In re Nashua Sch. Dist.

• Decision Date: 04 October 2017
• Docket Number: No. 2016–0558,2016–0558
• Citation: 170 N.H. 386,173 A.3d 167
• Parties: APPEAL OF NASHUA SCHOOL DISTRICT (New Hampshire Public Employee Labor Relations Board)
• Court: New Hampshire Supreme Court

170 N.H. 386

173 A.3d 167

APPEAL OF NASHUA SCHOOL DISTRICT

(New Hampshire Public Employee Labor Relations Board)

No. 2016–0558

Supreme Court of New Hampshire.

Argued: June 1, 2017

Opinion Issued: October 4, 2017

Jackson Lewis P.C., of Portsmouth (Thomas M. Closson on the brief and orally), for Nashua School District.

Sean R. Cronin, of Manchester, on the brief, and Joseph L. DeLorey, of Boston, Massachusetts, on the brief and orally, for AFSCME, Council 93, Local 365.

LYNN, J.

The Nashua School District (District) appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the District committed an unfair labor practice by refusing to bargain with the American Federation of State, County, and Municipal Employees (AFSCME), Council 93, Local 365, Nashua Custodial/Janitorial Staff (Union) concerning the District's plan to subcontract custodial work at the expiration of the term of the collective bargaining agreement (CBA) between the parties. We reverse and remand.

I

The pertinent facts are as follows. The most recent CBA between the District and the Union covered the period from July 1, 2013 through June 30, 2016. The CBA encompassed the employment of all full-time and part-time custodians and maintenance personnel employed by the District. Three provisions of the CBA are pertinent to the present dispute.

Article 5, entitled "Volunteering and Subcontracting," states, in relevant part:

5.2 A. The District agrees there will be no layoffs, demotions or involuntary transfers as a result of contracting out work. Regardless of subcontracting, in the event of any layoff within a classification, the District shall cease to utilize any subcontractor for work specific to that classification except for work identified on the master list or previously agreed upon contracted projects, until such time [as] the staffing levels return to the pre-layoff levels. The Director of Plant Operations shall maintain a master list, initialled by both parties, with mutually agreed-upon work that has been historically subcontracted out. Work on the master list shall not be assigned to bargaining unit employees to complete.

B. 1. The District shall present the work it is contemplating to subcontract in a reasonable period in advance and not delay the work so the volume of work is anything but for unforeseen circumstances. The Union shall respond in five (5) working days, or the District shall proceed with subcontracting the work.

2. The District shall identify the primary classification in accordance with the bargaining unit job description that it believes will be used in the work to be discussed. If the work will be completed on overtime, the District will post the overtime opportunity upon notice from the Union under Section B.1. above and the Union shall have the opportunity to survey the work force for interest and availability. If the agreed upon necessary workforce is not available by the mutually agreed upon date, then the District may contract out.

3. When bargaining unit employees are doing work which was initially contemplated to be subcontracted, custodial staffing of the building shall be subject to an agreement by the parties. Any agreement on building coverage based on the previous sentence shall not be used outside of this process.

C. Should any work be contemplated to contract out, the District and the Union agree the following procedure shall occur prior to subcontracting.

1. Step One—The Union will designate one Union member. The Director of Plant Operations will advise this member of the work it is contemplating contracting out. A discussion as to whether or not bargaining unit members can complete the work shall occur. If an agreement cannot be reached and the District still desires to subcontract said work, the parties shall proceed to Step Two.

2. Step Two—The District shall bring the proposed work to the next scheduled joint labor-management committee meeting for discussion. If an agreement cannot be reached and the District still desires to subcontract said work, the parties shall proceed to Step Three.

3. Step Three—The parties shall mutually agree on an arbitrator to decide if the work is bargaining unit work or not. The basis for consideration shall be the job descriptions for all classifications, the scope of the bargaining unit work, as well as prior grievance decisions and/or grievance settlements. Overtime shall not be a factor in considering if the work is bargaining unit work or not. The District may subcontract out the work prior to arbitration; however, the subcontracting of the work cannot be used as consideration for the arbitrator's decision and the District understands that an arbitrator's decision that the work should have been done in-house will require the District to pay bargaining unit members for work already performed.

4. The Arbitrator's decision shall be final and binding on the parties. The arbitration shall be in accordance with AAA rules. The cost of the arbitration shall be borne equally by both parties.

Article 28 of the CBA, entitled "Management Rights," states:

Except as otherwise ... provided in this Agreement, the Union recognizes that the direction of the District operations; the determination of the methods and means by which such operations are to be conducted; the supervision, management and control of the District work force; the right to hire, promote, transfer, and lay off employees; the right, lawfully and for just cause, to demote, discipline, suspend or discharge employees; the right to determine the hours and schedules of work and the work tasks and standards of performance for employees and all other rights and responsibilities not specifically provided in this [A]greement, shall remain the function of Management, all in accordance with RSA Ch. 273–A. It shall be the right of the Union, however, to present and process grievances of its members whose wages, working conditions or other rights expressly and specifically provided in this Agreement are violated by Management.

Article 29 of the CBA, entitled "Duration of Agreement" provides, in relevant part:

On June 30, 2016 and on each June 30th thereafter, this Agreement shall be deemed renewed and extended for the ensuing year, unless one hundred twenty (120) calendar days or more prior to such date, either party shall have delivered to the other, notice of its desire not to have the agreement in its then form renewed. Such notice shall be deemed delivered when mailed, postage prepaid, addressed to the last address of the addressee which is known to the sender of this notice. If such notice shall be sent and the parties shall negotiate for a new agreement or modification thereof, the terms hereof shall continue to apply until the new or modified agreement is executed.

In a September 2015 memorandum, the District provided written notice to the Union, in accordance with Article 29 of the CBA, that it did not wish to renew the CBA in its current form. The memorandum also stated that the District intended, following the expiration of the CBA, to contract with a private company to provide custodial services. The District cited financial reasons as the motivation for its decision to pursue privatization.

The next day, the Union responded to the District in a letter requesting that it immediately commence negotiations on a successor CBA for all employees covered by the then-current CBA. The District responded to the Union's request with another letter, stating that, due to its decision to privatize, it declined to commence negotiations with the Union regarding the employment of custodians. However, the District did offer to commence negotiations on the terms and conditions of employment for all other positions included in the CBA. The District specifically clarified in the letter that its "agreement to open negotiations for a successor collective bargaining agreement for the [non-custodian] employees should in no way be construed as an offer to negotiate the terms and conditions for custodial personnel covered by the current collective bargaining agreement." The Union declined this offer, stating that it expected the district to negotiate the terms and conditions of a successor CBA for all the employees that the Union represents. As a result, the parties did not commence any negotiations.¹

In December 2015, the Union filed an Unfair Labor Practice charge with the PELRB, alleging that the District was in violation of its statutory bargaining obligations, as well as the terms of the CBA. The parties subsequently agreed to submit the breach of the CBA claim to arbitration and to seek a ruling from the PELRB with respect to the unfair labor practice claim only. The parties also agreed that the latter claim would be submitted to the PELRB based upon stipulated facts, exhibits, and written briefs.

In August 2016, the PELRB released an order in which it ruled that the District had improperly refused to bargain with the Union over the custodial personnel positions, violating the bargaining obligations imposed by RSA 273–A:5, I(a) and (e) (2010). The PELRB also ruled that the District's offer to conduct negotiations with regards to maintenance and security personnel had "activate[d] the Article 29 duration clause." Moreover, the PELRB found that nothing in RSA chapter 273–A (2010 & Supp. 2016) "empowere[d] the District, by virtue of its Article 29 notice or otherwise, to simultaneously and unilaterally terminate its bargaining obligations, in whole or in part, at any point in time," and ruled that only final and binding arbitration could serve as a proper forum to decide the matter of the District's right to subcontract the work performed by its custodial employees. Independent of those rulings, the PELRB noted that nothing in RSA chapter 273–A allowed the District to "unilaterally modify the composition of the PELRB approved bargaining unit," and ordered the District to "immediately commence bargaining in good faith...