Appeal of Manchester School District

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0582, Appeal of Manchester School
District, the court on November 22, 2017, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case.
Manchester School District (district) appeals a decision of the Public Employee
Labor Relations Board (PELRB), finding that the district engaged in an unfair
labor practice by refusing Manchester Education Association’s (association)
demand for arbitration under the parties’ collective bargaining agreement.
Because we conclude that the district’s appeal is procedurally barred pursuant
to RSA 541:4 (2007), we dismiss it.

The pertinent facts are as follows. On October 5, 2015, the association
filed an unfair labor practice complaint with the PELRB, alleging that the
district violated the parties’ collective bargaining agreement by refusing to
arbitrate a grievance. The grievance arose from the district superintendent’s
decision to pursue a teacher’s removal initially through dismissal, see RSA
189:13 (2008), but later through contract non-renewal, see RSA 189:14-a
(Supp. 2016). Following a hearing, a hearing officer concluded that the
grievance was subject to arbitration under either the parties’ 2009-2013 or
2015-2018 collective bargaining agreement and, consequently, ordered the
district to “cease and desist in its refusal to proceed to arbitration.”

In a subsequent pleading captioned “Motion for Rehearing,” the district
requested the PELRB to review the hearing officer’s decision pursuant to New
Hampshire Administrative Rule, Pub 205.01(b) and advanced several grounds
for reversal. On September 28, 2016, the PELRB issued a two-page decision
entitled “Order on Motion for Review of Hearing Officer Decision.” In a footnote
inserted at the outset of the order, the PELRB provided the following
explanation regarding its treatment of the district’s motion in light of the
motion’s substance and the applicable administrative rules:

Although the District’s motion is titled “Motion for Rehearing,” in
its motion, the District argues that it is “entitled to a review of the
hearing officer’s decision” under Pub 205.01. See District Motion
for Rehearing, page 3. District’s “motion for rehearing” is treated
as a motion for review of hearing officer’s decision because (1)
motions for rehearing are governed by Pub 205.02, and not Pub
205.01; and (2) a motion for review of hearing officer’s decision
 must precede a motion for rehearing but does not replace it where,
like here, the decision on the merits of the case was issued by a
hearing officer. See Pub. 205.01(d) and Pub. 205.02.

Due to the district’s failure to support its motion with a complete transcript of
the proceedings, the PELRB concluded that the hearing officer’s findings of fact
were not subject to review, see N.H. Admin. R., Pub 205.01(b), and, in turn,
unanimously approved the decision and denied the district’s motion. Without
thereafter filing a motion for rehearing with the PELRB in accordance with RSA
541:4 and New Hampshire Administrative Rule, Pub 205.02, the district
appealed to this court.

In its brief and by motion, the association argues that the district’s
failure to file a motion for rehearing with the PELRB is procedurally fatal to the
instant appeal. We agree.

“RSA 541:4 precludes any appeal from an administrative agency to this
court by a party who has not applied for a rehearing before the agency.”
Appeal of White Mts. Educ. Ass’n, 125 N.H. 771, 774 (1984). As we have
observed, this statutory prerequisite is grounded in the sound policy that
“administrative agencies should have a chance to correct their own alleged
mistakes before time is spent appealing from them.” Id. Per the PELRB’s
procedural rules, a party contesting a hearing officer’s decision must, in the
first instance, request review from the PELRB. See N.H. Admin. R., Pub
205.01. If unsatisfied with the PELRB’s order on review, the moving party
must then apply to the PELRB for a rehearing before appealing to this court.
See id. 205.02.

Although in Appeal of SAU #16 Cooperative School Board, 143 N.H. 97
(1998), we declined to dismiss an appeal despite the appealing party’s failure to
file a motion for rehearing after the PELRB denied its motion for review, we
advised future parties as follows:

We take this opportunity to clarify that when a party’s
motion for [review] of a hearing officer’s decision is denied by the
PELRB, the moving party must still apply for rehearing to satisfy
the requirements of RSA 541:4 because a [review] motion relates to
errors of the hearing officer while a rehearing motion relates to
errors by the PELRB. In the future when a record does not
demonstrate that the appealing party has met the requirements of
RSA 541:4 we will refuse the appeal or dismiss it on our own
motion.

Id. at 101-02 (emphases added) (quotations and brackets omitted) (discussing
former version of New Hampshire Administrative Rule, Pub. 205.01(a), which
identified a “motion for review” as a “motion for reconsideration”). The PELRB

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subsequently amended its rules to also make clear the steps an appealing
party must take, and in what order, prior to appealing to this court. See, e.g.,
N.H. Admin. R., Pub 205.01(d) (“The request for review of the hearing officer’s
decision shall precede, but shall not replace, a motion for rehearing of the
board’s decision pursuant to Pub 205.02 and RSA 541[:4].”).

The district argues that, because its “motion for rehearing” provided the
PELRB with an “opportunity to review and correct all of its alleged mistakes,”
we should conclude that it complies with the spirit of RSA 541:4. (Emphasis
added.) Belying the district’s argument, however, is the substance of its
motion, which, notwithstanding the caption, asserts the following:

The District is entitled to a review of the hearing officer’s
decision where a hearing officer has misapplied applicable law and
has made findings of material fact that are unsupported by the
record. See [N.H. Admin. R.,] Pub 205.01(b).

The motion goes on to allege a number of errors made by the hearing officer.
Consequently, the district’s motion did not provide the PELRB with an
opportunity to correct its alleged errors, but rather only those of the hearing
officer. As a result, the motion fails to satisfy the requirements of RSA 541:4.

Nor, as argued by the district in the alternative, do we construe the
PELRB’s order to satisfy the requirements of RSA 541:4. As the hearing
officer’s alleged errors became those of the PELRB when it approved the
former’s decision, it was incumbent on the district at that time to provide the
PELRB an opportunity to correct its own errors. See Appeal of SAU #16 Coop.
Sch. Bd., 143 N.H. at 101-02. This included the opportunity to correct the rule
violations the district now asserts the PELRB committed in approving the
hearing officer’s decision, such as allegedly failing to provide a “clear
explanation” for its decision. See RSA 273-A:6, IX (2010) (requiring any order
or decision issued by the PELRB to set forth the findings of fact and rulings of
law on which it is based).

Finally, we disagree with the district that its error should be excused in
this case due to the alleged confusing nature of the PELRB’s order and its
procedural rules. As to the order, we believe the PELRB clearly and concisely
set forth its construction of the district’s motion as one for review and,
importantly, explained that such a motion must precede, but does not replace,
a motion for rehearing. Cf. Appeal of SAU #16 Coop. Sch. Bd., 143 N.H. at 101
(declining to dismiss appeal where party “erroneously, but perhaps not
unreasonably,” assumed it had satisfied RSA 541:4 following PELRB’s order
summarily affirming hearing officer’s decision without offering any additional
reasoning). With regard to the PELRB’s rules, we believe both this court and
the PELRB have adequately clarified the procedure a party must follow to

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satisfy the requirements of RSA 541:4. The district has neither demonstrated
that it met those requirements, nor established good cause for its oversight.

Accordingly, because the record does not demonstrate that the district
has met the requirements of RSA 541:4, we dismiss its appeal. Id. at 101-02.

Dismissed.

DALIANIS, C.J., and HICKS, LYNN, BASSETT, and HANTZ MARCONI,
JJ., concurred.

Eileen Fox,
Clerk

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