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Appeal of Nashua School District

Supreme Court of New Hampshire

October 4, 2017

APPEAL OF NASHUA SCHOOL DISTRICT (New Hampshire Public Employee Labor Relations Board)

          Argued: June 1, 2017

         Public Employee Labor Relations Board

          Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the brief and orally), for Nashua School District.

          Sean R. Cronin, of Manchester, on the brief, and Joseph L. DeLorey, of Boston, Massachusetts, on the brief and orally, for AFSCME, Council 93, Local 365.

          LYNN, J.

         The Nashua School District (District) appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the District committed an unfair labor practice by refusing to bargain with the American Federation of State, County, and Municipal Employees (AFSCME), Council 93, Local 365, Nashua Custodial/Janitorial Staff (Union) concerning the District's plan to subcontract custodial work at the expiration of the term of the collective bargaining agreement (CBA) between the parties. We reverse and remand.

         The pertinent facts are as follows. The most recent CBA between the District and the Union covered the period from July 1, 2013 through June 30, 2016. The CBA encompassed the employment of all full-time and part-time custodians and maintenance personnel employed by the District. Three provisions of the CBA are pertinent to the present dispute.

         Article 5, entitled "Volunteering and Subcontracting, " states, in relevant part:

5.2 A. The District agrees there will be no layoffs, demotions or involuntary transfers as a result of contracting out work. Regardless of subcontracting, in the event of any layoff within a classification, the District shall cease to utilize any subcontractor for work specific to that classification except for work identified on the master list or previously agreed upon contracted projects, until such time [as] the staffing levels return to the pre-layoff levels. The Director of Plant Operations shall maintain a master list, initialled by both parties, with mutually agreed-upon work that has been historically subcontracted out. Work on the master list shall not be assigned to bargaining unit employees to complete.
B. 1. The District shall present the work it is contemplating to subcontract in a reasonable period in advance and not delay the work so the volume of work is anything but for unforeseen circumstances. The Union shall respond in five (5) working days, or the District shall proceed with subcontracting the work.
2. The District shall identify the primary classification in accordance with the bargaining unit job description that it believes will be used in the work to be discussed. If the work will be completed on overtime, the District will post the overtime opportunity upon notice from the Union under Section B.1. above and the Union shall have the opportunity to survey the work force for interest and availability. If the agreed upon necessary workforce is not available by the mutually agreed upon date, then the District may contract out.
3. When bargaining unit employees are doing work which was initially contemplated to be subcontracted, custodial staffing of the building shall be subject to an agreement by the parties. Any agreement on building coverage based on the previous sentence shall not be used outside of this process.
C. Should any work be contemplated to contract out, the District and the Union agree the following procedure shall occur prior to subcontracting.
1. Step One - The Union will designate one Union member. The Director of Plant Operations will advise this member of the work it is contemplating contracting out. A discussion as to whether or not bargaining unit members can complete the work shall occur. If an agreement cannot be reached and the District still desires to subcontract said work, the parties shall proceed to Step Two.
2. Step Two - The District shall bring the proposed work to the next scheduled joint labor-management committee meeting for discussion. If an agreement cannot be reached and the District still desires to subcontract said work, the parties shall proceed to Step Three.
3. Step Three - The parties shall mutually agree on an arbitrator to decide if the work is bargaining unit work or not. The basis for consideration shall be the job descriptions for all classifications, the scope of the bargaining unit work, as well as prior grievance decisions and/or grievance settlements. Overtime shall not be a factor in considering if the work is bargaining unit work or not. The District may subcontract out the work prior to arbitration; however, the subcontracting of the work cannot be used as consideration for the arbitrator's decision and the District understands that an ...

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