Appeal of Londonderry School District

707 A.2d 137, 142 N.H. 677, 1998 N.H. LEXIS 19
CourtSupreme Court of New Hampshire
DecidedMarch 23, 1998
DocketNo. 96-107
StatusPublished
Cited by9 cases

This text of 707 A.2d 137 (Appeal of Londonderry School District) 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 Londonderry School District, 707 A.2d 137, 142 N.H. 677, 1998 N.H. LEXIS 19 (N.H. 1998).

Opinion

BRODERICK, J.

The Londonderry School District (school district) appeals a decision by the public employee labor relations board (PELRB) holding that occupational therapists (therapists) are members of the bargaining unit represented by the Londonderry Education Association (LEA). We reverse.

In 1974, the LEA and the school district entered into a collective bargaining agreement (CBA) for a two-year term. The CBA contained the following recognition clause:

A. The Londonderry School Board, hereafter referred to as the Board, hereby recognizes the Londonderry Education Association, hereafter referred to as the Association, as the exclusive representatives for purposes of collective negotiation for all professionally certified personnel with the exception of the following exclusions: superintendent, assistant superintendents, principals, assistant pi’incipals, directors, teacher consultants, business administrators, persons employed by the State Board of Education as department heads, teaching principals, teaching assistant principals who teach three (3) periods or less per day or fifty (50) percent or less time per wéek.
B. Unless otherwise indicated, the term “teacher” when used hereinafter in this Agreement shall refer to all professionally certified personnel employed by the School Board and represented by the Association in the negotiating unit as above defined. Registered nurses hired subse[679]*679quent to January 1, 1974, and who are not certified as School Nurse Teachers shall not be members of the bargaining unit until they complete their certification requirements. (i.e. R.N. + 30 college credits, and state certification as Nurse Teacher.) Such nurses shall be compensated via a separate salary schedule. Certified school nurse teachers who are members of the bargaining unit shall be paid on the B. A. Track of the teachers salary schedule. Any reference to male teachers shall include female teachers.
C. This recognition shall not preclude the Board from communicating with, consulting, or dealing with any individual teacher or groups of teachers for any purpose the Board shall deem desirable in the discharge of its responsibilities.

(Emphasis added.)

In 1976, the PELRB certified the LEA as the unit’s exclusive representative. See RSA 273-A:8 (1987). In 1992, the PELRB modified the bargaining unit on petition of the LEA to include the position of school psychologist.

The school district hired its first therapist in 1980 and, since 1988, has hired several others. All the therapists are licensed by the New Hampshire Board of Registration of Medicine under RSA 326-C:3 (Supp. 1997) and are members of the American Occupational Therapy Association (AOTA), a voluntary national organization. None are certified by the State Board of Education. The therapist hired in 1980 has always received salary and benefits comparable to those received by members of the bargaining unit, while the remaining therapists are paid by the hour and receive no sick leave, insurance, or benefits.

In November 1993, the LEA, apparently believing that therapists were members of the bargaining unit, filed a grievance claiming that all therapists hired since 1988 were entitled to the same salary and benefits as others in the unit. The school district asserted that the arbitrator lacked jurisdiction to hear the grievance because therapists were not members of the bargaining unit. The arbitrator recessed the proceedings pending a decision by the PELRB on the inclusion of the therapists in the unit.

In July 1995, a PELRB hearing officer ruled that all therapists are members of the bargaining unit. The hearing officer concluded that the therapist hired in 1980 was a member because she received salary and benefits similar to those of teachers in the unit. The remaining therapists were deemed members because, despite their [680]*680significantly different compensation, they performed the same duties as the original therapist. All therapists were found professionally certified through their membership in AOTA. Following the school district’s appeal to the full membership of the PELRB, the hearing officer’s decision was affirmed. The school district’s rehearing motion was denied, and this appeal followed.

Our standard of review is governed by RSA 541:13 (1997). As the appealing party, the school district must show that the PELRB’s decision is contrary to law or, by a clear preponderance of the evidence, unjust or unreasonable. See RSA 541:13; Appeal of AFSCME Local 3657, 141 N.H. 291, 293, 681 A.2d 100, 102 (1996). The PELRB’s findings on questions of fact are deemed prima facie lawful and reasonable. RSA 541:13; Appeal of Prof. Firefighters of E. Derry, 138 N.H. 142, 145, 635 A.2d 1352, 1354 (1993).

The composition of a bargaining unit is limited by law to those positions identified in the recognition clause at the time the original unit is certified by the PELRB and by any subsequent modifications approved by the PELRB. See RSA 273-A:8. (“The board . . . shall determine the appropriate bargaining unit . . . when petitioned to do so under RSA 273-A:10.” (Emphasis added.)); N.H. ADMIN. RULES, Pub 302.05; see also, e.g., Appeal of Bow School District, 134 N.H. 64, 66, 588 A.2d 366, 367-68 (1991) (tracking creation and subsequent history of bargaining unit); cf. Association of Portsmouth Teachers v. Portsmouth School Dist., 113 N.H. 659, 661, 312 A.2d 573, 575 (1973) (interpreting contract according to parties’ intent at time of formation). When the PELRB recognized the LEA, it certified the “grandfathered” unit identified in the recognition clause of the 1974 CBA, which existed prior to the effective date of RSA chapter 273-A. See State Employees Ass’n v. N.H. Pub. Employee Labor Relations Bd., 116 N.H. 653, 655-56, 366 A.2d 494, 496 (1976). Since then, the bargaining unit has been modified by petition just once, to include the position of school psychologist.

Our focus, therefore, is upon the language of the recognition clause, which we review de novo. See Estate of Frederick v. Frederick, 141 N.H. 530, 532, 687 A.2d 711, 713 (1996). The recognition clause limits the bargaining unit to “professionally certified personnel.” A facial review of the recognition clause, however, indicates that while state certified teachers apparently are included, see RSA 186:11, X(a) (1989), the meaning of “professionally certified personnel” is not certain.

[681]*681Thus, we consider parol evidence of the parties’ intentions in limiting the bargaining unit. See McMullin v. Downing, 135 N.H. 675, 678, 609 A.2d 1226, 1229 (1992). Although the LEA had the burden of proof before the PELRB, see N.H. ADMIN.

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Bluebook (online)
707 A.2d 137, 142 N.H. 677, 1998 N.H. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-londonderry-school-district-nh-1998.