Appeal of New England Police Benevolent Association, Inc. Appeal of State Employees' Association of New Hampshire, Inc., SEIU, Local 1984

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Public Employee Labor Relations Board
No. 2017-0472

APPEAL OF NEW ENGLAND POLICE BENEVOLENT ASSOCIATION, INC.;
APPEAL OF STATE EMPLOYEES’ ASSOCIATION OF NEW HAMPSHIRE, INC.,
SEIU, LOCAL 1984
(New Hampshire Public Employee Labor Relations Board)

Argued: May 9, 2018
Opinion Issued: November 6, 2018

Nolan | Perroni, P.C., of North Chelmsford, Massachusetts (Peter J.
Perroni on the brief and orally), for petitioner New England Police Benevolent
Association, Inc.

Glenn R. Milner, of Concord, by brief, and Nolan | Perroni, P.C., of North
Chelmsford, Massachusetts (Peter J. Perroni orally), for petitioner State
Employees’ Association of New Hampshire, Inc., SEIU, Local 1984.

Gordon MacDonald, attorney general (Jill A. Perlow, assistant attorney
general, on the brief and orally), for the respondent.

HANTZ MARCONI, J. The petitioners, the New England Police
Benevolent Association, Inc. (NEPBA) and the State Employees’ Association of
New Hampshire, Inc., SEIU, Local 1984 (SEA), appeal a decision of the New
Hampshire Public Employee Labor Relations Board (PELRB) dismissing their
unfair labor practice complaints filed against the respondent, the State of New
Hampshire. We affirm.

The parties stipulated to, or the record supports, the following facts. The
SEA, the NEPBA, the Teamsters Local 633 (Teamsters), the New Hampshire
Troopers Association (NHTA), and the New Hampshire State Police Command
Staff of the New Hampshire Troopers Association are individual unions that,
together, represent approximately 50 separate state employee bargaining units.
In December 2016, those five unions began negotiating with the State on
successor contracts under RSA 273-A:9, I (2010), which requires unions
representing state employees to negotiate with the State as a “bargaining
committee” on “[a]ll cost items and terms and conditions of employment
affecting state employees.” The first session was an organizational meeting,
where the parties identified spokespersons, discussed bargaining schedules,
reviewed, revised, and signed “ground rules,” and discussed and agreed upon
the order in which each of the five unions would make “proposal presentations”
to the State.

After several bargaining sessions, the State rejected all wage proposals,
explaining that “the Governor was not offering any wage increases . . . given
anticipated increases in prescription drug costs in the healthcare market.” As
a result, on March 7, 2017, the Teamsters and the NHTA declared an impasse.
See RSA 273-A:1, VI (2010) (defining “impasse” as the parties’ failure, “having
exhausted all their arguments, to achieve agreement in the course of good faith
bargaining, resulting in a deadlock in negotiations”).

Although no other unions declared an impasse, the State took the
position that all five unions must proceed to impasse mediation. See generally
RSA 273-A:12 (Supp. 2017) (setting forth the procedures the parties must use
when they have reached an impasse in negotiations, including mediation and
fact-finding by a neutral third party). The SEA challenged the State on this
position, and subsequently, the petitioners each filed complaints with the
PELRB. During the pendency of these complaints, the State advised all five
unions that it would select a mediator and continued to assert that all of the
unions must participate in impasse mediation “because the issues to be
resolved affected all bargaining units.”

The PELRB consolidated the petitioners’ complaints and found in a 2-1
vote that RSA 273-A:9, I, “requires all five unions to utilize the Union
Committee format at the bargaining table and during impasse resolution
proceedings until such time as the common terms and condition[s] of
employment are settled.” Based upon that determination, the PELRB found:
(1) the State was “entitled to insist that the five unions continue to adhere to
the Union Committee format in the event one or more unions declares a
bargaining impasse” in negotiating common costs, terms, and conditions; and

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(2) the unions have the obligation to “coordinate with each other” to determine
whether the bargaining committee will engage with the State at the bargaining
table or in impasse resolution proceedings. The PELRB, therefore, dismissed
the complaints and ordered the petitioners to coordinate with the other unions
“to determine the forum in which negotiations will go forward.” The petitioners
unsuccessfully moved for rehearing, and this appeal followed.

“RSA chapter 541 governs our review of PELRB decisions.” Appeal of
Nashua Sch. Dist., 170 N.H. 386, 391 (2017) (quotation omitted); see RSA 273-
A:14 (2010). “Pursuant to RSA 541:13 (2007), we will not set aside the
PELRB’s order except for errors of law, unless we are satisfied, by a clear
preponderance of the evidence, that it is unjust or unreasonable.” Nashua
Sch. Dist., 170 N.H. at 392 (quotation omitted). “The PELRB’s findings of fact
are presumed prima facie lawful and reasonable.” Id. (quotation omitted); see
also RSA 541:13. “In reviewing the PELRB’s findings, our task is not to
determine whether we would have found differently or to reweigh the evidence,
but, rather, to determine whether the findings are supported by competent
evidence in the record.” Nashua Sch. Dist., 170 N.H. at 392 (quotation
omitted). “We review the PELRB’s rulings on issues of law de novo.” Id.
(quotation omitted).

On appeal, the petitioners argue that the PELRB erred in finding that
RSA 273-A:9, I, requires the unions to remain in the bargaining committee
format, and acted unlawfully or unreasonably when it dismissed the
petitioners’ complaints. They assert that the PELRB’s interpretation of RSA
273-A:9, I: (1) contradicts the plain language of the statute; and (2) leads to an
absurd result. Because the petitioners challenge the PELRB’s ruling on an
issue of law, the court reviews the PELRB’s decision de novo. Id.

Resolution of this issue requires that we interpret the language of the
pertinent statutes. See Appeal of Laconia Patrolman Assoc., 164 N.H. 552, 555
(2013). “Although the PELRB’s findings of fact are presumptively lawful and
reasonable and will not be disturbed if supported by the record, we are the
final arbiters of legislative intent as expressed in the words of a statute
considered as a whole and will set aside erroneous rulings of law.” Appeal of
SEA (N.H. Community College System), 170 N.H. 699, 703 (2018).

When examining the statutory language, “we ascribe the plain and
ordinary meaning to the words used.” Laconia Patrolman Assoc., 164 N.H. at
555. “We do not consider words and phrases in isolation, but rather within the
context of the statute as a whole,” id., and “construe all parts of a statute
together to effectuate its overall purpose and to avoid an absurd or unjust
result,” Appeal of Exeter Police Assoc., 154 N.H. 61, 65 (2006). “We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.” Laconia Patrolman Assoc., 164 N.H. at 555. “We do not look

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beyond the language of a statute to determine legislative intent if the language
is clear and unambiguous.” Appeal of Town of Deerfield, 162 N.H. 601, 603
(2011).

RSA chapter 273-A, New Hampshire’s Public Employee Labor Relations
Act, recognizes the right of public employees to create unions, see RSA 273-
A:10 (Supp. 2017), :11, and sets forth rules governing negotiations between
public employees and employers. See, e.g., RSA 273-A:3, II(a) (2010)
(explaining when and how the parties must commence negotiations), :12
(setting forth impasse resolution procedures). RSA 273-A:3, I, sets forth a
general rule that requires all parties “to negotiate in good faith.” “‘Good faith’
negotiation involves meeting at reasonable times and places in an effort to
reach agreement on the terms of employment, and [cooperating] in mediation
and fact-finding required by this chapter.” RSA 273-A:3, I; see also RSA 273-
A:5, I(g) (prohibiting any public employer from “refus[ing] to negotiate in good
faith with the exclusive representative of a bargaining unit”). In this way, “good
faith” negotiation encompasses all parts of the negotiating process.

RSA 273-A:9, I, sets forth an additional rule that applies only to
negotiations between the State and the unions representing state employees.
RSA 273-A:9, I, provides:

All cost items and terms and conditions of employment
affecting state employees in the classified system generally shall be
negotiated by the state, represented by the governor as chief
executive, with a single employee bargaining committee comprised
of exclusive representatives of all interested bargaining units.
Negotiations regarding terms and conditions of employment unique
to individual bargaining units shall be negotiated individually with
the representatives of those units by the governor.

RSA 273-A:9, I, sets forth a framework for negotiations to occur between the
Governor, on behalf of the State, and a single committee comprised of the
exclusive representatives of all interested bargaining units when negotiating
common cost items and terms and conditions of employment. This framework
arguably provides for efficient and fair negotiations between the State and the
unions on cost items and terms and conditions of employment that affect all
unions representing state employees.

RSA 273-A:12, which applies to all public bargaining units and public
employers, sets forth detailed procedures designed to assist parties who are at
an impasse in negotiations reach a resolution to their dispute. When the
parties reach an impasse, RSA 273-A:12, I(b) requires the parties to engage in
mediation with a neutral third party. The statute further provides that, if the
parties so choose, or if mediation does not resolve the dispute, a neutral party
chosen by the parties or appointed by the PELRB shall make and report

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findings of fact and recommendations. RSA 273-A:12, I(b). If one or both
parties reject the recommendations, the statute sets forth additional steps to
resolve the dispute. See RSA 273-A:12, II (submission of the neutral party’s
findings of fact and recommendations to the union’s full membership and
employer’s board for a vote), III (submission of the neutral party’s findings of
fact and recommendations to the legislative board), IV (reopening negotiations
if the parties still have not reached an agreement).

The petitioners do not dispute their obligation under RSA 273-A:9, I, to
negotiate as a bargaining committee at the bargaining table on common cost
items, terms, and conditions. However, the SEA asserts that the plain
language of RSA 273-A:12 requires an impasse between the individual union
and the State in order to trigger the impasse resolution procedures. Because
neither the SEA nor the State has declared an impasse, the SEA argues that
the impasse resolution procedures have not been triggered and, therefore, the
State must continue bargaining with the SEA.

Similarly, the NEPBA argues that the plain language of RSA 273-A:9, I,
and RSA 273-A:12 limits the bargaining committee format to negotiations at
the bargaining table. Pointing to the absence of the word “committee” in RSA
273-A:12 and the references to individual bargaining units, see RSA 273-A:12,
I(a)(1)-(2), the NEPBA asserts that requiring all five unions to maintain the
bargaining committee format through impasse resolution procedures
“improperly reads a committee bargaining requirement into RSA 273-A:12 that
does not exist.” Though the petitioners set forth different arguments, their
conclusion is the same: once one or more unions in the bargaining committee
reach an impasse in negotiations with the State, the plain language of the
statute no longer obligates the unions to negotiate as a single bargaining
committee and instead requires the State to negotiate individually with the
unions who have not declared an impasse.

Here, the impasse declared by the Teamsters and the NHTA occurred
after the State rejected all of the proposals on an item held in common by all of
the bargaining committee members — wages. The reason for the State’s
rejection of the wage proposals was the same for all — the anticipated increase
of prescription drug costs. Thus, the Teamsters’ and NHTA’s impasse
declarations resulted from the State’s position on wages that applied to “all
union wage proposals.”

The statutory scheme is silent as to the proper course of action under
these circumstances. Arguably, such silence creates an ambiguity. See In re
Juvenile 2005-212, 154 N.H. 763, 766 (2007). Because the legislative history
is silent on this issue, it also provides no guidance to resolve any ambiguity.
See Laws 1997, 351:53 (adding the bargaining committee language to RSA
273-A:9). We look, therefore, to the structure of the statutory scheme as a
whole to discern the legislature’s objectives. When we examine the pertinent

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statutes in the context of the entire statutory scheme, rather than in isolation,
we conclude that the legislature intended unions negotiating on behalf of state
employees to continue negotiating with the State as a bargaining committee
under the circumstances in this case when the item causing impasse with one
or more unions is common to all. See Exeter Police Assoc., 154 N.H. at 65.

Such an interpretation is consistent with the plain language of RSA 273-
A:3, I, which defines “good faith negotiation” to include the steps provided in
RSA 273-A:12 to resolve an impasse. See RSA 273-A:3, I (defining “good faith
negotiation” as including “cooperat[ing] in mediation and fact-finding”), :12, I-
IV (setting forth the steps to resolving an impasse). It is also consistent with
the plain language of RSA 273-A:9, I, which mandates that “cost items and
terms and conditions of employment affecting state employees . . . be
negotiated by the state . . . with a single employee bargaining committee.” See
McCarthy v. Wheeler, 152 N.H. 643, 645 (2005) (“The use of the word ‘shall’ is
generally regarded as a command.”). Furthermore, it is consistent with the
apparent purpose of RSA 273-A:9, I, namely, to provide for efficiency and
fairness in negotiations on common items and terms and conditions of
employment between the State and the unions representing state employees.
Finally, it is consistent with the evident purpose of RSA 273-A:12, which is to
enable the parties to resolve the impasse.

We disagree with the petitioners that our interpretation leads to an
absurd result or is unjust and unreasonable. When, as in this case, the State
has rejected all proposals on an item common to all unions, which has caused
at least one union to declare an impasse, it is reasonable to allow the State to
engage in impasse negotiations with all of the unions participating as a single
bargaining committee.

We further disagree with the NEPBA that our interpretation somehow
deprives the petitioners of their ability to exercise independent negotiation
strategies. When, as in this case, the State seeks to negotiate with the unions
as a single bargaining committee after it has rejected all proposals on a
common item, we fail to see how requiring the parties to engage in impasse
resolution proceedings, with the unions participating as a single bargaining
committee, deprives the unions of their ability to “maintain an effective
bargaining posture.” Both stages of negotiation — bargaining at the table and
resolving an impasse — allow the unions to advocate for the interests of their
respective members. See RSA 273-A:12, I(a)(1)-(2) (allowing parties to make
presentations to the other party), I(b) (mediation and fact-finding). Whether the
parties continue negotiating at the table or enter into impasse resolution
procedures, the unions will be negotiating with the State as to an item that all
five unions have in common.

Because our function “is not to make laws, but to interpret them, any
public policy arguments relevant to the wisdom” of the statutory scheme “and

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its consequences should be addressed to the General Court.” Logan v. Logan,
120 N.H. 839, 843 (1980). If the legislature disagrees with our interpretation,
it is free to amend the statutory scheme as it sees fit. See Appeal of Town of
Nottingham, 153 N.H. 539, 566 (2006).

Because we interpret the statute under these circumstances to require
the unions to negotiate with the State as a single bargaining committee, the
PELRB did not act unlawfully or unreasonably in dismissing the petitioners’
unfair labor practice complaints or in ordering the petitioners to “coordinate
with each other to determine the forum in which negotiations will go forward
and thereafter utilize the Union Committee format accordingly.”

All arguments the petitioners raised in their notice of appeal, but did not
brief, are deemed waived. In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed.

LYNN, C.J., and HICKS, BASSETT, and DONOVAN, JJ., concurred.

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