III. Unfair Labor Practice Complaints
Among the largest category of cases handled by the PELRB are complaints that a public employer or an exclusive representatives has committed an unfair labor practice ("ULP") in violation of RSA 273-A:5, I (list of employer prohibited actions) or RSA 273-A:5, II (list of exclusive representative prohibited actions).
It is a violation of RSA 273-A:5, I for any public employer:
(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.
It is a violation of RSA-A:5, II for any exclusive representative of any public employee:
(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 provisions. In situations involving alleged violations of RSA 273-A:5, I (c) and (d), the complaining party must first exhaust any other statutorily provided administrative remedies. Unfair labor practice complaints must be filed within six months of the date of the alleged violation.
To bring an unfair labor practice complaint, the complaining party must file a written unfair labor practice complaint using the PELRB form, available under Forms on the agency website, and submit the statutorily required and non-refundable filing fee, currently $60.00. Complaints shall be filed with the PELRB electronically per Pub 201.01. Currently the PELRB can only receive filing fees through the mail or by delivery, and a complaint is not deemed filed until the PELRB receives the filing fee.
In the complaint the charging party provides pertinent information such as information about the complainant, the respondent and the public employer, if different from either of the previous two parties. The complaint must also 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) the characterization of each particular act in reference to the specific statutory provision alleged to have been violated.
The complaint must also be accompanied by a copy of the current or other applicable collective bargaining agreement unless the complaining party notifies the PELRB that the agreement is already on file.
Upon the filing of a ULP complaint the PELRB issues a Notice of Filing to the interested parties named in the complaint. The public employer is required to display, or post, 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 than 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 within 15 days of the date the complaint was filed. The answer shall contain a clear and concise statement which fairly meets each allegation of the complaint and specifically admits or denies each allegation, paragraph by paragraph, providing an appropriate explanation. A copy of the answer must be provided to the charging party and other identified interested parties electronically per Pub 201.01 at the same time it is filed with the PELRB. Employers are required to post unfair labor practice complaints and hearing notices in the workplace.
A party may request permission to amend a previously filed pleading by filing a motion under Pub 201.04. In the case of ULP proceedings, the rules provide, under Pub 201.04, that:
(a) With the exception of amendments requested during the course of a final hearing, all requests for amendment shall be presented to the board by a separately prepared and filed motion.
(b) The board shall permit an amendment to the complaint or to the answer which is filed and requested at least 15 days prior to the date of hearing upon due notice to all parties.
(c) The board shall allow requests for an amendment filed less than 15 days prior to the date of hearing, including requests filed at the conclusion of the hearing to amend the complaint or answer as necessary to conform to the evidence, unless the amendment shall result in unnecessary delay of the proceeding or unfair prejudice to another party in the proceeding.
(d) When a complaint has been amended, the board shall provide the respondent with the opportunity to amend the response or answer.
The PELRB will schedule a hearing on contested complaints to take place within 45 days of its filing. The relatively short time period from filing to hearing is required by statute. The PELRB provides at least 10 days notice of any adjudicatory hearing unless the time period is shortened under circumstances outlined in applicable PELRB rules, including Pub 201.07. The adjudicatory hearing process is described in more detail in Part V of these material.
Under Pub 201.05 (b) the public employer is required to post the PELRB Notice of Hearing 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.