2005-564, STEPHEN A. DILLMAN v. TOWN OF HOOKSETT

arbitration conducted pursuant to a collective modification of an arbitration award entered in an

542:8 to seek a vacation, confirmation, correction, or

may be assigned his union’s right under N.H. RSA RSA 273-A, an individual public sector union member

Whether, under New Hampshire law, including N.H.

following question for our consideration: District Court for the District of New Hampshire (Muirhead, J.) certified the DALIANIS, J. Pursuant to Supreme Court Rule 34, the United States

Merritt, of Littleton, on the brief, for the defendant. Atlas and Ms. Engdahl on the brief, and Mr. Atlas orally), and Thomas B. Warren D. Atlas and Laurie W. Engdahl, of Bedford, Massachusetts (Mr.

and orally), for the plaintiff. Errors may be reported by E-mail at the following address: Brown, Olson & Gould, P.C., of Concord (Richard C. Mooney on the brief

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-564 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial U.S. District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 court certified the above question to this court. arbitrators have exceeded their powers. p. 2 individual has not been determined under New Hampshire law,” the district

parties or by the arbitrators, or on the ground that the Recognizing that “[t]he right to assign the claim of a bargaining unit to an

542.

standing under RSA 542:8, either directly or by any purported assignment. modifying the award for plain mistake, or vacating the

court for an order confirming the award, correcting or article that specifically provided it was subject to the provisions of RSA chapter

The Union’s collective bargaining agreement with Hooksett included a grievance 3264 (the Union), which served as a certified union for Hooksett firefighters. words of the statute considered as a whole.

Hooksett had “just cause” for terminating Dillman.

the case for lack of subject matter jurisdiction, arguing that Dillman lacked federal question, removed the case to federal court. It then moved to dismiss used. Id. Reading RSA 542:8 in this light, we find it plainly provides that any party to the arbitration may apply to the superior modification, and correction of the arbitrator’s award. Hooksett, alleging a and, where possible, we ascribe the plain and ordinary meanings to the words Resort, 152 N.H. 399, 401 (2005). We first examine the language of a statute was a member of the Hooksett Permanent Firefighter Association I.A.F.F., Local Soraghan v. Mt. Cranmore Ski We are the final arbiter of the intent of the legislature as expressed in the

bargaining agreement, resulting in an award by the arbitrator finding that

At any time within one year after the award is made Union had assigned him its rights under RSA 542:8 (1997) to seek review,

RSA 542:8, which states, in relevant part: Stephen Dillman, on May 24, 2002. At the time of his termination, Dillman The right to seek judicial review of an arbitration award is granted by

his termination. Arbitration was held in accordance with the collective

Dillman subsequently brought suit in superior court, alleging that the

Town of Hooksett (Hooksett), terminated the employment of the plaintiff,

The Union filed a grievance with Hooksett on behalf of Dillman following

The district court’s order provides the following facts. The defendant, We respond in the negative.

and his employer. bargaining agreement between the member’s union bring a claim against the union for breach of the duty of fair representation.

p. 3 argument, he cites 3

of the arbitrator’s decision, he has agreed in writing to surrender his right to imposed on him by his contract, . . . or

of the obligor, or materially increase the burden or risk right of the assignor would materially change the duty

claim against the union for breach of its duty of fair representation.

542:8 is subject to no statutory or contractual prohibition. In support of his

in return for a purported assignment of the union’s right to seek judicial review

(a) the substitution of a right of the assignee for the

states the rule that assignments of contractual rights are valid unless: and the employer were the only parties, an individual employee must bring a

The plaintiff argues that the Union’s assignment of its rights under RSA

duty of fair representation to the employee.

arbitration.” said, “was not guaranteed by [RSA 542:8] since they were not ‘parties’ to the only signatories to the CBA.” F.3d at 558. In the present case, the plaintiff has made no such claim; rather, absence from those proceedings. The right of such plaintiffs to intervene, we Columbia University, 15 F.3d 23, 24-25 (2d Cir. 1994); see also Aloisi, 321

standing to challenge an arbitration proceeding to which a representative union whether union performed that duty in arbitration proceedings). Thus, to have standing to challenge, modify, or confirm an arbitration award because the duty of fair representation, and individual employees have the right to question an individual employee represented by a union “generally does not have O’Brien, 106 N.H. at 257 (authority of bargaining agent is subject to fiduciary analogous issues under federal labor laws have articulated the principle that Bryant, 288 F.3d at 131; cf. An exception to this general rule exists when the union has breached its

the union and the employer, and not the individual employee, are usually the arbitration proceedings could attack the arbitration award despite their Inc., 321 F.3d 551, 558 (6th Cir. 2003). “This rule follows from the fact that F.3d 289, 296-97 (7th Cir. 1994); cf. Aloisi v. Lockheed Martin Energy Systems, Inc., 288 F.3d 124, 131 (4th Cir. 2002); see also Cleveland v. Porca Co., 38

in the four intervening decades, we note that other jurisdictions contemplating

Id. at 257. Though we have not been asked to revisit the matter

(1965), after considering whether plaintiffs represented by a union in We reached a similar conclusion in O’Brien v. Curren, 106 N.H. 252

confirming, correcting, modifying, or vacating the arbitration award. being a party to an arbitration is a precondition to applying for a judicial order organized to represent.

p. 4 faith, while leaving the union insulated from liability to the employees it was

that has negotiated the terms of a collective bargaining agreement in good Such a result could materially increase the burden upon a public employer than an employer may have contemplated during negotiations with a union.

representation, plausibly requiring a greater expenditure of public resources

dealing directly with multiple individual employees without collective and perhaps negligible, merit. This would bring with it the attendant reality of public employer to a deluge of grievances and arbitration demands of variable,

uninterrupted operation of government.” Laws 1975, 490:1;

discharge from its duty of fair representation would, potentially, subject a

employees and to protect the public by encouraging the orderly and

a collective bargaining agreement to an individual employee in exchange for a Permitting a union to unilaterally assign its right to demand arbitration under between a public employer and an exclusive bargaining representative.

harmonious and cooperative relations between public employers and their conflicting demands from various employees within a single working unit.”

exclusive representative of all employees within a bargaining unit.

arbitration proceedings initiated pursuant to a collective bargaining agreement

bargaining representatives. RSA chapter 273-A was enacted in 1975 “to foster their employees, including the determination and certification of exclusive with their employer, and by eliminating the burden on the employer of facing Labor Relations Act, governs the relationship between public employers and

peace by requiring collective bargaining between a public employer and an

We believe that the same underlying principle extends to all phases of

at 688.

peace is enhanced by providing employees with a single voice when bargaining arbitration of disputes, RSA chapter 273-A, New Hampshire’s Public Employee Teachers Union v. Nashua School Dist., 142 N.H. 683, 687 (1998). “Labor

Specifically, RSA chapter 273-A reflects a legislative purpose of achieving labor House Legislative Facilities Subcom., 141 N.H. 443, 445-46 (1996).

decision to aggrieved individual employees. While RSA chapter 542 governs the the assignment of a union’s right to seek judicial review of an arbitration We believe, first and foremost, that public policy considerations preclude

unpersuasive. contractual in nature, we nonetheless find the plaintiff’s argument the rights afforded by RSA 542:8 to parties to arbitration may be deemed Restatement (Second) of Contracts § 317(2). Assuming, without deciding, that

(c) assignment is validly precluded by contract.

otherwise inoperative on grounds of public policy, or (b) the assignment is forbidden by statute or is question in the negative.

orderly and uninterrupted operation of government. employers and their employees and protecting the public by encouraging the 273-A, of fostering harmonious and cooperative relations between public

Employee Labor Relations Act, RSA chapter 273-A, we answer the certified articulated by the legislature when enacting the New Hampshire Public arbitration award to an individual employee is contrary to the public policy

public policies, as expressed by the legislature when enacting RSA chapter

p. 5 542:8 to apply to seek confirmation, correction, modification, or vacation of an

assignment such as that sought by the plaintiff would contravene the dual BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. Hooksett, assignment of its right to demand arbitration. We conclude, therefore, that an RSA p. 5 542:8 would have no less harmful an effect than permitting the Remanded.

Because we conclude that the assignment of a union’s right under RSA

grounds of public policy,” id. § 317(2)(b).

Restatement (Second) of Contracts § 317(2)(a), and is “inoperative on

we explained above, it “materially increase[s] the burden or risk imposed” upon as the plaintiff urges us to do, we conclude that such assignment is invalid. As assign its right to seek judicial review of an arbitrator’s decision pursuant to p. 5 542:8 to the plaintiff in light of the Restatement (Second) of Contracts § 317(2), Evaluating the Union’s purported assignment of its rights under RSA

nonetheless, related to phases of the same process. Permitting a union to review of an arbitrator’s award. Though they may be discrete rights, they are, arbitration is distinguishable from assignment of its right to seek judicial The plaintiff observes that assignment of a union’s right to demand