The defendants appeal from an order of the Superior Court (DiClerico, J.) enjoining them from seeking to arbitrate a dispute over the application of a collective bargaining agreement. We reverse.
As a public employer within the meaning of RSA 273-A:l, X, the plaintiff school district entered into a collective bаrgaining agreement (CBA) with the defendant Nashua Teachers’ Union, Local 1044, AFT, NHFT, AFL-CIO. In administering the CBA, the union represented the individual defendant, Michael Murray, a guidance counselor who had been employed by the school district for some sixteen years аt the time this litigation began.
When the school district placed Mr. Murray on probation for the 1983-84 academic year, the defendants claimed that the district had violated the CBA’s requirement of just cause for any disciplinary action. The district denied any violation of the CBA, asserting that placement on probation was not discipline within the meaning of the CBA, but was rather a discretionary prerogative of management. See RSA 273-A:l, XI.
The defendants demanded to litigate their position through the CBA’s grievance prоcedure, and after exhaustion of preliminary grievance mechanisms, they submitted the dispute to the American Arbitration Association in reliance upon the CBA’s provision for arbitration. The school district then petitioned the superior court tо enjoin arbitration, on the ground that the dispute was not arbitrable.
On November 14, 1983, the superior court granted a preliminary injunction. By motion dated January 12, 1984, the union moved for a hearing on the request for permanent injunction or, in the alternative, for еntry of a permanent injunction so that it could appeal. See Sup. Ct. Rs. 7, 8. In April 1984, and again in August 1984, the court requested counsel to submit any further material they might have bearing on the propriety of a permanent injunction. On June 25, 1985, the court issued an order making the injunсtion permanent.
From this procedural history it may appear that the case is moot,
We are immediately confronted, however, with the difficult question of whether to apply our usual standards limiting the scope of appeals. In the normal course, we would deal only with the merits of the issues that the parties raised in the trial court: whether the plaintiffs had demonstrated such risk of irreparable harm as to entitle them to equitable relief, whether they had an adequate remedy at law, аnd whether the superior court correctly concluded on the merits that the subject of the grievance was not arbitrable.
To proceed this way, however, would require us to ignore a far more significant issue, but one which was not raised until this court rаised it during oral argument: whether the public employee labor relations board is vested with exclusive jurisdiction to determine the question of whether the dispute is arbitrable. Normally we would decline to consider this issue for the very reason that the aрpellants failed to raise it below. See Daboul v. Town of Hampton,
Faced with this dilemma, we believe that respect for the board’s jurisdiction shоuld come first. The board is responsible in the first instance for articulating a coherent body of collective bargaining law to govern public employment. See Appeal of Town of Pelham,
We turn then to the issue whether the superior court has jurisdiction to determine the arbitrability of a dispute under a public employеes’ CBA, when a breach of the CBA would be an unfair labor practice subject to the exclusive jurisdiction of the board under RSA 273-A:6,1. The school district presses two arguments for superior court jurisdiction. It relies, first, on the authority of Brampton Woolen Company v. Local Union 112,
Suffice it to say here that this is a sound reason for providing some forum for litigating a threshold issue of arbitrability. It does not necessarily follow, however, that the superior court must be that forum, and there are two arguments for finding jurisdiction elsewherе.
First, the defendants argue that the question of arbitrability is appropriately left as a threshold issue for the arbitrator, subject ultimately to superior court review when the parties, as in this case, have agreed to such review in accordanсe with RSA 542:1 (statutory authority for judicial review of arbitration, RSA 542:8, applies to arbitrator’s award under labor contract, if the contract specifically so provides). In taking this position, however, the defendants forget that the extent of an arbitrator’s jurisdiction depends upon the extent of the parties’ agreement to arbitrate. See Steelworkers v. Warrior & Gulf Co.,
There is merit in the second argument, however, that the holdings of Brampton and Southwestern Transportation have been limited by the enactment of RSA chapter 273-A, governing public employees’ collective bargaining, in cases to which that chapter generаlly applies. Thus RSA chapter 273-A should be read to provide the district with the right to litigate arbitrability before the board, without waiting to be charged with an unfair labor practice for refusing to arbitrate.
This argument derives force from a number of prior oрinions of this court construing the jurisdiction and responsibility of the board; it would be prolix to cite them all, for a few will suffice. In Appeal of Town of Pelham,
RSA 273-A:5 lists the unfair labor practicеs that the board has jurisdiction to redress. Although section 5 does not deal with arbitration in explicit terms, two general categories of unfair practices are arguably broad enough to cover demands and refusals to arbitrate. RSA 273-A:5,1(e) and 11(d) makе it an unfair labor practice to refuse to negotiate in good faith. A refusal to arbitrate might be treated as a refusal to negotiate in good faith, on the reasoning of United Steelworkers of America v. Warrior & Gulf Navigation Co.,
We rely, however, on the somewhat narrower category of unfair labor practice, breach of a collective bargaining agreement. RSA 273-A:5, 1(h) and 11(f). Because it is undisputed that a wrongful refusаl to arbitrate may be litigated as a breach of a CBA, we cannot justify treating a wrongful demand to arbitrate any differently. For purposes of CBA administration there is no functional difference between a wrongful demand and a wrongful refusal of a legitimаte demand. In each case, the wronged party must either waive what it believes is a legitimate position under the contract or run the risk of suffering a contract penalty.
Accordingly, we conclude that a wrongful demand should be treated as аn unfair labor practice. The consequences that would follow from a contrary holding confirm our conclusion. If the wrongful demand could not be challenged directly before the board, then the party responding to such a demand would be fоrced either to seek a superior court injunction or to refuse to arbitrate and wait for the demanding party to go to the board with an unfair labor practice complaint. A decision to do nothing would risk a breach of the colleсtive bargaining agreement, while a decision to seek superior court review would profoundly hamper the development of a consistent body of common law for interpreting public employees’ CBAs. It is, however, simply too late to сonsider an interpretation that would allow for such a possibility. We have repeatedly recognized the legislature’s intent to give the board a primary role in such matters, and we have made it clear that we will recognize exceptions to the board’s primary position only when legislation demands it, as it did in the instance of the conflicting legislative
Because the court exceeded its jurisdiction, we vacate the injunction. If at this date the parties are still unable to agree upon a resolution of their prior differences, and arbitrability remains in question, the board will have jurisdiction to resolve the issue.
Reversed.