2005-819, APPEAL OF THE TOWN OF HAMPTON

The appellant, Town of Hampton (town), appeals a decision

brief and orally), for the appellee. McKittrick Law Offices, of North Hampton (J. Joseph McKittrick on the to press. Errors may be reported by E-mail at the following address:

on the brief and orally), for the appellant. Sheehan Phinney Bass + Green, P.A., of Manchester (Elizabeth A. Bailey

(New Hampshire Public Employee Labor Relations Board) APPEAL OF THE TOWN OF HAMPTON

editorial errors in order that corrections may be made before the opinion goes No. 2005-819 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Public Employee Labor Relations Board Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as union membership, and further directed that the order be posted on the HPD’s

p. 2 PELRB ordered the town to cease and desist from “directly dealing” with the

leadership, and that such “direct dealing” violated RSA 273-A:5, I(e). The memorandum was directed to union members rather than to elected union concluded that Wrenn’s memorandum contained “promises of benefit,” that the

relevant part:

the town had committed an unfair labor practice. Specifically, the PELRB businessman . . . came up with a plan that would have paid would have addressed the private detail problem. A local

response, which was addressed to “All Hampton Police Officers,” stated, in

relevant part: session which had been published in a local newspaper. The e-mail stated, in evidentiary hearing, and, on September 8, 2005, issued an order finding that practice in violation of RSA 273-A:5 (1999). The PELRB conducted an given by Ptl. Henderson regarding the private detail proposal that that the town, through Wrenn’s memorandum, engaged in an unfair labor The union filed a complaint with the PELRB on June 1, 2005, alleging

your Union’s representatives on May 4. It was rejected by them. th response to Henderson’s e-mail on the HPD’s official bulletin board. The LIABILITY INSURANCE. . . . This is the proposal the Town made to INSURANCES INCLUDING WORKER’S COMPENSATION AND have made all the necessary deductions and would pay ALL THE OFFICERS $27 PER HOUR FOR WORKING DETAILS. He would

you are injured on duty[?] God forbid if someone was killed. [workers’ compensation]. Who takes care of your family or you if I am writing to you to correct the misinformation that you were

On May 19, 2005, the town’s Chief of Police, William Wrenn, posted a

union members alike. Henderson sent the e-mail to all HPD personnel, union members and non-

bargaining session. On May 18, 2005, Henderson, using the HPD’s official e-

difference would be $13. The real issue is liability insurance, sergeant can get up to $40 an hour, proposal $27 [sic] the currently, 22 dollars was proposed, [t]he difference is $7 dollars. A quote was an outright lie. A part time officer gets 29 dollars The inaccuracies in the article have been noted. . . . The two dollar

The president of the union, Officer Steven Henderson, was present at the

but failed to reach an agreement. proposals for alternative solutions regarding the issue of private police details, addressing alleged inaccuracies in a published newspaper article. p. 3 bargaining. Rather, Henderson specifically notes in the e-mail that he is

tense, does not suggest that it would be available for future consideration. communicate to union members information pertaining to ongoing collective

were scheduled – and Wrenn, having described the proposal entirely in the past mail in his capacity as union president, and the e-mail does not purport to pertaining to private police details was ongoing – in fact, no further sessions proposal. Nothing in the response indicates that collective bargaining

official e-mail system. Henderson did not indicate that he was sending the e- HPD employees, including non-union members and Wrenn, using the HPD’s benefits. Wrenn closed his response by noting that the union had rejected the RSA 273-A:5, I(e). It is undisputed that Henderson distributed his e-mail to all

paid officers a certain hourly wage, and “would have” paid for insurance determining that the town dealt directly with union members in violation of other things, “would have” addressed the private detail problem, “would have” Henderson’s e-mail. It provides information about a proposal that, among Wrenn, in turn, directed his response at alleged misinformation in

preponderance of the evidence that the order is unjust or unreasonable.” set aside its decision unless the appealing party demonstrates by a clear defer to its findings of fact, and, absent an erroneous ruling of law, we will not union member who is not designated as an exclusive representative.

Having reviewed the record, we conclude that the PELRB erred in

determinations. Appeal of AFL-CIO Local 298, 121 N.H. 944, 946 (1981). with its employees is not a per se unfair labor practice under RSA 273-A:5. (citation omitted.) However, the mere act of communication by an employer negotiating process and frustrates the purpose of [RSA chapter 273-A].” Id. employees is generally forbidden because it seriously compromises the Franklin Education Assoc., 136 N.H. 332, 335 (1992). “Dealing directly with

in violation of RSA 273-A:5, I(e). “When reviewing a decision of the PELRB, we I(e). Accordingly, a public employer must refrain from negotiating with any good faith with the exclusive representative of a bargaining unit. RSA 273-A:5, It is a prohibited practice for a public employer to refuse to negotiate in

Appeal of City of Laconia, 150 N.H. 91, 93 (2003).

presumptively lawful and reasonable, we require that the record support its omitted); see also RSA 541:13 (1997). Though the PELRB’s findings of fact are Appeal of Nashua Police Comm’n, 149 N.H. 688, 689 (2003) (quotation

Wrenn’s memorandum constituted direct dealing with the union membership On appeal, the town argues that the PELRB erred in determining that

PELRB denied. official bulletin board. The town filed a motion for reconsideration, which the or force or promise of benefit’ . . . .”

p. 4 regarding past negotiations, and, as such, promised no future benefit. our conclusion that Wrenn had merely responded to perceived misinformation RSA chapter 273-A did contain an analogous clause, we would simply restate

unfair labor practice,’ so long as such expression contains ‘no threat of reprisal expression of ‘any views, argument, or opinion’ shall not be ‘evidence of an Section 158(c) “implements the First Amendment by requiring that the

consider whether Wrenn’s comments constituted a “promise of benefit.” Even if members.

to hourly wages and insurance benefits constituted a “promise of benefit.”

273-A contains no clause analogous to 29 U.S.C. § 158(c), we need not town violated RSA 273-A:5, I(e) by engaging in direct dealing with union

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

U.S.C. § 158(c) (2000), concluded that the language in Wrenn’s letter pertaining

alleged unfair labor practice under RSA 273-A:5, and because RSA chapter negotiations. As such, we conclude that the PELRB erred in finding that the 575, 617 (1969) (quoting 29 U.S.C. § 158(c)). Because we are reviewing only an future negotiations between the town and the union, but, rather, failed past N.L.R.B. v. Gissel Packing Co., 395 U.S. disseminated throughout HPD. Moreover, his letter pertained not to ongoing or

In finding that the town engaged in direct dealing, the PELRB, citing 29

purposes of RSA chapter 273-A. labor practice, because all such actions thwart the collective bargaining

inflammatory and allegedly inaccurate comments that Henderson had case, however, Wrenn composed and posted his letter in response to arguably contracts that were to be the subject of renegotiation. Id. at 336-37. In this unilaterally contacted and applied pressure to union members with regard to impermissible “direct dealing” had occurred when a public employer N.H. at 336. In Appeal of Franklin Education Assoc., we found that

members rather than with their exclusive representative constitutes an unfair An attempt by a public employer to negotiate directly with union