Appeal of Hillsborough County Nursing Home
166 N.H. 731
N.H.2014Background
- Hillsborough County Nursing Home (County) and AFSCME Local 2715 (Union) were parties to a collective bargaining agreement (CBA) that provided a four-step grievance procedure culminating in binding arbitration; the CBA expired June 30, 2013.
- In August 2011 the County eliminated or changed several employees’ positions for budget reasons; affected employees (Perkins, Maurice, Gendron, Bennett) filed grievances alleging CBA violations.
- The Union proceeded toward arbitration and in January 2012 submitted Request for Appointment of Arbitrator forms; the County refused to arbitrate, asserting the Union failed to timely follow the CBA grievance steps and the grievances were waived under Articles 16.1 and 16.4.
- Both sides filed unfair labor practice complaints with the New Hampshire Public Employee Labor Relations Board (PELRB); after a hearing the PELRB found the County committed an unfair labor practice by refusing to arbitrate and dismissed the County’s complaint.
- The County appealed, arguing (1) the PELRB should have decided procedural arbitrability (timeliness/waiver) rather than defer to an arbitrator, and (2) the County did not commit an unfair labor practice because it was enforcing the CBA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PELRB must decide procedural arbitrability (timeliness/waiver) before arbitration | PELRB should not decide; arbitrator should determine procedural arbitrability | County: PELRB has statutory authority under RSA 273-A to decide procedural arbitrability and should rule because the Union’s demand violates the CBA | Procedural arbitrability questions are for the arbitrator; PELRB properly refused to make a threshold ruling |
| Whether County’s refusal to arbitrate was an unfair labor practice | Union: refusal to arbitrate a procedurally-arbitrable demand is unlawful; County breached CBA | County: refusal was enforcement of contractual waiver/ timeliness provisions, so not an unfair labor practice | Refusal to participate in arbitration constituted an unfair labor practice because procedural defenses do not excuse refusal to arbitrate |
Key Cases Cited
- Local 285 v. Nonotuck Resource Associates, Inc., 64 F.3d 735 (1st Cir. 1995) (distinguishes substantive vs. procedural arbitrability)
- Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) (procedural arbitrability presumptively for arbitrator)
- John Wiley & Sons v. Livingston, 376 U.S. 543 (1964) (adherence to grievance procedures is for arbitrator)
- Southwestern New Hampshire Transportation Co. v. Durham, 102 N.H. 169 (1959) (scope of arbitration clause is judicial question; procedural matters for arbitrator)
- AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643 (1986) (principles for determining substantive arbitrability)
- Bechtel Construction Inc. v. Laborers’ Int’l Union of N. Am., 812 F.2d 750 (1st Cir. 1987) (failure to follow grievance steps is a classic procedural arbitrability question)
- Appeal of Westmoreland School Bd., 132 N.H. 103 (1989) (applies AT&T principles to substantive arbitrability)
- School Dist. #42 v. Murray, 128 N.H. 417 (1986) (wrongful refusal to arbitrate can breach CBA and constitute unfair labor practice)