In re Town of Bedford

• Decision Date: 10 March 1998
• Docket Number: No. 96–524.,96–524.
• Citation: 706 A.2d 680,142 N.H. 637
• Court: New Hampshire Supreme Court
• Parties: Appeal of TOWN OF BEDFORD (New Hampshire Public Employee Labor Relations Board).

142 N.H. 637

706 A.2d 680

Appeal of TOWN OF BEDFORD (New Hampshire Public Employee Labor Relations Board).

No. 96–524.

Supreme Court of New Hampshire.

March 10, 1998.

Upton, Sanders & Smith, Concord (Barton L. Mayer, on the brief and orally, and Lauren S. Irwin, on the brief), for petitioner.

Michael C. Reynolds, Concord, by brief and orally, for respondent, the State Employees' Association of New Hampshire, Inc., S.E.I.U., Local 1984.

BROCK, Chief Justice.

The petitioner, the Town of Bedford (town), appeals a decision of the New Hampshire Public Employee Labor Relations Board (board) concluding that the town breached the collective bargaining agreement (CBA) by refusing to process several employee grievances to arbitration. We reverse.

The State Employees' Association of New Hampshire, Inc., S.E.I.U., Local 1984 (union), which is the certified bargaining agent for the Bedford Police Association (association), and the town negotiated a CBA governing employment terms for the association members. In 1995, two police officers filed grievances with the town claiming that they were entitled to overtime pay under section 7.6 of the CBA. Section 7.6 provides:

In all cases where a unit employee is called back to work after having left the premises, and more than one (1) hour before his/her next scheduled return to duty, he/she shall be paid for a minimum of three (3) hours at the overtime rate for each such call back.... Court appearances, as required by the Town, during an employee's off-duty hours shall be paid the difference between a three two-hour minimum call back at the overtime rate and any fee paid by the court for appearance.

Officer Durham filed a grievance after the town denied him call back pay for his attendance at an arbitration hearing for a grievance, which he had initiated, regarding his performance evaluation. The town concluded that Durham's grievance over call back pay was not an arbitrable matter under the CBA. The town also denied Sergeant Caverly's request for call back pay for attending and testifying at Durham's arbitration hearing because the union, not the town, subpoenaed him. The town concluded that the matter was not arbitrable under the CBA. Lastly, the town denied Caverly's grievance that he was entitled to call back pay for his off-duty time spent interviewing for a promotion. The town concluded that the interview was not work qualifying for overtime pay, and that the matter was not arbitrable.

Pursuant to RSA 273–A:5, I(h) (1987), the union filed unfair labor practice complaints with the board alleging breach of the CBA for the town's refusal to process to arbitration Durham's and Caverly's grievances. After a hearing, the board concluded that: (1) the officers' grievances were all claims for benefits conferred under the CBA; (2) the town failed to overcome a presumption of arbitrability under the "positive assurance" test; and (3) the town's refusal to process the grievances to arbitration breached the CBA. The board then ordered the parties to arbitration. The board denied the town's motion for rehearing, and this appeal followed.

Although the primary function of the board and this court "is simply to determine whether or not [the union] has raised a colorable issue of contract interpretation, without deciding it on the merits," Appeal of Westmoreland School Bd. , 132 N.H. 103, 109, 564 A.2d 419, 423 (1989), the issue in this case requires an interpretation of the CBA to determine whether the town and union have agreed to arbitrate a particular matter. See id. "[W]e will not overturn the [board's] decision unless, by a clear preponderance of the evidence, it is erroneous as a matter of law, unjust, or unreasonable." Id. at 105, 564 A.2d at 420 (citations omitted). The party seeking to set aside the board's order "must show that the order is contrary to law or, by a clear preponderance of the evidence, that the order is unjust or unreasonable." Appeal of AFSCME Local 3657 , 141 N.H. 291, 293, 681 A.2d 100, 102 (1996) ; see RSA 541:13 (1997).

The principles guiding our consideration of whether the parties' dispute is arbitrable include:

(1) arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit; (2) unless the parties clearly state otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator; (3) a court should not rule on the merits of the parties' underlying claims when deciding whether they agreed to arbitrate; and (4) under the "positive assurance" standard, when a CBA contains an arbitration clause, a presumption of arbitrability exists, and in the absence of any express provision excluding a particular grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.

Appeal of AFSCME Local 3657 , 141 N.H. at 293, 681 A.2d at 102 (ellipses and brackets omitted); see AT & T Technologies v. Communications Workers , 475 U.S. 643, 648–50, 106 S.Ct. 1415, 1418–19, 89 L.Ed.2d 648 (1986).

"We examine first the relevant language of the CBA." Appeal of Westmoreland School Bd. , 132 N.H. at 106, 564 A.2d at 421. A presumption of arbitrability exists if the CBA contains an arbitration clause, see id. at 105, 564 A.2d at 420, but the court may conclude that the arbitration clause does not include a particular grievance if it determines " with positive assurance that the CBA is not susceptible of an interpretation that covers the dispute." Appeal of AFSCME Local 3657 , 141 N.H. at 294, 681 A.2d at 102 (quotation omitted); see AT & T Technologies , 475 U.S. at 650, 106 S.Ct. at 1419. Furthermore, "[t]he principle that doubt should be resolved in favor of arbitration does not relieve a court of the responsibility of applying traditional principles of contract interpretation in an effort to ascertain the intention of the contracting parties." Affiliated Food Distributors, Inc. v. Local Union No. 229 , 483 F.2d 418, 420 (3d Cir.1973), cert. denied , 415 U.S. 916, 94 S.Ct. 1412, 39 L.Ed.2d 470 (1974).

The central issue in dispute between the parties is whether the town is required to process to arbitration grievances concerning call back pay for officers attending arbitration proceedings for their own benefit or at the union's request, and for an officer interviewing for a promotion during off-duty hours. The CBA defines a grievance as "a written dispute, claim or complaint" filed by the town or association arising out of an interpretation or application of a provision of the CBA. The grievance procedure established by the CBA requires association members to file their grievances with the chief of police and to file appeals, first, with the town manager, and second, the town council. Association members may appeal decisions of the town council to arbitration. The CBA, however, limits the authority of the arbitrator "to the terms and provisions of this Agreement, and to the specific questions which are submitted." The arbitrator may not "add to, subtract from, modify, or otherwise change any of the terms or provisions." The CBA does not explicitly give the arbitrator authority to determine whether a dispute is arbitrable; thus, the board and this court have authority to determine whether the CBA covers the disputed matter. See Appeal of AFSCME Local 3657 , 141 N.H. at 293–94, 681 A.2d at 102.

The town denied the arbitrability of the grievances based upon its interpretation of the CBA. On appeal, the town argues that call back pay applies only to "work" in the ordinary meaning of the word. The town asserts that the parties would not have included specific provisions in the CBA to provide for compensation of activities such as tuition reimbursement or union convention attendance if they intended the term "work" to have a more expansive meaning. During negotiations for the CBA, the union proposed language specifically including "attendance at court during off-duty hours, training, department meetings, and emergencies" as call backs qualifying for overtime pay under section 7.6. The town argues that the exclusion of this language from section 7.6 of the final CBA demonstrates the parties...