The CBA included a provision that disputes over application of the agreement would be submitted to binding arbitration. The Durham Professional Firefighters Union filed a demand for arbitration over a grievance that involved a shift assignment of a firefighter who had been employed for seven months. The town filed an improper practice charge with the PELRB arguing that both RSA 273-A and the CBA prohibit submission to arbitration of a grievance involving a non-permanent employee. But the PELRB ruled that the arbitrator should determine whether the matter was arbitrable. The town’s motion for rehearing was denied and it appealed the PELRB decision to the Supreme Court.
The CBA states that new hires shall serve a one-year probationary period and that once the probationary period has been satisfactorily completed, the employee shall be known as a permanent employee. Another CBA provision prohibits arbitration of any matter not specifically covered by the agreement. The CBA stated that it covered permanent firefighters.
The Court said the PELRB has jurisdiction over “the threshold question of arbitrability in matters where the parties have not granted the arbitrator the authority to determine arbitrability. But the Durham CBA granted the arbitrator authority to determine arbitrability only for firefighters covered by the CBA. Because that coverage was limited to permanent, not probationary, firefighters, the Court said, the probationary employee was excluded from coverage and it was error for the PELRB to send the shift assignment grievance to the arbitrator to decide whether it was arbitrable.