Appeal of the University System of New Hampshire Board of Trustees

795 A.2d 840, 147 N.H. 626, 2002 N.H. LEXIS 49, 171 L.R.R.M. (BNA) 2886
CourtSupreme Court of New Hampshire
DecidedApril 19, 2002
DocketNo. 2000-335
StatusPublished
Cited by13 cases

This text of 795 A.2d 840 (Appeal of the University System of New Hampshire Board of Trustees) 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 University System of New Hampshire Board of Trustees, 795 A.2d 840, 147 N.H. 626, 2002 N.H. LEXIS 49, 171 L.R.R.M. (BNA) 2886 (N.H. 2002).

Opinion

BROCK, C.J.

The University System of New Hampshire Board of Trustees (University System) appeals from a ruling of the public employee labor relations board (PELRB) certifying a bargaining unit of adjunct teaching faculty (adjunct faculty) who are currently employed and have taught at least two of the last three semesters at Keene State College. We understand the issues on appeal to be: (1) whether the doctrine of res judicata applies; (2) whether changes in the adjunct faculty’s work conditions since 1977 warranted reconsideration of whether they are “temporary” employees; and (3) whether the PELRB’s decision is clearly unjust and unreasonable, or unlawful. We affirm in part, vacate in part and remand.

The parties do not dispute the following facts. On June 2, 1999, the respondent, the Adjunct Association of Keene State College/NEA-NH (Association), filed a petition for certification with the PELRB seeking to represent approximately 147 adjunct faculty at Keene State College, a member institution of the University System. Prior to the hearing, the parties stipulated that the proposed bargaining unit did not include: (1) employees who teach non-credit courses; (2) employees who teach courses for which no compensation is paid; (3) any tenure or tenure-track employees; (4) employees known as PATs (Prcifessional-AdministratorTechnical) who do some instruction as part of their regular duties; and (5) Faculty-in-Residence.

The University System opposed the petition, arguing that the adjunct faculty are “temporary employees” and therefore excluded from bargaining under RSA 273-A:l. See RSA 273-A:l, IX(d) (1999). It also asserted that because the same issues had been fully litigated and finally decided in Keene State College Education Ass’n, NHEA/NEA v. The State of New Hampshire, 119 N.H. 1 (1979), consideration of the Association’s petition was barred by res judicata. Following a hearing, the hearing officer ruled that res judicata did not preclude consideration of the case, [629]*629that the adjunct faculty were not temporary employees and that adjunct faculty who were then currently teaching and who had taught two of the last three semesters were eligible to form a bargaining unit.

The PELRB denied the University System’s motions for reconsideration and rehearing, and an election was held in the unit on April 26, 2000, with a majority of the eligible adjuncts voting for union representation. After the Certification of Representative and Order to Negotiate was issued on May 3, 2000, the University System appealed to this court. At issue in this appeal is the validity of the PELRB’s decision affirming the hearing officer’s decision that the Keene adjunct faculty were not temporary employees and that adjunct faculty who were then teaching and who had taught two of the last three semesters were eligible to form a bargaining unit.

We adhere to the standard of review set forth in RSA 541:13 (1997). See Appeal of State of N.H., 138 N.H. 716, 720 (1994). Thus, to succeed on appeal, the University System must show that the PELRB’s decision is unlawful, or clearly unjust or unreasonable. Appeal of Town of Newport, 140 N.H. 343, 345 (1995). The PELRB’s findings of fact are presumptively lawful and reasonable, and will not be disturbed if they are supported by the record. Id.; RSA 541:13 (1997). However, we act as the final arbiter of the meaning of the statute, and will set aside erroneous rulings of law. See RSA541:13; Appeal of Campton School Dist., 138 N.H. 267, 269 (1994).

We address first the University System’s contention that res judicata precludes relitigation of this matter. The University System asserts that the issue of whether adjunct faculty at Keene State are temporary employees was fully litigated by the same parties who are parties to this action, and was finally decided in Keene State, 119 N.H. 1.

“Spurred by considerations of judicial economy and a policy of certainty and finality in our legal system, the doctrines of res judicata and collateral estoppel have been established to avoid repetitive litigation so that at some point litigation over a particular controversy must come to an end.” Eastern Marine Const. Corp. v. First Southern Leasing, 129 N.H. 270, 273 (1987) (quotation omitted). Res judicata, or claim preclusion, “bars the relitigation of any issue that was or might have been raised in respect to the subject matter of the prior litigation.” Grossman v. Murray, 141 N.H. 265, 269 (1996) (quotation and emphasis omitted). In determining whether two actions are the same cause of action for the purpose of applying res judicata, we consider whether the alleged causes of action arise out of the same transaction or occurrence. Restatement (Second) of Judgments § 24, at 199 (1982). We conclude that the instant cause of action did not arise out of the same transaction or occurrence as the cause of action in Keene State.

[630]*630RSA 273-A:8 (1999) authorizes the PELRB to certify an appropriate bargaining unit when ten or more public employees file a petition. RSA 273-A:l, IX(d) defines “public employee,” in pertinent part, as “any person employed by a public employer except... (d) [p]ersons in a probationary or temporary status, or employed seasonally, irregularly or on call.”

In 1976, the Keene State College Education Association (KSCEA), affiliated with the New Hampshire Education Association, filed a petition for representation with the PELRB seeking to represent a bargaining unit of all educational professionals employed by Keene State College, including both adjunct faculty and full-time, tenure-track faculty. At one point in the proceedings, the PELRB ruled that adjunct faculty were “temporary employees” and, therefore, not covered by the statute. Keene State, 119 N.H. at 2. The PELRB also held that even if the adjunct faculty were not considered temporary employees, they did not share a community of interest with full-time, tenure-track faculty. Id.

On appeal, we affirmed, holding that the PELRB’s standard for distinguishing temporary from permanent status based upon whether the employees have a “reasonable expectation of continued employment” was a fair interpretation of the statute. Id. at 3 (quotation omitted). We also held that the PELRB’s conclusion that the adjunct faculty were temporary employees was grounded on extensive factual investigation, and was adequately supported by the record. Id. Thus, the PELRB’s decision was specifically grounded upon facts as they existed in or about 1977. Because the facts relevant to whether the adjunct faculty are “temporary employees” may have changed in the past twenty years, the 1999 proceedings cannot be said to arise out of the same factual “transaction” as the 1977 proceedings. Therefore, we conclude that res judicata did not preclude the PELRB from revisiting this issue in 1999.

The University System argues that our decision in Eastern Marine, 129 N.H. 270, precludes the adjunct faculty from presenting “new evidence” that a bargaining unit composed of the adjunct faculty was appropriate. The reference in Eastern Marine, 129 N.H. at 275, to evidence not presented in the first action assumes that both actions arise out of the same factual transaction and that the evidence existed at the time of the first action. Where, as here, the factual circumstances have changed between the first and second action, res judicata does not bar the PELRB from revisiting the question of whether adjunct faculty are temporary employees.

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795 A.2d 840, 147 N.H. 626, 2002 N.H. LEXIS 49, 171 L.R.R.M. (BNA) 2886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-the-university-system-of-new-hampshire-board-of-trustees-nh-2002.