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Supreme Court of New Hampshire

April 25, 2018

APPEAL OF STATE EMPLOYEES' ASSOCIATION/SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 1984 (New Hampshire Public Employee Labor Relations Board)

          Argued: November 9, 2017

          Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and orally), for the petitioner.

          Morgan, Brown & Joy, LLP, of Boston, Massachusetts (Jeffrey S. Siegel on the brief, and Joseph P. McConnell orally), for the respondent.

          HICKS, J.

         The petitioner, the State Employees' Association of New Hampshire/Service Employees' International Union, Local 1984 (Union) appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) dismissing its unfair labor practice complaint against the respondent, the Community College System of New Hampshire (CCSNH). The Union argues that the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain over wages for on-campus tutoring services performed by adjunct faculty; and (2) compensate an adjunct faculty member for lost tutoring income resulting from his participation in collective bargaining negotiations. We reverse and remand.

         I

         The record supports the following facts. The Union is the exclusive bargaining representative of adjunct faculty "who are employed by CCSNH and who have taught at least five semesters in the last five years or who have currently begun their fifth semester of teaching and have taught four semesters within the last five years." The most recent collective bargaining agreement (CBA) between the parties covered the period from September 25, 2013, through June 30, 2016. The CBA classifies adjunct faculty as "part-time" employees and delineates that they are responsible for teaching specific assigned courses and making themselves available for student consultation "before or after class, or by appointment." CCSNH also hires adjunct faculty from the bargaining unit - along with full-time faculty and, occasionally, students - to provide tutoring services to its student body at the Academic Center for Excellence (ACE). This includes Rick Watrous, who has taught English at CCSNH as an adjunct professor since the 1990s, tutored students at ACE since 2010, and currently serves as a member of the Union's bargaining team.

         The CBA does not address the subject of tutoring generally, or compensation for tutoring specifically. Accordingly, while negotiating a successor agreement in 2016, the Union sought to bargain over tutoring wages paid to adjunct faculty bargaining unit members. See RSA 273-A:3, I (2010) (requiring a public employer and a bargaining unit representative to negotiate in good faith over the "terms of employment"). CCSNH, however, refused, maintaining that tutoring was not "bargaining unit work" - i.e., tutoring is not among the duties adjunct faculty are hired to perform. For the same reason, CCSNH refused to reimburse Watrous for ACE tutoring hours he forewent to attend collective bargaining negotiations. See RSA 273-A:11, II (2010) (requiring public employers to meet with a bargaining unit's representatives "during working hours without loss of compensation or benefits").

         As a result, the Union filed an unfair labor practice complaint with the PELRB, alleging that CCSNH had violated its bargaining obligations under RSA chapter 273-A. Following an adjudicatory hearing, a three-member panel of the PELRB issued an order dismissing the complaint in its entirety. In its order, the panel, construing our decision in Appeal of Berlin Education Association, 125 N.H. 779, 780-84 (1984), maintained that "public employers like CCSNH are only obligated to bargain over wages paid for the performance of bargaining unit work." Unanimously agreeing that tutoring did not fall within the scope of the adjunct faculty's "bargaining unit work, " the panel found that CCSNH was not obligated to bargain over wages for these services. In turn, by a two-to-one decision, the panel determined that, because tutoring was outside the scope of the bargaining unit's work, CCSNH also did not commit an unfair labor practice when it refused to reimburse Watrous for his lost income. This appeal followed.

         II

         "RSA chapter 541 governs our review of PELRB decisions." Appeal of Prof'l Fire Fighters of Hudson, 167 N.H. 46, 51 (2014); see RSA 273-A:14 (2010); RSA 541:2 (2007). "Pursuant to RSA 541:13 (2007), we will not set aside the PELRB's order except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable." Prof'l Fire Fighters of Hudson, 167 N.H. at 51. "The PELRB's findings of fact are presumed prima facie lawful and reasonable." Id.; see also RSA 541:13. "In reviewing the PELRB's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but, rather, to determine whether the findings are supported by competent evidence in the record." Prof'l Fire Fighters of Hudson, 167 N.H. at 51. "We review the PELRB's rulings on issues of law de novo." Id.

         A

         The Union first challenges the PELRB's determination that CCSNH is not obligated to bargain over compensation paid to adjunct faculty bargaining unit members for ACE tutoring.

         The Public Employee Labor Relations Act obligates public employers and employee organizations to negotiate in good faith over the terms and conditions of employment. RSA 273-A:3 (2010). The Act defines "terms and conditions of employment, " in relevant part, as "wages, hours, and other conditions of employment." RSA 273-A:1, XI (2010). Wages paid to members of a bargaining unit, therefore, constitute a mandatory ...


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