2007-105, APPEAL OF STATE EMPLOYEES' ASSOCIATION OF NH, INC. (MODIFIED DECEMBER 13, 2007)

of this ORDER forward to PELRB . . . , [and] to the Petitioner, a complete list of accordance with Pub 303.01(b), the EMPLOYER shall immediately upon receipt PELRB issued an order of election, which stated, in pertinent part: “[I]n

SEA as the appellees’ exclusive representative. On September 25, 2006, the

Hampshire Public Utilities Commission (PUC), filed a petition to decertify the

who are certain individuals regarded as classified employees within the New

Relations Board (PELRB). We reverse and remand.

The record reveals the following: On August 23, 2006, the appellees,

obtain certain information by the New Hampshire Public Employee Labor Hampshire, Inc., SEIU Local 1984 (SEA), appeals the denial of its motion to DALIANIS, J. The appellant, the State Employees’ Association of New

Hampshire Public Utilities Commission filed no brief. Certain Individuals Regarded as Classified Employees within the New to press. Errors may be reported by E-mail at the following address:

for the appellant. Cook & Molan, P.A., of Concord (John S. Krupski on the brief and orally),

(New Hampshire Public Employee Labor Relations Board) APPEAL OF STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC.

editorial errors in order that corrections may be made before the opinion goes No. 2007-105 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 ___________________________

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 classification of any person newly eligible for inclusion in the

p. 2 party receiving a copy of the original list the name and

plain meaning of its regulations.” public employer shall update this voting list by delivering to each membership as a result of a unit determination hearing. The parties or previously determined by the board to be eligible for

own regulations is erroneous as a matter of law when it fails to embrace the

moved for reconsideration, which the PELRB denied, and this appeal followed. addresses of the employees in the bargaining unit agreed to by the

follow its own rules and regulations, and that an agency’s interpretation of its

competing interests in organization activities to obtain the same.” The SEA appear on the ballot, a complete list of the names and home this era of elevating the privacy rights of employees over the ability of denied the SEA’s motion to obtain information. We agree. immediately forward to the board, and to the parties who shall director’s decision, ruling that “his decision reflects the position of the board in Upon receiving the order for election, the public employer shall

New Hampshire Administrative Rules, Pub 303.01(b) provides: the order is unjust or unreasonable.” 427, 429 (1992) (quotations and citations omitted).

“The law of this State is well settled that an administrative agency must

The SEA argues that the PELRB violated its own regulations when it obtain information. On November 30, 2006, the PELRB affirmed its executive 132, 134 (2006) (quotation omitted); see RSA 541:13 (2007).

the appealing party demonstrates by a clear preponderance of the evidence that and, absent an erroneous ruling of law, we will not set aside its decision unless “When reviewing a decision of the PELRB, we defer to its findings of fact, communicate with employees.” blanket inability of any union or other party to otherwise reasonably

that an employee’s privacy interest in their [ motion on October 10, 2006. He stated that it was “the PELRB’s strong belief name and home address. The Executive Director of the PELRB denied this with the full board of the PELRB, challenging the decision to deny its motion to decertification on October 17, 2006. Also, on that day, the SEA filed an appeal the appellees’ exclusive representative. The PELRB issued a notice of At the October 11, 2006 election, a majority voted to decertify the SEA as

that may be breached, if at all, only after sufficient proof is offered of the

October 4, 2006, the SEA filed a motion to obtain a list of each potential voter’s the names and home addresses of the employees in the bargaining unit.” On p. 3 National Labor Relations Board in Administrative Rules, Pub 303.01(b), like the similar rule adopted by the

bargaining unit, material prejudice is presumed. New Hampshire decision and remand for a new election. for setting aside the election in this case. We therefore reverse the PELRB’s

materially prejudiced it.

statutory rights to organize. BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

forwarding the names and home addresses of the employees within the with New Hampshire Administrative Rules, Pub 303.01(b) constitute grounds Auntie Anne’s, 323 N.L.R.B. 669, 669 (1997), so too does the failure to comply requirement will, by itself, constitute grounds for setting aside an election,” however, unless an appellant demonstrates that the PELRB’s decision N.L.R.B. 1215, 1227 (2004). Just as “a failure to comply with the Excelsior

arguments concerning representation and can freely and fully exercise their 1236, 1239-40 (1966), helps to ensure that employees are fully informed about

following proper rule-making procedures. no longer reflects the PELRB’s views, the PELRB may seek to amend it by

not complied with New Hampshire Administrative Rules, Pub 303.01(b) by

ballot, the SEA was entitled to “a complete list of the names and home We will not set aside the PELRB’s decision for a procedural irregularity,

Service Co., 135 N.H. at 429. however, may not simply choose to disregard its own rules. Attitash Mt. Appeal of City of Manchester, 149 N.H. 283, 287-88 (2003). The PELRB, the employer See RSA 273-A:2, VI (1999); see also

To the extent that New Hampshire Administrative Rules, Pub 303.01(b) pre-election conference. erred when it denied the SEA’s motion to obtain such a list from the PUC.

representative or to be unrepresented. Because the SEA was listed on the case asked voters to choose whether they wanted the SEA to be their exclusive in the bargaining unit.” N.H. Admin. Rules, Pub 303.01(b). The ballot in this on the ballot a complete list of the names and home addresses of the employees

must forward to the PELRB “and to the parties who shall appear

The language of this regulation is mandatory. Under its express terms,

the parties or, failing agreement, determined by the board at the bargaining unit up to the end of the eligibility period agreed to by