Appeal of City of Nashua Bd. of Educ.

• Decision Date: 24 April 1997
• Docket Number: No. 95-661,95-661
• Citation: 141 N.H. 768,695 A.2d 647
• Parties: APPEAL OF CITY OF NASHUA BOARD OF EDUCATION (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

Page 647

695 A.2d 647

141 N.H. 768

APPEAL OF CITY OF NASHUA BOARD OF EDUCATION (New Hampshire Public Employee Labor Relations Board).

No. 95-661.

Supreme Court of New Hampshire.

April 24, 1997.

Office of Corporation Counsel, Nashua (James M. McNamee, on the brief, and Mary Anne Flynn Mueller, on the brief and orally), for petitioner.

Craig, Wenners, Craig & Casinghino, P.A., Manchester (Vincent A. Wenners, Jr., on the brief and orally, and Stephanie J. Stergiou on the brief), for respondent.

HORTON, Justice.

The petitioner, the City of Nashua Board of Education (city), appeals the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) that the city committed an unfair labor practice when it laid off certain members of the respondent, AFSCME, Council 93, Local 365, Nashua School Custodian Union (union), and then hired various part-time employees, including some laid-off members of the union, to perform the same duties at reduced wages and benefits. On appeal, the city argues that the PELRB erred: (1) in finding that the city committed an unfair labor practice because the city's reorganization of its work force is a protected managerial right; (2) in failing to identify a specific statutory unfair labor practice in its ruling; and (3) in ordering a remedy that exceeds the PELRB's authority and that "is insufficiently clear to be implemented." We affirm.

The city and the union, the certified bargaining agent for all full-time custodians and janitors employed in the city's schools, see RSA 273-A:8 (1987), were parties to a collective bargaining agreement (CBA) for the period July 1, 1991, to June 30, 1992. The expired CBA did not contain an enforceable "evergreen clause," which would have provided for the automatic renewal or continuance of the CBA following its expiration and during negotiations for a new CBA. See Appeal of Town of Rye, 140 N.H. 323, 324, 666 A.2d 948, 950 (1995). The parties' CBA generally provided for a five-day, eight-hour per day, workweek at wages exceeding nine dollars per hour. Further, the CBA contained a "management rights" article that essentially reserved to the city all major decisions about staffing, direction, and control of the work force, "[e]xcept as otherwise expressly and specifically provided" in the CBA.

Following the expiration of the CBA, the city and the union began negotiations for a new agreement. While negotiations were in progress, the city informed the union that it planned a reorganization in which twenty-eight full-time custodians would be laid off and replaced with over thirty part-time custodians. The part-time custodians would work twenty hours per week for seven dollars per hour, receive no fringe benefits, and perform the same job duties as the laid-off custodians. The city's decision to reorganize was not the subject of negotiations with the union. The city, however, invited the laid-off custodians to apply for the new part-time positions.

On March 24, 1995, the union filed an unfair labor practice charge against the city based on the city's reorganization plans. In its charge, the union stated that a pure lay-off would be neither a violation of the CBA nor an unfair labor practice. The union alleged, however, that the lay-off in combination with the hiring of part-time personnel constituted a violation of RSA 273-A:5, I(a), (b), (c), (f) and (g) (1987) and RSA 273-A:8, in that it amounted, inter alia, to a "unilateral change in the conditions of employment" and a violation of the CBA. The city responded to the charge with an answer and a motion to dismiss, both of which pointed to budgetary concerns and asserted that the reorganization fell within "managerial policy within the exclusive prerogative of the public employer," RSA 273-A:1, XI (1987). The union's objection to the motion to dismiss disputed the city's "managerial policy" arguments and contended that the city violated the status quo under the expired CBA by unilaterally changing terms and conditions of employment.

Following a hearing, the PELRB denied the city's motion to dismiss and determined that the city had committed an unfair labor practice. In denying the motion to dismiss, the PELRB reasoned: "While it is true that management is free to reorganize, the methods used to implement the reorganization are of interest to this Board when they greatly change terms and conditions of employment and so give rise to charges of unfair labor practices as in the present case." In finding an unfair labor practice, the PELRB concluded:

The [city] has informed the full-time custodians who are to be laid off that they may apply for one of the thirty-one new positions at lower wages and compensation. The offer is statutorily impermissible because it offers these new part-time employees unit work at a rate different from that which has been bargained.

The PELRB ordered the city to compensate "[t]he position of part-time custodian" at the hourly wage rate for full-time custodians and to grant vacation, sick leave, and other benefits on a prorated basis. This appeal by the city followed.

The city first argues that the PELRB's failure to identify a specific statutory unfair labor practice demonstrates the propriety of the city's actions and reveals that the PELRB merely found "unfairness." See Bouchard v. City of Rochester, 119 N.H. 799, 802, 409 A.2d 772, 774 (1979) (PELRB exceeded its authority by treating general unfairness as a statutory unfair labor practice). Although the PELRB's decision neither cites a specific subsection of RSA 273-A:5 nor provides an explanation of its legal analysis, cf. RSA 273-A:6, IX (Supp.1996) (orders and decisions of PELRB shall contain findings of fact and conclusions of law), we interpret the decision as a conclusion that the city violated its duty to bargain in good faith when, during a status quo period, it unilaterally reorganized its custodial services and thereby unilaterally changed the terms and conditions of employment. See Appeal of Alton School Dist., 140 N.H. 303, 307-08, 666 A.2d 937, 940 (1995). This interpretation of the PELRB's decision finds ample support in the theories advanced by the union to the PELRB. For example, the union alleged that the city's reorganization constituted a unilateral change in the conditions of employment, and the union's charge alleged a violation of RSA 273-A:5, I(g)--a general provision making it an unfair labor practice for a public employer to fail to comply with RSA chapter 273-A, including the obligation to bargain imposed by RSA 273-A:3, I (1987). Furthermore, we construe the PELRB's reference to the "statutorily impermissible" offer of part-time employment to laid-off custodians as a concrete example of the unfair labor practice, and not as the unfair labor practice itself. Indeed, a contrary interpretation on this last point would suggest that the city could have avoided a statutory violation simply by refusing to consider any employment applications from laid-off custodians; such a hiring policy would itself raise serious issues of unfair labor practices. See RSA 273-A:5, I(c); see also Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 186-87, 61 S.Ct. 845, 848-49, 85 L.Ed. 1271 (1941) (unfair labor practice under analogous provision of the National Labor Relations Act to discriminate in hiring based on union affiliation).

The primary question for our review, therefore, is whether the PELRB correctly determined that the city's reorganization of its work force constituted a unilateral change in violation of the status quo, rather than a protected managerial right under RSA 273-A:1, XI. "We defer to the PELRB's findings of fact, and, absent an erroneous ruling of law, we will not set aside the PELRB's decision unless the [city] demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable." Appeal of Sullivan County, 141 N.H. 82, 83-84, 677 A.2d 682, 683 (1996). Even if our interpretation of the PELRB's rationale is incorrect and the PELRB instead based its decision on other mistaken grounds, we "will sustain the decision if there are valid alternative grounds to support it." Quinlan v. City of Dover, 136 N.H. 226, 230, 614 A.2d 1057, 1059 (1992) (quotation omitted); cf. Appeal of Sturm, Ruger & Co., 124 N.H. 506, 508-09, 474 A.2d 983, 984 (1984) (incorrect legal standard used in administrative determination is not ground for reversal if the same result would obtain under the correct standard).

In the absence of an enforceable "evergreen clause," a CBA expires on the termination date set forth in the agreement. Appeal of Alton School Dist., 140 N.H. at 307, 666 A.2d at 940. After expiration of the CBA and during negotiations for a successor agreement, the parties' "obligations to one another are governed by the doctrine of maintaining the status quo." Id. Maintenance of the status quo "demands that all terms and conditions of employment remain the same during collective bargaining after a CBA has expired." Appeal of Milton School Dist., 137 N.H. 240, 247, 625 A.2d 1056, 1061 (1993). We have explained that the status quo doctrine derives from RSA 273-A:3, I, which imposes the obligation to negotiate in good faith over the terms of employment, and from RSA 273-A:5, I(e) (1987), which makes it an unfair labor practice for a public employer to refuse to negotiate in good faith. Appeal of Alton School Dist., 140 N.H. at 307-08, 666 A.2d at 940. A public employer's unilateral change in a term or condition of employment (whether during negotiations for an initial CBA or during a status quo period following expiration of a CBA) is tantamount to "a refusal to negotiate that term and destroys the level playing field necessary for productive and fair labor negotiations." Id. at 308, 666 A.2d at 940; see also Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 198, 111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991).

As both our cases and federal ca...