Justia Labor & Employment Law Opinion Summaries

In consolidated appeals from a decision of the New Hampshire Personnel Appeals Board (board), Petitioner Timothy Alexander appealed the Board's affirmance of his dismissal from employment with the New Hampshire Department of Health and Human Services (HHS) and the State appealed the board's reinstatement of William Harris to his employment with HHS. In 2009, Alexander and Harris were involved in the restraint of a resident at the Sununu Youth Services Center (SYSC). Alexander was employed as a Youth Counselor III and Harris was a full-time probationary employee, Youth Counselor I (Trainee). A Center report noted that the resident responded rudely when questioned whether the had permission to sit somewhere other than his assigned table. When told to move, the resident responded "disrespectfully," an altercation ensued. An investigation of the incident resulted in Alexander and Harris losing their jobs for using "excessive force" against the resident. Alexander and Harris appealed their dismissals to the Board. Alexander argued that: (1) the board unlawfully upheld his dismissal on a different factual basis from that stated in his termination letter; (2) the facts found by the board do not warrant termination; (3) he should be reinstated because SYSC failed to comply with the personnel rules; and (4) he is at least entitled to a new hearing because the board violated several statutes and, along with SYSC, violated his rights to due process. The Supreme Court did not "share Alexander's interpretation of the Board's decision." The Court affirmed Alexander's dismissal. As to Harris, the Court concluded the Board should not have "interfered" with HHS's exercise of discretion in terminating Harris's employment. The Court reversed the Board's decision as to Harris.

Respondent Hollis Education Association, NEA-New Hampshire, appealed a decision of the public employee labor relations board (PELRB) which sustained an unfair labor practice complaint filed by Petitioner Hollis School Board which ruled that speech-language pathologists and occupational therapists employed by the school district were not members of the bargaining unit represented by the Association. The recognition clause in the collective bargaining agreement defined members of the bargaining unit as "[c]ertified full-time teachers, librarians and guidance counsellors who actively teach at least 50% of their time in the Hollis School District and are employed by said district." The recognition clause did not specifically refer to speech-language pathologists or occupational therapists. Nonetheless, the Association argued that the term "certified teacher" was "broad enough to include speech-pathologists and occupational therapists." It maintains that "[s]ince both job titles teach and are certified, they should fall within . . . the recognition clause." Upon review, the Supreme Court fund that by its plain language, the term "certified full-time teachers" does not include speech-language pathologists or occupational therapists: "neither an employer nor a union can 'avoid the need to satisfy the statutory requisites for adding [a] position to the bargaining unit' by simply treating certain positions as though they were included within the bargaining unit." The Court affirmed the PELRB decision.

Respondent A&J Beverage Distribution, Inc. appealed decisions of the Department of Labor (DOL) brought under the Whistleblowers' Protection Act by Petitioner Kevin Perrier. Petitioner worked for A&J as a truck driver. When he first started working, Petitioner did not participate in the company health plan. When premiums increased, Petitioner opted out of the plan. In 2009, rates decreased, and Petitioner claimed he was not informed of the decrease. When he sought information on the plan at that time, the company refused to give it to him. Petitioner notified the company that he had contacted the federal Department of Labor to learn more about his rights under ERISA with regard to notification of the company health plan. A&J then gave Petitioner the requested information, but shortly thereafter, he was terminated. The New Hampshire DOL hearing officer ruled that Petitioner "sustained his burden of proof to show that he was discharged in retaliation for having exercised his legitimate rights under the law." On appeal, A&J asserted preemption: that the whistleblower claim was preempted by ERISA. Upon review, the Supreme Court vacated the DOL's decision: "while the petitioner correctly notes that state and federal courts have concurrent jurisdiction over actions... his whistleblower claim is not such an action. ... [the Court] reject[ed] the petitioner's argument that DOL had jurisdiction over the petitioner's ERISA claim."

Plaintiff Michael Silverstein appealed the decision of the New Hampshire Public Employee Labor Relations Board (PELRB) which declined to exercise jurisdiction over his unfair labor practice complaint against Defendant Andover School Board (School). In May 2010, Plaintiff, a physical education teacher at the Andover Elementary/Middle School, signed an employment contract that reduced him from a full-time (five days per week) employee to a four days per week employee, cut his salary by approximately $7000, and increased his costs for health insurance. Later, pursuant to a three-step grievance process in the collective bargaining agreement (CBA) governing his employment, Plaintiff initiated a grievance against his employer arising out of the reduction. The PELRB concluded that it lacked jurisdiction "to interpret the Andover CBA and decide the merits of Mr. Silverstein's complaint during the grievance proceedings and after the grievance proceedings are completed." Subsequently, the PELRB denied Plaintiff's motion for a rehearing. The Supreme Court "explicitly reiterated" that the PELRB has no authority to interpret a CBA or review the merits of a grievance when the CBA to which the parties are subject includes a final and binding grievance process internal to the employer, and affirmed the PELRB's decision.

Petitioner Christopher Ruel, a licensed real estate appraiser, appealed a superior court order that remanded his case to the New Hampshire Real Estate Appraiser Board for a new disciplinary hearing. In the spring of 2007, Kenneth Frederick hired Petitioner to appraise his property in Kingston. The New Hampshire Department of Transportation (DOT) sought to take Frederick's property by eminent domain and Frederick used Petitioner's appraisal in negotiating a settlement with DOT. DOT performed its own appraisal and valued the property at approximately fifty thousand dollars less than did Petitioner. After finalizing the settlement, a DOT appraisal supervisor reviewed Petitioner's appraisal and filed a grievance against him with the Board. In April 2010, four members of the Board voted to order Petitioner to pay a $500 fine and attend two appraisal courses. On appeal, Petitioner argued that the superior court should have dismissed the Board proceedings against him because: (1) the DOT lacked standing to file the initial grievance and, therefore, the case should never have been heard; (2) the Board violated its governing statute by taking more than two years to dispose of his case; (3) the Board's delay materially prejudiced him; and (4) the Board's determination to continue with the hearing and render a final decision without a quorum violated his due process rights. Upon careful review of the Board's hearing record, the Supreme Court rejected Petitioner's arguments on appeal.

Petitioner Ellen St. Louis appealed the decision of the New Hampshire Department of Employment Security (DES) Appellate Board (board) that denied her claim for unemployment benefits. Early 2009, Petitioner received a disciplinary notice stating that her conduct was not in line with company policy because she appeared to be asleep at work and was argumentative when her trainer instructed her regarding her faulty soldering work. Subsequently, Petitioner informed a human resources representative that she was having difficulties breathing and that she was depressed. The human resources representative recommended she take medical leave. Petitioner claims that when she returned to work she could no longer perform soldering work because the fumes caused headaches, and caused her to shake, cough, and have difficulty breathing. The record indicated that she never provided Insight Technology with any medical records or doctor's instructions regarding her breathing problems or opinions regarding her inability to do soldering work. Petitioner was ultimately terminated for poor work performance. She applied for unemployment benefits but was denied. After an unsuccessful appeal to the Board, Petitioner appealed to the Supreme Court. Upon review, the Court found that the record supported the determination that Petitioner was terminated for misconduct, and that there was no error in the Board's decision.

In this personal injury case, Plaintiff Alfred Ocasio appealed a judgment entered in favor of Defendant Federal Express Corporation (FedEx). Plaintiff was a mail handler who pulled by hand, large, heavy canisters filled with mail from delivery tractor-trailer trucks. One day as he was pulling canisters from a FedEx tractor-trailer truck, he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When a canister he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. He argued on appeal that the Trial Court erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury's $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. Upon review, the Supreme Court held that "while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand."

Petitioner James Margeson appealed a decision of the New Hampshire Compensation Appeals Board (CAB) that denied him reimbursement for medical treatment and workers' compensation benefits. Petitioner conducted a "bed check" at a state youth center when he twisted his knee. The Center contended that Petitioner's injury was precipitated by a pre-existing war wound. The CAB rejected the Center's version of Petitioner's injury. However, the CAB did not award Petitioner reimbursement, finding that Petitioner "did not encounter any greater risk of his employment than in his everyday life and the stairs were merely an incident or an occasion that accompanied the injury." The CAB denied Petitioner's motion for reconsideration. Upon review, the Supreme Court found that the parties agreed that Petitioner was injured at work. The parties disputed whether his injury arose out of his employment. The Court adopted an "increased-risk" test for injuries attributable to neutral risks such as the unexplained fall at issue in this case: "the injury must actually result from the hazards of employment and not merely from the bare existence of employment." The Court reversed and remanded the CAB's decision to make specific findings as to whether Petitioner's injury was a "neutral risk" and if so, that record reflects the medical and legal causation of the injury.

Petitioners Matthew Kennedy and the Hinsdale Federation of Teachers appealed the decision of the New Hampshire Employee Labor Relations Board (PELRB) that denied their unfair labor practice claims against Respondent, the Hinsdale School District (District). Mr. Kennedy was a music teacher for about ten years and a member of the teachers' union. The District and Union were parties to a collective bargaining agreement (CBA) that contained a grievance procedure that provided for binding arbitration. The only matters excluded from the grievance procedure were management prerogatives and teacher non-renewals. Citing a lack of student participation, the District notified Mr. Kennedy that it would not renew his contract. Before the 2009-2010 school year, the District eliminated the Hinsdale band program and entered into an agreement with Brattleboro High School where interested students from Hinsdale could participate in Brattleboro's music offerings. Petitioners filed an unfair labor practice complaint with the PELRB alleging multiple violations of the CBA. The PELRB dismissed Petitioners' claims. On appeal to the Supreme Court, Petitioners argued that the District illegally outsourced its band program to Brattleboro, and challenged the District's reasons for its "reduction-in-force" claim. The Supreme Court could not conclude that the PELRB's decision was erroneous or that it was unjust or unreasonable. Accordingly, the Court affirmed the PELRB's decision to dismiss Petitioners' complaint.

Respondent Judith McGann was terminated as superintendent of Petitioner School Administrative Unit #44 (SAU). During the evidentiary portion of the SAU Board's termination hearing, SAU called an expert witness. Ms. McGann requested access to the expert's file. The moderator of the hearing denied Ms. McGann's request. Following the hearing, the Board voted to terminate Ms. McGann. On appeal to the Board of Education, Ms. McGann argued that the SAU violated her due process rights by denying her access to the expert's records. The Board ordered SAU to produce the expert's work file, and recommended that the SAU's decision be vacated and remanded for a new hearing. The SAU sought review of the State Board of Education's decision ordering it to produce the expert's file. The Supreme Court noted that due process requirements for binding administrative procedures are quite different from those binding judicial procedures. The Court did not find that the SAU Board violated Ms. McGann's constitutional due process rights in the course of the termination hearing. The Court found that the Board gave Ms. McGann "extensive opportunity" to meaningfully cross-examine the expert despite not having his file. The Court dismissed Ms. McGann's appeal, reversed the Board's order to produce the expert's file, and affirmed the SAU's decision to terminate Ms. McGann's employment as superintendent.