APPEAL OF STATE EMPLOYEES' ASSOCIATION/SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 1984 (New Hampshire Public Employee Labor Relations Board)
Argued: November 9, 2017
& 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.
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.
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.
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").
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.
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.
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.
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 ...