Appeal of Barrington Education Ass'n

437 A.2d 718, 121 N.H. 949
CourtSupreme Court of New Hampshire
DecidedNovember 16, 1981
DocketNo. 80-287
StatusPublished
Cited by4 cases

This text of 437 A.2d 718 (Appeal of Barrington Education Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of Barrington Education Ass'n, 437 A.2d 718, 121 N.H. 949 (N.H. 1981).

Opinion

Brock, J.

The issue in this labor relations case is whether the Public Employee Labor Relations Board (PELRB) awarded the proper measure of back pay benefits to two school teachers who, it had previously determined, had been the victims of unfair labor practices committed by the defendant, Barrington School Board. [951]*951We uphold the PELRB’s determination of allowable back pay benefits and affirm.

In the spring of 1979, the plaintiffs, Mark Greenwood and Constance Parsons, were informed by the Barrington School Board that they would not be renominated to their respective teaching positions for the 1979-1980 school year. The plaintiffs, both of whom were active in the teachers’ union, then filed an unfair labor practice charge (RSA 273-A:5 (Supp. 1979)) with the PELRB. On July 12, 1979, in a split decision, the PELRB found in favor of the plaintiffs and, on July 18, it ordered the defendant to reinstate them.

Because of the defendant’s numerous requests for rehearings and appeals, the plaintiffs were not immediately reinstated, and therefore, on November 21, 1979, they petitioned the PELRB to award them back pay benefits. While that action was still pending, the Strafford County Superior Court, on December 10, 1979, ordered the school board to comply with the PELRB’s original reinstatement order pending the appeal.

Compliance with the superior court order occurred on December 28, 1979, when the school board tendered the plaintiffs written and signed offers of employment, specifying both salary and a starting date, January 2, 1980. Under its express terms, the offer was to remain open for ten days, until January 7, 1980, at which time the offer would lapse. Plaintiff Greenwood telephoned the school after receiving the letter to discuss the terms of the offer in more detail, but the person he spoke to was unfamiliar with the matter. Mr. Greenwood did nothing further: he did not go to the school, or refer the matter to his attorney. Instead, he chose to wait for the school to contact him despite the fact that the terms of the offer required its acceptance in writing. Although the offers were extended for an additional seven days, neither plaintiff responded and the offers expired.

On February 26, 1980, the PELRB held its hearing to determine whether the defendant had complied with the PELRB’s earlier order calling for plaintiffs’ reinstatement, and to determine the appropriateness and extent of an award for back pay. The plaintiff Greenwood appeared and testified at the hearing, but plaintiff Parsons did not attend.

After hearing all the evidence, the PELRB found that the school board’s offers of employment, dated December 28, 1979, were in compliance with the terms of the PELRB’s reinstatement order. The PELRB further found that these offers were not accepted by the plaintiffs, who were under no obligation or order to accept them. Because the offers stated that January 2, 1980, would be the [952]*952plaintiffs’ starting dates, the PELRB ruled that under no circumstances would the school board be liable for back pay after that date.

Back pay in the amount of $686.37 was awarded to the plaintiff Greenwood for the period September 1 to December 31, 1979. This amount was arrived at by subtracting Mr. Greenwood’s earnings at other employment, $3,500.63, from the salary he would have earned at the school for the same period, $4,187. Plaintiff Parsons was awarded no back pay because the PELRB found that she had made no affirmative showing that she ever intended to return to work at the school.

On appeal to this court, the plaintiffs contest the methods employed by the PELRB in computing the back pay awards, and plaintiff Parsons claims the PELRB erroneously required her to establish that she had the intent to return to work.

We first consider plaintiff Parsons’ claim that the PELRB erroneously required that she establish her intent to return to work at the school before it would award her back pay. Any objections that she may have to the PELRB’s order must be viewed with some misgiving due to the fact that she did not personally attend the hearing, and makes no claim that she did not receive notice or that her non-appearance was caused by justifiable circumstances. In addition, the record reveals that no one requested a continuance when the school board objected because plaintiff Parsons was not present. See N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965). (Court refused to enforce award when discriminatee did not justify his failure to appear at hearing.) Moreover, the fact that plaintiff Parsons never intended to return to work at the school was a proper factor for the PELRB to consider. Cf. Phelps Dodge Corp. v. Nat’l Labor Relations Bd., 313 U.S. 177, 199-200 (1941); O., C. & A. Wkrs. Int. U., AFL-CIO v. N.L.R.B., 547 F.2d 598, 602-03 (D.C. Cir. 1976), cert. denied, 429 U.S. 1078 (1977).

While the burden of establishing a lack of intent to return should fall upon the employer, see id. at 603, N.L.R.B. v. Tama Meat Packing Corp., 634 F.2d 1071, 1073 (8th Cir. 1980), we feel that a different result should be reached in this case because the employer was denied the opportunity to fully and fairly obtain the testimony of plaintiff Parsons: she chose not to attend the hearing, failed to seek a continuance, and failed to notify the defendant that she would not be available to testify at the hearing, thereby unnecessarily frustrating the purpose of the hearing that she herself had initiated. Under these circumstances, we cannot say that the [953]*953PELRB’s decision as to plaintiff Parsons was clearly unreasonable, unjust, or unlawful and it therefore must stand. Appeal of Berlin Board of Education, 120 N.H. 226, 229, 413 A.2d 312, 314 (1980); RSA 541:13.

We next consider plaintiff Greenwood’s contention that his back pay award was inadequate. In advancing this claim, Greenwood contends that the PELRB did not adequately consider the fact that his “incidental expenses were greater at his new job as a construction worker,” that the PELRB failed to adjust for overtime and fringe benefits, and that the PELRB erroneously ruled that the defendant’s offer was in compliance with the PELRB’s reinstatement order.

In considering the plaintiff’s argument that his back pay award was insufficient, we first note that the statutory authority to grant back pay awards is found in RSA 273-A:6 VI (Supp. 1979). Under that statute “the board [PELRB] may . . . (b) order reinstatement of an employee with back pay . . .” when he has been the victim of an unfair labor practice under RSA 273-A:5 (Supp. 1979). (Emphasis added.) RSA 273-A:6 VI (Supp. 1979) does not, however, indicate the factors the PELRB must use in computing back pay. Indeed, no method of computing back pay is provided anywhere within RSA ch. 273-A (Supp. 1979). In the absence of a statutory formula, we can only conclude that the PELRB, like its federal counterpart the NLRB, should be given wide discretion in the computation of such awards. See Golden State Bottling Co. v. NLRB,

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437 A.2d 718, 121 N.H. 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-barrington-education-assn-nh-1981.