Rochester School Bd. v. Public Emp. Labor Relations Bd., Nos. 7710

• Court: Supreme Court of New Hampshire
• Writing for the Court: BROCK
• Citation: 398 A.2d 823,119 N.H. 45
• Parties: , 101 L.R.R.M. (BNA) 2129 ROCHESTER SCHOOL BOARD v. PUBLIC EMPLOYEE LABOR RELATIONS BOARD. N. H. PUBLIC EMPLOYEE LABOR RELATIONS BOARD v. CITY OF ROCHESTER SCHOOL BOARD ROCHESTER EDUCATION ASSOCIATION, Intervenor.
• Decision Date: 14 February 1979
• Docket Number: 78-016,Nos. 7710

Page 823

398 A.2d 823 119 N.H. 45, 101 L.R.R.M. (BNA) 2129 ROCHESTER SCHOOL BOARD
v.
PUBLIC EMPLOYEE LABOR RELATIONS BOARD.
N. H. PUBLIC EMPLOYEE LABOR RELATIONS BOARD
v.
CITY OF ROCHESTER SCHOOL BOARD ROCHESTER EDUCATION ASSOCIATION, Intervenor. Nos. 7710, 78-016. Supreme Court of New Hampshire. Feb. 14, 1979.

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[119 N.H. 47] Fisher, Parsons, Moran & Temple, Dover (Robert E. Fisher, Dover, orally), for the Rochester School Bd.

Sheehan, Phinney, Bass & Green, P.A., Manchester (Bradford E. Cook, Manchester, orally), for the New Hampshire Public Emp. Labor Relations Bd.

McLane, Graf, Greene, Raulerson & Middleton, P.A., Manchester (Jack B. Middleton, Manchester, orally), for the Rochester Ed. Ass'n, intervenor.

Emmanuel P. Krasner, Farmington, by brief and orally, for the Rochester Federation of Teachers, intervenor.

BROCK, Justice.

These consolidated cases present several complex issues involving the Rochester School Board, the New Hampshire Public Employee Labor Relations Board, and two rival unions acting on behalf of teachers in the Rochester school system. At the center of the disputes now before this court are some 60 teachers who were compensated at salary levels lower than those required by their collective bargaining agreement for the 1975-76 school year.

In our decision in Rochester Educ. Ass'n v. City of Rochester, 116 N.H. 402, 359 A.2d 640 (1976), this court upheld the validity of a Master Agreement between the Rochester Education Association (REA), representing teachers in the Rochester school system, and the city of Rochester, covering the 1974-75 and 1975-76 school years. During the winter of 1976, while that case was pending here, the REA filed with the New Hampshire Public Employee Labor Relations Board several unfair labor practices charges pursuant to RSA 273-A:5 that concerned compliance with the Master Agreement. The appeals now before this court are an appeal by the city of Rochester from the PELRB's ruling on two of the unfair labor practices charges, and the city's exceptions to an order of Strafford County Superior Court (King, [119 N.H. 48] J.) enforcing the PELRB's orders. We uphold the PELRB and the court below.

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The Rochester Education Association (REA), affiliated with the New Hampshire Education Association, was certified as the exclusive representative of Rochester teachers under the "grandfather clause", Laws 1975, 490:3, (eff. Dec. 21, 1975). On January 26, 1976, the REA filed with the newly-constituted New Hampshire Public Employee Labor Relations Board (PELRB) a list of unfair labor practices that it alleged had been committed by the Rochester School Board in violation of the statute and of the Master Agreement that was then in effect. These charges included the following:

Refusing to implement and honor a valid contract, including inconsistent application of the salary schedule. (The salary schedule has been implemented for some teachers and not for others).

Refusing to complete negotiations for the 1975-76 year in accordance with the contractual provisions.

The PELRB scheduled a hearing on these charges for February 12, 1976, which was rescheduled to February 19, 1976, at the insistence of the school board. At the hearing the PELRB heard testimony presented by the REA and received in evidence documents relating to the contract and the charges. The PELRB, having been led to believe that the parties could work out a settlement, and desiring to avoid direct involvement in the merits of the salary question, ordered the REA and the school board to try to negotiate a solution themselves.

Negotiations proved unsuccessful and in fact impossible. Throughout 1976, the PELRB made repeated attempts to have the REA's charges submitted to a federal mediator and to have the parties negotiate. During this period the school board refused to participate in these efforts on various grounds. In December 1976 the REA on behalf of all teachers in the Rochester School District, filed a bill in equity in Strafford County Superior Court, seeking temporary and permanent injunctive relief in the form of an order to the school board to pay "all sums due and owing" under the Master Agreement salary schedule for the 1975-76 school year. The Trial Court (Mullavey, J.) denied the REA's request for temporary relief, pending a hearing on the merits. On April 13, 1977, the trial court deferred a hearing on the merits pending the outcome of the PELRB proceedings on the same back pay issue.

[119 N.H. 49] On February 8, 1977, the PELRB issued its decision on the pending charges, finding that the school board had committed unfair labor practices under the statute, and ordering it to bargain in good faith with the employees' representatives and to pay the salary differentials that had been withheld from employees during 1975-76.

On February 10, 1977, counsel for the Rochester School Board wrote to the chairman of the PELRB challenging the February 8 order. He asserted that no hearing had ever been held before the PELRB on the wages charge; that the PELRB's conduct was "unbelievable and ludicrous;" and that the PELRB's findings were contrary to the facts found by Judge Mullavey in the equity case pending in Strafford County Superior Court. He requested that a rehearing be held, and at the same time requested "that the board disqualify itself from having any further consideration of this case." The PELRB received that letter on Friday, February 11, 1977. At its next meeting, on Friday, February 18, 1977, the PELRB considered the school board's request for a rehearing and decided to grant the request. The rehearing was scheduled for March 11, 1977. (Ex. 52). Due to staffing problems at the PELRB, notice to the parties of this hearing was delayed until Wednesday, February 23, 1977.

On February 24, 1977, presumably before he received notice that the motion for rehearing had been granted, counsel for the school board filed a petition with this court, challenging the PELRB's authority to issue its February 8, order, and asking that the order be "rescinded," that the PELRB be "ordered to refrain from taking any further action whatsoever in relation to the plaintiff or the school teachers of the City of Rochester," and that the plaintiff, the Rochester School Board, be awarded $25,000, damages, plus costs. Although the petition

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was framed as an original writ, we deem it an appeal brought pursuant to RSA ch. 541. As soon as it received notice of that filing, the PELRB moved to dismiss the petition on the ground that it was premature because a rehearing had been scheduled. The rehearing was held as scheduled, on March 11, 1977. Counsel for the school board did not attend, resting on his assertion that "it would be improper for you to conduct any further hearings in relation to this matter prior to the outcome of the litigation which is presently pending."

I. Appeal from PELRB Orders.

The school board's first petition to this court, filed February 24, 1977, is procedurally irregular. The statutes governing appeals from decisions of the PELRB provide a specific appeal procedure. In particular,[119 N.H. 50] the statute provides that "No appeal from any order or decision of the commission shall be taken unless the appellant shall have made application for rehearing as herein provided." RSA 541:4. An appeal is proper only after the request for rehearing has been denied, or after the decision on rehearing has issued. RSA 541:6. The statutory procedure is exclusive, absent extraordinary circumstances that were not present in this case. RSA 541:22; Nashua v. Public Utilities Commission, 101 N.H. 503, 507, 148 A.2d 277, 280 (1959).

The school board argues that because it had not received notice of the PELRB's decision to grant a rehearing within ten days of the time it requested the hearing, it was entitled to act as if the request had been denied. We disagree. The PELRB met the statutory requirement that it either grant or deny the request within ten days. RSA 541:5. If the school board had in good faith wanted to know the disposition of its request, it could easily have asked. "The mere fact that the appellant was misled into believing the pertinent act or fact constituting a basis for appealability to exist does not avoid the effect of premature appeal when he could have ascertained the truth upon proper inquiry." 4A C.J.S. Appeal & Error § 461 at 153 (1957). The school board's assertion in its petition here that it had no other adequate remedy is inconsistent with its own action in requesting a rehearing before the PELRB. See State v. Coan, 91 N.H. 489, 491, 23 A.2d 369, 370 (1941). Under these circumstances, the petition was premature and could properly be dismissed.

After the March 11 hearing before the PELRB, which it failed to attend, the school board attempted to amend its petition in this court to state that it was aggrieved by the PELRB's order on rehearing. No grounds were stated for its objections at that time, as required by law. RSA 541:7. By failing to appear at the rehearing, which was held for the express purpose of allowing the school board to present its arguments and evidence, the school board failed to exhaust its administrative remedies provided by statute and has no standing to appeal the resulting order. V.S.H. Realty v. City of Rochester, 118 N.H. ---, 394 A.2d 317 (1978).

For the reasons stated above, the petition filed by the school board on February 24, 1977, in this court could be dismissed with prejudice.

In order to prevent further waste of both judicial and administrative resources, and recognizing the school board's seemingly boundless use of dilatory tactics, we nevertheless elect to proceed to a consideration of the merits of the PELRB's orders of February 8, 1977 and March 14, 1977.

[119 N.H. 51] The first portion of the PELRB's February 8 order found that the school board had refused to bargain in good faith with the employees'...