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PRE-HEARING MEMORANDUM AND ORDER
BACKGROUND
The City of Portsmouth and its Police Commission (the
“City”) filed an unfair labor practice complaint on January 29, 2008
alleging that The Portsmouth NH Police Patrolmen’s Union, NEPBA Local 11
(the “NEPBA”) committed unfair labor practices in violation of RSA 273-A:5
II (a), (d), (e), (f) and (g). The complaint concerns the actions of
Detective Steve Arnold, who the City asserts appeared at the January 7, 2008
sergeant’s exam and in effect encouraged other officers to protest against
the exam by walking out of the room with him. Detective Arnold then left the
room, but the other officers remained and took the exam. The City also
claims that Detective Arnold has publicly criticized the department’s
promotional process as corrupt and has also been critical of the
department’s failure to promote him to sergeant. The City contends that
NEPBA has violated Article 53 of the parties collective bargaining
agreement, which provides in part that “neither the Union nor any Union
Officer, Representative or employee shall engage in, induce or encourage any
strike (whether sympathetic, general or any other kind), walk-out, work
stoppage, sit-down, slow-down, withholding of services, or any other
interference with the operations of the Police Department…The Union and it’s
Officers shall not be considered to have violated this Article if they have
used all reasonable efforts to prevent or cause to cease the Activities
prohibited by this Section.”
As remedies, the City requests that the PELRB: 1) issue a cease and desist
order against the New England Police Benevolent Association, NEPBA Local #11
and Detective Arnold, prohibiting interference with Department operations
and inflammatory statements relative to Detective Arnold’s personal
grievances against the Chief of Police and Commission; 2) order the New
England Benevolent Police Association and NEPBA Local #11 to take all
reasonable steps necessary to prevent or cause to cease any further
interference with Departmental operations as prohibited by Article 53 of the
CBA and such other conduct that may be in violation of RSA 273-A: 5, II (a),
(d), (e), (f) and (g); and 3) order the New England Benevolent Police
Association and NEPBA Local #11 to reimburse the Commission all of its fees
and expenses in filing and litigating this Charge.
The NEPBA filed its answer to the complaint on February 7, 2008. The NEPBA
disputes the City’s characterization of events and contends it has satisfied
its obligations to use reasonable efforts to prevent or cause to cease any
conduct that is prohibited. The NEPBA also claims that the complaint is
untimely in whole or in part under RSA 273-A:6, VII, that the City is
required to proceed via binding arbitration, that the complaint lacks the
required specificity, that the NEPBA is not responsible for the conduct at
issue, that the board lacks jurisdiction in this matter, and that the City
has failed to list and discuss remedies available in addition to those
available under RSA 273-A as required by Pub 201.02 (b)(6).
The NEPBA requests that the PELRB: 1) deny and dismiss the ULP with
prejudice; 2) order the Commission to pay the Respondents all of the costs
and expenses, including attorneys fees, incurred in defending this frivolous
action; 3) order such other relief as the board deems just and appropriate.
Upon the NEPBA’s motion, the pre-hearing conference originally scheduled for
February 21, 2008 was rescheduled to February 26, 2008, at which time the
undersigned Hearing Officer conducted the pre-hearing conference at the
PELRB offices in Concord.
PARTICIPATING REPRESENTATIVES
For the City: Thomas J. Flygare, Esq.
For the Union: Peter J. Perroni, Esq.
ISSUES PRESENTED FOR BOARD REVIEW
(1) Whether Detective Arnold’s actions, and the NEPBA’s
response to those actions, constitute a violation of RSA 273-A:5 II (a),
(d), (e), (f) and (g)?
(2) Whether the complaint is barred in whole or in part by
the 6 month limitation period contained in RSA 273-A:6, VII?
(3) Whether the City is required to proceed to binding
arbitration?
(4) Whether the board has jurisdiction over the City’s
complaint?
WITNESSES
For the City:
1. Chief Michael Magnanat
2. Captain John Yeardi
For the Union:
1. Officer Richard Brabazon, Union president
2. Detective Steve Arnold
3. Andrew Ray, NEPBA representative
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
For the City:
1. Collective Bargaining Agreement
2. Newspaper Clippings
For the Union:
1. First Amendment to United States Constitution
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-half (½)
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 5 days prior to the date of the evidentiary hearing.
DECISION
1. At the pre-hearing, the City agreed to provide the
NEPBA with copies of the documents it relies on in this case.
2. The City’s motion to continue the March 6, 2008 hearing was presented at
the pre-hearing. The motion is granted, and a new hearing date will be
established by subsequent notice.
3. The parties shall file a status report on or before March 7, 2008. On the
basis of this report, a further pre-hearing conference may be scheduled and
conducted in this matter.
4. The parties agree that the Portsmouth Police Patrolmen’s Union, NEPBA
Local 11 and not NEPBA, Inc. is the proper party to this matter and the
caption shall be amended accordingly. The complaint against NEPBA, Inc. is
dismissed.
5. The parties’ representatives shall meet, or otherwise confer, on or
before March 26, 2008 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 at least 5 days
prior to the date of the hearing.
6. 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 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.
So ordered.
February 29, 2008.
/s/ Douglas L. Ingersoll
DOUGLAS L. INGERSOLL, ESQ.
Staff Counsel/Hearing Officer
Distribution:
Peter J. Perroni, Esq.
Thomas J. Flygare, Esq.
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