Debra Desmarais, a dispatcher with the Pelham Police Department, was terminated for violating the department’s rules of conduct. The police employees union sought arbitration on the termination under the terms of the collective bargaining agreement’s (CBA) grievance procedure. The town voluntarily participated in the arbitration.
In the context of a just cause grievance, the Court has held, arbitrators have 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.” In this case, the arbitrator found that although Desmarais deliberately misrepresented facts regarding her solicitation of “police discounts” at a local McDonald’s restaurant, termination from her job was too harsh a penalty. The arbitrator did not award back pay or other benefits, but ordered her reinstatement.
The town did not reinstate Desmarais and filed an unfair labor practice charge against the union for demanding her reinstatement. The town claimed the arbitrator’s award violated public policy because it required reinstatement of “an individual proven to have been untruthful in her official duties and in her sworn testimony.”
After an evidentiary hearing, the Public Employee Labor Relations Board (PELRB) denied the town’s complaint against the police employees union and, instead, found that the town had committed an unfair labor practice by refusing to implement the arbitrator’s award.
The town appealed to the New Hampshire Supreme Court, asserting that the PELRB ignored “the well-defined and dominant public policy against reinstating untruthful police department employees[.]” In support of its claim, the town cited State v. Laurie, 139 N.H. 325 (1995), in which the state had knowingly withheld evidence of a police detective’s conduct that reflected negatively on his character and credibility when the detective was a key prosecution witness. In that case, the Court held that the detective’s testimony “went directly to the issue of the defendant’s guilt” and noted that the undisclosed evidence “could have been used to impeach that testimony.” As a result, the Court ordered a new trial for a defendant convicted of first-degree murder.
In this case, the police dispatcher was not a sworn police officer, although dispatchers wore police uniform shirts, did research, prepared written reports and occasionally testified in criminal matters. To support its position, the town cited a Derry case in which an arbitrator cited Laurie to support a just cause termination of a police officer because an incident of untruthfulness in his permanent record could jeopardize prosecution of criminal defendants. The town argued that the public policy derived from Laurie should be extended to police dispatchers who may be called as witnesses in criminal prosecutions.
The Court declined to extend the Laurie doctrine in this case. It noted that in the context of labor grievances, arbitrators are “free to consider general notions of the public interest when determining whether just cause for termination exists.” However, the PELRB is an administrative agency that is granted limited subject matter jurisdiction when reviewing determinations of an arbitrator. It must find “strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority[.]” Thus, the Court can’t look to an arbitrator’s award in a labor grievance as an expression of public policy; it must look to a statute, regulation or common law for such policy.
In addition, the Court said, it disagreed with the town’s assertion that Laurie expresses a dominant public policy against reinstatement of a police department employee found to be untruthful who might be required to testify in future criminal matters. “In Laurie, we addressed only a defendant’s right under the [s]tate [c]onstitution to receive exculpatory evidence from the [s]tate. … [W]e did not address the issue of terminating the employment of police officers who are known to be untrustworthy. While Laurie, as a practical matter, may influence a police department’s internal hiring and disciplinary policies, it does not express a strong and dominant public policy to the extent posited by the town.”
The Court concluded that the town’s assertion of a public policy against reinstatement of untrustworthy police employees was intuitively correct, but “we are compelled to look for strong, dominant public policy only within the confines of positive law, including common law.” Because no such public policy exists, the Court held that the PELRB was not incorrect in ordering the town to comply with the arbitrator’s award to reinstate the police dispatcher.