January 29, 2010 Today, the New Hampshire Supreme Court agreed with the PFFNH that the LGC must comply with the right-to-know law.  Hopefully ending an eight year legal battle, the Court confirms what the Firefighters have been saying all along : the LGC is a quasi-governmental agency and is not above the law.  The decision is here. As well, congratulations to the Court monitors and assistants for reaching a tentative agreement with the Judicial Branch - Attorney John Krupski headed up those talks for the SEA.

January 24, 2010.  On Friday, the Merrimack County Superior Court issued its 'Orders of Notice' and granted the SEA's request for an expedited hearing on its lawsuit which claims that the State is not following the law that gives preferential 're-hiring' rights to laid off State workers. A hearing has been scheduled for February 5th and we appreciate the Court's sensitivity to the timing issues this case presents.  After all, when one is not re hired as they should have been, they often move on to other opportunities.  As well, the fast track treatment also speaks to the Court's initial view of the merits of the case.  A related case is also before the Court on the claim that failing to re hire simply because the new job would mean a promotion violates HB2.  Arguments were heard on that case last Friday and a decision is likely to be issued soon. You can follow these cases through the documents posted on the downloads page.

Also in the news , the US Supreme Court issued its much awaited decision on a free speech case .  This decision permits corporations (and Unions) to ignore campaign financing laws and to spend millions on attack ads in the closing days of campaigns. As corporations can easily outspend Unions, this case is seen as quite a blow.  Read the case (all 183 pages!) here.

January 15, 2010. The Derry Firefighters, IAFF Local 4392 , won a decisive arbitration victory concerning incentive pay.  This decision establishes favorable arbitral precedent for Labor Unions on issues of past practice and contract interpretation.  Read the decision on our downloads page (scroll down to our 'other cases' section). Congratulations to Local 4392 and Attorney John Krupski.

The State Employees' Association continued its fight for those that lost their job in the recent rounds of layoffs. Today they filed a lawsuit in Merrimack County Superior Court because the State has refused to apply the provisions of House Bill 2 which require the State to rehire laid off State employees to vacant positions within State government. Read the filing and keep up to date on the case at our downloads page (scroll to 'SEA HB2/rehire lawsuit' section).

January 4, 2010.  Big wins for Pennsylvania and California unions fending off State attempts to furlough State workers. In California, a trial court judge issued an order (mandamus) overturning the Governor's decision to furlough workers as violating the clear mandate of existing State law. In Pennsylvania, Unions were successful in preventing the State from 'furloughing' state workers on the basis of a state law that requires a passed budget in order to issue paychecks. Not so, says the Judge : the FLSA requires payment for work performed and this federal law 'preempts' (or supercedes) State law to the contrary.  This big FLSA victory is on our downloads page (scroll down to the 'other stuff' section). 

December 29, 2009. Effective January 1, 2010, the Local Government Center plans on dramatically changing the prescription drug benefit negotiated into many contracts statewide. Many municipal employees have received letters from CVS/Caremark on these "required" changes and we have prepared a strategy and response to attack this unlawful maneuver.  Read our Legal Alert here.  We are advised that these changes are not being implemented for State employees.  Stay tuned.

Also, the NHRS has issued its latest CAFR.  Read it here. 

December 15,2009.  Judge Larry Smukler has ruled against the Local Government Center's attempt to block the Secretary of State's investigation into LGC's management of its health insurance trust fund. The ruling now clears the way for State investigators to access information underlying the allegation that LGC uses health insurance money to finance unrelated ventures instead of returning those excess funds back to New Hampshire cities and towns as required by RSA 5-B:5,I(c).  The ruling is on the downloads page.  Stay tuned, much more to come!

December 11, 2009. With the actual language of hundreds of new bills released yesterday and the 2010 legislative session kicking off with a House session January 6th, much of 'what's new' is on the legislative front (See our updated legislative alert page for more). But first, here's an update on other happenings of interest to New Hampshire's public sector labor community.

The lawsuit filed by the New Hampshire Retirement Security Coalition (NHRSC) is winding its way through Merrimack County Superior Court. This Constitutional challenge to HB1645 , including the drastic changes to the definition of 'earnable compensation', will see some action in January with a preliminary pretrial conference scheduled for Jan 25th.  Hopefully, we can postition the case to be heard in a fashion similar to the SEA's case (under 65, retiree case) where through motion practice (no trial) a decision is likely much sooner.  We filed a comprehensive reply brief in the SEA case recently and we are hopeful that a successful resolution there will pay big dividends in the NHRSC case.  The hearing on the SEA retiree case has been postponed from Dec. 17 to Jan 18: more details (and the filings) are available on our downloads page.

The Waiting Game continues: we still await a decision from the NH Supreme Court on the PFFNH  right to know case against the Local Government Center (LGC), which was argued to the Court on October 8th. (argument available here ). As well, Judge Smukler has yet to issue a ruling in the Superior Court case where the LGC has refused to to release similar information requested by the NH Secretary of State.  These two cases are on the  'any day now' watch list.

Speaking of the LGC, New Hampshire Public Radio did a story this week on the recent disclosure by LGC that they do, in fact, use money paid into their health insurance trust fund (HealthTrust, the fund that provides health insurance for just about every New Hampshire City and Town) for other purposes : an allegation raised by PFFNH over the last several years.  In addition, LGC has now released documents (available here) that prove what PFFNH had suspected all along.  The story is available on our downloads page , scroll to "PFFNH v. LGC- HealthTrust" and look for the NHPR December 10th piece.   Hmmm, the making of yet another lawsuit....we'll see!

Finally, still no word as well on the JUA case - a case challenging HB2's  attempt to confiscate private funds and a case with significant potential ramifications to the other "contract clause' cases now pending. And, the US Supreme Court issued a decision recently that may help in New Hampshire, where certain agencies (PELRB?) seem to believe they can act through rulemaking (and otherwise) to subvert their legislative grant of authority.  See our downloads page for more on both these developments.

October 30, 2009. The New Hampshire Secretary of State has gone 'all in' responding to the LGC 's weak attempt to explain how it's trying to respond to the State's subpoena seeking production of documents regarding the money flow of taxpayer/employee health insurance premium dollars. Read the media coverage on our downloads  page.  LGC is on the run and look for more developments over the weekend as today's deadline for production of those records has come and gone. See Monitor Article "Agency Ignores Subpoena".  Stay tuned!

The SEA  has filed suit challenging the suspension of 'bumping rights'.  Read the petition on our downloads page. The claim is the same as other Union challenges to recent legislative attacks on labor : government must keep its word.

Finally, the COLA commission met last week and has decided (rightfully so) to hold off any formal action until the lawsuit filed by labor's Retirement Coalition is resolved.  Our downloads page has a section on this case.  And congratulations to Attorney Richard Molan for , once again, being recognized as one of New England's 'Super Lawyers' for 2009  ; oh yes, Attorney Krupski's victory streak continued last week with another victory, winning a firefighter's job back following a wrongful termination -- the decision is on our case studies  page.   Look for more over the weekend!

Ocotber 18 , 2009.  The vote is in - members of the State Employees' Association have rejected the tentative agreement which called for 19 furlough days and the Governor has responded , not by offering any new ideas , but by simply carrying out his threats of layoffs. SEA leaders have appeared on recent WMUR Close Up episodes and did a great job of explaining that there are more options than just furloughs versus layoffs; see the SEA website for more. And, speaking of options, SEA and SEIU legal teams are taking a hard look at possible legal challenges to the layoffs since the mandate to save 25 million dollars has already been reached!  Stay tuned.

The SEA filed motions in Merrimack County last Friday asking that the judge rule in favor of the SEA retirees (under age 65) who have been unfairly taxed by provisions of HB2 that reduces their pension checks by up to 130$ per month.  See our downloads page for the details.

The Local Government Center remains in the news : today Maura Carroll , LGC's interim executive director , offered a response to the Concord Monitor's recent (and excellent) editorial excoriating the LGC for its continued attempts to evade the right-to-know law. The LGC response goes something like this : (1) the LGC should not have to give out financial information regarding its "business" (HealthTrust) of selling health insurance coverage to NH cities and towns because that would put the LGC at a competitive disadvantage in relation to their "competitors" (whoever they are??); and (2) the LGC has never attempted to change RSA 91-A in order to escape the law's reach.

Huh?

First, the HealthTrust issue was resolved several years ago when the PFFNH prevailed before the NH Supreme Court -- the current issue, which the LGC response ignores, involves the LGC's claim that the NHMA (its lobbying arm) is not covered by RSA 91-A and that the LGC (the parent company) does not have to reveal salary information of its employees as  is required of all other public bodies.  The Monitor editorial has it right : the current legal challenge launched by the LGC is yet another attempt to evade the law!

Second, memories are running short at the LGC if they really believe that they have never lobbied the legislature to exclude the LGC from the right-to-know law.  As detailed in our legislative alert page, HB53 was championed by the LGC in the current and 2009 legislative sessions -- this bill, as introduced, would have stricken from the definition of a "public body" any "agency or authority" of government ; this language in current law was precisely why the Superior Court ruled that HealthTrust was covered under 91-A. (See our downloads page for more).

The LGC response, while attempting to answer the question about the costs of its lobbying and legal services and whether they are funded , in part, by health insuranc premiums (more on that to follow), ignores the related questions raised by the NH Secretary of State who is investigating this very issue.  See Union Leader coverage here and the Telegraph's take here.  Incredibly, the LGC failed to appear at a scheduled hearing to answer these questions. Stay tuned!

Finally, the PFFNH and SEA should be congratulated for their efforts on the Retiree Health Insurance Commission.  The Commission met last week and appears to be close to proposing a 'Retiree Medical Trust' model suggested by these labor groups.  See the Union Leader and Telegraph  articles for more. 

Ocotber 11, 2009. New Hampshire public sector labor news has been very active in recent days ...  Here are some of the highlights :

State Employees -- The voting has closed on the new proposed contract which pits layoffs against furloughs.  The results are expected to be close and we'll post here the outcome following the count which takes place Monday afternoon, following a rally sponsored by the SEA  at the State House.  Monitor coverage on the vote here. Kevin Landrigan of the Nashua Telegraph makes his prediction here.  Stay tuned!

The SEA won a significant overtime arbitration case last week on behalf of members working at Corrections.  Attorney Krupski successfully argued that a long standing overtime administration policy could not be changed without the SEA's consent.  The arbitrator also awarded back pay for lost overtime opportunities - a remedy not often granted and one that could amount to a major leauge sized back pay award. The decision is under the SEA section of our downloads page.

The SEA class action lawsuit on behalf or retirees (under 65) will heat up this week.  The SEA will file a motion for summary judgment on Wednesday urging the Court to order the State (and Retirement Sysytem) to stop reducing their pension checks under the guise of health insurance copayments.  The State's papers will be due in early November and the Court is expected to hear arguments on the case on December 17th.  The downloads page will have updates on the filings as they happen.

The PELRB is at it again?  The SEA has twice now won victories at the Supreme Court upholding the contract bar rule but our labor board has , for a third time now, allowed an election challenge to occur outside the statute's bounds .  There's more on this saga on the downloads page but expect another round of appeals to the Supreme Court. 

PFFNH / Local Government Center -- As reported here last week, the Secretary of State's office is investigating the LGC over allegations that health insurance premiums are being used for purposes not related to providing health insurance.  This news followed the unflattering report that charges were dropped against an LGC employee arrested after a serious information breach occured at the LGC. (Story here). Investigators called the LGC security policies "sloppy" and "careless". Oh yes, there was also the LGC loss at the Legislature on HB53  (See Sept 27th update on legislative alert page).

The bad news continued for the LGC last week as the PFFNH's right to know case was argued before the State's Supreme Court. The LGC attorney had a very tough time explaining to the Court how it could be  that 2 of 5 LGC subsidiaries (including the NHMA) could avoid 91-A when all other LGC entitities are covered under the law, are owned and managed by a public body (LGC) and utilize public money to finance their ventures?  The downloads page has a section on the case -- the oral argument is a must view!

Troopers / NHTA  -- The State has recently filed a case with the PELRB seeking to decertify the NEPBA units comprised of former Highway Patrol employees.  Now that Safety has reorganized and eliminated the Highway Patrol division (those officers are now 'regulatory Troopers'), the State argues that the NHTA unit should now include these employees.  NEPBA has responded alleging that Safety has unfairly spoken about its  plans directly with these regulatory Troopers.  NHTA is watching this closely and a hearing has been scheduled before the PELRB on October 21st.

Finally, Trooper Jill Rockey was confirmed last Wednesday by the Executive Council  for a seat on the NHRS Board of Trustees.  You go Jill! 

Make sure to check  out the newly revamped downloads page and the legislative alert page has been updated as well.

October 7, 2009
The LGC has made public in a recent filing with the Merrimack County Superior Court, that it is under State investigation for allegedly violating State Statute (RSA 5-B) .  The allegations include questions regarding LGC keeping 7 million dollars of health insurance money for "future administrative needs".  Under State Law, excess health insurance premiums must be returned to the participating New Hampshire cities and towns. Watch for press accounts soon.  More to follow and the documents are available on our downloads page.

Sept. 25.  Jill Rockey , State Trooper extraordinaire and NHTA secretary was recently nominated to sit as a Trustee on the Retirement Board as nominee from the New Hampshire Police Association.  Congrat's Jill !

Sept. 1, 2009  The Troopers' Association have cleared the good name of a longtime member. Read the decision on our downloads page under "Trooper cases".

August 20, 2009. In these tough economic times, often public side unions invoke Constitutional protections preventing States from reneging on promises made in collective bargaining agreements. In a case that supports the recent lawsuits filed in New Hampshire by labor, a federal court again rules that the Constitution cannot be ignored by politicians. The Court ruled :

"The Court further recognizes that Prince George’s County, like other counties and municipalities, is struggling with budget deficits and is searching for alternatives to layoffs in the midst of a global recession.
While adequate deference must be accorded to the fiscal decisions of government officials, the Court cannot merely give lip service to the fundamental principles that undergird the Contract Clause of
the United States Constitution.  To do otherwise, even in these severe economic times, would sanction the County running roughshod over the Unions, who in good faith negotiated a binding
contract with the County."

 Read the full decision here.   Likewise in New Hampshire, labor will fight so that promises made are promises kept!

August 7 , 2009 The NH Retirement Security Coalition filed suit today challenging the constitutionality of changes in the public pension system (RSA 100-A) mandated by HB1645 , a bill passed in the 2008 legislative session that altered pension benefits that constitute vested legal rights. Read the petition here and check back to the downloads  page for updates as the case proceeds

August 4, 2009  Today the SEA  filed a class action lawsuit on behalf of retirees under age 65 who are now being charged 65$ per retiree as a deduction from monthly pension checks to subsidize the cost of retiree health care.  These deductions from legally vested rights to pension benefits are unconstitutional.  Moreover, these deductions violate IRS rules against using pension money to pay for health insurance and rather strong 'anti-alienation' provisions of the Internal Revenue Code.  This well could place in jeopardy the retirement fund's tax favored status -- is this what the State wants?  Monitor article here.  Telegraph piece here. Petition here.  Stay tuned and check the downloads  page for updates as this case progresses.

• July 31, 2009 The Attorney General's office has released its long awaited updated memorandum on the Right to Know law, RSA 91-A.  The memo seeks to capture the changes made to 91-A in the last two legislative sessions as well as to review recent Court decisions.  Interestingly, the AG opines that HB53 - a bill retained by the House Judiciary Committee and opposed by labor groups (see the legislative alert page for more details) - is a good bill!  We need to watch this next session very closely.  Also, the AG's memo cites approvingly to cases , like the Firefighters' case against HealthTrust, that have expanded the law's reach.  This memo (available here) is a must read!

July 30, 2009 Yesterday the Superior Court ruled that the State violated the federal and New Hampshire Constitution in passing that portion of HB2 that required the JUA  to pay over 100 million dollars to help with the State's budget crisis.  This case has favorable implications for cases soon to be filed on behalf of Retirement System members and retired SEA folks.   The decision is on the downloads page.

July 24, 2009  A joint statement was just released announcing that the SEA  and the State have reached a tentative agreement on a two-year contract that will help achieve the $25 million in personnel-related savings required by the state budget without any additional layoffs.

The major components of the agreement are:

• 18 furlough days over biennium, 12 of which shall come from state government shut-downs.  Shut-downs would be similar to state holidays, with essential health and public safety functions continuing. Instead of taking furloughs, employees who work at 24-hour operations will forego 18 days of holiday pay for this biennium.
• There will not be any additional layoffs of generally funded positions due to the fact that that SEA's share of the $25 million in personnel-related savings are achieved through the furlough program.  There will be no other layoffs other than those called for within the approved state budget, or necessary because of a reduction of federal funds or grants or closing of facilities or suspension of programs.
• Freeze on step increases in FY 2011. 
• Health plan changes, including wellness program and required mail-order refills for certain maintenance prescription drugs.
• Partial restoration of "bumping" for the biennium that limits it to one "bump" by limiting an employee with more than 10 years of service to bumping an employee with less than 10 years of service within a division.
• Lay-offs shall first apply to part-time workers within a facility or community where the layoffs are to occur.
• Employees receive 18 vacation days, spread over four years beginning in FY 2012.  The vacation days will not lapse but will have no cash value at retirement or termination.

Last night, SEA's Master Bargaining Team presented the tentative agreement proposal to the Collective Bargaining Senate. 

The Senate voted to authorize the Bargaining Team to prepare the language that would go into the Collective Bargaining Agreement, and then to send the formal language to union members for a vote. 

The contract ratification process may take several weeks to complete -- but if SEA members approve the agreement, the contract provisions will be retroactive to July 1st.

 A very tough negotiations and congratulations to the SEA bargaining team and Dennis Kinnan and Diana Lacey --great job!  Also, many thanks to Attorney Richard Molan for facilitating the agreement.

July 15, 2009. The SEA  and State may be close to a contract - a pact aimed at avoiding hundreds of layoffs.  Attorney Molan is acting as a facilitator along with former labor commissioner Jim Casey.  Monitor Article here.  Talks will continue on tomorrow, stay tuned.