Appeal of State Employees' Association/Service Employees' International Union, Local 1984
Appeal of State Employees' Association/Service Employees' International Union, Local 1984
Opinion of the Court
The petitioner, the State Employees' Association of New Hampshire/Service Employees' International Union, Local 1984 (Union) appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) dismissing its unfair labor practice complaint against the respondent, the Community College System of New Hampshire (CCSNH). The Union argues that the PELRB erred in ruling that CCSNH was not obligated to: (1) bargain over wages for on-campus tutoring services performed by adjunct faculty; and (2) compensate an adjunct faculty member for lost tutoring income resulting from his participation in collective bargaining negotiations. We reverse and remand.
I
The record supports the following facts. The Union is the exclusive bargaining representative of adjunct faculty "who are employed by CCSNH and who have taught at least five semesters in the last five years or who have currently begun their fifth semester of teaching and have taught four semesters within the last five years." The most recent collective bargaining agreement (CBA) between the parties covered the period from September 25, 2013, through June 30, 2016. The CBA classifies adjunct faculty as "part-time" employees and delineates that they are responsible for teaching specific assigned courses and making themselves available for student consultation "before or after class, or by appointment." CCSNH also hires adjunct faculty from the bargaining unit-along with full-time faculty and, occasionally, students-to provide tutoring services to its student body at the Academic Center for Excellence (ACE). This includes Rick Watrous, who has taught English at CCSNH as an adjunct professor since the 1990s, tutored students at ACE since 2010, and currently serves as a member of the Union's bargaining team.
The CBA does not address the subject of tutoring generally, or compensation for tutoring specifically. Accordingly, while negotiating a successor agreement in 2016, the Union sought to bargain over tutoring wages paid to adjunct faculty bargaining unit members. See RSA 273-A:3, I (2010) (requiring a public employer and a bargaining unit representative to negotiate in good faith over the "terms of *194employment"). CCSNH, however, refused, maintaining that tutoring was not "bargaining unit work"-i.e., tutoring is not among the duties adjunct faculty are hired to perform. For the same reason, CCSNH refused to reimburse Watrous for ACE tutoring hours he forewent to attend collective bargaining negotiations. See RSA 273-A:11, II (2010) (requiring public employers to meet with a bargaining unit's representatives "during working hours without loss of compensation or benefits").
As a result, the Union filed an unfair labor practice complaint with the PELRB, alleging that CCSNH had violated its bargaining obligations under RSA chapter 273-A. Following an adjudicatory hearing, a three-member panel of the PELRB issued an order dismissing the complaint in its entirety. In its order, the panel, construing our decision in Appeal of Berlin Education Association,
II
"RSA chapter 541 governs our review of PELRB decisions." Appeal of Prof'l Fire Fighters of Hudson,
A
The Union first challenges the PELRB's determination that CCSNH is not obligated to bargain over compensation paid to adjunct faculty bargaining unit members for ACE tutoring.
The Public Employee Labor Relations Act obligates public employers and employee organizations to negotiate in good faith over the terms and conditions of employment. RSA 273-A:3 (2010). The Act defines "terms and conditions of employment," in relevant part, as "wages, hours, and other conditions of employment." RSA 273-A:1, XI (2010). Wages paid to members of a bargaining unit, therefore, constitute a mandatory subject of negotiations between public employers and employee organizations. Berlin,
That the foregoing is well-established is not questioned by CCSNH. According to CCSNH, however, "first and foremost" it must be determined whether the work being performed is "bargaining unit work." This is because, CCSNH reasons, our decision in Berlin dictates that it is only those *195wages paid for the performance of "bargaining unit work" that must be negotiated. Maintaining that the PELRB properly recognized this distinction, CCSNH argues that we should defer to its findings that tutoring is not part of the adjunct faculty's "bargaining unit work" and, thus, wages paid for such services need not be negotiated.
In Berlin, we were called upon to determine whether a school board was obligated to negotiate with teachers over a salary scale for performance of extracurricular duties. Id. at 780,
Because the Act did not define the statutory term, we ascribed to the term "wages" its plain and obvious meaning of "monetary remuneration by an employer for labor or services." Id. at 783,
We need not consider whether Berlin should be interpreted to require that bargaining is mandatory any time the topic at issue concerns wages paid or to be paid to the employee by the employer, or whether, in addition to concerning wages, the subject matter must be work that is closely related to, or "within the scope" of, the employees' duties that are already the subject of bargaining. Even if we construe that case in the latter fashion, as CCSNH advocates, we conclude that the tutoring services at issue here are, if anything, more closely related to the normal adjunct faculty members' duties than the extracurricular activities in Berlin were related to the teachers' regular duties. Thus, the result reached in Berlin applies a fortiori to control the outcome here. Either way, the PELRB erred as a matter of law.
B
The Union next challenges the PELRB's consequent conclusion that, because tutoring was not "bargaining unit work," CCSNH did not commit an unfair labor practice when it refused to compensate Watrous for ACE tutoring hours he forewent to participate in collective bargaining negotiations.
RSA 273-A:11 (2010) requires a public employer to extend certain rights to the exclusive representative of a bargaining unit, in this case the Union, including the following: "A reasonable number of employees who act as representatives of the bargaining unit shall be given a reasonable opportunity to meet with the employer or his representatives during working hours without loss of compensation or benefits." RSA 273-A:11, II. Interpreting "without loss of compensation or benefits,"
Although the PELRB's findings of fact are presumptively lawful and reasonable *196and will not be disturbed if supported by the record, we are the final arbiters of legislative intent as expressed in the words of a statute considered as a whole and will set aside erroneous rulings of law. See Appeal of Laconia Patrolman Assoc.,
Nor, when engaging in statutory interpretation, will we "consider what the legislature might have said or add language that the legislature did not see fit to include." Laconia Patrolman Assoc.,
Because the plain language of RSA 273-A:11, II obligates CCSNH to afford "[a] reasonable number of employees who act as representatives of the bargaining unit ... a reasonable opportunity to meet" for collective bargaining negotiations "during working hours without loss of compensation or benefits," we agree with the Union that CCSNH must compensate Watrous for the ACE tutoring hours he missed while attending such negotiations. We conclude, therefore, that the PELRB erred as a matter of law with regard to this finding as well and remand for proceedings consistent with this opinion.
Reversed and remanded.
LYNN, C.J., and BASSETT, J., concurred; DALIANIS, C.J., retired, specially assigned under RSA 490:3, concurred; HANTZ MARCONI, J., concurred in part and dissented in part.
Concurring in Part
I concur in Section IIB of the majority's opinion regarding the correct interpretation of RSA 273-A:11, II (2010). I disagree, however, with the majority's conclusion in Section IIA that "the PELRB erred as a matter of law" when it conducted the inquiry set forth in Appeal of Berlin Education Association,
The PELRB concluded, and the parties agree, that Berlin is controlling precedent with respect to the first issue, which is whether CCSNH is obligated to bargain over compensation for tutoring services performed by members of the adjunct faculty bargaining unit. As the majority's opinion correctly notes, in Berlin, "we were called upon to determine whether a school board was obligated to negotiate with teachers over a salary scale for performance of extracurricular duties." See Berlin,
On appeal, we first considered whether the extracurricular duties at issue in Berlin were "within the scope of a teacher's *197duties." Id. at 782,
There is general agreement that extracurricular activities are a fundamental part of a child's education, making the supervision of such activities an integral part of a teacher's duty toward his or her students.
Teaching is not limited to classroom instruction, but also involves the complete training of a child for citizenship and leadership. Extracurricular activities can be a significant part of that training. To hold[, as the school board suggests,] that extracurricular activities are dissimilar, distinct and outside the community of interest of teachers would be to limit a teacher's role in a child's education merely to classroom instruction. Consequently, we conclude that extracurricular activities are within the scope of a teacher's duties.
The majority attempts to diminish Berlin's holding by characterizing Berlin as a case about whether "a salary scale" constitutes "wages," and by citing Berlin as support for the proposition that "[w]ages paid to members of a bargaining unit ... constitute a mandatory subject of negotiations between public employers and employee organizations." (Quotation omitted.) However, the dispute between the parties in Berlin was not whether "a salary scale" fell within the statutory definition of "wages," but, rather, whether a salary scale for performance of extracurricular duties constituted "a mandatory subject of bargaining under RSA chapter 273-A." Id. at 781-82,
We must also afford deference to the PELRB on certain matters due to the standard of review established by the legislature. See RSA 541:13 (standard of review governing appeals brought pursuant to RSA chapter 541); RSA 273-A:14 (2010) (aggrieved party can appeal PELRB's final order pursuant to RSA chapter 541). We do not owe deference to the PELRB on issues of law, however. See Appeal of Hillsborough County Nursing Home,
Here, the PELRB conducted the "integral part" inquiry from Berlin and concluded, based upon its factual findings, that the tutoring in this case is distinguishable from the extracurricular duties involved in Berlin. Because the PELRB applied the correct inquiry from Berlin, its ruling of law on this issue is not erroneous. Absent an error of law, we cannot overturn the PELRB's decision "unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable." Appeal of Prof'l Fire Fighters of Hudson,
Although the majority acknowledges this deferential standard of review at the outset of its analysis, it does not adhere to that standard in reviewing the PELRB's decision on the first issue. The majority's opinion concludes that "the PELRB erred as a matter of law" because, in the majority's view, "the tutoring services at issue here are, if anything, more closely related to the normal adjunct faculty members' duties than the extracurricular activities in Berlin were related to the teachers' regular duties."
Yet the PELRB explained in detail the basis for its conclusion that this case is "factually distinguishable" from Berlin"in a number of significant respects." Unlike the full-time teachers who taught school children in the Berlin public school district, see Berlin,
*199Id. at 782,
Based upon these findings, which are supported by the record, I cannot say that the PELRB's conclusion on this issue is unjust or unreasonable. See Appeal of Town of Moultonborough,
Reference
- Full Case Name
- APPEAL OF STATE EMPLOYEES' ASSOCIATION/SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 1984 (New Hampshire Public Employee Labor Relations Board)
- Cited By
- 1 case
- Status
- Published