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SELECTED PROCEDURES AND
PRACTICES
before the
NEW HAMPSHIRE PUBLIC EMPLOYEE
LABOR RELATIONS BOARD
By
Donald E. Mitchell, Esq.
Staff Attorney, PELRB
I.
INTRODUCTION
A. BACKGROUND
The creation of the
Public Employee Labor Relations Board (PELRB) was made necessary by
the passage of New Hampshire's public employee rights legislation,
the Public Employees Labor Relations Act, which became effective on
December 21, 1975. RSA 273-A. A clause preserving the composition of
bargaining units and the continuity of collective bargaining
agreements (CBA) in place prior to August 23, 1978 was added by an
amendment to this statute in 1977. At the time of its initial
passage the General Court made a strong and explicit Statement of
Policy:
"The legislature declares that it is the
policy of the state to foster harmonious and cooperative relations
between public employers and their employees and to protect the
public by encouraging the orderly and uninterrupted operation of
government."1
The statement of purpose
went on to offer three methods by which this purpose might best be
attained. They included the right of public employees to organize,
be represented and collectively bargain with public employers. At
that time public employers meant the state or any political
subdivision and the university system. Later, the General Court
itself was not determined by the court to be a public employer for
purposes of these rights conferred upon other government employees.
The second recommended method was to require public employers to
negotiate in good faith with certified employee representatives and
reduce any collectively bargained agreements to writing. Lastly, the
legislature created a public employee labor relations board (PELRB)
and vested it with "broad powers to assist in resolving
disputes between governments and its employees."
Any understanding of the
rationale, procedures and practices utilized by the PELRB begins
with an appreciation for the underlying policy supporting the
statute and the administrative rules promulgated under that statute
to guide the procedures and practices of the PELRB as it carries out
its mandate.
B. FUNCTIONS
The PELRB's administrative and adjudicatory
functions include:
1) Certifying bargaining units of employees as
agreed upon by the public employer and a representative of its
employees
2) Conducting unit determination proceedings and
determining the composition of contested bargaining units
3) Establishing voter eligibility lists for and
conducting exclusive representative elections after which the
Board certifies the results
4) Establishing voter eligibility lists for and
conducting decertification elections after which the Board
certifies the results
5) Conducting hearings or reviewing the results
of hearings involving unit modification petitions and hearing
officer decisions
6) Hearing and adjudicating charges of unfair
labor practices as brought by one side against the other
7) Assisting the parties in the course of
collective negotiations particularly with grievance proceedings
and providing access to mediators and fact finders and arbitrators
8) Indexing its decisions for access by the
public
9) Serving as a central repository for
collective bargaining agreements (CBA) between public employers
and their employees and other data related to negotiations
10) Adopting administrative rules pursuant to
RSA 541-A and RSA273-A:2 for the effective operation of RSA 273-A
and RSA 273-C
C. PELRB COMPOSITION
The Board consists of
five (5) members. Two members represent and have experience with
organized labor, two members represent and have experience with
management interests and one member represents the public and serves
as chairperson. Terms are for six (6) years. There are also four (4)
alternate members, one each as a labor representative, a management
representative and two (2) represent the public interest. In the
absence of the primary public member, an alternate public member
also serves as the alternate chairperson. Three members of the Board
constitute a quorum; however, no meetings are held unless labor,
management and the public are each represented by one Board member.
The offices of the PELRB
are located about two miles south of the downtown business district
of Concord at 153 Manchester Street (Route 3) in the "GAA
Plaza", in Building #1. The present staff composition of the
agency is an Executive Director, a Staff Attorney, an Executive
Secretary and a Secretary Typist II.
D. COMMUNICATION WITH THE PERLB
All required filings of
PELRB forms, documents and correspondence must be delivered by mail,
or if in hand on weekdays between the hours of 8:00 a.m. and 4:30
p.m. Such required filings are date stamped as received and are
incorporated into its files and, as appropriate, made a part of the
case record of this quasi-judicial agency. The PELRB can be reached
by telephone at 603-271-2587 and by facsimile transmission at
603-271-2588. Practitioners should be cautioned that the
transmission of documents by facsimile transmission is not
considered a "filing" for purposes of any filing deadlines
unless permitted by express written order. The Staff Attorney may
also be reached by e-mail at dmitchell@pelrb.state.nh.us.
The PELRB WEB page is located within the state government's Webster
system at www.state.nh.us/pelrb.
(It should be noted that the WEB site is undergoing reconstruction
and the information appearing on the present site is not yet
completed and should not be relied upon for legal research at this
time.)
E. RESOURCES
The PELRB maintains a
library of all Board and Hearing Officer Decisions in hard copy
maintained in three-ring binders. These are catalogued in annual
volumes. A subscription service is available from the agency which
distributes its decisions periodically throughout the year.
Additionally, a topical index to decision titles is also maintained
on the premises and is available to subscribers. Staff size and
state budgetary constraints limit the PELRB's ability at this time
to make decisions and other information available electronically to
those who appear before the PELRB and to the general public.
II. FORMAL
FILINGS WITH THE PELRB (See Appendix for photocopies of forms)
All petitions for
certification, decertification or modification of a bargaining unit,
complaints of unfair labor practice and requests for appointment of
a mediator, fact-finder or arbitrator shall be submitted in
conformance with appropriate PELRB Forms. The form may be converted
to a computer template by a practitioner , however it must conform
to the PELRB's original in color as well. If a PELRB form is not
available to a party filing with the PELRB, then a statement on that
party's document filing is necessary which indicates that it
conforms to the relevant PELRB form or to a specific statute or
rule. All documents filed must be presented on 8-1/2 x 11 inch
paper, and the accompanying letter of transmittal or at least one
copy of the required original and five (5) copies must bear an
original signature of the person offering the document for filing.
Documents material to a party's case as well as any agreed
statements of fact shall be appended to the appropriate pleading and
any other exhibits that, because of their physical format or
characteristics, cannot be appended shall be otherwise identified
within the pleadings. As with most filings with any judicial or
quasi-judicial forum, all filings with the PELRB shall contain a
representation by the filing party that a copy has been provided to
other appropriate persons or parties and when it was provided. It is
important that filings be made in a timely manner and time limits
appearing in the statute and administrative rules be adhered to. In
the event that a party can establish "good cause" such
time limits may be extended by the PELRB in appropriate situations.
A. PETITION FOR CERTIFICATION OF BARGAINING
UNIT
When the legislature
enacted RSA 273-A, and later RSA 273-C covering horse and dog
racetrack employees, it acknowledged the right of employees to
organize and to be represented for the purpose of bargaining
collectively with any public employer or racetrack licensee.
The first procedural step
in the certification process involves the filing of a Petition for
Certification with the PELRB ( See Attachment A). This is a
three-page form, which is obtained from the PELRB and solicits
required information. In essence it calls for information about the
petitioner, the employer, a description of the proposed bargaining
unit and the number of positions and number of employees within each
position, positions proposed to be excluded from the unit on the
basis of a supervisory exclusion or confidential exclusion and the
budget submission date of the employer. Parties should be mindful of
the minimum number of employees , i.e. ten, necessary to gain
certification as a unit. Notwithstanding that the minimum number in
the private sector under the National Labor Relations Act has been
two employees for many years, our own legislature has maintained
this ten employee floor for public employees since the inception of
the law.
The completion of the
certification form anticipates that the petitioning party and the
employer will have met and conferred regarding the petition and the
form contains a provision that requests whether or not
"reasonable efforts" have been made to reach agreement on
the composition of the unit and whether agreement on unit
composition was reached. If agreement has been reached, the form
calls for both parties to sign it. If the Petition is not agreed
upon, then the form is filed without the consenting signature and
the employer is required to file its exceptions to the Petition
within fifteen (15) days of the date of the filing of the Petition
for Certification. On this occasion as with all filings, the
petitioner must certify to the PELRB on the petition form that a
copy has either been hand delivered or sent by certified mail to the
employer. In the case of hand delivery, it would be a good practice
to obtain a signed receipt of delivery. In the circumstance that
there is already an existing certified exclusive bargaining
representative, then similar notice must issue to that
representative.
In addition to the
requirement for the employer to file its exceptions to the Petition
for Certification within 15 days as indicated above, public
employers should be mindful of two other immediate requirements upon
receipt of a copy of the Petition filed on behalf of a unit. One,
while not evident from the face of the petition but explicit in the
administrative rules, is the requirement that it post copies of the
petition at the workplace or, in the event of multiple work
locations, at the several workplaces where employees of the unit
involved perform their work "on the next day following receipt
of the petition". The other is the requirement that it shall
forward to the PELRB a complete list of the names of the employees
in the bargaining unit proposed in the petition "as
expeditiously as possible". The purpose of this requirement is
to allow the PELRB to compare the list with the names submitted in
support of the petition for Certification as detailed below.
Keep in mind that a
Petition for Certification of a bargaining unit may be filed at any
time where there is no present exclusive bargaining representative
in place. However, if there is a collective bargaining agreement (CBA)
in existence that would constitute a bar to an election under RSA
273-A:11, I (b), then the Petition for Certification cannot be filed
sooner than 210 days nor less than 150 days prior to the budget
submission date of the affected public employer in the year that
agreement expires. The purpose for creating such a window is to
allow for the conduct of an orderly election and still leave
sufficient time, deemed 120 days prior to the budget submission
date, for the parties to negotiate a CBA.
The Petition for
Certification must be supported thirty percent (30%) of the persons
proposed for inclusion in the unit. Intervenors may also participate
in this petition process pursuant to Pub 301.02. Such intervenors
may include any employee organization other than the petitioner and
any incumbent exclusive representative wishing to appear on the
ballot. The intervenor must file its own petition to intervene, for
which the PELRB does not have a specific form but does require that
any such petition to intervene shall contain the same information as
required for the common Petition for Certification. The intervenor's
petition is required to be filed within 15 days of the date of the
original petition for certification with copies forwarded to the
other parties. The intervenor's petition must be supported by at
least twenty percent 20% of the employees in the proposed bargaining
agreement.
After receiving the
appropriate filings, or in the event that a respondent elects not to
file any exceptions within the allotted time, the PELRB will
determine if there has been enough petition cards (See Appendix B)
signed by employees of the proposed unit. If it finds that 30% have
indicated support for the petition, or in the case of an intervenor,
that 20% have supported the intervention effort, the PELRB will
undertake to determine the appropriate bargaining unit composition
(See RSA 273-A:8 (a) through (d) and Pub 302.02). It is important to
note that an agreement between the petitioner and the employer as to
how employees might be grouped may be considered but is not binding
on the PELRB.
In the event that the
Petition for Certification as filed under Pub 301.01 is not agreed
to by the employer and the employer files its exceptions, a hearing
on the composition of the unit shall be conducted prior to any order
of election. While exposition on elections is beyond the purview of
this article, it will suffice to state here that after determining
the appropriate unit, the PELRB will issue an order for election,
undertake to update and validate a voting list and conduct a
pre-election conference with the parties to make arrangements for
the actual conduct of the election. The election will follow at a
reasonable time thereafter.
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B. PETITION
FOR DECERTIFICATION
RSA 273-A:10 VI addresses the several methods by
which a valid certification as exclusive bargaining representative
can be lost. They are:
- the employee organization is dissolved,
- it voluntarily surrenders its certification,
- it is disposed at an election, or
- it is decertified.
Another provision of that
same section of the statute mandates the PELRB to decertify any
employee organization which has been found in a judicial proceeding
to discriminate or found to have systematically failed to fairly
represent its members. If an exclusive bargaining representative is
decertified under the provisions of this provision, the usual
so-called "contract bar" under RSA 273-A:11 I(b) does not
apply that might otherwise preclude a new election during the
existence of a CBA.
By far the most common
methods by which an employee representative is decertified is
through voluntary withdrawal by the representative itself or through
a Petition for Decertification. If a certified bargaining agent
wishes to surrender its certification, it can do so at any time by
giving notice of its intent to the members of the unit and written
notice to the PELRB. Thereafter, the PELRB issues its documentation
of the surrender, including the effective date at which the
surrendering agent shall have no further collective bargaining
responsibilities and the suspension of any existing CBA. In this
situation there is no bar to a subsequent election within the
following 12 months as would otherwise exist pursuant to RSA
273-A:10, III.
If a party wished to
initiate proceedings against an incumbent representative, a Petition
for Decertification Form (See Appendix C) and requisite
Decertification Cards (see Attachment D) are available from the
PELRB. Essentially, the same categories of information are required
on this petition form as when a Petition to Certify is filed as
described in Pub 301.01. Once a decertification petition is
successfully brought and a majority of the votes of the unit members
have been cast against continued representation by that
representative, i.e. voting for the proposition of "No
Representative", then there is no longer a representative with
statutory authority to give notice of intent to bargain or to
continue to bargain under RSA 273-A or RSA 273-C. In addition, no
statutory authority rests in any entity to enforce the terms of any
existing CBA.
Often, a group of
employees seek to replace one certified bargaining representative
with another. In that event, that group of employees needs to file a
Petition for Certification under the provisions of Pub 301.01.
Because they would be doing so in a circumstance whereby
representation already exists, in addition to the requirements of an
original Petition for Certification, the petitioning group must
disclose the following on the petition:
(1) the fact that there is an existing
certified bargaining agent;
(2) its identity;
(3) the name of its representative;
(4) its place of business and telephone number.
A copy of the petition
must also be forwarded to the existing certified agent and the
public employer when it is filed with the PELRB. A successful
replacement of a certified representative with a new one will result
in a continuity of the existing CBA, or if there is no CBA in effect
then the new representative will step into the shoes of the outgoing
certified representative or give notice to the employer of its
intent to initiate negotiations , or in the event that negotiations
have progressed to a point beyond that time at which new proposals
may be offered, the new certified bargaining representative is
permitted to initiate a "single, one-time" proposal.
Please note that any such notice of intent will still have to comply
with the statutory requirements, including a minimum notice period
of 120 days prior to the employers budget submission date, and in
the case of state employees, 120 days prior to the Governor's
proposed budget submission deadline.
Still another method by
which exclusive bargaining representation can be changed is through
the merger or affiliation of the existing exclusive representative
with another organization or disaffiliation with any such other
organization. However, this can only occur if the following criteria
are met:
1. The internal rules of the exclusive
representative pertaining to approval
of the affiliation or disaffiliation have been followed;
2. Two weeks written notice must be given to
the unit employees of the proposed change in status and they
have had the opportunity to provide their input into that
affiliation change whether by direct vote, or vote of their
representative; and
3. The local organization did not materially
change from that previously selected
as the exclusive representative.
The PELRB can, if it
finds that there has been a material change in the local
organization or that any of the above criteria have not been met,
require an election by the members of the unit before any
affiliation change is recognized and regardless of any contract that
may be in place.
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III.
UNIT COMPOSITION
A. DETERMINING THE APPROPRIATE BARGAINING UNIT
The PELRB determines the
composition of the appropriate bargaining unit which is to be formed
through the petition process and designates which employees shall be
entitled to vote when the later election shall take place. The PELRB
is directed by statute to take into consideration the
"principle of community of interest" when making its
determination as to which employees should be included in the
bargaining unit. The PELRB is given further guidance in that section
of the statute as to what are some of the ingredients of a community
of interest among employees. They include employees:
(a) with the same conditions of employment;
(b) with a history of workable and acceptable collective
negotiations;
(c) in the same historic craft or profession; and
(d) functioning within the same organizational unit.
Its own rules suggest other evidence of the
existence of a community of interest among a group of employees that
includes:
(1) a common geographic location of the
proposed unit
(2) the presence of common work rules and personnel practices
(3) the presence of common salary and fringe benefit structures;
and
(4) the self-felt community of interest among employees.
Subsection (c) of that same rule also provides two
additional criteria for the PELRB to consider in determining the
appropriate composition of the bargaining unit, namely:
(1) the effect of forming any particular unit
on the efficiency of government operations within the parameters
of the "Terms and conditions of employment" clause
within the statute (RSA 273-A:1, XI) which actually addresses
management rights' considerations; and
(2) the potential for creating a division of
loyalties between the public employer and the employees'
exclusive representative.
It is then, in part, with
these considerations as well as its broad mandate to exercise
primary jurisdiction in the determination of appropriate unit
composition, that the PELRB makes its decisions on the composition
of specific bargaining units. In the instance of the initial
formation of a bargaining unit, keep in mind that the decision of
the PELRB as to unit composition is followed by an order of
election. However, the order of election is not a final order and
therefore not subject to appeal until after the election is
conducted and the results certified.
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B.
MODIFICATION OF EXISTING BARGAINING UNITS
Over time situations may
arise within public employment that require that the composition of
a previously formed bargaining unit is no longer appropriate. In
such instances, the public employer, or the exclusive
representative, or even another employee organization may file a
petition for modification of a bargaining unit on a form provided by
the PELRB (See Attachment E). Such a petition process calls for the
petitioner to provide similar information as that required of an
initial petition for certification described above, except that no
showing of interest, i.e. signed employee cards, must accompany this
filing. It is important for a petition for modification of a
bargaining unit to contain a "clear and concise" statement
of the circumstances which prompted the party to ask for any change
in unit composition.
The appropriate time for
filing a petition for modification is different depending on who is
petitioning. If it is to be filed by the public employer, it may be
filed at any time. If it is by the existing exclusive bargaining
representative, it may be filed at any time. However if another
employee organization seeks to file a petition for modification, it
is subject to the same time statutory restrictions contained in RSA
273-A:10, III as if they were filing for an election, i.e. 12 months
after an election at which a majority of the employees voted against
representation by any employee organization. Also, any such other
employee organization is subject to the regulatory restrictions as
appear in Pub 301.01 (a) and (b), i.e. it must be filed no more than
210 days nor less than 150 days prior to the public employer's
budget submission date unless other good cause can be shown to
explain why it could not have been filed sooner than the 150 day
minimum.
Providing the petition
for modification is filed properly, it follows one of two paths
thereafter. If the changes called for in the petition are agreed to
by the parties and there is no challenge from any other party, the
PELRB may grant the petition. It is important to note, that the
PELRB is not compelled by statute or rule to grant an any agreed to
modification because the PELRB maintains its original primary
jurisdictional authority to determine the appropriate bargaining
unit. A second scenario arises when there is an objection to the
petition to modify an existing bargaining unit. Here, if the
petition form does not indicate that there is mutual agreement as to
the requested change between or among all parties, then a notice of
filing will be sent to the parties identified on the petition, e.g.
public employer or existing affected exclusive bargaining
representatives. These respondents are asked to file their
objections and an evidentiary hearing is scheduled by the PELRB
which may be preceded by a pre-hearing conference.
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IV. UNFAIR LABOR
PRACTICE COMPLAINTS
By far, the largest
category of cases handled by the PELRB is a complaint that one or
another party has committed an unfair labor practice (ULP). The
statute has divided unfair labor practices into two classes. Those
committed by the public employer and those committed by the
exclusive representative.
These unfair practices are described in RSA
273-A:5 and include the following prohibited practices of public
employers:
(a) To restrain, coerce or otherwise interfere
with its employees in the exercise of the rights conferred by
this chapter;
(b) To dominate or to interfere in the
formation or administration of any employee organization;
(c) To discriminate in the hiring or tenure,
or the terms and conditions of employment of its employees for
the purpose of encouraging or discouraging membership in any
employee organization;
(d) To discharge or otherwise discriminate
against any employee because he has filed a complaint, affidavit
or petition, or given information or testimony under this
chapter;
(e) To refuse to negotiate in good faith with
the exclusive representative of the bargaining unit, including
the failure to submit to the legislative body any cost item
agreed upon in negotiations;
(f) To invoke a lockout;
(g) To fail to comply with this chapter or any
rule adopted under this chapter;
(h) To breach a collective bargaining
agreement; and
(i) To make any law or regulation, or to adopt
any rule relative to the terms and conditions of employment that
would invalidate any portion of an agreement entered into by the
public employer making or adopting such law, regulation or rule.
Unfair labor practices under RSA-A:5 II for the
exclusive representative include:
(a) To restrain, coerce or otherwise interfere
with public employees in the exercise of their rights under this
chapter;
(b) To restrain, coerce or otherwise interfere
with public employers in their selection of agents to represent
them in collective bargaining negotiations or the settlement of
grievances;
(c) To cause or attempt to cause a public
employer to discriminate against an employee in violation of RSA
273-A:5, I (c), or to discriminate against any public employee
whose membership in an employee organization has been denied or
terminated for reasons other than failure to pay membership
dues;
(d) To refuse to negotiate in good faith with
the public employer;
(e) To engage in a strike or other form of job
action;
(f) To breach a collective bargaining
agreement; and
(g) To fail to comply with this chapter or any
rule adopted hereunder.
The PELRB has primary
jurisdiction over any violations of these statutory prohibitions. In
situations that involve prohibitions against discriminatory actions
of public employers as expressed in above in RSA 273-A:5 I (c) and
(d), the complainant must have exhausted the any other statutorily
provided administrative remedies first. It is important to note that
a valid unfair labor practice complaint must be filed within six (6)
months of the date of the alleged violation.
To bring an unfair labor
practice complaint, a complainant must file a written complaint that
contains pertinent information revealing the identities of the
complainant, the respondent and the public employer, if different
from either of the previous two parties. The complaint must contain:
(1) a "clear and concise" statement
of the facts,
(2) the date and time of the occurrence
(3) the place of the occurrence
(4) the names of all persons involved in or witnessing the
occurrence; and
(5) characterizing each particular act in reference to the
specific statutory provision alleged to have been violated.
The administrative rules
also require a statement of agreed facts signed by the complainant
and respondent and a statement setting forth other remedies, beyond
those available under RSA 273-A or RSA 273-C, that are available to
the parties and an indication as to whether they have been
exhausted, and if not, why not. Again the filing is most properly
done on an Unfair Labor Practice Complaint Form (See Attachment F)
available from the PELRB. The complaint must also be accompanied
with a copy of the current or other applicable collective bargaining
agreement or a letter stating that a copy has previously been filed
with the PELRB as required by RSA-A:16 or RSA-C:14. Any other
documents pertinent to the charge or charges should be attached to
the complaint. The ULP complaint package of an original and five (5)
copies should then be filed with the requisite statutory fee,
presently sixty dollars ($60.00). If the package is not complete, or
lacking the filing fee, it will be returned and not entered until
presented properly.
When the PELRB receives
the ULP complaint, it forwards a Notice of Filing to the interested
parties named in the complaint. A public employer shall display
copies of any complaint, filed by or against it or which has
otherwise been delivered to it, at locations where those employees
who might be directly affected by the PELRB's decision perform their
work. This requirement for posting must be met by the public
employer not later than the day it files its answer or the date it
receives the answer from another charged party or not later that
fifteen (15) days after receipt of the complaint if no answer to the
complaint is filed.
An answer to an ULP
complaint must be filed with the PELRB and done so within fifteen
(15) days of the date the complaint was filed. The respondent's
answer shall also contain a clear and concise statement which fairly
meets each allegation of the complaint and specifically admits or
denies each allegation providing an appropriate explanation. As with
the original complaint, the answer should be in proper form and
include all pertinent documents as attachments. A copy of the answer
must be forwarded to the complainant at the same time it is filed
with the PELRB. The PELRB is liberal in its allowance of amendments
to pleadings, upon due notice to all parties, for the purpose of
avoiding additional hearings and in the interest of administrative
economy.
If the matter continues
contested beyond the time for filing of answers, the PELRB will
schedule a hearing. This hearing is conducted usually within
forty-five (45) days following the completion of the complaint
process whereby the parties are now joined. Parties named to the
complaint or cross-complaint will be given at least a ten (10) day
notice prior to the evidenciary hearing, barring exigent
circumstances. The PELRB notice must be displayed by public
employers at locations where potentially affected employees work on
the next working day following receipt by the public employer. If
diverse work locations are involved, then public posting shall
likewise be promptly accomplished by the employer.
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V. PELRB
CONFERENCES AND HEARINGS
A. PRE-HEARING CONFERENCES
In most matters requiring
an evidentiary hearing on the merits of a matter, be it for
certification or modification of a unit or an unfair labor practice
complaint, the PELRB will schedule a Pre-Hearing Conference. At the
present time parties to the action are required to complete a
Pre-Hearing Conference worksheet (Appendix G) and forward it to the
PELRB. These conferences are intended to facilitate proceedings and
encourage informal disposition of matters that are pending, and
competing, for hearing time. The PELRB, either at the request of
either party, or more commonly, upon its own motion, may convene one
or more pre-hearing conferences. A Hearings Officer conducts the
conference and pursues its purposes, which include, but are not
limited to:
(1) Exploring settlement alternatives;
(2) Identifying and resolving the issues to be
raised and presented at hearing;
(3) Obtaining stipulations of the parties as
to facts or which will shorten the length of the hearing;
(4) Identifying and/or limiting the number of
witnesses to be called;
(5) Exchanging and pre-identification of
documentary evidence; and
(6) Resolving any questions pertaining
thereto, and any other issues
that assist and aid in the disposition of the pending matter.
Counsel or
representatives of record for the parties are required to attend
these conferences. Others who are involved in the management of the
case should also attend. Since one of the major purposes of these
hearings is to explore settlement alternatives, representatives and
counsel should attend with authority to do so. This, of course,
requires that representatives and counsel discuss such possibilities
with their respective parties beforehand.
The PELRB does not
consider pre-hearing conferences to be "hearings" as
defined in Pub 101.01(i) for purposes of issuing notice of
scheduling of these conferences. Therefore, practitioners and
parties should not expect that they will receive the ten (10) day
minimum notice as is called for in the administrative rules
regarding evidentiary hearings. Practitioners should be mindful that
notice time limits can be shortened if a petition or complaint
requests interim relief and alleges matters of irreparable harm or
alleges a violation of RSA-A:5, I (f) or RSA-A:5, II (e) and the
requesting party has shown a likelihood of prevailing based upon the
pleadings.
At the conclusion of the
Pre-Hearing Conference, a decision and order will enter and be
distributed to the counsel or representatives of record. In the
event that the conference has resulted in resolution between the
parties, then upon a written withdrawal from the complaintant, in
the case of a ULP, or from the petitioner in the case of a unit
determination or election matter, a decision dismissing the action
shall usually follow from the PELRB. In certain instances of
resolution between the parties, mutual stipulations may be submitted
by the parties on their own or required to be submitted by the
Hearings Officer for consideration and incorporation into a final
order of the PELRB.
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B.
PRELIMINARY CONSIDERATIONS FOR ADJUDICATORY HEARINGS
The single most
controlling characteristic of hearings before the PELRB, as with
many other administrative agency hearings, is that the rules of
evidence do not apply. The rules provide that "Any oral or
documentary evidence shall be received except that the board or the
presiding officer shall rule on and exclude irrelevant, immaterial
or unduly repetitious evidence." Also, parties may be
represented by licensed New Hampshire attorneys or another person of
the party's choosing although nothing in the rules is to be
construed as allowing or encouraging the unauthorized practice of
law. Representatives and Counsel must file written appearances
indicating their representative status and providing certain
identifying data to the PELRB and to the opposing parties of record.
(1) Discovery of information - Parties,
through their representatives or counsel, may request that the
PELRB compel, by subpoena, the attendance of a witness at a
hearing, the deposition of a witness and the production of
documents. The party seeking such action by the PELRB should
prepare the necessary subpoena forms in the name of the PELRB
under RSA 273-A:6, IV. Even lacking such a request from a party,
the PELRB may undertake to do so on its own.
(2) Motions to Consolidate - By request
of a party or on its own motion, the PELRB may consolidate
matters for hearing when the parties are similar or there are
multiple pleadings seeking the same relief. A party may object
to such consolidation and will be given an opportunity to be
heard on the basis of its objection before the consolidation is
ordered.
(3) Motions for Continuances - Upon
written motion from a party that a continuance is necessary, the
PELRB may grant approval of the same. The motion must state the
reason for the request for continuance, such as the
unavailability of a party, its representative, necessary witness
or documentary evidence. The motion should also include a
representation that the requesting party has sought concurrence
from the other party or parties and that consent has either been
given or withheld, or that if the party was unavailable,
indicate when and by what means contact was attempted. A hearing
may also be recessed or adjourned by the presiding officer if it
appears that there is insufficient time for completion of the
hearing.
(4) Motions to Amend - Amendments of complaints, petitions, and
answers are allowed up to and through the completion of the
adjudicatory hearing.
(5) Motions to Intervene - May be
granted by the PELRB if a party can demonstrate that its rights,
duties, privileges or other substantial interests might be
affected or, if such, its intervention, or participation as
amicus cucriae would be in the interests of justice while not
impairing the conduct of the proceedings before the PELRB.
(6) Exhibits - A list of exhibits must
be exchanged between the parties not later than five (5) days
before the scheduled date of any hearing and a copy submitted to
the PELRB at the same time. Pre-Hearing conference orders often
reiterate this requirement, although at that stage, the hearings
officer may exercise discretion in the timing of these
submissions based upon information provided at the conference.
Each exhibit submitted into evidence shall contain an original,
or authenticated conformed copy of the original and five (5)
copies. If exhibits have not been otherwise earlier marked for
identification as the result of a Pre-Hearing Conference, it is
important to note that any exhibits are to be pre-marked by
counsel prior to the evidentiary hearing. Exhibits are usually
marked as "Joint#" if agreed upon, "Union#"
or "Association#" if intended to be offered by the
employee unit, and "State#", "County#",
"City#", "Town#", or "School
District#", as appropriate, if intended to be offered by
the public employer. Impeachment exhibits need not be pre-marked
for identification, nor are they to be unnecessarily redundant,
duplicative or cumulative.
(7) Witnesses - A list of witnesses
must be exchanged between the parties not later than five (5)
days before the scheduled date of any hearing and a copy
submitted to the PELRB at the same time. Pre-Hearing conference
orders often reiterate this requirement, although at that stage,
the hearings officer may exercise discretion in the timing of
these submissions based upon information provided at the
conference. Subpoenas may be served as described in detail
elsewhere in this article. Witnesses may be sequestered at the
request of a party's counsel or representative or by the PELRB.
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C. CONDUCT OF
HEARINGS
Hearings are conducted
either by a three member board comprised of a management
representative, a labor representative and a lay person who acts as
the chairperson of the board or by a Hearings Officer. If a Hearings
Officer conducts the hearing, the decision that results from that
hearing may be administratively reviewed by the PELRB upon the
request of any party aggrieved by the Hearing Officer's decision.
The request for such a review must be made within thirty (30) days
of the filing of the decision and must set out a clear and concise
statement of the grounds for review. The request for review of the
hearing officer's decision shall precede, but shall not replace, the
motion for rehearing of the board's decision pursuant to Pub 205.02
and RSA 541-A:5.
Regardless of the method
of hearing, it is tape recorded, and the structure of the hearing
and the order of proof is the same.
(1) The presiding officer, i.e. Chairman or
Hearings Officer, will announce the case and describe its nature
for the audio tape record that is made of all hearings.
(2) The representatives of the parties will be
invited to make brief openings if they feel compelled or to
reserve their non-evidentiary narrative as a closing.
(3) The party with the burden of proceeding,
i.e. the petitioner or complainant, presents its entire case
first. Then after the close of its case, the responding or
answering party proceeds either with its opening, or if
continuing to reserve its narrative, its first witness.
Cross-examination is allowed by each party or the other's
witnesses. Additionally, the Hearings Officer or if being heard
by a board, any board member, may make inquiries of any witness.
(4) At the conclusion of each party's case,
including an opportunity for each party to present rebuttal,
closings may be made and briefs of salient legal points
submitted by representatives and counsel. Extensions of time may
be requested for submission of such briefs in accordance with a
schedule provided by the presiding officer. Thereafter, the
record is closed unless it is determined that the record must be
left open to accommodate other evidence not available at the
time of hearing. In the event that any other party desires to
cross-examine on the evidence to be later submitted, then the
hearing is adjourned until the later documents are submitted and
another hearing date can be scheduled for the specific purpose
of receiving such documents and hearing related testimony.
(5) Following the closure of the record, but
before a decision on the merits has been issued, the PELRB can,
on its own or by motion of a party, reopen the record to receive
newly discovered, relevant, material and non-duplicative
testimony or evidence not previously received if such
information is deemed necessary to a full consideration of the
issues at hearing.
(6) Decisions of the PELRB generally issue
within forty-five (45) days after the close of the hearing.
(7) Motions for Rehearing or Reconsideration
must be filed within thirty (30) days under Pub 205.02 and RSA
541:3. Such motions shall be acted upon within ten (10) days of
filing as required by RSA 541:5. These motions may be filed by
any party or other person, employee organization or public
employer with an interest affected by the PELRB decision.
(8) Appeals from decisions of the PELRB are to
the New Hampshire Supreme Court under RSA 541:6 within thirty
(30) days after a request for rehearing is denied or within the
same number of days after a decision following a rehearing.
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D. DECLARATORY RULINGS
Parties interested in
obtaining a ruling regarding the applicability of any statute within
the jurisdiction of the board or regarding any rule or order of the
PELRB may petition it to do so under RSA 541-A. The body of the
petition should contain reference to the specific statute, rule or
order in question and a clear and concise statement of the facts
giving rise to the petition. The PELRB will indicate whether or not
it will deny the request or issue a ruling within thirty (30) days
and if it decides to issue a ruling, it will do so expeditiously
thereafter.
Before the PELRB renders a declaratory ruling, any party to the
proceeding or other interested party may submit a brief and, if a
party requests or on its own motion, a hearing may be conducted
before a ruling is made.
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Statement of Policy Chapter 490:1 effective December 21, 1975,
RSA 273-A. Appeal of House Legislative Facilities
Subcommittee, 141 N.H. 443, 685 A 2d 910.
Id
RSA 273-A:8
RSA 273-A:1 and A:8 RSA 273-A:10. RSA 273-A:8 RSA 273-A:5, A:6, and A:8 RSA 273-A:5 and A:6 RSA 273- A:4 and A:12 RSA 273-A:2 RSA 273-A:2, A:3 and A:16 RSA 273-A:2 and RSA 273-C:12
RSA 273-A:2 Pub 103.02 Pub 103.02(c) Pub 201.01(d) Pub 201.01(e) Pub 201.01(f) Pub 201.01 (g) Pub 301.01(c) RSA 273-A:8 II RSA 273-A:1 IX (c)
RSA 273-A:8(d)
Pub 301.01 (m)
Pub 301.01 (n)
Pub 301.01(a)\
Pub 301.01 (b)
RSA 273-A:10 I(a)
Pub 301.02
Pub 302.01 (b)
Pub 303.01
Pub 303.02
RSA 273-A:10 VI (b) Pub 301.03(j)
Id
Pub 103.02
Pub 301.03(b)
Pub 301.03(f)(1)
Pub 301.03 (f)(2)
Pub 301.03(f)(3)
RSA 273-A:3 II(a)
Pub 301.04 (b)
RSA-273-A:8 I
Pub 302.02(b)
Pub 302.04 (b)
Pub 302.05
Pub 302.05(c)
RSA 273-A:8
RSA-A:6, I
Pub 201.02(a)
Pub 201.02 (b)(3)
Pub 201.02 (b)(4)
Pub 201.02 (b)(5)
Pub 201.02 (b)(6)
Pub 201.02 (e)
Pub 201.03
Pub 201.04
Pub 201.05
Id.
Id.
Pub 202.01
Pub 201.07)(a)
Pub 207.01(d)
Pub 203.02(e)
Pub 203.02(a)
Pub 203.02(b)
Pub 203.01
Pub 201.07(e)(2)
Id
Pub 201.04
Pub 201.07(g)
Pub 203.01(b)
Id
Pub 203.01(e)
Rsa 273-A:6 and A:8
Pub 205.01
Pub 205.01(e)
Pub 203.03
Pub 203.04 (a) and (b)
Pub 203.05 (a)
Pub 204.01
Pub 205.03
Pub 206.01
Pub 206.01(a) (1) and (2)
Pub 206.01(d)
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