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Appeal of Eric Johnson (New Hampshire Public Employee Labor Relations Board)

February 25, 2013

APPEAL OF ERIC JOHNSON (NEW HAMPSHIRE PUBLIC EMPLOYEE LABOR RELATIONS BOARD)


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

Public Employee Labor Relations Board

Argued: September 20, 2012

The petitioner, Eric Johnson, appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) finding the evidence insufficient to support his claim that the respondent, the New Hampshire Troopers Association (Union), breached its duty of fair representation. We affirm.

The parties either stipulated to, or the PELRB found, the following facts. The petitioner became a New Hampshire State Trooper in 1994 and retired in July 2007. In 2004, the Union filed an unfair labor practice charge alleging that the State had unlawfully deducted annual and sick leave from the troopers' leave accounts. The PELRB ruled in favor of the Union and ordered the State to "restore accumulated annual . . . and sick leave to [affected bargaining unit] members." We affirmed the PELRB's decision. See Appeal of N.H. Dep't of Safety, 155 N.H. 201 (2007). Immediately thereafter, the Union demanded that the State restore leave for all troopers, including retired troopers.

The negotiations over restoring leave to the troopers lasted for more than a year, during which time the petitioner retired. From the beginning of the negotiations, the State opposed restoring leave to non-active troopers. Additionally, the Union was advised by its attorney that it "did not represent retired or other non-active troopers because upon leaving their employment they were no longer members of the bargaining unit." See Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 181 n.20 (1971). Eventually, on July 16, 2008, the Union and the State entered into a settlement agreement that did not provide compensation for troopers who had retired or resigned before the settlement date.

In 2010, the petitioner filed an unfair labor practice charge alleging that the Union had breached its duty of fair representation when it agreed to a settlement that did not provide compensation to retired troopers. The petitioner alleged that, by so doing, the Union acted arbitrarily and in bad faith. The Union did not dispute that it owed the petitioner a duty of fair representation even though he was retired, but denied that it breached its duty.

The PELRB determined that the petitioner had failed to prove that the Union acted in bad faith. Specifically, the PELRB found that there was no evidence "proving animosity or discriminatory intent on the part of the Union . . . with respect to [the petitioner] or other retired or resigned troopers."

The PELRB also found that the petitioner failed to prove that the Union acted arbitrarily. Relying upon O'Brien v. Curran, 106 N.H. 252, 256-57 (1965), the PELRB stated that "[t]he duty of fair representation does not prevent a union from choosing to seek a particular outcome even though the inevitable result may be harmful to some members of the bargaining unit." Examining the totality of the circumstances, the PELRB decided that "the Union's decision to enter into a Settlement Agreement, which did not provide compensation for retired troopers but was otherwise beneficial to the rest of the bargaining unit members, was [not] . . . so far outside a wide range of reasonableness as to be irrational." (Quotation omitted.) See Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991). The petitioner unsuccessfully moved for rehearing, and this appeal followed. On appeal, the petitioner challenges only the PELRB's finding that he failed to prove that the Union acted arbitrarily.

"When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable." Appeal of Laconia Sch. Dist., 150 N.H. 495, 496 (2004); see RSA 541:13 (2007).

"[A] union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith." Marquez v. Screen Actors, 525 U.S. 33, 44 (1998); see O'Brien, 106 N.H. at 256-57 (relying upon federal law when discussing breach of duty of fair representation); cf. University System v. State, 117 N.H. 96, 99 (1977) (suggesting that newly created PELRB look to decisions of the National Labor Relations Board (NLRB) for guidance). "[U]nder the arbitrary prong, a union's actions breach the duty of fair representation only if the union's conduct can be fairly characterized as so far outside a wide range of reasonableness that it is wholly irrational or arbitrary." Marquez, 525 U.S. at 45 (quotations omitted). "This 'wide range of reasonableness' gives the union room to make discretionary decisions and choices, even if those judgments are ultimately wrong." Id. at 45-46. "A union's conduct can be classified as arbitrary only when it is irrational," meaning that "it is without a rational basis or explanation." Id. at 46.

On judicial review of a union's performance, a court may not substitute its own view of the merits of a bargain for that of the union. Air Line Pilots, 499 U.S. at 78. "Any substantive examination of a union's performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for effective performance of their bargaining responsibilities." Id. In the instant case, in order to prevail, the petitioner must show that the Union's decision to negotiate a settlement agreement that did not provide a remedy for retired troopers was "without a rational basis or explanation." Marquez, 523 U.S. at 46.

The petitioner first argues that the mere fact that retired troopers had no remedy under the settlement agreement establishes, as a matter of law, that the Union breached its duty of fair representation. We disagree. As the Supreme Court has noted:

Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.

Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); see O'Brien, 106 N.H. at 256. "As a practical matter, unions are rarely able to negotiate agreements that completely satisfy the desires of all its represented members." Bowerman v. UAW Local 12, 646 F.3d 360, 369 (6th Cir.), cert. denied, 132 S. Ct. 766 (2011). "Moreover, there is no requirement that unions treat their members identically as long as their actions are related to legitimate union objectives." Vaughan v. Air Line Pilots Ass'n, Intern., 604 F.3d 703, 712 (2d Cir. 2010). A union has the discretion to "balance the rights of individual employees against the collective good, or it may subordinate the interests of one group of employees to those of another group, if its conduct is based upon permissible considerations." Postal Workers (Postal Service), 345 N.L.R.B. 1282, 1285 (2005). "If a ...


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