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Appeal of Hollis Education Association

March 9, 2012

APPEAL OF HOLLIS EDUCATION ASSOCIATION, NEA-NEW HAMPSHIRE
(NEW HAMPSHIRE PUBLIC EMPLOYEE LABOR RELATIONS BOARD)



The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Public Employee Labor Relations Board

Argued: January 18, 2012

The respondent, the Hollis Education Association, NEA-New Hampshire (association), appeals a decision of the public employee labor relations board (PELRB) sustaining an unfair labor practice complaint filed by the petitioner, the Hollis School Board (board), and ruling that the speech- language pathologists and occupational therapists employed by the Hollis School District (district) are not members of the bargaining unit represented by the association. We affirm.

The following facts were found by the PELRB or are supported in the record. In 1976, the association and the district entered into a collective bargaining agreement (CBA) that contained a recognition clause, defining the scope of the bargaining unit as "[c]ertified full-time teachers, librarians and guidance counselors who actively teach at least 50% of their time in the Hollis School District and are employed by said district, in accordance with Article I, Agreement dated October 1, 1975." That same year, the PELRB certified the association as the bargaining unit's exclusive representative. See RSA 273-A:8, I (Supp. 1975) (amended 1983, 2008, 2011).

Pamela Banks and Robin Fitton were hired by the district as speech- language pathologists in 1994 and 2002, respectively. Banks and Fitton are speech-language pathologists licensed through the New Hampshire Office of Licensed Allied Health Professionals (NH Allied Health Professionals) and are certified by the American Speech-Language-Hearing Association. Fitton testified that, when she was hired, she was told that her salary had to conform to the salary schedule in the CBA.

William Olszewski was hired by the district in 2003 as an occupational therapist. He is an occupational therapist licensed through NH Allied Health Professionals and certified by the National Board for Certification in Occupational Therapy. When Olszewski was hired, the superintendent told him that his position was covered by the CBA. He was also told that he could not negotiate a higher salary because the district had to comply with the salary schedule in the CBA.

Banks, Fitton and Olszewski each signed a "New Hampshire Teacher Contract" every year of their employment through 2009. These contracts were the same as those received by members of the bargaining unit. They were also required to provide written receipts acknowledging that they received copies of every new CBA. In addition, for the years 2005, 2007 and 2009, all three individuals were included in a salary schedule given to the association by the board during collective bargaining negotiations; the schedule listed employees presumed to be in the bargaining unit.

In April 2010, the superintendent notified Fitton that, "due [to] a reduction in force caused by decreasing enrollments and accompanying budgetary reductions," her employment with the district would be terminated effective June 30, 2010. Shortly thereafter, the association filed a grievance with the superintendent claiming that Fitton's termination violated the CBA. The superintendent denied the grievance, ruling that Fitton's termination did not violate the CBA because speech-language pathologists are not members of the CBA as stipulated in the recognition clause.

In July, Banks and Olszewski received employment agreement letters for the 2010-2011 school year that differed from the annual "New Hampshire Teacher Contract." Subsequently, the association, believing that Banks and Olszewski were members of the collective bargaining unit, filed a grievance claiming that speech-language pathologists and occupational therapists are entitled to the same individual contracts as other members of the bargaining unit. It then made a demand for arbitration pursuant to the terms of the CBA.

In August, the board filed an unfair labor practice complaint with the PELRB, claiming that the association could not file a grievance or request arbitration on behalf of speech-language pathologists because they are not members of the applicable bargaining unit. The board alleged that the association's demand for arbitration violated RSA 273-A:5, II(f) and (g) (2010), and sought to have the PELRB order the association to cease and desist its demand. On October 5, the PELRB held a hearing on the board's complaint. At the hearing, the parties agreed that in connection with the board's complaint, the PELRB could address the association's grievance and demand for arbitration on behalf of the speech-language pathologists and the occupational therapists.

Following the hearing, the PELRB ruled that speech-language pathologists and occupational therapists are not members of the 1976 bargaining unit certification. While it found that, "for a number of years prior to 2010," the association and the district treated speech-language pathologists and occupational therapists "just like bargaining unit positions, and in particular just like the certified teacher position," it concluded that "[t]he disputed positions are not part of the PELRB bargaining unit certification" because they "are not listed in the [1976] certified bargaining unit" and are not included within the term "certified teacher." As a result, it found that it could not "recognize any right of the Association to proceed to arbitration" on behalf of those positions. The association's motion for rehearing was denied, and this appeal followed.

Our standard of review in this case is governed by RSA 541:13 (2007). Appeal of Londonderry School Dist., 142 N.H. 677, 680 (1998); RSA 273-A:14 (2010). To succeed on appeal, the association must show that the PELRB's decision is unlawful, or clearly unjust or unreasonable. Appeal of Town of Deerfield, 162 N.H. 601, 602 (2011); RSA 541:13. The PELRB's findings of fact are presumptively lawful and reasonable and will not be ...


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