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PRE-HEARING MEMORANDUM AND ORDER
BACKGROUND
Farmington School District (the “District”) filed an
unfair labor practice complaint on January 30, 2008 alleging that the
Farmington Teachers Association/NEA-NH (the “Association”) committed unfair
labor practices in violation of RSA 273-A:5, II (b), (d), and (g). The
Farmington School District is an SB 2 district and the parties are currently
in contract negotiations. According to the District, on or about January 3,
2008 the school board rejected an Association proposal containing $592,000
in new costs, primarily consisting of wage and benefit increases for the
2008-2009 school year. On or about January 8, 2008 the Association submitted
to the school district clerk a petition warrant article seeking, in
substance, approval of the $592,000 amount previously rejected by the school
board. The District contends the Association also submitted a petition
warrant article seeking a special meeting if necessary to address cost items
only. The District claims these actions constitute an illegal bypass of the
school board, unlawful direct dealing with district voters, a refusal to
negotiate in good faith, and interference with the public employer in the
selection of bargaining representatives.
The District’s request for an immediate cease and desist order has been
denied. PELRB Decision No. 2008-039. The District also requests that the
PELRB: 1) sustain the complaint; 2) find that the Association has violated
RSA 273-A:5, II (b), (d), and (g); 3) issue an order granting the Board the
right to remove the Association’s petition warrant articles from the annual
warrant presented to District voters; 4) order the Association to pay the
costs incurred by the District in pursuing the instant complaint including
but not limited to, any and all legal fees; and 5) order such other and
further relief as the PELRB may deem appropriate and necessary under the
circumstances.
The Association filed its answer denying the District’s charge February 15,
2008. The Association contends the disputed petitions were lawfully filed by
registered voters and do not represent an action by the Association. The
Association claims that under RSA 39:3 District officials are legally
obligated to place both articles on the warrant that is submitted to voters.
Accordingly, the Association requests that the PELRB 1) dismiss the
complaint; 2) deny all of the District’s requests for relief; and 3) order
such other and further relief as the PELRB may deem appropriate and
necessary under the circumstances.
The undersigned Hearing Officer conducted a pre-hearing conference on
February 29, 2008 at the PELRB offices in Concord.
PARTICIPATING REPRESENTATIVES
For the District: Peter C. Phillips, Esq.
For the Association: Steven R. Sacks, Esq.
ISSUES PRESENTED FOR BOARD REVIEW
(1) Whether the disputed warrant articles constitute
Association action in violation of
RSA 273-A:5, II (b), (d), and (g).
WITNESSES
For the District:
1. Michelle Langa, School Superintendent
2. Steve Yurick, Board Member
3. Kathy Seaver, School District Clerk
4. Jacquie Capello, Association President
For the Association:
1. Jacqueline Capello
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:
1. Petition Warrant Article re: Wages
2. Petition Warrant Article re: special meeting
For the District:
1. Association Proposal 1/3/08
2. Tape/Transcript of 2/7/08 Superior Court Hearing
3. Tape/Transcript of 2/26/08 Superior Court Hearing
4. Tape/Transcript of 2/7/08 School District Deliberative Session
For the Association:
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 hearing is 3 hours. Any requests
for additional time shall be filed at least 20 days prior to the date of
hearing.
DECISION
1. At the pre-hearing, the parties discussed the pending
superior court proceedings, which relate to the budget committee’s request
for an injunction to prevent the placement of the disputed articles on the
warrant. Attorney Phillips and attorney Sacks appeared as counsel for their
respective clients in the superior court proceedings. The District has
included transcripts from the superior court proceedings in its list of
exhibits. The District asserts that these transcripts will show that the
Association supported and approved of the disputed articles as of the time
of the superior court proceedings, if not earlier.
2. As discussed at the pre-hearing, on or before March 7, 2008 the District
shall file a supplement to the complaint describing the facts concerning and
the legal significance of the Association’s participation in the pending
Superior Court proceedings.
3. On or before March 14, 2008 the Association shall file its response to
the District’s supplement to the complaint.
4. Because issues concerning the superior court proceedings may require
testimony from attorney Sacks, the Association shall, on or before March 14,
2008, file a notice of any need to obtain substitute counsel and whether
such substitution will require any changes to the pre-hearing and hearing
schedule in this matter.
5. The District shall be prepared to submit evidence concerning the
deliberative session by transcript.
6. The parties’ representatives shall meet, or otherwise confer, on or
before April 3, 2008 to attempt to stipulate to the written submission of
this case, or, in the alternative, submission of the case without the need
for formal testimony. The parties shall forthwith file a joint statement
indicating any such agreement and include a proposed schedule for the
parties’ filings.
7. If the matter is to proceed to a hearing before the Board, the parties’
representatives shall meet, or otherwise confer, on or before April 3, 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 the time written
submissions are filed, or least 5 days prior to the date of the hearing, as
the case may be.
8. 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.
9. The parties shall file any additional preliminary, procedural or
dispositive motions no later than 20 calendar days prior to the scheduled
hearing date.
10. Unless otherwise ordered as a result of the filing of any subsequent
motion or for other good cause shown, an evidentiary hearing between the
parties will be held on:
April 10, 2008 @ 9:30 AM
at the offices of the Public Employee Labor Relations
Board in Concord.
So ordered.
March 3, 2008.
/s/ Douglas L. Ingersoll
Douglas L. Ingersoll, Esq.
Staff Counsel/Hearing Officer
Distribution:
Peter C. Phillips, Esq.
Steven R. Sacks, Esq.
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