
broad managerial policy. Discipline unquestionably affects employee
welfare by influencing attitudes, productivity, longevity, safety, as
well as other aspects of employment. In the same manner, disciplinary
policy is central to the employer’s relationship with, responsibility
to, and control of its employees. Both the employer and the employees,
therefore, have significant interests affected by provisions for
employee discipline.
Id. At 723-724. The teacher-coach evaluation
process impacts employee and employer interests in ways that are similar to
the impact of the disciplinary proposal on such interests under
consideration in Appeal of State of New Hampshire. However, the SEA
disciplinary proposal at issue in Appeal of State of New Hampshire
was not a mandatory subject of bargaining because the proposal contained a
just cause standard which infringed upon the State’s “prerogative to
establish policy if the State, as employer, were not free to define ‘just
cause.’” Id. The SEA’s disciplinary proposal was, however, a
permissive subject of bargaining.
The board finds that in this case the conditions and
certain procedures under which the evaluation of teacher-coaches takes place
involve matters which primarily affect the terms and conditions of
employment, so the second step of the bargaining analysis is satisfied. The
board finds the third step is also satisfied so long as the evaluation
negotiations do not seek to restrict the information the District may
consider when conducting evaluations, set the standards the District applies
in the evaluation process, control the action the District may take given
the results of the evaluation, address any changes in policy the District
may need to institute, or address the nature and extent of the evaluator’s
personnel contact or observation of the employee. These areas are within the
purview of the managerial policy exception, as they are properly considered
as part of the “functions, programs and methods” of the District, such as
the selection and direction of its personnel “so as to continue public
control of governmental functions. See RSA 273-A:1, XI. On this basis, the
board finds that the disputed teacher-coach evaluation process is a
mandatory subject of bargaining.
However, the board declines to reinstate Mr. Martin to his position as the
high school varsity soccer coach. The board does not find that Mr. Martin’s
reinstatement is the appropriate remedy for the District’s failure to
bargain as to the teacher-coach evaluation process, especially when the
impetus for creation and implementation of the teacher-coach evaluations was
critical input received from the NHIAA. Another and independent reason for
the board’s decision not to order Mr. Martin’s reinstatement is that the
board believes the District’s decision to replace Mr. Martin as high school
varsity soccer coach was made in good faith and would likely have been made
irrespective of Mr. Martin’s formal evaluation. However, to the extent Mr.
Martin’s teacher-coach evaluation is included in his personnel file it
should be removed. Further, in the event Mr. Martin applies for the same or
a similar position in the future the District shall not use or rely upon his
2006 coaching evaluation in any respect.
In accordance with the foregoing, the board finds that the District
committed an unfair labor practice on account of its failure to bargain the
components of the teacher-coach evaluation process which affect the terms
and conditions of employment as outlined in this decision. The District
shall cease and desist its use of any teacher-coach evaluation plan which
has not been negotiated with the Association as required by this decision.
So ordered.
Signed this 15th day of February, 2008.
/s/ Doris Desautel
DORIS M. DESAUTEL
Chair
By unanimous decision. Chair Doris Desautel. Members E. Vincent Hall and
James M. O’Mara, Jr. present and voting.
Distribution:
James F. Allmendinger, Esq.
Daniel P. Schwarz, Esq.
1In
both cases the parties had already bargained evaluation procedures, a
circumstance not present in this case.
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