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Fowler v. Town of Seabrook12/21/2000
y. The town contends that the plaintiff was required to exhaust his remedies under the collective bargaining agreement before proceeding to the DOL, the PELRB, and ultimately, to the court. According to the town, the court erred because it "ignored the presumption of arbitrability contained in every [collective bargaining agreement]." We affirm the trial court's decision to remand the matter to the DOL.
The source of the plaintiff's right not to have money withheld from his paycheck is statutory. It derives from RSA 275:43, I (1999), which grants employees the right to wages for work performed and RSA 275:48, which prohibits an employer from withholding money from an employee's regular paycheck unless certain statutory exceptions apply. Where the plaintiff seeks to vindicate a statutory right, the presumption of arbitrability does not pertain. See Wright v. Universal Maritime Service Corp., 525 U.S. 70, 78 (1998). Such a claim is not arbitrable unless there is a "clear and unmistakable" waiver of the employee's right to pursue his statutory claim. Id. at 80.
The town does not argue that the collective bargaining agreement contains any "clear and unmistakable" waiver. Rather, it relies upon the collective bargaining agreement's arbitration clause. A general arbitration clause does not meet the "clear and unmistakable" standard. Id. Moreover, any collective bargaining agreement provision that could somehow be construed as a waiver of the plaintiff's rights under RSA chapter 275 would be unenforceable under New Hampshire law. RSA 275:50 (1999) prohibits the waiver by private agreement of any provision of RSA chapter 275. Thus, the plaintiff was entitled to pursue his RSA chapter 275 claim.
The town contends that because the collective bargaining agreement's insurance provision permitted it to deduct from the plaintiff's regular wage to replenish his sick leave account, resolving the plaintiff's claim requires construing this provision. We disagree. RSA 275:48 gives the plaintiff a statutory right not to have money withheld, and RSA 275:50 prohibits waiver of RSA 275:48. Thus, even if the town's construction of this provision is correct, the provision is void as a matter of law. See RSA 275:50.
The town further contends that one must interpret the collective bargaining agreement's wage schedules, sick leave provisions and insurance provisions to determine how much money should have been in the plaintiff's weekly paycheck when he returned from leave.
We disagree. As previously discussed, nothing in the collective bargaining agreement could validly permit the town to deduct from the plaintiff's regular wage for work he performed when he returned from leave. Moreover, while the collective bargaining agreement may set forth the plaintiff's regular wage, the "simple need to refer to bargained-for wage rates" does not extinguish his right to pursue his statutory claim. Livadas v. Bradshaw, 512 U.S. 107, 125 (1994).
The town next contends that the superior court's ruling infringed upon the PELRB's primary jurisdiction to determine the arbitrability of a claim. This argument fails because it assumes that the plaintiff's claim emanates from the collective bargaining agreement and not from RSA 275:48. The town's remaining arguments as to the PELRB's jurisdiction and/or an arbitrator's authority to decide this dispute lack merit and warrant no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).
The town next asserts that the court misconstrued RSA 275:48. We disagree.
This court is the final arbiter of the intent of the legislature as expressed in the words of a statute. When construing its mean
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