Appeal of International Ass'n of Firefighters, AFL-CIO Local 1088

• Decision Date: 15 June 1983
• Docket Number: AFL-CIO,No. 82-003,82-003
• Citation: 123 N.H. 404,462 A.2d 98
• Parties: , 119 L.R.R.M. (BNA) 3635 Appeal of INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,LOCAL 1088. (New Hampshire Public Employee Labor Relations Board). INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,LOCAL 1088 v. CITY OF BERLIN.
• Court: New Hampshire Supreme Court

Page 98

462 A.2d 98

123 N.H. 404, 119 L.R.R.M. (BNA) 3635

Appeal of INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO LOCAL 1088. (New Hampshire Public Employee Labor Relations Board) INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO LOCAL 1088 v. CITY OF BERLIN.

No. 82-003.

Supreme Court of New Hampshire.

June 15, 1983.

Earl F. Gage, Berlin by brief and orally, for plaintiff.

Nighswander, Martin, KillKelley & Kidder P.A., Laconia (Bradley F. Kidder, Laconia, on brief and orally), for defendant.

BOIS, Justice.

These are consolidated appeals from decisions of the Superior Court (Dunfey, C.J.) and the Public Employee Labor Relations Board (PELRB). The plaintiff, International Association of Firefighters, AFL-CIO Local 1088, seeks to overturn the decisions below, both of which related to the union's contract with the defendant city of Berlin. We affirm both decisions.

On August 22, 1979, after several months of collective bargaining, the city of Berlin and the firefighters' union executed a "working agreement." The agreement recognized the union as the exclusive representative of the employees of the Berlin Fire Department and contained numerous provisions concerning working conditions and grievance procedures. The agreement was to remain in effect until August 31, 1981, and thereafter from year to year until terminated.

During the 1981 fiscal year, which ran from July 1, 1980 to June 30, 1981, the city encountered serious budgetary constraints. As of December 31, 1980, the halfway point of the fiscal year, the fire department had expended nearly ninety-five percent of the funds appropriated for overtime work in that fiscal year. In order to avoid exceeding its budgetary allowance, the city, in January 1981, began to cut back on overtime work by limiting the employees' vacation choices, decreasing the number of firefighters in certain platoons, and requiring employees in the electrical division to work straight time as "untrained" firefighters.

The union contested these practices, alleging that they violated the express provisions of the working agreement, which was then in effect. Grievances were filed pursuant to the contract, and a hearing was held before an arbitrator agreed upon by both sides. In April 1981, the arbitrator found that most of the newly implemented practices violated the working agreement, and he established remedies intended to prevent further violations. Dissatisfied with certain unfavorable rulings as well as with the remedial provisions, the union appealed to the PELRB. The board, however, interpreted the working agreement as rendering all arbitration awards final and binding upon the parties, and it therefore refused to review the challenged rulings. This decision forms the basis of one of the issues now before us.

In addition to implementing the above-mentioned austerity measures during the first part of 1981, the city notified the union in writing on March 24, 1981, that it did not wish to renew the existing working agreement after its expiration on August 31, 1981. During negotiations on a new agreement, the city also indicated that as of August 31, 1981, it would reduce the number of firefighters in each platoon from six men to five. The parties negotiated throughout the spring and summer of 1981, but were unable to reach a new agreement. On August 20, 1981, the city informed all fire department employees that it would maintain the existing levels of pay and benefits if the parties failed to reach an agreement prior to September 1, 1981.

The union challenged the city's decision to terminate the contract and obtained an ex parte temporary injunction in superior court against such action, pending a hearing before the PELRB. In the subsequent administrative proceeding, the union focused its argument upon the planned change in platoon size. It claimed that platoon staffing was a mandatory subject of collective bargaining and the city could not unilaterally alter platoon sizes. The union also argued that the city's March 24, 1981, notice of intent to terminate was invalid because the parties' contract allegedly prohibited such notice from being served more than thirty days before termination. Finally, the union argued that the city had negotiated in bad faith.

The PELRB found that the manning of platoons was a management prerogative under RSA 273-A:1, XI; therefore, it rejected the union's primary assertion that platoon size was a mandatory subject of negotiation. Without express rulings, the board also rejected the union's claims regarding the allegedly invalid notice and bad faith bargaining.

Notwithstanding the adverse decision of the PELRB, the union requested the superior court to continue the outstanding temporary injunction until the case could be heard on appeal to this court. After further proceedings, the superior court ruled, consistent with the PELRB's decision, that the city's notice of intent to terminate was valid and that platoon size was a management prerogative. The court found that the union did not face imminent irreparable harm and, therefore, dissolved the outstanding injunction.

In the instant appeals, the union first argues that both the PELRB and the superior court erred in finding the city's March 24, 1981 termination notice valid. The parties' working agreement stated that the contract could be terminated at the end of the contractual year "by notice in writing by one party served thirty (30) days prior thereto upon the other party." The union asserts that this provision mandated that notice of termination be served exactly thirty days before termination, that is, only on August 1, 1981. We are not persuaded by this unrealistic argument. The thirty-day...