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
___________________________
Department of Employment Security
No. 2017-0362
APPEAL OF FAIRPOINT LOGISTICS, INC. & a.
(New Hampshire Department of Employment Security)
Argued: April 12, 2018
Opinion Issued: September 28, 2018
Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will on the
brief), and Seyfarth Shaw LLP, of Boston, Massachusetts (Arthur Telegen and
Timothy J. Buckley on the brief, and Mr. Telegen orally), for the petitioners.
Nolan Perroni, P.C., of North Chelmsford, Massachusetts (Peter J.
Perroni on the brief and orally), for Claimants Represented by International
Brotherhood of Electrical Workers, Local 2320, AFL-CIO.
Segal Roitman, LLP, of Boston, Massachusetts (James A.W. Shaw on the
brief and orally), for Claimants Represented by Communications Workers of
America, Local 1400.
Gordon J. MacDonald, attorney general (Laura E.B. Lombardi, senior
assistant attorney general, on the brief and orally), for the New Hampshire
Department of Employment Security.
LYNN, C.J. The petitioners, Northern New England Telephone
Operations, LLC and FairPoint Logistics, Inc. (hereinafter collectively
“FairPoint”), appeal the final decision of the New Hampshire Department of
Employment Security (NHES), claiming that it erred in rulings that: (1) upheld
the decision of the commissioner of NHES to reopen the ruling of the appeal
tribunal which found (a) certain unionized employees of FairPoint (claimants)
were not entitled to collect unemployment benefits during the period they were
on strike against the company because the strike resulted in a “stoppage of
work” and (b) strike pay received by some of the workers constituted income
deductible from their benefits; (2) affirmed a subsequent order of a second
appeal tribunal which found that benefits were payable because the strike did
not result in a stoppage of work; and (3) reversed the second tribunal’s
determination that strike pay was deductible from benefits. We reverse the
appellate board’s decision, reinstate in part the order of the first appeal
tribunal, and find it unnecessary to address the issue of strike pay.
I
The record reflects the following pertinent facts. FairPoint is a regulated
telecommunications company that provides voice and broadband internet
services to residential, business, and wholesale customers throughout New
Hampshire. The claimants are represented by two unions, the Communications
Workers of America (CWA) and the International Brotherhood of Electrical
Workers (IBEW). The collective bargaining agreements between FairPoint and
the unions expired in August 2014. When negotiations failed to produce a new
agreement, FairPoint implemented new terms and conditions of employment
consistent with the final proposals it had made to the unions. This resulted in
the unions implementing a strike in which approximately 650 New Hampshire
union members ceased working. The strike lasted from October 17, 2014 to
February 25, 2015. During this period, CWA workers who picketed or
performed some other task on behalf of that union received strike pay.
The claimants applied for unemployment benefits for the period they
were on strike. Certifying officers of NHES denied their claims on the grounds
that their unemployment was due to a labor dispute that resulted in a
“stoppage of work.” See RSA 282-A:36 (2010) (stating that “[a] person shall be
disqualified for benefits for any week with respect to which the commissioner
finds that his or her total or partial unemployment is due to a stoppage of work
which exists because of a labor dispute”). The claimants appealed these
determinations to the appeal tribunal. See RSA 282-A:48 (2010).
Following a hearing, the appeal tribunal upheld the decisions of the
certifying officers that the claimants were not entitled to benefits because the
labor dispute between FairPoint and the unions resulted in a “stoppage of
work.” After observing that what constitutes a “stoppage of work” is unsettled
in New Hampshire, the tribunal first concluded that there had been a
2
“stoppage of work” within the meaning of RSA 282-A:36 because the claimants
had elected to stop working as the result of a labor dispute. Alternatively, the
tribunal determined that even if a “stoppage of work” required that there be “a
substantial curtailment of the employer’s business,” the evidence established
that this standard was satisfied. The tribunal also found that strike pay
received by the CWA union members constituted deductible wages under RSA
282-A:14 (2010). See RSA 282-A:14, III(a) (stating “[a]n individual’s maximum
weekly benefit amount shall be reduced by all wages and earnings in excess of
30 percent . . . of the individual’s weekly benefit amount”).
The claimants moved to reopen the case pursuant to RSA 282-A:60
(2010), which states that “[t]he commissioner may . . . reopen the case on the
basis of fraud, mistake, or newly discovered evidence.” The commissioner
granted this request. In so doing, he first found that the appeal tribunal had
made a mistake of law in concluding that the term “stoppage of work” meant
simply that an employee had voluntarily decided to cease working because of a
labor dispute. Acknowledging that construction of this term was not settled
law in New Hampshire, the commissioner concluded that the combination of
this court’s decision in Legacy v. Clarostat Mfg. Co., 99 N.H. 483, 486 (1955),
guidance provided by the United States Department of Labor, court decisions
from a majority of other states, and a departmental internal guidance directive,
constituted persuasive authority that “‘stoppage of work’ refers to a substantial
curtailment of the employer’s operations.”
The commissioner then concluded that the appeal tribunal’s alternative
finding that there had been a substantial curtailment of work also was affected
by a mistake of law because the tribunal had not articulated a standard by
which it reached that determination. However, in so ruling, the commissioner
adopted the same standard — substantial curtailment of work — as had been
utilized by the appeal tribunal in reaching its decision. Without addressing
any of the findings that the tribunal had made in support of its decision or
determining whether they were sufficient to satisfy the substantial curtailment
standard, the commissioner instead simply listed a number of factors that, on
reopening, should be considered by the tribunal in determining whether the
standard had been met. Recognizing that case law from other jurisdictions did
not provide a definitive listing of factors that must be considered in reaching a
decision on the issue, and that such decisions require a “case-by-case, fact-
based analysis,” the commissioner directed the tribunal to consider “at a
minimum, a comparison of [FairPoint’s] business revenues, production,
services and workers hours before and after the strike,” as well as any other
industry-specific factors that were relevant.
Finally, with respect to strike pay, the commissioner ruled that because
this issue “was intertwined with other issues presented in the Appeal Tribunal
proceeding below and was not the subject of extensive testimony,” it also
should be reopened.
3
The commissioner ordered that both issues be subject to a de novo
rehearing before a new appeal tribunal.1 See RSA 282-A:61 (2010). Following
the de novo hearing, the second appeal tribunal ruled that the strike did not
result in a “stoppage of work,” and therefore that the claimants were entitled to
receive unemployment benefits for the period they were on strike. The second
tribunal also found that the strike pay received by some CWA claimants
constituted deductible wages within the meaning of RSA 282-A:14.
FairPoint and the claimants both asked the commissioner to reopen the
second tribunal’s decision. The commissioner denied these requests. With
respect to FairPoint’s request, the commissioner reaffirmed his original
decision that the first tribunal had made a mistake of law with respect to the
standard for determining whether there had been a substantial curtailment of
FairPoint’s operations. He also concluded that there was no basis to reopen
the second tribunal’s finding that the strike did not result in such a substantial
curtailment of operations as to constitute a stoppage of work. As to the
claimants’ request, the commissioner found no basis to reopen the second
tribunal’s finding that the strike pay received by some CWA claimants
constituted wages that had to be deducted from their benefits pursuant to RSA
282-A:14.
FairPoint and the claimants both appealed to the appellate board. See
RSA 282-A:64 (2010). The board: (1) concluded that the commissioner had
properly reopened the first tribunal’s decision because it was based on a
mistake of law as to what constituted a “stoppage of work”; (2) affirmed the
second tribunal’s decision finding that FairPoint failed to establish that the
strike resulted in a “stoppage of work”; and (3) reversed the second tribunal’s
decision that the strike pay received by certain claimants constituted
deductible wages. The appellate board denied FairPoint’s motion for
reconsideration, and this appeal followed.
II
Our standard of review is governed by RSA 282-A:67 (2010). That
statute confines our review to the record and prohibits us from substituting
our judgment for that of the appeal tribunal, as reversed, modified, or affirmed
by the appellate board, as to the weight of the evidence on questions of fact.
RSA 282-A:67, II, IV, V. We may overturn a decision of the appeal tribunal
only if the substantial rights of the appellant have been prejudiced because its
findings, inferences, or conclusions are “(a) [i]n violation of constitutional or
statutory provisions; (b) [i]n excess of statutory authority; (c) [m]ade upon
unlawful procedures; (d) [c]learly erroneous in view of the substantial evidence
1 We note here that both the original appeal tribunal and the second appeal tribunal consisted
of a single member (though not the same member), as is permitted by RSA 282-A:53.
4
on the whole record; or (e) [a]ffected by other error of law.” RSA 282-A:67, V2;
see Appeal of Mullen, 169 N.H. 392, 396 (2016).
III
We first address the stoppage of work issue. In so doing, for purposes of
clarity, at the outset of our analysis, we briefly address an issue that is not in
dispute in this case. In its brief, FairPoint makes no claim that the first appeal
tribunal’s ruling that a “stoppage of work” means merely that a striking
employee voluntarily ceased to perform his duties represents a correct view of
the law, and at oral argument its counsel specifically represented that
FairPoint does not advance this position. Consistent with the weight of
authority from other jurisdictions, we agree that the first tribunal erred in
concluding that the term “stoppage of work” refers to the status of the striking
worker’s employment and is established merely by the fact that the worker has
voluntarily ceased working in order to participate in the strike. See, e.g.,
Lourdes Medical v. Board of Review, 963 A.2d 289, 297 & n.4 (N.J. 2007).
Fairport first argues that the commissioner exceeded the authority
accorded him by RSA 282-A:60 when he reopened the case on the ground that
the first appeal tribunal made a mistake of law. That statute establishes
review by the commissioner as “[t]he second level of appeal” from an adverse
ruling of the appeal tribunal. RSA 282-A:60. It permits the commissioner,
either at the request of an interested party or on his own initiative, to reopen
the case. Id. However, the grounds upon which the commissioner may reopen
are limited to three: fraud, mistake, or newly discovered evidence. Id.; see
Appeal of Mullen, 169 N.H. at 400 (“The commissioner is given the limited
authority to reopen ‘on the grounds of fraud, mistake, or newly discovered
evidence.’” (quoting RSA 282-A:60)). The commissioner does not have authority
to conduct de novo review of an appeal tribunal decision, nor may he reopen a
case and direct a new hearing before the same or another tribunal merely
because he disagrees with the tribunal’s decision.
2 In cases such as Appeal of Kelly, 129 N.H. 462 (1987), we have observed that, under RSA
chapter 282-A’s statutory scheme, this court’s role is limited to reviewing decisions of the
appeal tribunal and that we have no authority to review decisions of the appellate board “as
such.” Appeal of Kelly, 129 N.H. at 466. However, given that decisions of the appeal tribunal
do not become final so as to permit judicial review until after they have been reviewed by both
the commissioner, acting pursuant to RSA 282-A:60, and the appellate board, acting pursuant
to RSA 282-A:65, and that in conducting our review of the correctness of the appeal tribunal’s
decision we must necessarily consider how its decision has been impacted by the actions of the
commissioner and the appellate board, we acknowledge that our review pursuant to RSA 282-
A:67 effectively encompasses a review of whether the commissioner and the appellate board
have properly exercised their statutory authority. See In re Mullen, 169 N.H. 392 (court
reviewed issues concerning whether the commissioner acted properly in reopening decisions of
the appeal tribunal). Insofar as language in our prior cases may be read to suggest that we
cannot review the actions of the commissioner or the appellate board in a case that is
otherwise properly before us, we now expressly clarify that we do have such authority.
5
The basis upon which the commissioner reopened the first tribunal’s
decision in this case was his view that the tribunal made a mistake of law
regarding what constitutes a stoppage of work. FairPoint argues that the
statutory language permitting reopening for “mistake” allows for reopening only
in the case of mistakes of fact, not mistakes of law. In support of its position,
FairPoint contrasts the language of RSA 282-A:60, which governs the
commissioner’s authority to reopen, with that found in RSA 282-A:65 (2010),
which confines the appellate board’s scope of review to correcting errors of law.
FairPoint contends that “[t]he legislature’s use of the phrase ‘of law’ in
establishing the Board and this Court’s scope of review, and its omission of the
phrase ‘of law’ in establishing the Commissioner’s scope of review, require the
interpretation that its omission was intentional.” We are not persuaded.
The legislature placed no qualification on the types of mistakes that
could form the basis for reopening by the commissioner. If, as FairPoint
claims, the legislature had intended that only mistakes of fact could be
grounds for reopening, it could have included language to that effect in the
statute. It did not do so, however, and, under familiar principles of
construction, we will not add language to a statute that the legislature did not
see fit to include. Appeal of Local Gov’t Ctr., 165 N.H. 790, 804 (2014).
We also reject FairPoint’s contention that permitting the commissioner to
reopen appeal tribunal decisions for errors of law would be inconsistent with
the purpose of the statutory scheme. In Appeal of Mullen, we explained that
the commissioner’s power to reopen under RSA 282-A:60 “streamlines review
and enables correction of errors earlier in the process” than would be permitted
if this procedure were not available. Appeal of Mullen, 169 N.H. at 404
(quotation omitted). This function is served as much by permitting the
commissioner to reopen for mistakes of law as it is by allowing reopening for
mistakes of fact. Accordingly, we conclude that RSA 282-A:60 authorizes the
commissioner to reopen a decision of the appeal tribunal for mistakes of either
fact or law.
However, we disagree with the commissioner and the appellate board
that the first appeal tribunal’s alternative ruling constituted a mistake of law.
The commissioner faulted the first tribunal for failing to articulate a standard
for determining what constitutes “substantial curtailment” of the employer’s
operations. We conclude, after reviewing the record, that when the tribunal
stated that it “declines to create such a definition in the absence of guidance
from the law, rule, or case law,” it was doing so in the context of referring to the
first basis for its ruling, i.e., that “the Chairman defines stoppage of work as
the claimant’s election to stop working because of a labor dispute.” That is,
what the tribunal was saying was that, because its definition of “stoppage of
work” for its first alternative ruling focused on the actions of the claimants and
not the effect of those actions on the employer, it could decline to formulate a
definition of substantial curtailment because that definition was not relevant to
6
its first alternative ruling. See In the Matter of Salesky & Salesky, 157 N.H.
698, 702 (2008) (stating that we interpret a court order as a matter of law). As
already discussed, this ruling was error. But the tribunal did not end its
analysis there. Instead, the tribunal set forth an alternative basis for its
decision, and, for the purpose of that ruling, it adopted the “substantial
curtailment” of operations standard. Applying this standard, the tribunal
found that “Fairpoint suffered a substantial curtailment of its business
because of the strike.”
We conclude that the substantial curtailment of operations standard
used by the tribunal in its alternative holding was correct. Although we have
not previously had occasion to consider this issue, doing so now, we agree with
the majority view that a substantial curtailment of operations is what is meant
by a “stoppage of work.” Lourdes Medical Ctr., 963 A.2d at 298-99; see
Boguszewski v. Com’r. of Dep’t. of Emp., 572 N.E.2d 554, 557-58 (Mass. 1991);
Whitcomb v. Dept. of Employment & Training, 520 A.2d 602, 603 (Vt. 1986).
We also agree with the prevailing view that whether this standard has been met
requires a fact-specific determination based on a consideration of all the facts
and circumstances of the particular case. Boguszewski, 572 N.E.2d at 558;
Whitcomb, 520 A.2d at 603. Because a stoppage of work results in a
disqualification from benefits, the burden was on FairPoint to establish that
there was a substantial curtailment of its operations. See Appeal of Moore, 164
N.H. 102, 104 (2012).
The first tribunal determined that FairPoint is a service industry and
that, as such, the best criteria to use to determine whether a substantial
curtailment of its operations had occurred was to focus on “Fairpoint’s ability
to provide . . . service and . . . to acquire new customers.” The tribunal found
that, as a result of the strike, FairPoint ceased marketing to and servicing new
customers for the better part of a year and instead focused all of its efforts on
trying to service its existing customers. It further found that the strike
required FairPoint to assign management employees and contract workers to
perform tasks that union members would have performed, that because of their
unfamiliarity with such work (compared to union employees) the management
and contract workers were less productive,3 and that this “significantly
impacted [the company’s] ability to stay competitive by meeting its customers’
ever increasing demands for faster service and its ability to attract and serve
customers in outlying regions.” The tribunal found that the strike resulted in
atypical increases in FairPoint’s “Troubled Load”4 and “Order Load,”5 and also
3 The tribunal credited the testimony of Michael Reed, president of FairPoint operations in the
State of Maine, who monitored FairPoint’s productivity during the strike. Reed testified that to
achieve the same productivity as its union employees, management and contract workers
worked more hours per day than union workers would have worked, but that, because of the
reduced number of management and contract workers compared to striking union workers,
they worked fewer overall hours than the union workers would have worked.
4 The “Troubled Load” is the number of pending repair jobs scheduled.
7
an increase in complaints made to the New Hampshire Public Utilities
Commission. As an example, the tribunal observed that in October 2014, after
the strike began, FairPoint’s Troubled Load doubled from what it had been in
the middle of September 2014. The tribunal also rejected the claimants’
argument that the disruption of FairPoint’s business resulted from bad weather
that occurred in or around the time of the strike, observing that making
weather-related repairs is a normal part of FairPoint’s business and that the
strike negatively impacted its ability to perform “an essential function of its
business.”
Based on the above findings, the tribunal summarized its alternative
ruling as follows: “Had the Chairman elected to define work stoppage as a
substantial curtailment of Fairpoint’s business, Fairpoint has met the burden
of proof, by a preponderance of the evidence, to show that [it] suffered a
substantial curtailment of [its] business because of the striking workers.”
Because the first tribunal adopted the correct definition of “stoppage of
work” as a “substantial curtailment of Fairpoint’s business” and considered the
proper factors in determining that a “stoppage of work” had occurred, we
conclude that it made no error (or mistake) of law and that the commissioner
therefore erred in reopening the tribunal’s decision. See RSA 282-A:67, V(e).
To the extent the commissioner’s reopening decision can be read to
suggest that the “mistake of law” supporting reopening was the absence of
sufficient evidence to demonstrate a substantial curtailment of operations, we
reject that conclusion as well. The commissioner faulted the tribunal for failing
to follow NHES Directive 340-17, which purportedly “establishes procedures for
Local Office Managers to follow if any employer makes them aware of a labor
dispute occurring in the area.” However, not only is there no indication in this
directive that it is intended to guide the deliberations of appeal tribunals, but,
more importantly, the directive references many issues that have little or
nothing to do with whether there was a stoppage of work.6 And insofar as the
directive does outline the factors to be considered in determining if there was a
stoppage of work, the first appeal tribunal considered such factors,
notwithstanding that it did not specifically cite the directive as a basis for so
doing. Paragraph 7 of attachment A to the directive states that the following
factors should be considered with respect to the issue of whether there was a
stoppage of work: (a) production stopped or severely curtailed; (b) shipments
stopped; (c) operation shutdown; (d) dollar amounts/percentage of curtailment;
and (e) deliveries of materials. The directive does not indicate that all of these
5 The “Order Load” is the number of pending jobs for installation of service for new customers.
6 For example, attachment A to the directive indicates that information should be obtained
regarding who gave notice of the decision to commence renegotiations after the expiration of an
earlier collective bargaining agreement, what meetings were held, what were the employer’s
offers and the union’s demands with regard to benefits, wages, holidays, pensions, and working
conditions, and how far apart labor and management were as to the forgoing items.
8
factors have to be present in every case to establish that a stoppage of work
has occurred, and it is apparent that, depending on the type of industry at
issue, some factors may be inapplicable (e.g., delivery of materials would likely
have no applicability to a service business).
Here the tribunal found that, as a result of the strike, FairPoint
essentially ceased its work in attempting to attract and service new customers
in order to concentrate on providing service to existing customers. The
tribunal also found that, even with its operations so limited, the company fell
significantly behind in keeping up with repair work both because it was not
able to replace with management and contract workers all the hours that
would have been worked by the union workers and because the replacement
workers were not as productive as the striking workers. Although there was
undoubtedly conflicting evidence, and conflicting inferences that could be
drawn from the evidence, it was the tribunal’s responsibility to resolve such
conflicts and to find the facts, and the record contains sufficient evidence to
support the tribunal finding that there was a substantial curtailment of
FairPoint’s operations.7
Indeed, the only factor cited in the commissioner’s reopening letter that
the tribunal did not specifically discuss was a comparison of FairPoint’s
business revenues before and after the strike. However, while such a
comparison of business revenues would have been relevant to the tribunal’s
decision, and its absence could have caused the tribunal to be unpersuaded,
as a factual matter, that a stoppage of work occurred, the failure of the
company to produce such evidence could not have resulted in a mistake of law
because the “curtailment of . . . revenues” is not “a necessary element for
invoking the labor dispute disqualification” from unemployment benefits.
Boguszewski, 572 N.E.2d at 558; see Lourdes, 963 A.2d at 293 (“[L]oss of
revenue attributable to the strike, which does not result in a substantial
curtailment of work at the hospital, is not the equivalent of a ‘stoppage of
work’”); Whitcomb, 520 A.2d at 604 (upholding finding of substantial
curtailment of work where, though telephone service to customers was not
significantly affected, and billings and payments to employees and vendors
were not curtailed at all, certain of the employer’s activities, such as statistical
7We emphasize here that the determination of whether there was a substantial curtailment of
operations was a question of fact to be decided by the appeal tribunal. Here, the evidence was
sufficient to support the first tribunal’s finding that there was a substantial curtailment of
FairPoint’s operations. Thus, the fact that there may also have been sufficient evidence to
support a contrary finding, such as the one made by the second tribunal, that there was not a
substantial curtailment of operations, is irrelevant to our analysis. The important point is that,
because the first tribunal committed no error of law, and its decision was supported by the
evidence, there was no lawful basis for there to be a proceeding before the second tribunal. Cf.
Okongwu v. Stephens, 488 N.E.2d 765, 767-68 & n.6 (Mass. 1986) (stating that while an order
granting a motion for a new trial is not immediately appealable, a party aggrieved by the verdict
on retrial may then appeal and obtain review of the order granting the new trial).
9
reports, settlement studies, call card investigation work, and toll fraud
investigations were completely halted, and construction, equipment
installation, and facilities testing were largely suspended); Monsanto Chem. Co.
v. Comm’r of Labor, 314 S.W.2d 493, 496 (Ark. 1958) (considering number of
oil barrels produced, not revenue, in determining whether stoppage of work
continued to exist).
Similar to the situation in General Electric Co. v. Director of Division of
Employment Security, 208 N.E.2d 234 (Mass. 1965), here, as the tribunal
found, the effect of the strike was to cause FairPoint to all but shut down one
part of its operation — marketing to and servicing of new customers. If this
consequence in itself were not sufficient to establish a substantial curtailment
of operations, see General Elec. Co., 208 N.E.2d at 238, it, combined with the
other disruptions of FairPoint’s operations as described above, certainly
sufficed to show a substantial disruption.
In sum, we conclude that the commissioner erred in his determination
that the first tribunal’s decision resulted from a mistake of law. Contrary to
the commissioner’s view that the tribunal based its decision merely on what he
described (but did not define) as a “negative impact” analysis, 8 we conclude
that the tribunal had sufficient evidence before it from which it could — and
did — find that the strike resulted in a substantial curtailment of FairPoint’s
operations and thus constituted a stoppage of work under RSA 282-A:36. For
the same reason, we also conclude that the appellate board erred as a matter of
law insofar as it ultimately upheld the commissioner’s decision to reopen and
did not affirm the decision of the first tribunal with respect to the stoppage of
work issue. See RSA 282-A:65, III (explaining that the appellate board may
reverse decision of the appellate tribunal if affected by reversible errors of law).
Because the stoppage of work disqualifies the claimants from
receiving unemployment benefits during the period when they were on
strike, we find it unnecessary to address the issue of whether the strike
pay received by some of the claimants constituted deductible wages.
Appellate board’s decision
reversed; decision of first appeal
tribunal reinstated in part.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.
8 We note that the commissioner first referred to his view that the first tribunal had utilized a
“negative impact” analysis in his ruling declining to reopen the second tribunal’s decision.
Since this ruling is part of the record before us and provides further illumination of the
reasoning which led the commissioner to erroneously reopen the ruling of the first tribunal, it
may properly be considered in our analysis.
10