In re Police Comm'n of Rochester

• Decision Date: 16 May 2003
• Docket Number: No. 2002–593.,2002–593.
• Citation: 823 A.2d 757,149 N.H. 528
• Court: New Hampshire Supreme Court
• Parties: Appeal of POLICE COMMISSION OF THE CITY OF ROCHESTER (New Hampshire Public Employee Labor Relations Board).

149 N.H. 528

823 A.2d 757

Appeal of POLICE COMMISSION OF THE CITY OF ROCHESTER (New Hampshire Public Employee Labor Relations Board).

No. 2002–593.

Supreme Court of New Hampshire.

Argued March 13, 2003.

Opinion Issued May 16, 2003.

Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz on the brief and orally), for the petitioner.

Morris & Phillips, of Hampton (Peter C. Phillips on the brief and orally), for the respondent.

DALIANIS, J.

The petitioner, the Police Commission of the City of Rochester (Commission), appeals a New Hampshire Public Employee Labor Relations Board (PELRB) ruling in favor of the respondent, the International Brotherhood of Police Officers Local 580 (Union), finding that the Commission committed unfair labor practices (ULPs) in violation of RSA 273–A:5, I(e), (g) and (h) (1999). On appeal, the Commission argues that the PELRB erred by: (1) determining that the 1999–2000 CBA governed whether it had the right to appeal the arbitrator's award under RSA chapter 542; and (2) determining that the Commission had agreed to grant the arbitrator, rather than the PELRB, jurisdiction to determine the issue of arbitrability by its agreement settling the Union's original ULP. We affirm in part and vacate in part.

The parties stipulated to the following facts. On March 20, 2000, Captain David Dubois of the Rochester Police Department ordered Officers Timothy Brown and Thomas Blair to disclose the source of a rumor pertaining to Rochester Police Commissioner Paul Brown's role in the investigation of a complaint against the officers. The next day, Officers Brown and Blair refused to disclose the source of the rumor. In response, Captain Dubois recommended a five-day suspension for insubordination. In addition, as a result of the complaint investigation, Captain Dubois recommended an additional five-day suspension. He also recommended, in what he viewed as a personnel decision, reassignment of the officers from the detective bureau to the patrol division. These recommendations were accepted by the Police Chief.

In accordance with the collective bargaining agreement then in effect (1999–2000 CBA), the officers filed a grievance with the Commission. The 1999–2000 CBA was effective through June 30, 2000. After the 1999–2000 CBA expired, but while the officers' grievances were pending before the Commission, the Commission and the Union reached a tentative agreement on a successor collective bargaining agreement (2000–2003 CBA). The 2000–2003 CBA was executed by the parties on September 14, 2000, with an effective date of July 5, 2000. While the 1999–2000 CBA provided for final and binding arbitration, the 2000–2003 CBA included a new provision under which a party could seek judicial review of an arbitration award under RSA chapter 542. There was no specific discussion between the parties as to whether the new provision would apply to the officers' pending grievance.

On or about July 30, 2000, the Commission upheld the five-day suspension for insubordination, upheld the reassignment, and reduced the five-day suspension from the complaint investigation to a written warning. On August 15, 2000, the Union requested arbitration on behalf of the officers regarding the five-day suspension for insubordination and the written warning. On or about October 30, 2000, the Union filed an amended ULP against the Commission challenging the officers' reassignment. The Commission objected, arguing that the reassignment was permitted by the 1999–2000 CBA in the sole discretion of the Commission.

On December 18, 2000, the Union and the Commission reached an agreement whereby the ULP would be withdrawn and the issues raised and relief sought by the Union "may be asserted before the Arbitrator." The parties settled the grievance with regard to the written warning issued to the officers and on March 9, 2001, submitted the following issues to the arbitrator:

(a) Whether the Rochester Police Commission acted in accordance with the contract between the Commission and [the Union] when it imposed a five (5) day suspension without pay against Thomas Blair and Timothy Brown for insubordination?

If not, what shall be the remedy?

(b) Whether or not the decision of the Chief of the Police Department to remove Thomas Blair and Timothy Brown from the Investigative Services Bureau to the Patrol Services Bureau is arbitrable?

The parties submitted only the 1999–2000 CBA to the arbitrator for consideration. The arbitrator sustained the Union's grievance on the five- day suspensions and ruled that the matter of the reassignments was arbitrable. The Union sought arbitration on the merits of the reassignment issue, but the Commission refused, arguing that the PELRB, not the arbitrator, must determine arbitrability. On September 11, 2001, the Commission filed a petition in equity in Strafford County Superior Court to vacate and/or remand the arbitrator's award pursuant to RSA chapter 542.

The Commission also filed a ULP with the PELRB in regard to the Union's seeking to arbitrate the reassignment issue, and the Union filed a counter-ULP regarding the Commission's refusal to arbitrate the reassignment issue on the merits and the Commission's superior court filing. The PELRB held, among other things, that the Commission had committed the following ULPs: (1) failing to implement the arbitrator's award by appealing the award in superior court in breach of the 1999–2000 CBA and the obligation to bargain in good faith in violation of RSA 273–A:5, I(e), (g) and (h); and (2) refusing to arbitrate the reassignment issue on the merits in breach of its agreement to submit the question of arbitrability to the arbitrator in violation of RSA 273–A:5, I(e) and (g). The Commission filed a motion for rehearing, arguing that the PELRB erred in both ULP findings. The PELRB denied the motion, and this appeal followed.

"When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable." Appeal of State of N.H. , 147 N.H. 106, 108, 784 A.2d 695 (2001) (quotation omitted). Failing to comply with an arbitrator's award may constitute a ULP. See Bd. of Trustees v. Keene State Coll. Educ. Assoc. , 126 N.H. 339, 341–42, 493 A.2d 1121 (1985). This conclusion stems from the statutory mandate that a breach of a CBA, see RSA 273–A:5, I(h), or a breach of the obligation to negotiate in good faith, see RSA 273–A:5, I(e) and (g), may constitute a ULP.

The Commission first argues that it did not commit a ULP by filing an appeal of the arbitrator's award with the superior court because the 2000–2003 CBA was in effect at the time of the award and expressly granted RSA chapter 542 appeal rights. The Commission points to article twenty-eight of the 2000–2003 CBA, which states that "[t]he provisions of this Agreement will be effective as of July 5, 2000, supplementing and superceding [sic ] the prior wages, hours and other economic benefits, except as otherwise herein provided," and argues that the appeal rights in the 2000–2003 CBA must apply to appeals from awards issued after July 5, 2000. The Commission argues that it is unreasonable and unjust to apply the grievance procedures in the 1999–2000 CBA when the parties mutually agreed to amend the procedures in the 2000–2003 CBA.

The PELRB held that the 1999–2000 CBA governed the rights of the parties in respect to the Union's grievance. The PELRB determined that the date the discipline was first imposed was the event that should govern which CBA applied because, under article five of the 1999–2000 CBA, that event began the procedural steps that the aggrieved party must follow in pursuing the grievance. The PELRB held that the date of the disciplinary action "becomes the date from which the aggrieved knows about the type of and ramifications from the discipline which has been imposed and from which the aggrieved has a given number of days in which to file an objection or appeal .... This is the date from which rights flow or expire." Because the 1999–2000 CBA stated that the parties were bound by arbitration and did not permit an appeal under RSA chapter 542, the PELRB held that the Commission's refusal to arbitrate violated the CBA and was a ULP.

We conclude that the Commission has failed to prove that this ruling is unjust or unreasonable. While the Commission is correct that the 2000–2003 CBA became effective on July 5, 2000, and superseded the 1999–2000 agreement with regard to "wages, hours and other economic benefits," the agreement contained no provision dealing with grievances pending as of July 5. The Commission presented no evidence that the parties agreed to or intended to apply the appeal rights in the 2000–2003 CBA to grievances arising under the 1999–2000 CBA. In fact, contrary to the Commission's claim, it submitted the 1999–2000 CBA to the arbitrator for her determination, despite the existence of the 2000–2003 CBA at the time of the arbitration. Thus, the Commission recognized that the 1999–2000 CBA controlled the grievance proceeding then before the arbitrator. Moreover, the 1999–2000 CBA states that "any differences between the Parties on matters relative to this Agreement shall be settled by the means herein provided," which did not include any right to an RSA chapter 542 appeal. If the 1999–2000 CBA governed the matter before the arbitrator, as the Commission recognized, then it is not unjust or unreasonable to conclude that the 1999–2000 CBA would also control the procedural rights of the parties.

The Commission further argues that the PELRB violated RSA chapter 541–A when it determined that the 1999–2000 CBA governed the Commission's appeal rights because the PELRB implemented a rule without following the proper rule-making procedures. A "rule" is defined as:

each regulation, standard, or other statement of general

...