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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Public Employee Labor Relations Board No. 2006-525 APPEAL OF MERRIMACK COUNTY (New Hampshire Public Employee Labor Relations Board) Argued: April 19, 2007 Opinion Issued: August 23, 2007 Atlas & Atlas, P.C., of Nashua (Susan A. Atlas on the brief and orally), for the petitioner. Backus, Meyer, Solomon & Branch, LLP, of Manchester (Jon Meyer and Ellen Purcell on the brief), and International Chemical Workers Union Council/United Food & Commercial Workers, Local 1046C, of Akron, Ohio (Randall Vehar, assistant general counsel, on the brief and orally), for the respondent. DALIANIS, J. The petitioner, Merrimack County (county), appeals and the respondent, International Chemical Workers Union Council/United Food & Commercial Workers, Local 1046C (union), cross-appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) ordering the county to implement an arbitrator's award mandating reinstatement of an employee represented by the union. We affirm in part, vacate in part and remand. The record supports the following: The county is a public employer within the meaning of RSA 273-A:1, X (Supp. 2006). The union is the exclusive

bargaining representative for certain workers at the county's nursing home. The county and the union were signatories to a collective bargaining agreement (CBA). Particularly relevant to this appeal are articles 1, 2, 24 and 25 of the CBA:  Article 1 contained the parties' agreement that "any rights, duties or authority existing by virtue of the New Hampshire Revised Stat[ut]es Annotated or other law shall in no way be abridged or limited" by the CBA and that, to the extent that any CBA provision was inconsistent with "any such law, the provision(s) of law shall prevail." Article 2 gave the county the exclusive right to manage the nursing home, including the right to discipline or discharge employees, "[e]xcept as specifically limited or abridged by the terms of [the CBA]." Article 24 provided that "[r]esident abuse/neglect/exploitation" would not be tolerated and that "[a]ny instance of physical, verbal, mental or medical abuse/neglect/exploitation of any resident shall be grounds for immediate termination." Article 25 contained grievance and arbitration procedures. In the case of arbitration, this article provided that the arbitrator's decision would be "final and binding" if it was "within the scope of authority and power of the Arbitrator set forth within this Agreement." This article also provided: "The function of the Arbitrator is to determine the interpretation of the specific provisions of this Agreement. It is agreed that the arbitrator shall have no authority to add to, subtract from, or modify any terms of this agreement."







The CBA expired on March 31, 2002; the parties did not enter into a new CBA until after the events herein described. Beginning in May 1999, the county employed Melissa Foote as a resident assistant, and later as a licensed nursing assistant (LNA), at the nursing home. Foote also served as a shop steward for the union, participating in contract negotiations and representing bargaining unit members. On October 28, 2002, Foote was working at the nursing home where her duties included performing safety checks on certain nursing home residents every half hour and responding to their calls. At approximately 2:30 p.m., two LNAs found one of the residents sitting in his wheelchair. He had defecated. One LNA thought that the resident should be wearing an adult diaper, but the other was unsure. Foote, as the LNA primarily responsible for this resident, was called to answer this question. Foote responded to the resident's accusation that she had not attended him by pointing a finger in his face and

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yelling, or loudly interrupting him, to emphasize what she had done that day. Ultimately, this incident was reported to the assistant director of nursing at the nursing home, who filled out a complaint form, asked a social worker to interview the resident, and called Foote and a union representative to her office to discuss what had happened. It was also reported to the New Hampshire Department of Health and Human Services (DHHS). Based upon recommendations from the administrator and assistant administrator of the nursing home, the county's board of commissioners voted to terminate Foote's employment effective November 23, 2002. The administrator testified that he based his recommendation, at least in part, upon Foote's refusal to admit to wrongdoing. The union then filed a grievance on Foote's behalf. The parties proceeded to arbitration. The arbitration issue to which they stipulated was: "Whether there was just cause for the County to terminate Ms. Foote under the collective bargaining agreement? If not, what shall the remedy be?" In its brief to the arbitrator, the county agreed that "under RSA 28:10-a, County employees who have been employed for more than one year are entitled to a `good cause' standard of discharge." According to that brief, the county further agreed that "good cause would be examined under traditional just cause standards." After five days of hearing, the arbitrator found that while Foote had not neglected the resident, she had verbally abused him. The arbitrator further found, however, that her conduct "was no more serious than employees who have continued to work at the Nursing Home," and that had Foote admitted to having verbally abused the resident, she would not have been terminated. Therefore, the arbitrator found that terminating Foote was an "overly harsh and unreasonable penalty" for which the county lacked just cause. The arbitrator ordered the county to reinstate Foote, without back pay or other lost benefits, conditioned upon Foote's taking anger management and abuse/neglect training programs. The county refused to reinstate Foote, prompting the union to file an unfair labor practice charge with the PELRB. The county filed a counterclaim alleging that the union had engaged in an unfair labor practice by demanding Foote's reinstatement. Specifically, the county asserted that the arbitrator's award was void and unenforceable because it exceeded his authority under the CBA and because it violated public policy. The PELRB ruled in the union's favor. This appeal and cross-appeal followed. When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable. Appeal of Nashua Police Comm'n, 149 N.H.

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688, 689 (2003); see also RSA 541:13 (2007). Though the PELRB's findings of fact are presumptively lawful and reasonable, we require that the record support its determinations. Appeal of City of Laconia, 150 N.H. 91, 93 (2003). I The county first argues that the PELRB erred by enforcing the arbitrator's award because the award exceeded the arbitrator's authority and, therefore, was not final and binding. "A judicial challenge to arbitral authority requires the reviewing court to consider both the CBA and the arbitral submission." Larocque v. R.W.F., Inc., 8 F.3d 95, 96 (1st Cir. 1993); see Appeal of Police Comm'n of City of Rochester, 149 N.H. 528, 534 (2003) (extent of arbitrator's jurisdiction is determined by parties' agreement to arbitrate; parties may agree to submit even question of arbitrability to arbitrator); Local 238 Intern. Broth. Teamsters v. Cargill, Inc., 66 F.3d 988, 991 (8th Cir. 1995) ("Once the parties have gone beyond their promise to arbitrate and have actually submitted an issue to an arbiter, we must look both to their contract and to the submission of the issue to the arbitrator to determine his authority." (quotation omitted)). [T]he overriding concern is whether the contracting parties have agreed to arbitrate a particular dispute, not whether the agreement is within the CBA." Appeal of Police Comm'n of City of Rochester, 149 N.H. at 534 (quotation and citation omitted). While ordinarily we interpret contractual provisions de novo, see Appeal of Town of Durham, 149 N.H. 486, 487 (2003), "the general rule [is] that the interpretation of a CBA is within the province of the arbitrator, subject to certain exceptions recognized by our case law" that are not relevant here. Appeal of State of N.H., 147 N.H. 106, 109 (2001); see Appeal of City of Manchester, 153 N.H. 289, 294 (2006) (where PELRB had authority to interpret CBA to determine whether claim was arbitrable, we review PELRB's interpretation of CBA de novo); Appeal of Town of Durham, 149 N.H. at 487-88 (same). "[W]hen the parties include an arbitration clause in their CBA, they choose to have disputes concerning constructions of the CBA resolved by the arbitrator." Appeal of State of N.H., 147 N.H. at 109 (quotation and brackets omitted). "Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept." Paperworkers v. Misco, Inc., 484 U.S. 29, 37-38 (1987); see Keebler Co. v. Truck Drivers, Local 170, 247 F.3d 8, 10 (1st Cir. 2001). For this reason, the PELRB does not regularly have jurisdiction to interpret the CBA when it provides for final and binding arbitration. Appeal of State of N.H., 147 N.H. at 108. Our review of the arbitrator's interpretation of the CBA is similarly limited. See Georgia-Pacific Corp. v. Local 27, 864 F.2d 940, 944 (1st Cir.

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1988). Just as the court may not reject the arbitrator's factual findings simply because it disagrees with them, neither may the court reject the arbitrator's interpretation of the CBA simply because the court disagrees with it. See Misco, 484 U.S. at 38. While the arbitrator cannot ignore the plain language of the CBA, because the parties authorized the arbitrator to give meaning to that language, "a court should not reject an award on the ground that the arbitrator misread the contract." Id. "[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id.; see Georgia-Pacific Corp., 864 F.2d at 944. The court's task is thus "ordinarily . . . limited to determining whether the arbitrator's construction of the [CBA] is to any extent plausible." Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 844 (1st Cir. 1997), abrogated on other grounds by Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57 (2000). "[A]n arbitrator's view of the scope of the issue is entitled to the same deference normally accorded to the arbitrator's interpretation of the collective bargaining agreement." Larocque, 8 F.3d at 97 (quotation and ellipses omitted); see Pelletier v. Auclair Transp. Co., 109 N.H. 302, 304 (1969). In looking to the parties' submission, which asked the arbitrator to decide whether the county had "just cause" to terminate Foote and, if not, to formulate a remedy, and in light of the parties' expired CBA, which did not reference "just cause," the arbitrator determined that the "traditional just cause standard" applied to his review of the county's decision. Under this standard, "the arbitrator . . . has the authority to consider the underlying issues and surrounding circumstances necessary to interpret and apply the express provisions of the CBA and reach a final decision." Appeal of City of Manchester, 153 N.H. at 293. The United States Supreme Court has identified seven criteria for analyzing whether just cause exists: (1) the reasonableness of the employer's position; (2) the notice given to the employee; (3) the timing of the investigation undertaken; (4) the fairness of the investigation; (5) the evidence against the employee; (6) the possibility of discrimination; and (7) the relation of the degree of discipline to the nature of the offense and the employee's past record. Misco, 484 U.S. at 34 n.5; see Appeal of City of Manchester, 153 N.H. at 293 (citing seven criteria with approval). Consistent with this standard, the arbitrator examined whether Foote's conduct warranted the maximum penalty under the CBA, and determined that it did not. We cannot say that the arbitrator's interpretation of the CBA and the parties' submission is so implausible as to require reversal. See Misco, 484 U.S. at 38. Nor can we say that the county has demonstrated by a clear preponderance of the evidence that the PELRB's decision to uphold this interpretation is either unjust or unreasonable. See Appeal of Nashua Police Comm'n, 149 N.H. at 689. "By requesting that the arbitrator determine whether [the county] had just cause to discharge [Foote], both parties conferred

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authority upon the arbitrator to decide that issue." Homestake Min. Co. v. United Steelworkers, 153 F.3d 678, 680 (8th Cir. 1998) (quotation and brackets omitted). Having been asked whether there was just cause to terminate Foote and, if not, to provide a remedy, "[t]he arbitrator was free to conclude that there was no just cause for discharging [Foote], but that there was just cause for a lesser discipline." Boston Medical v. Service Employees, Local 285, 260 F.3d 16, 22 (1st Cir. 2001), cert. denied, 534 U.S. 1083 (2002). Our conclusion is consonant with the decisions of other courts. See id. (citing cases). In Bureau of Engraving v. Graphic Communication International Union, 284 F.3d 821, 823-24 (8th Cir. 2002), for instance, as here, the arbitrator ordered the employer to reinstate an employee who had been terminated for accruing thirteen unexcused absences. Unlike the CBA at issue here, the CBA in Bureau of Engraving included a just cause provision. Bureau of Engraving, 284 F.3d at 824. It did not, however, state that thirteen unexcused absences constituted just cause. Id. at 825. As did the parties in this case, the parties in Bureau of Engraving framed the issue for the arbitration as: "Whether the Employer had just cause to terminate the employment of the grievant . . . , and if not, what should be the remedy?" Id. at 824 (quotation omitted). The arbitrator concluded that although the employee had accrued thirteen absences, the employer lacked just cause for terminating her. Id. On appeal, the employer contended that the arbitrator had exceeded his authority by ignoring the plain language of the attendance policy, which provided that the remedy for thirteen unexcused absences was termination, and by conducting a just cause analysis. Id. The court ruled that the parties' submission conferred authority on the arbitrator to conduct a just cause analysis and that the arbitrator's interpretation of the submission was reasonable. Id. at 825. As the court explained: "For reasons known only to it, [the employer] agreed to stipulate to the just cause analysis. . . . Having entered into the just cause stipulation, it is disingenuous for [the employer] to argue now that the arbitrator acted improperly by conducting the very analysis [the employer] asked it to undertake." Id.; see Homestake Min. Co., 153 F.3d at 680 (where employer requested arbitrator to determine whether employer had just cause to discharge employee, employer cannot argue that arbitrator lacked authority to decide this issue); Cargill, Inc., 66 F.3d at 990-91 (same). Similarly, here, having agreed that the arbitrator would apply "traditional just cause standards" and, in its brief to the arbitrator, having itself analyzed the decision to terminate Foote under those standards, the county cannot argue now that the arbitrator acted improperly by analyzing just cause as he did. In its brief to the arbitrator, the county conceded that "for the purposes of this arbitration, good cause would be examined under traditional just cause standards or principles." In keeping with this concession, the county argued

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that: the CBA permitted the county to discharge Foote; Foote's conduct could not be tolerated; Foote knew or should have known that her conduct would result in discharge; Foote was not entitled to progressive disciplinary or corrective action as such action would have been futile; Foote was not discharged because of anti-union bias; Foote was not disparately treated; and no mitigating circumstances existed that would warrant reducing Foote's termination to a lesser sanction. In short, the county argued the seven criteria set forth in Misco, 484 U.S. at 34 n.5. Having itself analyzed its decision to terminate Foote under traditional just cause principles, the county cannot fault the arbitrator for engaging in the same analysis. The county argues that under articles 2, 24 and 25 of the CBA, once the arbitrator found that Foote had verbally abused the resident, he lacked the authority to disagree with the county's decision to terminate her. See Poland Spring Corp. v. United Food, Local 1445, 314 F.3d 29, 35 (1st Cir. 2002), cert. denied, 540 U.S. 818 (2003). To the county, once the arbitrator found that Foote committed an act listed in the CBA as "grounds for immediate termination," he was "not free to fashion a separate remedy apart from the one provided in the parties' agreement." Id. at 34. The county also contends, contrary to its argument before the arbitrator, that the parties' submission did not ask the arbitrator to apply traditional just cause principles, but rather to apply the CBA's implied definition of "just cause." While the county concedes that the CBA "was silent with respect to the articulation of a just cause standard," the county asserts that "the mere existence of a collectively bargained labor agreement mandates that the employer . . . demonstrate `cause,' `just cause' or `good cause.'" Thus, according to the county, the reference in Article 24(B) to "grounds for termination" was akin to a reference to "just cause," and that under this provision, terminating an employee for verbally abusing a resident constituted per se just cause. See Georgia-Pacific Corp., 864 F.2d at 945. To support its assertions, the county relies upon Georgia-Pacific Corp., 864 F.2d at 945-46, and Poland Spring Corp., 314 F.3d at 34-35. Both of these cases are distinguishable from this case. The CBAs in those cases unambiguously provided that employees could not be terminated except for just cause and expressly included the employee's act within the definition of just cause. See Georgia-Pacific Corp., 864 F.2d at 942; Poland Spring, 314 F.3d at 31. The CBA in the instant appeal does not even use the phrase "just cause." The instant case is, thus, unlike Georgia-Pacific Corp. and Poland Spring, which stand "for the proposition that, once an arbitrator finds that an employee committed some act specifically listed in the [CBA] as providing just cause for termination, the arbitrator is not free to determine that the act does not warrant termination but rather warrants some lesser penalty." Keebler Co., 247 F.3d at 13. When confronted with the CBA and the parties'

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submission asking him to determine whether just cause existed, we cannot say that the arbitrator unreasonably harmonized the two. See Trailmobile Trail. v. Inter. Un. of Elec. Workers, 223 F.3d 744, 747 (8th Cir. 2000) (holding that it was up to arbitrator to harmonize management rights clause with just cause provision of CBA); Metro Chevrolet v. Union de Tronquistas, 835 F.2d 3, 4-5 (1st Cir. 1987) (when CBA contains general clause prohibiting termination except for just cause and does not equate certain behavior with just cause, "an arbitrator is empowered to determine whether the employee's action which precipitated the dismissal constitutes just cause"). Had the county wanted the arbitrator to determine only whether Foote had engaged in the conduct of which she was accused, it could have framed the issue accordingly. "If the factual finding were the only bone of contention, why not frame the issue as whether [Foote] committed [abuse]? In essence, [the county] submitted a single question to the arbitrator and now complains that he lacked the authority to answer it." Hartco Flooring v. Local 14597, 192 Fed. Appx. 387, 391 (6th Cir. 2006) (not recommended for full-text publication). Having requested that the arbitrator determine whether Foote was discharged for just cause, the county should "not now be heard to complain that the arbitrator performed the analysis that it requested instead of making a purely factual finding." Trailmobile Trail., 223 F.3d at 747. Further, while the county's interpretation of the submission may be plausible, "[w]e do not agree that the submission to arbitration requires this interpretation, and the . . . limitations upon review of arbitration awards militate against an interpretation of the submission which would upset the award[ ] in this case." Pelletier, 109 N.H. at 304; see LB & B Associates v. International Broth., 461 F.3d 1195, 1198 (10th Cir. 2006) (while employer's interpretation of CBA's just cause and immediate discharge provisions was one interpretation, arbitrator read these provisions differently and his interpretation was not unreasonable). The arbitrator's decision that the parties' stipulation "gave him the authority to conduct a just cause analysis is reasonable as well and the interpretation of [the stipulation] [was] within the arbitrator's domain." Bureau of Engraving, 284 F.3d at 825. While the county assumes that engaging in one episode of verbal abuse "equaled just cause for termination, . . . the arbitrator concluded otherwise. That conclusion will not be disturbed here." Id. "Whether the arbitrator's reading of the [CBA and stipulation] was strained or even seriously flawed . . . is irrelevant. The arbitrator arguably construed and applied [them], and this is precisely what the parties bargained for him to do." Bruce Hardwood Floors v. So. Coun. of Ind. Workers, 8 F.3d 1104, 1108 (6th Cir. 1993); see LB & B Associates, 461 F.3d at 1200. For all of the above reasons, therefore, we hold that the PELRB did not err as a matter of law by enforcing the arbitrator's award.

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II The county next asserts that the PELRB erroneously enforced the arbitrator's award because the award violated public policy. "To so find, we must conclude that the PELRB's order contravenes a strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority." Appeal of Town of Pelham, 154 N.H. 125, 129 (2006) (quotation omitted). "[I]n such cases our review is limited to the confines of positive law, rather than general considerations of supposed public interests." Id.; see W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766 (1983). "In the context of an arbitration award that reinstates a fired employee, the question is not whether the charged conduct offends public policy, or whether some remedy short of unconditional reinstatement . . . might have been preferable. Rather, the sole question is whether the award itself -- the order for reinstatement -- gives offense." Mercy Hospital v. Massachusetts Nurses Ass'n, 429 F.3d 338, 343 (1st Cir. 2005), cert. denied, 126 S. Ct. 1939 (2006); see Eastern Associated Coal Corp., 531 U.S. at 62-63. In making this determination, "we must read the pertinent statutes and regulations in light of background labor law policy that favors determination of disciplinary questions through arbitration when chosen as a result of labor-management negotiation." Mercy Hospital, 429 F.3d at 344 (quotation omitted); Eastern Associated Coal Corp., 531 U.S. at 65. Further, "[w]ith a few limited exceptions not relevant here, [we are] bound by [the] arbitrator's findings of fact." Mercy Hospital, 429 F.3d at 344. Thus, we examine "only whether the reinstatement award, on the facts as found by the arbitrator, contravenes an explicit, well-defined, and dominant public policy." Id. at 345. The county argues that there are strong and dominant public policies against reinstating an LNA who has been found to have verbally abused a resident and who fails to understand the wrongful nature of her conduct. To support this argument, the county relies upon 42 C.F.R.

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