Appeal of Sullivan County

• Decision Date: 03 June 1996
• Docket Number: No. 94-279,94-279
• Citation: 677 A.2d 682,141 N.H. 82
• Parties: , 153 L.R.R.M. (BNA) 2668 APPEAL OF SULLIVAN COUNTY (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

Page 682

677 A.2d 682

141 N.H. 82, 153 L.R.R.M. (BNA) 2668

APPEAL OF SULLIVAN COUNTY (New Hampshire Public Employee Labor Relations Board).

No. 94-279.

Supreme Court of New Hampshire.

June 3, 1996.

Constance N. Stratton, Assistant County Attorney, Newport, by brief and orally, for petitioner.

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

HORTON, Justice.

The petitioner, Sullivan County (county), appeals the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) that the petitioner committed an unfair labor practice by unilaterally implementing personnel benefit changes affecting non-bargaining unit employees who had initiated union certification proceedings. We reverse.

In March 1993, the human resource manager for Sullivan County sent a memorandum to the Sullivan County Commissioners (commissioners) recommending wage and benefit changes for non-union employees. The recommended changes included eliminating "step" pay increases, reducing sick time buy-backs, reducing the total number of personal days and holidays, and implementing an "earned time" program. In May 1993, the commissioners announced the wage and benefit changes to take effect on July 1, 1993, and met with the non-union employees to explain the changes in detail. In June 1993, the commissioners decided to postpone implementation of the changes pending approval of the 1994 fiscal year budget. On July 26, 1993, the respondent, AFSCME, Council 93, Local 3438, Sullivan County Support Services (union), filed a petition for certification with the PELRB, admittedly in response to the proposed changes. One month later, after budget approval, the commissioners implemented the wage and benefit changes.

On October 14, 1993, the union filed an unfair labor practice complaint with the PELRB arguing that the county's actions violated RSA 273-A:5, I(a), (b), (c), and (i) (1987) by unilaterally modifying existing employment conditions while a petition for certification was pending. Later that month, the PELRB granted the petition for certification and designated the union as the exclusive representative of the bargaining unit. In December 1993, the PELRB found "the conspicuousness and severity of the unilateral changes to have been so broad and far-reaching across the entire range of petitioned-for employees that they constitute[d an unfair labor practice] in violation of RSA 273-A:5[,] I(a) and (b)." The PELRB directed the county to return to the status quo as it existed before the complaint was filed and denied the county's motion for rehearing. This appeal followed.

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 county demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable. RSA 541:13 (1974); see also Appeal of Town of Rye, 140 N.H. 323, 326, 666 A.2d 948, 951 (1995).

The county argues that the PELRB erred by finding that the wage and benefit changes constituted an unfair labor practice in violation of RSA 273-A:5, I(a) and (b), because the union failed to prove illegal motivation on the county's part. See In re General Shoe Corp., 77 N.L.R.B. 124, 125 (1948). The union counters that the county has failed to demonstrate that the PELRB's ruling was unjust or unreasonable because the wage and benefit changes affected all the petitioned-for employees, represented a wholesale change in wages and benefits, and destroyed the level playing field required during union certification and elections. In addition, the union argues that federal law does not require a showing of illegal motive, and that those federal cases which do require illegal motive should be distinguished from this case. The union also argues that illegal motive need not be proved because the county's conduct was inherently destructive, or, alternatively, that illegal motive can be inferred because the wage and benefit changes were not officially adopted until after the certification process began.

RSA 273-A:5 prohibits unfair labor practices. It provides, in part:

I. It shall be a prohibited practice for any public employer:

(a) To restrain, coerce or otherwise interfere with its employees in the exercise of the rights conferred by this chapter;

(b) To dominate or to interfere in the formation or administration of any employee organization;

(c) To discriminate in the hiring or tenure, or the terms and conditions of employment of its employees for the purpose of encouraging or discouraging membership in any employee organization;

(d) To discharge or otherwise discriminate against any employee because he has filed a complaint, affidavit or petition, or given information or testimony under this chapter; ....

RSA 273-A:5, I(a)-(d) (1987).

We begin with our own case law, which provides useful guidance. In cases involving alleged retaliatory discharge, we have recognized that a complainant under RSA 273-A:5, I(a) and (d) must prove illegal motivation at least to some degree.

The only alternative rules would place a burden on an employer to justify his action upon a mere claim of retaliation or upon the complainant's introduction of any evidence of retaliation. In either case there would be no burden of proof at all on the complainant, and the temptation to bring frivolous complaints would be humanly irresistible.

Appeal of White Mts. Educ. Ass'n, 125 N.H. 771, 777, 486 A.2d 283, 288 (1984) (citation omitted); see Appeal of Prof. Firefighters of E. Derry, 138 N.H. 142, 144-45, 635 A.2d 1352, 1354 (1993).

In Appeal of the American Federation of State, County and Municipal Employees, AFL-CIO Local 298, 121 N.H. 944, 437 A.2d 260, (1981), we declined to reverse the PELRB's finding that in order for an employer communication to constitute an unfair labor practice, "it must be established that the statement was illegally applied or intended for illegal reasons." Id. at 946, 437 A.2d at 262; see also Appeal of City of Portsmouth Bd. of Fire Comm'rs, 140 N.H. 435, 439, 667 A.2d 345, 348 (1995) (commissioner's comments, absent elements of intimidation, coercion, or misrepresentation, did not constitute an unfair labor practice under RSA 273-A:5, I(a) and (b)). These cases indicate that the union bears the burden to prove some minimal degree of proscribed motivation in order to establish an unfair labor practice under RSA 273-A:5.

The union argues that rather than look to an employer's illegal intent in committing an unfair labor practice, federal courts look to whether an employer engaged in conduct reasonably tending to interfere with the free exercise of employee rights. See In re Crown Stationers, 272 N.L.R.B. 164, 1984 WL 36814 (1984). The case cited by the union involved a threat by a store manager to fire a worker involved in union activities. See id. The manager wrote: "Possibly even if they vote to go union, we can tie it up in legal mumble jumble for 2 years & maybe by then we can get rid of this trouble maker." Id. at 167, 1984 WL 36814. The union's reliance on Crown Stationers is misplaced. The instant case does not involve employer threats based on the union activities of its employees. Rather, it involves changes to the employee benefits package. Even if we were to apply the standard put forth by the union, we cannot say that the benefits changes reasonably tended to "interfere with the free exercise of employee rights." Id. at 164, 1984 WL 36814.

The union acknowledges that in some cases where an employer has granted or withheld employee benefits in order to dissuade union formation or membership, proof of an employer's discriminatory intent may be required. See Textile Workers v. Darlington Co., 380 U.S. 263, 275-76, 85 S.Ct. 994, 1002-03, 13 L.Ed.2d 827 (1965). In such cases, the plaintiff must show, first, that the employer knew or should have known that a union was organizing its employees or a representation election was pending and, second, that benefit reductions or increases were implemented with the purpose of interfering with employee free choice. See N.L.R.B. v. Styletek, Division of Pandel-Bradford, Inc., 520 F.2d 275, 279 (1st Cir.1975). If the changes were made primarily for a legitimate business purpose, they do not violate the act. Id. The union argues, however, that we should adopt exceptions to the general rule recognized by federal courts; i.e., where conduct is inherently destructive such that intent need not be shown, and where intent may be implied due to the peculiar timing of wage and benefit changes.

The union cites National Labor Relations Board v. Great Dane Trailers, Inc., 388 U.S. 26, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), to support its argument that proof of discriminatory motive or intent is not required in this case because the county's conduct was inherently destructive. The issue in Great Dane was whether, in the absence of proof of an anti-union motivation, the employer committed an unfair labor practice by refusing to pay striking employees vacation benefits accrued under a terminated collective bargaining agreement while at the same time announcing its intention to pay such benefits to scabs, picket-line crossers, and non-strikers who had been at work on a certain date during the strike. Id. at 27, 87 S.Ct. at 1794.

The Court began its analysis by recognizing that the relevant portion of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1994), requires that in order for the labor board to declare an unfair labor practice, it first must find "discrimination and a resulting discouragement of union membership." Great Dane, 388 U.S. at 32, 87 S.Ct. at 1796; see American Ship Bldg. Co. v. Labor Board, 380 U.S. 300, 311, 85 S.Ct. 955, 963-64, 13 L.Ed.2d 855 (1965). The Court stated that discrimination clearly had occurred, and that, without a doubt, the discrimination was capable of...