SELECTED PROCEDURES AND PRACTICES
TABLE OF CONTENTS

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.