THE STATE OF NEW HAMPSHIRESUPREME COURT

2010 TERMFEBRUARY SESSION

Case No. 2009-0635

APPEAL OF TOWN OF PITTSFIELD

______________________________________________________________________________

BRIEF OF APPELLEEPITTSFIELD TOWN EMPLOYEES

AFT-NH LOCAL #6214

APPEAL OF DECISION OF NEW HAMPSHIREPUBLIC EMPLOYEE LABOR RELATIONS BOARD

(RULE 10)______________________________________________________________________________

By: COUNSEL FOR PITTSFIELD TOWN EMPLOYEES AFT-NH LOCAL #6214

Emmanuel Krasner, Esquire New Hampshire Bar #1396 523 Main Street, P.O. Box 637 Farmington, NH 03835

Phone (603) 755-2082 Fax (603) 755-3934 E-mail: ekrasner@krasnerlawoffice.com

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i,ii

TABLE OF CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF STATUTES AND OTHER AUTHORITIES . . . . . . . . . . . . . . . . . iv

COUNTER STATEMENT OF THE QUESTIONS PRESENTED . . . . . . . . . . 1

STATEMENT OF ADDITIONAL FACTS AND THE CASE . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

THE PELRB HAD JURISDICTION TO RULE THAT THE NEW POLICY CONSTITUTED A VIOLATION OF THE CBA AND THAT ITS APPLICATION TO AN EMPLOYEE, MR. GIRARD, VIOLATED THE CBA.

A. This matter came before the PELRB as an Unfair Labor Practice Complaint. The PELRB had jurisdiction to rule on the ULP.

B. Once the new policy is found to be a ULP, and the Town has been ordered to cease and desist from implementing it, its application to an employee, Mr. Girard, must be reversed.

C. If the Court holds that the grievance procedure is workable and the seven-day limitation applies, the matter was still properly before the PELRB. The language of the CBA, the intent of the parties, the purchase of the statute and public policy all support the jurisdiction of the PELRB to rule on this matter.

ARGUMENT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

THE TOWN’S ARGUMENT, BASED UPON ARTICLE 20 OF THE CBA, IS NOT RELEVANT BECAUSE THE TOWN DID NOT SEEK TO PREVENT THE SUBSTITUTION OF SICK LEAVE BY EMPLOYEES FOR FMLA LEAVE. THE TOWN ATTEMPTED TO CONTROL THE SEQUENCE IN WHICH PAID LEAVE WOULD BE USED AND REQUIRE THE EMPLOYEES TO FIRST USE THEIR VACATION LEAVE THEN USE THEIR SICK LEAVE IN ORDER TO BE

ENTITLED TO USE FMLA LEAVE. THE TOWN STILL REQUIRED THESUBSTITUTION OF . . . . . . . . . . . . . . . . SICK LEAVE FOR FMLA LEAVE.

i

ARGUMENT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

THE PELRB DECISION ON THE MERITS IS CORRECT AND IS AMPLY SUPPORTED BY THE EVIDENCE.

A. The PELRB finding of a past practice is amply supported by the evidence. The existing practice whereby employees were allowed to elect which form of paid leave they would substitute for FMLA leave, was well established by the documentary evidence and the testimony of the Union’s witnesses. The Town offered no evidence to rebut or contradict the evidence presented by the Union.

B. It was proper for the PELRB to consider the evidence concerning all of the persons listed on Union Exhibit #2.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CERTIFICATION OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ii

TABLE OF CASES

Cases

Appeal of Alton School Dist., 140 NH 303 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Appeal of Department of Safety, 155 NH 201, 210 (2007) . . . . . . . . . . . . . . . . . . . . . . 26

Appeal of Gallant, 125 NH, 832 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Appeal of Town of Pelham, 124 NH 131 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Buyer v. Abundant Life Farm, Inc., 127 NH, 345 (1985) . . . . . . . . . . . . . . . . . . . . . . . 13

Edelman v. Lynchberg College, 525 US 106 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

MBC, Inc. V. Engel, 119 NH 8, 12 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Miller v. Amica Ins. Co., 152 NH 117 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 21

Peterson v. Wichita, 888 F. 2d 1307 (10th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Roberts v. General Motors Corp., 140 NH, 723, 729 (1996) . . . . . . . . . . . . . . . . . . . . 16

Royal Oak Realty Trust v. Mordita Realty, 142 NH 578, 581 (2001) . . . . . . . . . . . . . . 21

Tech-Built 153 v. Va Surety Co., 153 NH 371 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tuttle v. NH Medical Malpractice Joint Underwriting Assn., ___ NH ___, Case No. 2009-555 January 28, 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Williams v. N.Y. City Housing Auth., 458 F. 3d 67 (2nd Cir. 2006) . . . . . . . . . . . . . . . 15

iii

TABLE OF STATUTES AND AUTHORITIES

NH Revised Statutes Annotated

RSA 273-A:5(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

RSA 273-A:1 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6

RSA 273-A:5, I (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

RSA 273-A:7, III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

RSA 273-A:5 and 273-A:6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RSA 273-A:6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

RSA 273-A:6, VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

RSA 273-A:6, II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

RSA 273-A:5(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RSA 273-A:6,VI (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

RSA Ch. 273-A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

RSA 273-A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

UNITED STATES CODE

29 USC Sec. 2612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iv

COUNTER STATEMENT OF THE QUESTIONS PRESENTED

1. Was there evidence before the Public Employee Labor Relations Board to support itsfinding that the Town’s attempt to control the sequence in which employees used their paidleave, prior to using unpaid FMLA leave, was a unilateral change in the existing terms andconditions of employment which violated the Collective Bargaining Agreement?

2. Is the Town’s argument concerning the availability of sick leave under Article 20 of theCollective Bargaining Agreement irrelevant to the case, because the Town’s actions thatwere complained of did not prohibit the use of sick leave for the care of another? TheTown still required the employees to use all paid leave, both sick and vacation, prior totaking unpaid FMLA leave, and the Town only sought to control the sequence in whichsick leave and vacation leave were used.

STATEMENT OF ADDITIONAL FACTS AND THE CASE

1

On July 22, 2008, the Board of Selectmen of the Town of Pittsfield issued a memorandum

which purported to “correct” a “misinterpretation” of the Collective Bargaining Agreement

between the Pittsfield Town Employees, (hereinafter the Union), and the Town of Pittsfield,

(hereinafter the Town). The Selectmen, in their memorandum, announced a new policy.

Employees who sought leave under the Family Medical Leave Act (hereinafter FMLA) and were

required to substitute their paid leave as provided in Article 26 of the Collective Bargaining

Agreement (hereinafter CBA) would now have to first substitute their accumulated vacation leave,

and after the vacation leave had been exhausted would then be required to substitute accumulated

sick leave before receiving unpaid leave under the FMLA.

The Union, through Police Sargeant Richard Walter, filed a grievance. The grievance

alleged that the new policy enunciated in the memorandum amounted to a unilateral change in

the terms and conditions of employment which violated the CBA. The new policy changed

existing practice under the CBA: that employees could choose the sequence in which they

substituted either sick or vacation leave. The grievance was denied by the Selectmen in a letter

dated August 13, 2008, received by Mr. Walter on August 14, 2008. (Union Ex. 4, Certified

Record 84). (Hereinafter references to the Certified Record will be CR and the page number).

The Union then submitted a request for arbitration to the Public Employee Labor

Relations Board on August 20 and 21, 2008. (Union Ex. 5, Union Ex. 6, CR 86 and 87 and Town

Ex. 1, CR 88). The CBA provides in the grievance procedure, Article 11, Step 5, that the

grievance shall be submitted in writing to the Public Labor Employee Relations Board,

2

hereinafter PELRB. (Union Ex. 3, CR 45).

On September 2, 2008, the Public Employees Labor Relations Board through its hearings

officer, Douglas E. Ingersoll, rejected the grievance stating that the PELRB had no jurisdiction to

hear a step in the grievance procedure, because the PELRB’s jurisdiction was limited to unfair

labor practice complaints. Hearings Office Ingersoll specifically rejected jurisdiction based upon

the quoted language from the CBA. (Town Ex. 2, CR 89).

The Union then filed an unfair labor practice complaint dated October 28, 2008. (PELRB

Ex. 1, CR 1). The Unfair Labor Practice Complaint (hereinafter ULP) challenged the new policy

as a unilateral change in existing working conditions made by the employer, the Town of Pittsfield,

without negotiation. The ULP challenged the application of the new policy to an employee, James

Girard, and also requested that the PELRB rule on the validity of the grievance procedure.

The Town of Pittsfield failed to file a timely response. Counsel for the Town of Pittsfield

asked for the assent of counsel for the Union to file a late Answer. That consent was given.

(PELRB Ex. 4, CR 9). The Town of Pittsfield then filed an Answer which alleged, in part, that the

grievance procedure was illegal and further alleged that the submission of the grievance was

untimely. (PELRB Ex. 6, CR 11, 12).

A hearing was held on March 17, 2009. The PELRB properly framed the issue in its

decision: that the Town’s attempt to control the sequence in which paid leave was substituted for

FMLA leave was at issue as an alleged unilateral change in existing practice. (CR 128).

The Union presented evidence of seven instances over the previous three-year period,

beginning in 2005, where employees had been allowed to use sick time in association with the birth

of a child. The Town produced no evidence of any employee, prior to Mr. Girard, being denied

3

the use of sick leave for taking time to deal with the birth of a child.

After the hearing, and the submission of Post-Hearing Briefs, the PELRB found that the

Town had committed an Unfair Labor Practice by changing the terms of employment unilaterally

and imposing the new terms on an employee, Mr. Girard. The PELRB also ruled that the existing

grievance procedure was unworkable. After a series of post-hearing Motions and confirmation by

the PELRB this Appeal followed.

4

SUMMARY OF THE ARGUMENT

The PELRB had jurisdiction to hear this matter as an Unfair Labor Practice Complaint.

RSA 273-A:5(h). The PELRB found that the Town had made a unilateral change in past practice

which violated the CBA. Once the PELRB found the change in practice was a ULP, any

implementation of that practice had to be reversed.

The FMLA permits an employer to require the employees to substitute their paid leave for

unpaid FMLA leave. The Town chose to do that and negotiated the requirement into the CBA.

The contract language regarding the use of the FMLA is clear. Article 26, Section 5 mandates that

an employee who wishes to utilize leave under the FMLA must first utilize all of his paid leave,

both sick and vacation.

The Town’s argument concerning the availability of sick leave is not relevant to this case.

The Town, in its new policy, did not attempt to prevent the employees from substituting their paid

sick leave for FMLA leave for the purpose of caring for a family member. The Town still required

substitution of all paid leave, vacation leave and sick leave before use of unpaid FMLA leave. The

Town was trying to govern the sequence in which leave was taken, requiring vacation leave to be

taken before sick leave. The Town was not trying to prevent the substitution of sick leave for

FMLA leave.

The Town’s argument on timeliness is not well taken. The CBA did not to have a

workable grievance procedure; therefore, the only available path for resolution of the difference

between the parties in this matter was a ULP. The resolution of this matter through a ULP is

appropriate and accomplishes the purpose of the Public Employees Labor Relations Act, RSA

5

273-A:1 et seq, which is a remedial statute and should be construed liberally to achieve its purpose.

The ULP was timely filed. Even if the Court were to hold the parties to the seven-day

requirement for providing written notice to the PELRB, the Union did that, and the subsequent

procedural difficulties do not defeat the fact that the Union complied with the terms of the contract

by submitting the matter to the PELRB in writing within seven days.

There was ample evidence to support the ruling of the PELRB. The Union produced

documentary and testimony evidence to establish that the employees, until July 22, 2008, had been

allowed to utilize sick time in conjunction with the birth of a child and had been allowed to elect

the sequence in which they would substitute paid leave for unpaid FMLA leave. The Town

produced no evidence to the contrary. The PELRB’s decision is properly supported by the

evidence, correctly applies the law, and should be affirmed by this Court.

6

ARGUMENT

I. THE PELRB HAD JURISDICTION TO RULE THAT THE NEW POLICYCONSTITUTED A VIOLATION OF THE CBA AND THAT ITS APPLICATION TOAN EMPLOYEE, MR. GIRARD, VIOLATED THE CBA.

A. This matter came before the PELRB as an Unfair Labor Practice Complaint. ThePELRB had jurisdiction to rule on the ULP.

Any breach of a CBA is an unfair labor practice. RSA 273-A:5, I (h). The Union

submitted a ULP alleging that the Town violated the CBA. The breach took place July 22, 2008.

The Complaint was filed on October 29, 2008. (PELRB Ex. 1, CR 1-2). The Complaint is well

within the six-month statute of limitations. RSA 273-A:7, III; Appeal of Alton School Dist., 140

NH 303 (1995). The ULP filed by the Union in this matter raised three issues for determination

by the PELRB. First, that the attempt by the Town to control the sequence in which paid leave

was substituted for FMLA leave was a unilateral change in the terms and conditions of

employment created under the CBA and made without negotiation. Therefore, it violated the

CBA. Second, that the application of the unlawful policy to an employee was wrongful. (PELRB

Ex. 1, Paragraph 12, CR 5). Third, that the PELRB rule on the legitimacy of the grievance

procedure in the CBA. (Id At Paragraph 15, CR 5).

The Town argued in its Answer to the ULP that the grievance procedure is unlawful.

(PELRB Ex 6, CR 12). The PELRB ruled that the Town was correct, the grievance procedure is

unworkable or unlawful. Since the grievance procedure was unlawful, the only way the dispute

between the parties could be resolved was through the ULP.

7

The PELRB ruled consistently throughout this matter that the grievance procedure

negotiated by the parties in their CBA was not workable or lawful. When Laura Hainey brought

this matter to the PELRB, in writing, requesting a determination by the PELRB or a PELRB

appointed arbitrator, the matter was rejected by the PELRB. Hearings Officer John Ingersoll

ruled on September 2, 2008, that the statutes did not allow the PELRB to hear this matter as

provided in the CBA fifth step of the grievance and referred the Union to the statutory procedures

for ULPs. (Town Ex. 2, CR 89). The Union complied with the PELRB Order and brought the

ULP, wherein it requested the PELRB rule on the issue of the workability of the grievance

procedure in addition to the merits of the ULP. The PELRB did rule in its decision on the merits

that the grievance procedure in the parties’ CBA was unworkable because its provision was

contrary to the statutory provisions governing the PELRB.

The grievance procedure provides in its fifth step that “...the Union may submit the

grievance in writing to the Public Employees Labor Relations Board (PELRB) within seven

calendar days if (sic) the receipt of the written decision...”. (CR 45). It goes on to say, “...the

PELRB shall respond in writing with its decision within 30 calendar days...”. The PELRB

finding that the grievance procedure is unworkable is correct. The grievance procedure provides

for a written submission to the PELRB of the grievance within seven calendar days. The

statutory scheme created by the Legislature does not provide for the PELRB to hear grievances or

to act as a final arbitrator on a grievance. The PELRB’s jurisdiction to rule on breaches of CBAs

is limited to hearings on ULPs. (RSA 273-A:5 and 273-A:6). The CBA further requires that the

PELRB render a decision within 30 days. That provision is clearly contrary to statute, even in the

context of a ULP. RSA 273-A:6 provides that the PELRB shall hold a hearing within 45 days

8

and that a decision thereon shall be rendered within an additional 45 days. The CBA provision

does not provide for a hearing by the PELRB and does not allow time for the normal pre-hearing

procedures. It requires a decision in a time frame that is contrary to the statute. In addition to

that, the time limitation of seven days is contrary to the 6-month statutory provision. (RSA 273-

A:6, VII). The grievance is unworkable because it provides an improper format for submission of

the matter to the PELRB. It attempts to impose time limits upon PELRB action which are

contrary to those set forth in the statutes and it requires the rendering of a decision by the PELRB

without the appropriate procedures provided for in RSA 273-A:6, II and the rules of the PELRB.

The Town argues in its Brief that the grievance procedure was not unworkable and that all

the Town had to do was file a ULP within seven days of the violation or within seven days of the

Selectmen’s decision. The Town’s position ignores the language of the CBA.

Like all of the Town’s arguments in this matter, for the Town’s position to prevail,

language would have to be added to the CBA.

The CBA says nothing about the filing of a ULP. The Town argues that this was “all the

Union had to do”. However, the parties, when negotiating the CBA, did not provide for the filing

of a ULP if they were not able to resolve the matter. The Town now urges the Court to insert or

to impute the words, “By filing an Unfair Labor Practice” into Step 5 of the grievance procedure.

The Town’s request that the Court insert or impute language the parties did not put into the

contract is inappropriate. This Court interprets contracts based on the common meaning of the

language used by the parties in the contract. Miller v. Amica Ins. Co., 152 NH 117 (2007). The

final step of the grievance procedure as written by the parties is unworkable or unlawful. The

Town may not now ask the Court to rewrite the contract.

9

If the Court were to accede to the Town’s argument that language can be added or

imputed to the CBA to say that the submission of the grievance to the PELRB at Step 5 of the

grievance procedure (CR 45) means that a ULP should be filed, the grievance procedure still

remains unworkable and unlawful.

By statute, the ULPs may be filed within six months of the violation. (RSA 273-A:6 VII).

The CBA, if read to mean the filing of a ULP at Step 5, is in conflict with the statute. The CBA

limits the time for filing to seven days. The Town argues that the seven-day limit created in the

CBA is a jurisdictional bar to action by the PELRB. The Town attempts to ignore the conflict

between the statute and the purported language of the CBA by saying that nothing in the statute

forbids the parties to a CBA from agreeing on a shorter time limitation for the filing of a ULP.

(Town’s Brief, Page 9).

However, a more appropriate question is, does anything in RSA 273-A empower the

parties to a CBA to create their own statute of limitations and divest the PELRB of the jurisdiction

granted to it by the Legislature? RSA CH 273-A creates a comprehensive scheme governing labor

relations in the public sector. It is a remedial statute. (See Argument II B below). It vests broad

authority in the PELRB. Nowhere does it provide for revision of the statutory provisions by

employees or collective bargaining representatives. A seven-day limitation period for a party to

file a ULP would have to fail because it is in conflict with the statute. Such a provision, if read

into the CBA, would be further evidence that the grievance procedure is unworkable.

The PELRB had jurisdiction of the ULP under the statutory provisions. RSA 273-A:5(h).

The PELRB could find a violation of the CBA. It could order the Town to cease and desist from

10

maintaining the new policy, and to correct the damage to any employee created by the

implementation of the new policy.

B. Once the new policy is found to be a ULP, and the Town has been ordered to cease anddesist from implementing it, its application to an employee, Mr. Girard, must be reversed.

The Town argues in its Brief that the Town never mentioned the Girard grievance in the

ULP. That is not correct. Paragraph 12 of the ULP, as stated above, alleges that the Town

applied the new policy to an employee and deprived him of leave. That employee was Mr.

Girard. (PELRB Ex. 1, CR 5).

Mr. Girard is entitled to relief in the ruling on the ULP. If the Town’s new policy was

unlawful, then the application of the unlawful policy to any employee must perforce be unlawful.

The Town attempted to argue both sides of this question. In its Answer to the ULP, it argued that

there was no violation because no employee had yet been harmed. (PELRB Ex 6, CR 12). Then

the Town argued before the PELRB, that because no separate complaint had been brought on

behalf of the individual employee, he was not entitled to relief from the Town’s unlawful action.

The Town attempts to substitute legal legerdemain for fairness and common sense. If the new

policy is illegal, and the Town used that policy to the detriment of an employee, then the employee

should be made whole. The new policy was unlawful and had to be rolled back. Its use to deprive

an employee of his benefits under the CBA also has to be rolled back. The PELRB has the

authority to do so.

11

When the PELRB receives an Unfair Labor Practice Complaint, whether ab initio, or as the

final step in a properly negotiated grievance procedure, the PELRB has the authority to order the

offending party to cease and desist from the action complained of in the Unfair Labor

Practice. RSA 273-A:6,VI (a). In the instant case, the PELRB found the new policy unlawful and

ordered the Town to cease and desist from using the new policy. The Town may not, then

continue to apply the unlawful policy to an employee and deprive him of benefits to which he is

entitled under the contract.

Mr. Girard is a member of the bargaining unit who was harmed by the new policy after

the challenge was made. He is entitled to relief as any other member of the bargaining unit

would be who was subsequently harmed by the unilateral change in working conditions. A

grievance was filed for Mr. Girard, but on the same day his grievance was denied by the

Selectmen, the PELRB told the Union that the language of Step 5 in the grievance procedure

would not allow the PELRB to hear the grievance, and the only avenue for relief was a ULP.

(Town Ex. 2, CR 89; Town Ex. 5, CR 94). The Union then filed a ULP challenging the change

in policy and its application to an employee. (PELRB Ex. 1, CR 1-2). Mr. Girard was the

employee to whom the policy had been applied and he is entitled to the relief requested on his

behalf.

C. If the Court holds that the grievance procedure is workable and the seven-day limitationapplies, the matter was still properly before the PELRB. The language of the CBA, theintent of the parties, the purchase of the statute and public policy all support the jurisdictionof the PELRB to rule on this matter.

This matter came before the PELRB as a labor dispute within the scope of the Public

Employee Labor Relations Act, RSA Ch. 273-A. The Public Employee Labor Relations Act, RSA

12

273-A:1 et seq is a remedial statute. Like the Workers’ Compensation Act and the Employment

Security Act, it should be liberally construed in order to achieve its goal. Buyer v. Abundant Life

Farm, Inc., 127 NH, 345 (1985); Appeal of Gallant, 125 NH, 832 (1984). As a remedial statute,

RSA 273-A should not be interpreted in a mechanistic fashion if doing so

would defeat the statute’s purpose. Buyer v. Abundant Life Farm, Inc., Supra.AT 348; Appeal of

Gallant, Supra.AT 835. The purpose of the Public Employee Labor Relations Act is to foster

harmonious relations between public employees and public employers and to provide for

peaceful resolution of disputes through the PELRB. (RSA 273-A, Statement of Policy). In this

case, the parties have a dispute as to the meaning of the CBA. The only available forum to resolve

it is the PELRB. If the parties to a CBA cannot resolve the differences as to its meaning through a

workable mechanism, then the CBA itself becomes meaningless. Appeal of Town of Pelham, 124

NH, 131 (1983). The purpose of the statute would be frustrated.

The Town urges a tortured, mechanical approach. It wants this Court to insert the words,

“by bringing an Unfair Labor Practice Complaint” into Article 11, Step 5 of the CBA. (CR 45).

Then, the Town wants the Court to rule that the submission of the grievance in writing within the

seven-day time limit, that was later withdrawn at the direction of the PELRB so that an Unfair

Labor Practice Complaint could be filed, did not meet the requirement of the CBA for a

submission in writing. The Town further wants the Court to rule that the ULP which was filed

within the statutory time frames after the PELRB rejected the original submission is not acceptable

either, and that the Union had, and has, no remedy.

The result desired by the Town is not supported by the language of the CBA. It is

contrary to the manifest intention of the parties to the CBA. It would frustrate the remedial

13

purpose of the Public Employee Labor Relations Act and would be contrary to the general public

policy of New Hampshire as established by the Legislature and the decisions of this Court.

The parties to this CBA intended by the language of the grievance procedure that the

PELRB would make a final and binding decision upon the parties in the event that they could not

resolve the dispute themselves. Although the mechanism that the parties created was flawed and

unworkable, it was their intention to have the PELRB be the final arbiter of any dispute. With that

intention, the Union initiated the grievance procedure laid out in the CBA. When the grievance

reached Step 5 and the parties could not agree, the Union attempted to submit the matter to the

PELRB.

The CBA provides seven days for the Union to take the next step after receipt of the

decision of the Selectmen. (See Union Ex. 3, Article 11, Step 5). On the sixth and again on the

seventh day after receipt of the denial of the grievance by the Selectmen, Laura Hainey

submitted her request to the PELRB. Ms. Hainey’s filing brought the matter to the PELRB, in

writing, for the purpose of having the PELRB provide the parties with final, binding

resolution. Ms. Hainey’s filing met the deadline established by the CBA. (Union Ex. 5, CR 86;

Town Ex. 2, CR 89).

The CBA does not specify the form in which the appeal to the PELRB at Step 5 shall be

done. It simply says that the grievance may be submitted “in writing to the PELRB within seven

calendar days of (sic) the receipt of the written decision.” (CR 45). The Union did submit the

matter in writing to the PELRB within seven days of the decision rendered by the Selectmen and

requested the appointment of an arbitrator. The Union complied with the contract. The

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subsequent difficulties arose because the CBA relied on the PELRB to act as final arbiter in a

manner that was contrary to the statute. The administrative and procedural difficulties do not alter

the fact that this matter reached the PELRB within the time limits provided by the CBA.

The timeliness of the filing is not altered or changed by the subsequent ruling concerning

the form of the filing. Once a matter has been brought to the court or agency which will act as

trier of fact, then the matter is within its jurisdiction and the agency or court may make such orders

and take such actions as are appropriate.

New Hampshire courts freely allow amendments to pleadings. The New Hampshire

position is consistent with the Federal law. In Federal court, it is anticipated that trial will

eventually take place on the basis of the amended Complaint rather than the initial Complaint.

The Equal Employment Opportunity Commission established early in its history that a

complaint, even if defective, which was brought within the short statute of limitations would be

sufficient to meet the statutory deadline and then the Complaint could be put into proper form.

That position has been maintained, Edelman v. Lynchberg College, 525 US 106 (2002),

upholding the EEOC’s regulation that an unverified, timely complaint can be verified after the

statutory time limit has passed and the verification will relate back to the date of the initial filing.

See also Peterson v. Wichita, 888 F. 2d 1307 (10th Cir. 1989). The Federal courts have made

similar rulings concerning amendments of substance and of form. Williams v. N.Y. City

Housing Auth., 458 F. 3d 67 (2nd Cir. 2006); See generally 42 USCS 2000e-5 at n. 160 and n.

168.

The fact that the request for an arbitrator was withdrawn prior to the submission of the

Unfair Labor Practice Complaint does not terminate the grievance. When the PELRB said the

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CBA provision was ineffective and it could only hear the matter in the form of an Unfair Labor

Practice Complaint as provided by statute, then it was appropriate to put the matter before the

PELRB in a manner that complied with the statute. Then a decision could be rendered by the

PELRB. Compliance with the PELRB’s order is legitimate and appropriate. It effectuates the

intention of the parties that any disagreement between them would be resolved by the PELRB.

The policy of this state, as established by both the Legislature and the Court, is to allow

diligent litigants to have an opportunity to be heard on the merits of their claim rather than to be

barred by technical or formal matters. Roberts v. General Motors Corp., 140 NH, 723, 729

(1996). New Hampshire law provides that if a matter is brought to Court within the statute of

limitations and is subsequently dismissed without a hearing on the merits, the Plaintiff may bring

the case back to court within a year of the dismissal as long as the dismissal was for form and not

substance. RSA 508:10. This Court has ruled that the savings statute provides,

“...a plaintiff who brings a suit based on a cause of action before the statutory limitation expires and has his law suit dismissed on grounds other than an adverse determination on the merits after the statutory period has elapsed may bring a new suit on the same cause within a year...even though the statute of limitations...has run.” MBC, Inc. v. Engel, 119 NH 8, 12 (1979).

If a case has been brought in a timely fashion, the fact that it is dismissed on technical or formal

grounds will not bar its revival.

The Legislature and the Court have maintained that policy. The Court has said, “...(W)e

make every effort to reach a judgment on the merits to achieve the ends of justice unobstructed

by imaginary barriers of form.” (Citation omitted). “...we will continue to focus on ‘what justice

requires’ and not ‘mere form.’”. Roberts v. General Motors Corp. Supra AT 140 NH 729 (1996).

16

This issue reached the PELRB in a timely fashion. Then, upon order of the PELRB, the

original filing was withdrawn and a new filing, in proper form for the PELRB to render a decision,

was submitted. The decision of the PELRB to take jurisdiction and rule on the dispute is correct.

It is properly based on the language used in the CBA and the manifest intention of the parties to

have their dispute resolved by the PELRB. The decision is consistent with, and properly serves,

the remedial purpose of the statute. It is consistent with the general public policy of the State to

allow parties to have their disputes resolved through a hearing on the merits rather than to be

frustrated by slavish adherence to matters of rigid form. The PELRB’s decision is appropriate on

all points and should be upheld.

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ARGUMENT

II. THE TOWN’S ARGUMENT, BASED UPON ARTICLE 20 OF THE CBA, IS NOT RELEVANT BECAUSE THE TOWN DID NOT SEEK TO PREVENT THE SUBSTITUTIONOF SICK LEAVE BY EMPLOYEES FOR FMLA LEAVE. THE TOWN ATTEMPTED TOCONTROL THE SEQUENCE IN WHICH PAID LEAVE WOULD BE USED ANDREQUIRED THE EMPLOYEES TO FIRST USE THEIR VACATION LEAVE THEN USETHEIR SICK LEAVE IN ORDER TO BE ENTITLED TO USE FMLA LEAVE. THE TOWNSTILL REQUIRED THE SUBSTITUTION OF SICK LEAVE FOR FMLA LEAVE.

The Family Medical Leave Act, 29 USC Sec. 2612, allows an employer to require his

employees to substitute paid leave for FMLA leave. The Act provides:

“...an employer may require the employee, to substitute anyof the accrued paid vacation leave, personal leave or medical or sick leave of the employee for leave provided under Subparagraph (C) or (D) of Subsection (a)(1) of this Section for any part of the 12-week period of such leave.” 29 USC Sec. 2612 Subchapter I (a) 2 (B Serious Health Condition).

Subparagraph C referred to in the Act provides that an employee shall be entitled to a total

of 12 weeks of leave in order to care for the spouse, or son, or daughter, or parent of the employee

if such spouse, son, daughter or parent has a serious health condition. 29 USC Sec. 2612

Subchapter I (a) 1 (C). The Town decided to take advantage of the authority granted by the

statute. It requires employees to substitute paid leave for FMLA leave. The Town wrote that

requirement into its personnel policies and also negotiated it into its CBAs. (Union Ex. 4, CR 84

and Town Ex. 5, CR 94).

The Town has required, and the Union has agreed, in the CBA to substitute sick and

vacation leave for FMLA leave. Article 26, Section 5, “Substitution of paid vacation time and

sick leave”:

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A.“An employee will be required to substitute all unused paid vacation and all unused paid sick leave first for FMLA taken for a reason prior to any unpaid leave being taken.”

B. “When an Employee has used his or her unused paid vacation and unused paid sick leave for a portion of family/medical leave, the Employee may request an additional period of unpaid leave to be granted so that the total of paid and unpaid leave provided equals 12 weeks.” (Union Ex. 3, CR 57).

The Town argued before the PELRB, and continues to argue before this Court, that there

is a contradiction between Article 20 and Article 26, Section 5, or, in the alternative, that Article

20 must govern over Article 26, Section 5. Only those employees who are entitled to sick leave

under Article 20 can substitute sick leave for FMLA leave.

However, that is not what the dispute in this matter is about. That is not the position the

Town took with the employees. The Town’s change in policy only sought to control the

sequence in which paid sick leave and paid vacation leave are substituted for FMLA leave. The

Selectmen’s memo of July 22, 2008, which triggered this controversy says,

“...it is the Board’s intent and purpose of this policythat an employee seeking FMLA compensation exhaustunused paid vacation time before utilizing unused sicktime.” (CR 263).

The Selectmen did not seek to prevent or eliminate the use of paid sick leave prior to the taking of

FMLA leave. They sought to force the employees to use vacation leave before they used sick

leave. That initial position of the Selectmen has been maintained throughout this matter in the

Town’s dealings with the employees. Mr. Girard testified that it was the sequence of leave that

was at issue. (TR 53, L 5-11). The letters denying the grievances filed by Detective Walter on

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behalf of all Union members, and the later grievance on behalf of Mr. Girard, after recitation of the

FMLA conclude by saying that the employees will have to first use vacation leave and then sick

leave. (Union Ex. 4, CR 84; Town Ex. 5, CR 94). The memo from Mr. Skowron to the

employees on June 30, 2009, still maintains the same position of the Town. He describes the

July 22, 2008 memo of the Selectmen as controlling the sequence for the utilization of sick leave

and vacation time for family medical leave purposes. (CR 264). From the beginning of this

controversy until the end of this controversy the Town’s position in dealing with its employees has

been the same. It is trying to control the sequence, not the availability of the use of medical leave

prior to the utilization of unpaid leave under the Act.

Despite the Town’s consistent position in dealing with the employees that it was

controlling only the sequence of leave, the Town has argued to the PELRB and to this Court that

the employees are not entitled to family medical leave. That argument is not apropos to the facts

of this matter. The Town’s argument concerning the right to use sick leave, or substitute sick

leave, for FMLA leave is completely different from what the Town did in this matter and is,

therefore, not relevant.

The Town has not sought to change the terms of the CBA requiring that sick leave be

substituted for unpaid FMLA leave. It has only sought to control the sequence despite its

arguments to the PELRB and to this Court. Since the Town is not actually trying to eliminate the

use of sick leave and, in fact, still requires the substitution of sick leave for FMLA leave, the

arguments concerning the appropriateness of the use of sick leave, as provided in Article 20, are

not relevant to this case.

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The Court does not have to resolve any issues concerning the entitlement of the employees

to sick leave when substituting for FMLA leave because the Town has not prohibited the

employees from substituting paid sick leave for FMLA leave.

If the Town had sought to prohibit the substitution of sick leave for FMLA leave, it could

not have done so because of its agreement in Article 26. The language is clear. When FMLA

leave is sought, the employee is required to first use all of his paid leave, both sick leave and

vacation leave, before being allowed to use unpaid leave. The terms of this provision are written in

simple, declarative sentences. There are no qualifiers or limitations. All unused paid sick and all

unused paid vacation leave must be utilized before the employee may take unpaid leave under the

FMLA. There is no provision that vacation leave must be used before sick leave. There is no

reference to Article 20, nor is there any qualification stating the employee must be entitled to use

the sick leave under Article 20.

If the parties to the CBA wanted to limit the use of sick leave under FMLA to leave taken

for the illness of the employee, him/herself, as provided in Article 20, they could have said so.

They did not. Once again, the Town urges the Court to add language to the contract so that the

Town’s position may prevail. However, the Court interprets a contract using the language

chosen by the parties when the contract was made. “...(the Court generally discerns the parties’

intent from plain meaning language used in contract.)” Tuttle v. NH Medical Malpractice Joint

Underwriting Assn., _____NH _____, Case No. 2009-555, decided January 28, 2010; Miller v.

Amica Ins. Co., Supra; Accord Tech-Built 153 v. Va Surety Co., 153 NH 371 (2006). Language

is given its normal, common meaning. Royal Oak Realty Trust v. Mordita Realty, 142 NH 578,

581 (2001).

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The language of Article 26, Section 5 is clear and complete. It sets out the parties’

comprehensive agreement on the substitution of paid leave for FMLA leave. It makes no reference

to Article 20. It has no proviso that the sick leave which the employees are required to substitute

for FMLA leave must believe that they would be entitled to use under Article 20. The employer,

the Town, has made the decision to require the employees to use that leave and the employees,

through the Union, have agreed to do so. The provisions of Article 20 are simply not relevant to

the case at bar.

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ARGUMENT

III. THE PELRB DECISION ON THE MERITS IS CORRECT AND IS AMPLYSUPPORTED BY THE EVIDENCE.

A. The PELRB finding of a past practice is amply supported by the evidence. The existingpractice whereby employees were allowed to elect which form of paid leave they wouldsubstitute for FMLA leave, was well established by the documentary evidence and thetestimony of the Union’s witnesses. The Town offered no evidence to rebut or contradictthe evidence presented by the Union.

A telling piece of evidence that the Town was changing an existing practice governing

conditions of employment is the issuance of the July 22, 2008 memorandum itself. (CR 263). If

there were no change in the way the Town was administering the CBA, then why was it necessary

to issue the memorandum of July 22 at all? One does not issue a memorandum to change a

practice unless one is changing the practice. The Town alleged in its Exhibit 5 and in Union

Exhibit 4 that the contract had been “misinterpreted” and that the memorandum was now clarifying

the meaning of the contract. In fact, the “misinterpretation” had been the universal practice in

administering both this CBA, the Town’s personnel policies, and other collective bargaining

agreements. (Union Ex. 2, CR 35; Union Ex. 4, CR 84; Town Ex. 5, CR 94).

The Town’s contention that both the CBAs and the Town’s personnel policy were being

“misinterpreted” does not withstand scrutiny. The memo itself acknowledges the existing practice

of using sick leave, at the employees’ discretion, to substitute for FMLA leave when it says that

the Town would not seek reimbursement “for sick time that has been utilized prior to the date of

this memo.” (CR 263).

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The Town did not put forward a shred of evidence to support its contention that there was

no existing practice. The Town did not offer one example of an instance prior to July 22, 2008

where the contract had been “correctly” interpreted and an employee had been forbidden to

substitute sick leave for FMLA leave before substituting vacation leave.

The testimony of the Union’s witnesses and the exhibits provided by both the Town and the

Union establish a practice of employees utilizing both sick and/or vacation leave at the times of

childbirth to substitute for unpaid FMLA leave. Ms. Tedcastle’s testimony was clear and

unequivocal. She had taken leave at the time of her pregnancy. She utilized vacation leave and

sick leave interchangeably. (Transcript Page 68, Lines 5-21). (Hereinafter references to the

Transcript will be made as TR Page Number, L Number.) She utilized sick leave well after her

period of disability. Ms. Tedcastle testified on cross examination that the normal period of

disability for pregnancy was six weeks. (TR 72, L. 13-14). The record shows that she used sick

leave for the first four weeks of her time out of work. She used vacation leave in her fifth week

and then returned to using sick leave past the period of disability and subsequently vacation leave.

(Union Ex. 2, CR 35). Ms. Tedcastle confirmed that both she and another employee, Kristen

Ahearn, used sick leave and vacation leave interchangeably, at their own discretion. Both Ms.

Tedcastle and Mr. Girard testified that this was how it had always been done by the employees.

Sgt. Cain had used both kinds of leave when his children were born. (TR 69, L 5; Union Ex. 2,

CR 35).

Union Exhibit #2, CR 35, further establishes that from 2005 - July, 2008, seven people

employed by the Town utilized leave at the time of the birth of a child. Ms. Tedcastle testified

about several of these employees including Ms. Ahearn, who was under her supervision, Sgt. Cain,

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Mr. George, and Mr. Webber. (TR 70, L 4-12).

Mr. Girard also testified about other employees who had used sick time at the time of the

birth of their children and illness or disability to the wife who gave birth. Union Exhibit #2, CR 35,

contains a notation that Ms. Kitson used a lot of sick time leave during her mid and late pregnancy

so she “chose” to use the two hours of sick leave a week while she was “out” on leave to spread it

out. This is further evidence that the employees had discretion on how they would substitute their

paid leave for FMLA leave. The record including the spreadsheet generated by the Town (Union

Ex. 2), and presented to the PELRB by the Union, and the testimony of the witnesses established

that when the employees in the Town of Pittsfield took leave because of the birth of a child they

were allowed to substitute paid sick or paid vacation leave in the sequence they chose. Ms.

Tedcastle testified that she and Ms. Ahearn both used sick leave on some days and vacation leave

on other days depending on the work schedule and holidays. (TR 70, L 13 - TR 71, L 20). Ms.

Tedcastle testified that she assumed that Mr. Girard would have the same ability to use sick leave

first at his discretion. (TR 67, L 11-15).

The Town offered no evidence of any employees who had been denied the use of sick leave

at the time of the birth of a child. The Town simply argues that there should have been more

evidence placed on the Union’s side of the scales. However, such a conclusory statement does not

add weight to the Town’s side of the scale, nor does it rebut the Union’s evidence.

The Town is challenging the PELRB’s findings of fact and characterizing the challenge as

“a matter of law”. However, the Town is really challenging the PELRB’s findings of fact. The

question really is: was there sufficient evidence to support the PELRB’s ruling? The answer is

“yes”. The evidence before the PELRB was sufficient to establish a past practice even using the

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criteria the Town relies on in the case of Exeter employees. The practice was well established.

Seven employees utilized sick leave from 2005 - 2008 until the change in policy. The practice was

consistent. There is no evidence of any employee being required to use vacation leave before sick

leave or being denied the use of sick leave prior to July, 2008.

The practice by its nature, will not be explicitly, mutually agreed upon. If it were explicitly,

mutually agreed upon, then it would be part of the CBA or an addendum to the CBA.

However, the behavior and knowledge of the parties concerning a past practice can establish that it

was known to, and accepted by, both parties to the CBA. In the instant case, the use of leave had

to be approved by supervising and managing authorities. (Town Ex. 4, CR 93). The Town’s

management tracks and records the use of the sick leave and keeps the personnel records of all the

employees utilizing leave. Management is also responsible for the computation of the leave that

was taken and the leave remaining. Management’s role is similar to that of the Department of

Safety as described in Appeal of Department of Safety, 155 NH 201, 210 (2007). The

substitution of both sick and vacation leave for FMLA leave was known to the Town. There is no

evidence of any issue or dispute between the Town and the Union prior to the Town’s change in

policy in July, 2008.

Both sides knew what the existing practice was through the requesting and using of leave,

the administering of the leave, and the keeping of the records of the use of leave. Both sides

acquiesced in and accepted the practice. Neither side sought to change it through negotiation.

The current CBA, Union Ex. 3, went into effect in January, 2008. No evidence was presented to

the PELRB that any changes in Article 26 were sought to alter the existing practice during

negotiations for the current CBA.

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The evidence of an existing practice presented by the Union is overwhelming. On the

opposite side, there is only the cry of continuous pervasive mistake set forth in Mrs. Small’s

letters, Union Ex. 4, CR 84, and Town Ex. 5, CR 94; and the argument of “not enough” set forth

in the Town’s Brief.

The Town’s analysis in which it argues that the “quantum of evidence” presented to the

PELRB was insufficient is erroneous. The Town’s argument is skewed by their mistaken position

that the issue is entitlement to sick leave. Because of this error, they want to discount the evidence

of Ms. Tedcastle and Ms. Ahearn and Ms. Kitson and Ms. Marston because they were allegedly

the ones pregnant and giving birth and, therefore, entitled to use sick leave under Article 20 of the

CBA.

But the issue before the PELRB did not involve “entitlement” to sick leave. Article 26,

Section 5 requires the substitution of paid leave, both sick and vacation, for FMLA leave. The

Town’s actual position is that the employees are required to use all paid leave, sick and vacation,

to substitute for FMLA leave. That was the final statement in the letters from Mrs. Small denying

the grievances. (Union Ex. 4, CR 84; Town Ex. 5, CR 94). It was the initial position of the Town

when the change in policy was announced; CR 263, testimony of James Girard, TR 50, L. 5-11;

TR 53, L.15-18; and it remained the position of the Town at the end of this matter.

(Memorandum of Paul Skowan, CR 264). Therefore, the fact that the female employees had the

discretion to substitute either sick or vacation leave as they chose is just as relevant as the use of

sick or vacation leave by male employees. That evidence is clear. Prior to July, 2008 employees

had discretion to substitute vacation leave or sick leave for FMLA leave as they chose. The

Town’s action in July, 2008 was a significant and sharp change in existing practice. It was done

27

without negotiation and is therefore a violation of the CBA. The PELRB’s conclusion was correct

and should be confirmed by the this Court.

B. It was proper for the PELRB to consider the evidence concerning all of the personslisted on Union Exhibit #2.

The Town argues that the PELRB should not have considered evidence for those persons

who were not proved to be in the bargaining unit. The Town argues that only three people were

proven to be in the bargaining unit–Ms. Tedcastle, Ms. Ahearn, and Mr. Girard. The Town’s

argument is in error. The CBA of the Union covers police sargeants. (Union Ex. 3, CR 39). Sgt.

Cain is, therefore, a member of this bargaining unit. (TR 69, L 5-7). He substituted both sick and

vacation leave at the time of the birth of his children. (Union Ex. 2, CR 35).

It was proper for the PELRB to consider the evidence of all of the persons listed in Union

Exhibit #2. The Town has taken the position that both the Teamsters CBA and the Union CBA,

and the Town’s personnel policies were the same and that they all had been “misinterpreted” in the

same way. (Union Ex. 4; Town Ex. 5). Therefore, all the employees listed on Union Exhibit #2

were governed by the same language, either in a CBA or in the Town’s personnel policy. If they

were all allowed discretion in the use of sick leave rather than vacation leave to substitute for the

birth of a child, that is probative of a consistent, established, accepted practice for employees in the

Town of Pittsfield. The practice was not just consistent with members of this bargaining unit, it

was universal in the Town.

The obvious way for the Town to defeat the claim of existing past practice would be to

produce evidence of contrary practice to show that the practice was not consistent and was not

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universal. The Town provided no such evidence. The PELRB had prior evidence of a clear, well

established, consistent practice which had been utilized by the parties across the board for all

employees, both those covered by the CBA and those not. The Town provided no evidence to the

contrary. The PELRB properly found, on the basis of overwhelming evidence, that an existing

past practice was in place which the Selectmen attempted to change in their memo of July 22,

2008.

CONCLUSION

The Public Employee Labor Relations Board had jurisdiction to hear this matter as an

Unfair Labor Practice Complaint. The PELRB’s decision is correct as a matter of law and well

supported by the evidence. The PELRB’s ruling should be affirmed.

Dated: March _______, 2010 Respectfully submitted,Pittsfield Town EmployeesLocal #6214Through and By Its Attorney

By: _________________________________ Emmanuel Krasner, Esquire, Bar #1396 Krasner Law Office

523 Main Street, PO Box 637Farmington, NH 03835603-755-2082

CERTIFICATION

I hereby certify that a copy of the foregoing was emailed this date to Thomas Flygare,Esquire, attorney for the Town of Pittsfield.

___________________________________Emmanuel Krasner, Esquire

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