Appeal of Town of Pelham

• Decision Date: 28 October 1983
• Docket Number: No. 82-074,82-074
• Citation: 469 A.2d 1295,124 N.H. 131
• Parties: Appeal of TOWN OF PELHAM. (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

Page 1295

469 A.2d 1295

124 N.H. 131

Appeal of TOWN OF PELHAM.

(New Hampshire Public Employee Labor Relations Board).

No. 82-074.

Supreme Court of New Hampshire.

Oct. 28, 1983.

Soule, Leslie, Bronstein & Zelin, Salem (Robert P. Leslie, Salem, on brief and orally), for Town of Pelham.

James J. Barry, Manchester, by brief and orally, for Local No. 1801, American Federation of State, County, and Mun. Employees.

DOUGLAS, Justice.

The Town of Pelham (town) appeals, pursuant to RSA chapter 541, a ruling of the public employee labor relations board (PELRB) that the town committed an unfair labor practice when it voted to terminate James Hardy as a patrolman in the Pelham Police Department.

The Town of Pelham hired James Hardy as a Police Department Dispatcher on December 8, 1977. On May 15, 1979, his title was changed to Dispatcher/Patrolman by a vote of the board of selectmen (board). On May 13, 1980, the board voted to appoint Mr. Hardy as a full time patrolman.

The American Federation of State, County and Municipal Employees (AFSCME) was certified in 1980 as the exclusive bargaining representative for all patrolmen, sergeants and clerk/dispatchers of the Pelham Police Department. On May 26, 1981, the Town of Pelham and AFSCME, Local No. 1801, entered into their first collective bargaining agreement. The agreement was made retroactive, stating that it was to be in full force and effect from and after April 1, 1981.

On May 11, 1981, the board notified Mr. Hardy that he was being terminated as a patrolman. On May 13, 1981, AFSCME filed unfair labor practice charges with the PELRB alleging a violation of RSA 273-A:5 in the termination. A hearing was held before the PELRB, at which the parties stipulated that Mr. Hardy was a member of the bargaining unit. In its decision and order dated August 4, 1981, the PELRB directed the parties to pursue the matter under the grievance procedure outlined in the collective bargaining agreement.

The grievance clause contains a series of procedures for the handling of disputes. The first step of the procedure provides that the issue be resolved by the chief of police. A grievance was filed in accordance with the terms of the collective bargaining agreement and on June 26, 1981, Ralph S. Boutwell, chief of police, recommended the reinstatement of Mr. Hardy. Four days later, the board of selectmen advised both the chief of police and AFSCME that the chief was without authority to reinstate Mr. Hardy. AFSCME then filed a second complaint with the PELRB against the town, alleging a violation of RSA 273-A:5 because of the board's failure to reinstate Mr. Hardy as recommended by Chief Boutwell.

Following a hearing at which all parties were represented, the PELRB found that the town had committed an unfair labor practice in its termination of Mr. Hardy as a patrolman. The PELRB further determined that Mr. Hardy was a permanent member of the police department and that compliance with the grievance procedure was accomplished by Chief Boutwell's reinstatement of Mr. Hardy as a patrolman. Accordingly, the PELRB ordered the immediate reinstatement of Mr. Hardy.

The town raises a number of questions for review, many of which are repetitive and only incidental to the essential issues. We will confine our review to what we have determined to be the town's principal arguments. See Appeal of Beyer, 122 N.H. 934, 938, 453 A.2d 834, 836 (1982); Provencal v. Provencal, 122 N.H. 793, 796, 451 A.2d 374, 376 (1982).

The town argues that it was unreasonable for the PELRB to direct that the matter be resolved pursuant to the collective bargaining agreement. We begin our analysis by noting that our standard of review of PELRB determinations is very narrow. We have consistently stated that the legislature has vested the PELRB with initially defining and interpreting the terms and provisions of RSA chapter 273-A. Appeal of City of Concord, 123 N.H. 256, 257, 459 A.2d 285, 286 (1983); Appeal of State Employees Ass'n, 120 N.H. 690, 694, 422 A.2d 1301, 1304 (1980).

Implicit in this authority is the PELRB's discretion to determine that a dispute involves a matter covered by a collective bargaining agreement. Although subject to our review under RSA chapter 541, the findings of the PELRB upon all questions of fact in collective bargaining matters are deemed prima facie lawful and reasonable. Appeal of City of Concord, 123 N.H. 256, 257, 459 A.2d 285, 286 (1983); Appeal of the University System of N.H., 120 N.H. 853, 854, 424 A.2d 194, 195-96 (1980).

The record before the PELRB contains a stipulation by the parties that Mr. Hardy was a member of the collective bargaining unit. The record further indicates that the collective bargaining agreement was in full force and effect from April 1, 1981. There is conflicting testimony as to whether the collective bargaining agreement applied to the situation at hand, but it is not the function of this court to engage in a de novo review of the evidence before the PELRB. Keene State College Educ. Ass'n, 119 N.H. 1, 3, 396 A.2d 1099, 1101 (1979). There is evidence to support the PELRB's conclusion that the matter should be resolved pursuant to the grievance procedure outlined in the collective bargaining agreement, and its determination was not contrary to law or clearly unjust or unreasonable. Accordingly, we hold that the town has not met the burden of proof required by RSA 541:13 to set aside the PELRB's decision.

The town next argues that although the board of selectmen agreed to have disputes resolved pursuant to the grievance procedure set out in the collective bargaining agreement, disputes concerning appointment and termination of police officers are excluded from the process. The substance of the town's argument is that the grievance procedure illegally delegates to the chief of police powers conferred exclusively on the board of selectmen.

In support of its position, the town relies on RSA 105:1, which provides that the board of selectmen may appoint police officers, and RSA 41:48, which prescribes the method of removal of police officers. The latter provision states that an officer may be removed by the selectmen after notice and hearing. It is the town's contention that the powers granted to the selectmen in these two statutory provisions cannot be delegated without legislative authorization. The town further relies on paragraph 17.2 of the collective bargaining agreement, which excludes from the grievance procedure any matter for which a specific method of review is prescribed and any matter which, according to law, is limited to the unilateral action of the selectmen. Based on these arguments, the town concludes that the grievance procedure is invalid because it delegates appointment and removal powers to the chief of police.

This court has not previously considered whether, under the Public...