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Robin Mongeon, et al.;
New Hampshire Hospital Supervisors (Diane Allen, et al.); and New Hampshire Hospital Supervisors (Sheila Gagnon, et al) Complainants v. Respondents
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CASE NO'S. S-0439-1 S-0394-3 S-0394-4 DECISION NO.. 2009-018 |
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APPEARANCES For the Complainants:
Robin Mongeon, P.E. Department of Environmental Services For the State of New Hampshire:
Rosemary Wiant, Esq. and Michael Brown, Esq. For the SEA/SEIU Local 1984: Glenn R. Milner, Esq., Molan Milner, & Krupski, PA, Concord BACKGROUND On March 21, 2008 certain employees of
the State Department of Environmental Services (“complainants”) filed an
unfair labor practice alleging the State of New Hampshire, Department of
Environmental Services (“State”) and the SEA/SEIU Local 1984 (“SEA”)
committed an unfair labor practice in violation of RSA 273-A:5,I (a) and (g)
and RSA 273-5,II (a) and (g), respectively, by charging the complainants an
unlawful agency fee. The complainants contend they are supervisors within
the meaning of RSA 273-A:8, II and are improperly included in the same
bargaining unit they supervise. On April 11, 2008 Mr. Evans, one of the
complainants, withdrew his complaint reducing the number of complainants to
nine. FINDINGS OF FACTS 1. The Preamble to the Collective Bargaining Agreement, 2007-2009 (“CBA”) includes a Supervisory Unit in the list of state departments covered by the CBA. 2. A Supervisory Unit was certified as a bargaining unit in 1980. 3. No separate subunit contract exists for the supervisory unit, pursuant to Article 4.3 of the CBA. 4. On or about July 1, 2008 the State and the SEA filed a notice of reorganization, populating the Supervisory Unit with approximately 1,290 public employees. 5. The Mongeon complainants are considered supervisory within the meaning of RSA 273-A:8, II and appear on the list of employees that the State and the SEA used to populate the Supervisory Unit. 6. The Allen complainants are considered supervisory within the meaning of RSA 273-A:8, II and appear on the list of employees that the State and the SEA used to populate the Supervisory Unit. 7. The State and the SEA consider four of the Gagnon complainants to be supervisory within the meaning of RSA 273-A:8, II and are included in the Supervisory Unit. Those four complainants are Donald Ficken and Winona Vachon (who are SEA members and pay dues rather than the agency fee) and David Levesque and Rebecca Lorden. The State and the SEA do not consider the remaining 10 Gagnon complainants to be supervisory. The Gagnon complainants consider all 14 complainants to be supervisory. 1 8. None of the complainants have been designated by the State as being “confidential” or human resources employees. 9. On June 6, 2006, the New Hampshire Hospital complainants received a letter from Michael P. Nolin, Department of Environmental Services. The letter stated, “Employees may choose to join the SEA and pay the full dues amount or not become a member and pay an agency fee.” 10. On August 14, 2006, the Mongeon complainants were notified of the agency fee provision in the CBA via a memorandum from Karen Hutchins, Human Resources Administrator for the Department of Health and Human Services. The memorandum indicated that the employees could choose to join the SEA and pay dues or choose not to join and pay an agency fee. 11. Section 5.8.1 of the Collective Bargaining Agreement (“CBA”) states, “Any full-time employee who is not a member of the Association shall be required to pay a fee to the Association as a condition of employment.” 12. The CBA states, “Employees who are
exempt from the definition of employee contained in RSA 273-A or designated
by the Employer as human resources employees shall not be counted 13. The SEA began collecting the agency fee on August 18, 2006, which showed up in paychecks starting September 15, 2006. 14. Via memorandum dated January 17, 2008, SEA President, Gary Smith issued a Hudson notice to all non-union members regarding the agency fee. The memorandum states that non-union members are “obligated to pay an agency fee.” The memorandum also states, “This notice supplants any prior notices that you may have received from NHSEA-SEIU on this subject.” 15. Between November 16, 2006 and February 1, 2007, a group of 30 state employees (the “Wright” complainants) filed an unfair labor practice complaint against the State and the SEA. The complaint alleged that they were being unlawfully charged an agency fee pursuant to RSA 273-A:8, II, which provides, “Persons exercising supervisory authority involving the significant exercise of discretion may not belong to the same bargaining unit as the employees they supervise.” See P. Wright, D. McMenemy et al. and F. McGarry et al, Case Nos. S-0433-1, S-0433-2, S-0434-1, S-0435-1. 16. The Wright complainants settled their action with the SEA and the PELRB dismissed the cases in an order dated December 12, 2007. 17. As a result of the settlement and effective with pay period ending November 8, 2007, the Wright complainants no longer pay the agency fee as a condition of employment and the State no longer deducts the agency fee from their pay. DECISION AND ORDER SUMMARY The complainants in these three cases all are subject to payment to the SEA/SEIU of an agency fee that began to be collected from their paycheck by the state, as their employer, in 2006. The complainants allege these two respondents have committed unfair labor practices related to the collection of an agency fee. However on motion of the respondents these matters are dismissed because complaints were not filed until 2008 where the controlling statute contains a limitation on actions of six months. JURISDICTION The Public Employee Labor Relations Act (RSA 273-A:6) provides that the Public Employee Labor Relations Board (PELRB) has primary jurisdiction to adjudicate claims of improper labor practices as defined in RSA 273-A:5, I and II. The Complainants in each of these three consolidated cases allege that the respondents have violated various provisions of RSA 273-A:5, I and II thereby placing these matters within the jurisdiction of the PELRB. DISCUSSION These three complaints of improper labor
practices matters have been consolidated to facilitate their adjudicative
processing within the PELRB and now for hearing. The complaining parties,
Mongeon et al. (S-0439-1), Allen et al. (S-0394-3) and Gagnon et al.
(S-0394-4) collectively referred to as the “complainants” have filed
complaints of unfair labor practices against the State of New Hampshire
acting through its Department of Environmental Services (Mongeon) and the
New Hampshire Hospital (Allen, Gagnon) as well as against the State
Employees Association, Service Employees International Union Local 1984
(SEA/SEIU). Each of the complainants understands that these complaints do
not constitute a petition to decertify, petition to modify or petition to
certify a bargaining unit and that the PELRB has not acted administratively
in any manner to allow the complaints to be amended or converted from
complaints to either of the above-referenced petitions. The record presented in these matters reveals that the so-called Mongeon complainants (Case #S-0439-1) filed their complaint with the PELRB on March 21, 2008. Of the three cases, this was the earliest filing date. The Allen complainants filed on April 28, 2008 (Case #S-0394-3); the Gagnon complainants filed on May 12, 2008 (Case #S-0394-4). These complaints rely in the first instance on the allegation that the SEA and the State acted improperly, under the provisions of RSA 273-A:5, I and II, in “charging”, and by reasonable inference, collecting an agency fee thus rendering the agency fee collection illegal. The parties agree that the effective date of the agency fee contribution was August 18, 2006 with the actual deduction appearing in their paychecks dated September 15, 2006 due to the method by which the state pays its employees. To avoid duplication we have selected the earliest filing date from among the three groups of complainants which is March 21, 2008 for the Mongeon group. Under the provisions of RSA 273-A:6, VII the action giving rise to the charge, the so-called “triggering event,” has to have occurred later that September 21, 2007. From among all of the various dates that the parties have provided to the board, we find that the latest possible relevant date on which the triggering event could reasonable be said to have occurred would be the date of the actual collection, September 15, 2006. Subsequent actions in furtherance of this collection or undertaken as part of the processing of the complaints before us do not toll the limitations on actions filed under RSA 273-A:6 as it governs complaints of improper labor practices delineated under RSA 273-A:5,I and II. This remains true notwithstanding the complainants’ reliance on the memorandum from the SEA/SEIU president dated January 18, 2009. This so-called “Hudson” notice (Chicago Teachers Union, Local No. 1 AFT, AFL-CIO v. Hudson 475 U.S. 292, 310; see also Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 874; Davenport v. Wash. Educ. Ass'n, 551 U.S. 177; 127 S. Ct. 2372, 2376-77; 168 L. Ed. 2d 71 (2007))relates to the calculation of the amount of an agency fee and provision for disputed amounts collected to be put in escrow. It does not constitute the triggering event as we have determined it to be here nor does it revive it. Therefore, while the effects of the actions alleged by the complainants continue beyond 2006, the triggering event for purposes of this case could not be said to have taken place within the six month window mandated by the statute. As we find for this earliest filed Mongeon complaint, we also find for the other two groups of complainants. In making this determination we therefore must dismiss the complaints in all three cases consolidated before us for adjudication. Further, by ruling that these complaints were not timely filed, we do not reach the merits of the allegations raised by the complainants other than to state that the instant proceedings involve solely statutory complaints alleging unfair labor practices. While the board’s jurisdiction extends to other proceedings we have not been requested to undertake any such proceedings. And finally, the board’s jurisdiction does not extend to claims that either the federal constitution or this state’s constitution has been violated. So ordered. This 2nd day of February, 2009.
[1] Sheila Gagnon’s position was reclassified on or about September 17, 2008 from Business Administrator II to Business Administrator III. It is the same position number (No. 18358).
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