PRE-HEARING MEMORANDUM AND ORDER

Date of Conference:                January 20, 2009

Appearances:                          John Krupski, Esq. for the Complainant
                                                   Marta Modigliani, Esq. for the Respondent

Background:

This was a further pre-hearing conference in the above consolidated matters. See PELRB Decisions 2008-147, 2008-258, and 2008-262 for background and prior pre-hearing decisions. Previously scheduled hearings in these matters have been continued at the parties’ request several times. Most recently, new counsel has appeared for the Association in these cases.

On January 8, 2009 the Association filed an Amended and Restated Complaint and a related Motion. As reviewed at the pre-hearing, paragraphs 1-22 of the Amended and Restated Complaint concern Case No. P-0754-23, and paragraphs 23-33 concern Case No. P-0754-25. The Association’s Motion seeks to drop Troopers Myrdek and Ferry and to add Troopers Monahan and Shirley in Case No. P-0754-23.

Case No. P-0754-23

In Case No. P-0754-23, the Association’s claims involves Article 21.7 of the parties’ collective bargaining agreement, which provides that “[a]ny employee may live within a town within a patrol area to which she/he is assigned or within a reasonable distance from his/her assigned patrol area.” According to the Association, in January of 2008 Trooper Danielle Cole obtained permission from the Commissioner of Safety to move 5 miles outside her Troop’s patrol area. This decision reversed Colonel Booth’s earlier action on Trooper Cole’s request.

The Association contends that in February, 2008 the State reassigned Troopers Copponi, Deuce, Lima, Massaro, Monahan, and Shirley to different Troops. The Association contends these reassignments violated Article 21.7, past practice, and were also made in retaliation against the Association for its role in obtaining the Commissioner’s reversal of Colonel Booth’s action on Trooper Cole’s move request. The Association also complains about the State’s denial of Trooper Kevin Leblanc’s request to live in Epsom. The Association asserts that Troopers Copponi, Deluca, Lima, Monahan, and Massaro have completed Step III grievances and the next step in the grievance process is the submission of a complaint to the PELRB per Section 14.5.1 of the parties’ CBA.

As relief, the Association requests a finding that the State’s actions violate RSA 273-A:5, I (a), (b), (d), (h), and (I). At the pre-hearing conference, the Association clarified that as a remedy it is also requesting the reassignment of Lima, Shirley, and Monahan to their former Troops but it is not requesting the reassignment of Copponi, Deluca, and Massaro. According to the Association, Copponi has since been promoted to Sergeant and cannot be reassigned.

Case No. P-0754-25

In Case No. P-0754-25, the Association claims Mr. Mirabella was terminated because of his alleged failure to satisfy the residency requirement imposed by Article 21.7. The Association contends the Section 21.7 reference to “patrol area” means the Troop E area and consistent with past practice Mr. Mirabella was entitled to live within the Troop area or within a reasonable distance of the troop area. The Association also claims that prior to his termination Mr. Mirabella met the State’s requirement that he provide written confirmation of residency within Patrol Area 2 of Troop E, in which case the State represented that it would not terminate Mr. Mirabella. The Association also complains that Sergeant Legacy and Sergeant Duffy, both members of the Troopers’ bargaining unit, informed Trooper Mirabella that he should not get either the Association or a lawyer involved in residency matters as it could permanently harm his career.

The Association and Mr. Mirabella requests that the PELRB: 1) declare that the State committed an unfair labor practice and violated Section 21.7 of the CBA and RSA 273-A:5, I (a), (b), (d), (i) and (h) when it terminated Mr. Mirabella; and 2) order the State to restore Mr. Mirabella to his employment at the Department of Safety.

The State’s Position

On January 16 and 20, 2009, the State filed an Objection to the Association’s Amended and Restated Complaint and to the Association’s Motion. The State argues that the Association’s filings are improper because: 1) the addition of Troopers Monahan and Shirley was not authorized by the prior pre-hearing order; 2) neither Monahan nor Shirley complied with the grievance procedure; 3) Monahan and Shirley’s claims are untimely as they are being raised 11 months after their February, 2008 reassignment; 4) Trooper Massaro will apparently retire effective February 1, 2009 and Lou Copponi has been promoted to Sergeant, which the State contends moots their claims and any related requests for relief; and 5) the Association improperly used the Amended Complaint to restate the claims in both cases in one pleading, and not just the claims in Case No. P-0754-25, as contemplated by Decision 2008-262.

In its original answer filed in Case P-0754-23 on June 3, 2008, the State asserts that the transfers are within the scope of its rights under Article II of the parties’ collective bargaining agreement and the transfers effectuated the intent of Section 21.7 of the collective bargaining agreement. The State also contends the transfers were justified in order save on the cost of fuel and vehicle maintenance.

In its original answer filed in Case P-0754-25 on October 23, 2008, the State contends that Mr. Mirabella was a probationary employee at the time of his termination and at most is entitled to a review of his termination before the Personnel Appeals Board pursuant to RSA 21-I:58 in accordance with Per 1002.02, Dismissal During Probationary Period. Mr. Mirabella has an appeal pending before the Personnel Appeals Board and the State contends the PELRB lacks jurisdiction and that the Association and Mr. Mirabella have otherwise failed to state a claim upon which relief can be granted on account of Mr. Mirabella’s probationary status at the time of his termination.

The State requests that the PELRB dismiss both complaints or, in the alternative declare that the State did not commit an unfair labor practice.

DECISION

1. “Parties” means the named complainants and respondent or the counsel/representative appearing in the case.
2. The objections and defenses set forth in the State’s Objection to the Association’s Amended and Restated Complaint and to the Association’s Motion are all matters which can be raised via an Answer to the Amended and Restated Complaint, and accordingly the State’s objections are overruled without prejudice to all such defenses and objections. The Association’s Amended and Restated Complaint is allowed, and the Association’s related Motion is granted, subject to any and all defenses available to the State, including those defenses and objections raised in the State’s January 20, 2009 Objection to Motion. The State shall raise and set forth all such defenses and objections in its Answer to the Amended and Restated Complaint.
3. Although these cases have been consolidated for hearing, the claims in each case remain distinct and separate, and a decision on the merits will issue with respect to each case. The parties shall distinguish between the two cases in subsequent pleadings.
4. As discussed at the pre-hearing:

a. The State shall file any Motion to Continue based upon the schedule of Major Fori on or before January 22, 2009 and the Association shall file its objection or response on or before January 26, 2009;
b. The State shall file its Answer to the Amended and Restated Complaint on or before January 26, 2009;
c. The parties have not completed their factual stipulations as contemplated by the prior pre-hearing order. Accordingly, the deadline for the parties to prepare and file a stipulation of agreed facts and exhibits is extended to February 6, 2009.
d. The Association filed its updated Witness and Exhibit List at the January 20, 2009 pre-hearing – the State shall file its updated Witness and Exhibit List, if necessary, on or before January 26, 2009.

Hearing

At the pre-hearing the State indicated 2 hearing days may be required in this matter. The Association believes the cases can be submitted in one day. As it appears the parties should be able to stipulate to much of the factual background in this case and that witness testimony will be concise and to the point, it should be possible to submit this case in one day. Accordingly, 6 hours is set aside for hearing in this matter on February 12, 2009 at 9:30 a.m. If necessary, a request for a second day of hearing will be entertained at the conclusion of the hearing on February 12, 2009 but a second hearing day is not being scheduled at this time.

So ordered.

January 21, 2009

/s/ Douglas L.Ingersoll
Douglas L. Ingersoll, Esq.
Staff Counsel/Hearing Officer

Distribution:
John Krupski, Esq.
Marta Modigliani, Esq.


 

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