Appeal of the Town of Pelham

908 A.2d 780, 154 N.H. 125, 2006 N.H. LEXIS 124
CourtSupreme Court of New Hampshire
DecidedAugust 23, 2006
DocketNo. 2005-436
StatusPublished
Cited by3 cases

This text of 908 A.2d 780 (Appeal of the Town of Pelham) 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 the Town of Pelham, 908 A.2d 780, 154 N.H. 125, 2006 N.H. LEXIS 124 (N.H. 2006).

Opinion

DALIANIS, J.

The appellant, Town of Pelham (town), appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB), in which the PELRB ordered the town to comply with an [127]*127arbitrator’s award mandating the reinstatement of an employee represented by the appellee, The American Federation of State, County and Municipal Employees Council 93, AFL-CIO, Local 3657, Pelham Police Employees (the union). We affirm.

The record supports the following facts. The town is a public employer within the meaning of RSA 273-A:l, X (Supp. 2005). The union is the exclusive bargaining representative for certain members of the Pelham Police Department (PPD), including dispatchers. The town and the union were signatories to a collective bargaining agreement (CBA) that governed the terms and conditions of their relationship, including a workable grievance procedure as required by RSA 273-A:4 (Supp. 2005). The CBA included several progressive levels of disciplinary action, ranging from a verbal warning to termination, though it provides that the sequence “need not be followed if an infraction is sufficiently severe to merit immediate suspension or discharge.” The CBA contained no language mandating discipline, such as termination, for any particular form of misconduct.

The town employed Debra Desmarais as a PPD dispatcher from June 1998 until June 2002, when her employment was terminated. As a dispatcher, her normal responsibilities included: answering and initiating telephone calls; receiving members of the public at the PPD; watching video monitors, including those that monitored the lock-up area; recording walk-in 911 reports; and performing computer research regarding criminal records. Desmarais was not a sworn officer; she did, however, wear a uniform shirt with the PPD logo on it. Though dispatchers such as Desmarais are, at times, required to testify and author written reports in criminal matters, it is improbable that a dispatcher’s report of an event will rise to the level of essential testimony for a prosecution.

In September 2001, the PPD began investigating allegations that Desmarais had, on numerous occasions, solicited and accepted a “police discount” at a local McDonald’s restaurant. The investigation included interviews with Desmarais and employees of the McDonald’s where she allegedly demanded the discounts. Though Desmarais acknowledged receiving discounts “three to four times,” she claimed that she had requested a discount only once. Various restaurant employees, however, claimed that she had solicited discounts on ten to thirty separate occasions. As a result of the investigation, Desmarais, who had been on administrative leave from September 24, 2001, to March 14,2002, received a five-day suspension in April 2002 for violating departmental rules regarding solicitation of discounts or gratuities.

Because of the discrepancies between the testimony of Desmarais and that of the restaurant employees, the town initiated a separate [128]*128investigation into whether Desmarais had been truthful during the original investigation. The town re-interviewed Desmarais and the employees, and found the same testimonial disparities regarding the number of times Desmarais had solicited and received discounts. Following the second investigation, the town concluded that Desmarais had violated the PPD’s “General Rules of Conduct,” which require that “[o]n any official matter whatsoever, employees shall not knowingly make any false statements or misrepresentations of the facts, nor withhold information that would assist in resolving the matter.” Finding this to be just cause, the town notified Desmarais that she would be terminated from her employment as a dispatcher effective June 10,2002.

[13 As a result of the termination, the union proceeded to arbitration pursuant to the CBA. The town, without objection, voluntarily participated in the arbitration with the understanding that it would yield a final and binding award. A one-day arbitration was conducted on November 5, 2003, and the arbitrator rendered a decision on February 6, 2004. An arbitrator has the authority, in the context of a just cause grievance, to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision. Appeal of City of Manchester, 153 N.H. 289, 293 (2006). The arbitrator ' considered, among other things, the testimony of witnesses, the PPD’s rule prohibiting false statements in connection with official matters, and our holding in State v. Laurie, 139 N.H. 325 (1995). Though the arbitrator found that Desmarais deliberately misrepresented the number of times she requested and received discounts at McDonald’s, he concluded that termination was too harsh a penalty. Accordingly, while he did not order back pay or other contract benefits for the unemployment period beginning June 10,2002, he did award reinstatement. The union thereafter requested, in a letter dated February 17, 2004, that the town comply with the award and reinstate Desmarais.

Rather than reinstate Desmarais, the town filed an improper practice charge with the PELRB, alleging that the union committed an unfair labor practice by demanding Desmarais’ reinstatement. Specifically, the town asserted that the arbitrator’s award was violative of public policy, as it required the reinstatement of “an individual proven to have been untruthful in her official duties and in her sworn testimony.” The PELRB conducted an evidentiary hearing in the matter on September 23, 2004, and on March 16, 2005, issued a decision denying the town’s complaint against the union and finding, instead, that the town committed an unfair labor practice by refusing to implement the arbitrator’s award. The PELRB ordered the town to immediately reinstate Desmarais as a police [129]*129dispatcher. The town subsequently filed a motion for reconsideration, which the PELRB denied.

On appeal, the town argues that the PELRB erred by “ignoring] the well-defined and dominant public policy against reinstating untruthful police department employees” and by applying an incorrect standard of review. “When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable.” Appeal of Nashua Police Comm’n, 149 N.H. 688, 689 (2003); see also RSA 541:13 (1997). Though the PELRB’s findings of fact are presumptively lawful and reasonable, we require that the record support the PELRB’s determinations. Appeal of City of Laconia, 150 N.H. 91, 93 (2003).

We first address the town’s assertion that the PELRB erred as a matter of law by issuing a decision in contravention of public policy. To so find, we must conclude that the PELRB’s order contravenes a “strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority.” Appeal of Amalgamated Transit Union, 144 N.H. 325, 327 (1999). Thus, in such cases our review is limited to the confines of positive law, rather than general considerations of supposed public interests. Cf. Harper v. Healthsource New Hampshire, 140 N.H. 770, 775 (1996) (court may refuse to enforce contract that contravenes public policy of statutory or nonstatutory origin).

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Bluebook (online)
908 A.2d 780, 154 N.H. 125, 2006 N.H. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-the-town-of-pelham-nh-2006.