Appeal of Silverstein
37 A.3d 382
N.H.2012Background
- Silverstein, a full-time PE teacher, was reduced to four days/week with pay and benefit cuts in May 2010.
- He pursued a three-step CBA grievance process; Step 3 before the School Board and a “final and binding” Board decision.
- While Step 2 was pending, he filed an unfair labor practice (ULP) complaint with the PELRB.
- PELRB declined to interpret the CBA or decide merits during grievance proceedings and denied rehearing.
- Plaintiff argues PELRB jurisdiction exists absent final arbitration, that interpretation violates rights, and that the CBA is unworkable.
- Appellant appeals to overturn PELRB denial; appellee School Board argues CBA’s final and binding Step 3 forecloses PELRB review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PELRB has jurisdiction when CBA provides final and binding grievance | Silverstein asserts PELRB may review ULP despite final grievance | School Board argues final and binding arbitration ends PELRB review | PELJB lacks jurisdiction when CBA has final and binding grievance |
| Whether PELRB’s interpretation violates due process | Silverstein claims deprived of neutral tribunal | CBA waiver and procedure suffice; due process not violated | No due process violation; waiver and CBA binding terms control |
| Whether Article I, Part I, Article 14 guarantees a de novo remedy | Silverstein seeks de novo hearing before PELRB | Contract binding remedies supersede separate court access | Remedy not violative of Article 14; no de novo hearing required |
| Whether the CBA grievance procedure is workable under RSA 273-A:4 | Procedure not workable if one party is sole arbiter | Final determination by employer can render procedure workable | Grievance procedure workable; no public policy violation |
Key Cases Cited
- Appeal of Berlin Board of Education, 120 N.H. 226 (1980) (binding grievance language controls PELRB review)
- Appeal of Hooksett School District, 126 N.H. 202 (1985) (no final-and-binding language means PELRB can review merits)
- Appeal of Campton School Dist., 138 N.H. 267 (1994) (advisory arbitration does not preclude PELRB review absent finality)
- Appeal of State Employees’ Association, 139 N.H. 441 (1995) (grievance procedure with ‘final’ but not ‘binding’ allows PELRB review)
- Appeal of City of Manchester, 153 N.H. 293 (2006) (CBA interpretation; respect bargaining process; detect scope of CBA)
- Appeal of State of New Hampshire, 147 N.H. 106 (2001) (limits on interpreting CBA; final and binding terms matter)