2005-386, APPEAL OF NH DEPARTMENT OF SAFETY

2001. 1999-2001. They are also parties to the latest CBA, which became effective in from those covering other state employees, for the periods 1997-1999 and

the Association have been parties to collective bargaining agreements, separate

Kelly A. Ayotte

by the Division, up to and including the grade of sergeant. The Division and Argued: November 8, 2006 the certified exclusive bargaining representative for sworn personnel employed (New Hampshire Public Employee Labor Relations Board) The record supports the following. The Association, formed in 1997, is

We affirm. No. 2005-386 committing an unfair labor practice in violation of RSA 273-A:5, I(h) (1999). Public Employee Labor Relations Board respondent, the New Hampshire Troopers Association (Association), thus

breached the 2001-2003 collective bargaining agreement (CBA) with the

Donchess & Notinger, P.C.

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

and orally), for the respondent.

attorney general, on the brief and orally), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as that provides unequal benefits to members of the same bargaining unit. p. 2 decision is “manifestly unjust and unreasonable,” as it enforces a past practice

inconsistent with the terms of the CBA. Further, it contends that the Board’s

by requiring the Division to continue an erroneous administrative practice the CBA. The Board has determined that a bona (1) improperly applied the status quo doctrine; and (2) exceeded its authority evidence their acceptance of a practice not specifically expressed in The Division contends that the Board erred as a matter of law because it: determined that it is ambiguous or that the parties’ actions

examined the language used by the parties in their [CBA] and

the status practice beginning on July 1, 2004 through its failure to maintain appeal followed. agreement with the Association and committed an improper labor July 1, 2004. The Board denied the Division’s motion for rehearing; this declaring that it had: upon the changed procedures, and return to the status quo as it existed before Subsequent to an evidentiary hearing, the Board issued an order,

Association. We therefore find that the Division breached its

calculation procedures, cease and desist from future leave deductions based of the most recent CBA and were not subject to such unilateral change. annual/sick leave days had been agreed to by the parties during negotiations Association contended that the amount, accumulation and utilization of

the practice unilaterally without first negotiating with the subject to good faith negotiations, the Division could not modify sick leave to those members of the Association affected by the change in provided a benefit to the [state] troopers for many years to be

status Board, alleging an unfair labor practice violation under RSA 273-A:5, I(h). The

Further, the Board ordered the Division to restore accumulated annual and term or condition of work. Since we find the condition that has

quo period between the parties . . . . deduction policy prior to its implementation, especially during a from their accumulated leave totals. The Association filed a complaint with the quo and failure to negotiate a modification to the leave experienced a reduction in the number of annual/sick leave days available

sick leave calculation practices. As a result, some Division employees

developed between the parties and that that practice established a

On July 1, 2004, the Division made a unilateral change to its annual and p. 3 Id

maintaining the status quo.

body ratifies, a successor contract.” Appeal of Alton School Dist. terms of the contract indefinitely until the parties negotiate, and the legislative An automatic renewal, or “evergreen,” clause “purports to continue the p. 3 Id

obligations to one another are governed by the doctrine of

2003, or until such time as a new Agreement is executed.” Given the presence

limited sense, we agree with the Division. that application of the status quo doctrine was improper in this case. In that differ as to its meaning. the absence of a status quo provision in the CBA as mandating a conclusion parties continue to negotiate for a successor agreement, their ends on its termination date. Once a CBA expires, while the In the absence of a binding automatic renewal clause, a CBA

that “[t]his Agreement . . . shall remain in full force and effect through June 30, . Article 22.1 of the CBA, as noted in the Board’s findings of fact, provides

A clause is ambiguous when the contracting parties reasonably Specifically, the Division points to the presence of an “evergreen” provision and ambiguous, is ultimately a question of law for this court to decide. bargaining agreement, including whether a provision or clause is

303, 307 (1995).

the order is unjust or unreasonable. Appeal of Nashua Police Comm’n

determining that a “past practice controlled over the explicit terms of the CBA.” matter of law because it improperly applied the status quo doctrine in their words and phrases. The interpretation of a collective We first address the Division’s argument that the Board erred as a

. (quotations and citations omitted).

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 Board, we defer to its findings of fact, and by construing its terms according to the common meaning of This intent is determined from the agreement taken as a whole, I

begin by focusing upon the language used, as it reflects the parties’ intent. dispute in this case requires that we interpret provisions of the CBA, and we N.H. 688, 689 (2003); see also RSA 541:13 (1997). Our resolution of the

1 ¼ days = 10 hours; 1 ½ days = 12 hours

15 plus 2 days 24/50

11 thru 15 1 ¾ days 21/44

6 thru 10 1 ½ days 18/38 2 thru 5 1 ¼ days 15/32 0 thru 1 1 day 12

Years Worked Month Years/Max. Continuous Accrued/

days and shall not lapse.

Annual leave shall be cumulative for not more than the prescribed

bargaining agreement is ambiguous is one of law for this court to decide. See was ambiguous. The question of whether a provision or clause of a collective 4

shall be computed at the end of each completed month of service. based on the formula given below. Each employee’s entitlement 10.1. Employees will be entitled to annual leave with full pay

quo, the board determined that the language used by the parties in the CBA

See

The provisions read, in pertinent part: of the CBA at issue are “Article X Annual Leave” and “Article XI Sick Leave.” Division committed an unfair labor practice by failing to maintain the status manner of deducting annual and sick leave is ambiguous. The two provisions committed an unfair labor practice. Here, in addition to finding that the may affirm the Board’s decision that the Division breached the CBA and

grounds, we will sustain it if there are valid alternative grounds to support it.

We next address whether the language in the CBA with regard to the

precipitated results contrary to that intent. If we find the latter to be true, we III

remand this case to the Board for further deliberation on this same issue. trial court’s interpretation of contract de novo). Consequently, we need not Duke/Fluor Daniel v. Hawkeye Funding, 150 N.H. 581, 582 (2004) (we review as argued by the Division. When the Board bases its decision upon mistaken Our holding, however, does not mandate a reversal of the Board’s order,

the status quo doctrine. of this valid evergreen provision, the Board erred to whatever extent it applied

terms of the CBA, and whether the Division’s unilateral change in practices paramount issues in this case are the intent of the parties in agreeing to the Appeal of City of Nashua Bd. of Educ., 141 N.H. 768, 772 (1997). The nine hours of annual leave from the trooper’s accumulated annual leave total.

p. 5 hour shifts at the time of taking an annual leave day, the Division deducted

leave taken. For example, as of July 1, 2004, if a road trooper worked ninefrom that trooper’s accumulated leave totals for each day of annual or sick the Division deducted the actual number of hours in a particular trooper’s shift

eight and one-half, or nine hours, or longer. Beginning July 1, 2004, however,

or sick leave taken, regardless of whether the employee worked a shift of eight, trooper’s accumulated leave total at a rate of eight hours for each day of annual Prior to July 1, 2004, the Division deducted a full day of leave from a

accumulated in eight-hour blocks. scheduled shifts. Both before and after July 1, 2004, annual/sick leave was Division credited all troopers with the actual number of work hours in their

required 160 hours over the twenty-eight day cycle for pay purposes, the

twenty-eight day cycle. In calculating whether an employee had accrued the

Both groups are scheduled to work 160 hours over the course of the standard days off, with approximately three repetitions over a twenty-eight day cycle. work eight and one-half hour or nine-hour shifts for six days, followed by three

eight day cycle. The second group is comprised mainly of “road troopers,” who

shifts for five days, followed by two days off, with four repetitions over a twentydetective troopers and administrative personnel. The group works eight-hour divide them into two distinct groups. The first group is comprised mainly of For the Division’s employees covered by the CBA, their work patterns

hours. 11.1.1. For purpose of utilization, sick leave shall be converted to

. . . .

1 ¼ days = 10 hours

16 plus 1 ¼ days 15/120

9 thru 15 1 ¼ days 15/105 0 thru 8 1 ¼ days 15/90

Years Worked Month Years/Max.

Continuous Accrued/

prescribed days and shall not lapse.

of service. Sick leave shall be cumulative for not more than the

Sick leave shall be computed at the end of each completed month accrue sick leave in accordance with the formula given below. . . . 11.1. Full-time employees in the bargaining unit will be entitled to

. . . . p. 6 With reference to the previous scenario, deducting

120 hours.

Article 10.1, the fifteen days earned annual leave for both troopers is equal to

argument that the CBA is clear The scenario directly contradicts the Division’s contention at oral

phrase applies only to leave accrual, leave utilization, or both.

fifteen days per year. Using the “1 ¼ days = 10 hours” conversion factor from

consequently, 1 day = 8 hours), especially as it is unclear if the definitional

Pursuant to Article 10.1, both troopers earn 1¼ days leave per month and days off work. Both troopers work 160 hours per twenty-eight day cycle. continuous service, works eight-hour shifts for five days, and then has two

claiming something.” Webster’s Third New International Dictionary

incongruous with Article 10.1’s definition that “1 ¼ days = 10 hours” (or,

three days off work. Trooper B, a detective trooper with five years of

qualify (one) for something : furnish with proper grounds for seeking or The common meaning of “entitled” includes “to give a right or legal title to : “days” of leave. This scenario and its attendant numbers appear to be entitlement shall be computed at the end of each completed month of service.”). one-third “days” of leave, but Trooper B has earned and has available fifteen utilization, Trooper A has earned and has available approximately thirteen and

years of continuous service, works nine-hour shifts for six days, and then has following annual leave-accrual scenario: Trooper A, a road trooper with five hours.” Presumably, the Division would agree that the CBA provides for the

annual leave . . . based on the formula given below. Each employee’s

deducted at a rate of eight hours per leave day. From the perspective of leave

(unabridged ed. 2002). The common meaning of “entitlement” includes “the

annual leave in terms of days, but then specifically defines the days in terms of

use of the terms “entitled” and “entitlement” (“Employees will be entitled to annual leave total. The latter is particularly apparent in light of Article 10.1’s deducted at a rate of nine hours per leave day; Trooper B’s 120 hours are appears to be incongruous with Article 10.1’s provision for a fifteen-day earned Division’s July 1, 2004 directive, Trooper A’s 120 hours of annual leave are that time is calculated “hour for hour” and also each day of annual leave taken produces disparate results. Pursuant to the

unambiguous,” the Division states that “Article 10.1 defines the accrual of In support of its contention that the terms of the CBA are “clear and

annual/sick leave to approximately twelve days per year.

hours in a particular trooper’s shift from that trooper’s earned leave total for

experienced road troopers, this was at least a reduction from fifteen days of troopers from their accumulated leave totals was reduced. In the case of utilization, the expected number of annual/sick leave days available to some As a result of the July 1, 2004 change in the calculation of leave be utilized in hours,” citing N.H. Admin. Rules p. 7 of annual leave, the state personnel rules apply and require that annual leave

The Division contends that “[t]o the extent the CBA is silent on utilization

were. manner. However, the parties have stipulated that in practice they

utilization and annual leave utilization be treated in the same

equivalencies apply to all Division personnel, the equivalencies are identical to

believe that the parties did not intend that both sick leave

[e]mployees.” Assuming, without deciding, that the CBA is silent and the latter

referring to annual leave, allows, we think, reasonable people to Such a specific provision in one article and not the other, that

only or to both leave accrual and utilization. We agree with the Board that:

half hour week, Table 3 contains a second set of equivalencies for “[a]ll [o]ther listing a set of equivalencies for employees who work a thirty-seven and oneusage in hours according to the equivalencies listed in Table 3.” In addition to

and the definitional phrases to be read as applicable to either leave accrual 7 10.1 with regard to the rate of leave utilization allows “entitled,” “entitlement,” collective bargaining agreement. The supposed consequent silence of Article

request leave time in hours and appointing authorities shall keep all records of

unambiguously detail an agreed upon rate hours”). This provision was deleted with the adoption of the 1997-1999 shall be converted to hours.”) Even that provision, however, does not regarding the utilization of sick leave (“For purpose of utilization, sick leave “Accounting: For purposes of utilization, leave time shall be converted to 1997-1999 collective bargaining agreement, Article 10.1.2 had provided: 10.1 is further highlighted when juxtaposed with Article 11.1.1. Prior to the With regard to the utilization of leave, the ambiguous nature of Article

Per 1203.01(c) in the Division’s appendix to its appeal states: “Employees shall

implemented by the Division. Article 11.1.1 does provide slightly more detail

implied by the “1 ¼ days = 10 hours” definition of Article 11.1). be utilized as “sick leave hour for work hour,” or “eight hours per ‘day’” (as troopers, the CBA does not unambiguously detail whether those hours are to

unambiguously a different utilization rate for different troopers, as troopers earn leave at the same rate, those same terms fail to detail While the terms of Article 10.1 may be clear in indicating that all

agree that fifteen days of earned sick leave is converted to 120 hours for all

right to benefits . . . : an allowance . . . due to someone.” Id

utilization rate renders that leave to be something less. an entitlement to fifteen “days” of annual leave appears meaningless if the granted immediately upon meeting a requirement”). Article 10.1’s provision for Law Dictionary 573 (8th ed. 1999) (“An absolute right to a . . . benefit, . . .

p. 8 ambiguous. A contractual provision is ambiguous when the contracting The Board determined that the language used by the parties is

extrinsic evidence to introduce

simply underscores the ambiguous nature of Article 10.1.

CBA and committed an unfair labor practice.

going outside the language of the CBA and considering past practice and

however, results in an equivalent level of unequal treatment of employees and and federal law.” The Division’s change in the method of deducting leave, intent, we may affirm the decision of the Board that the Division breached the applied equally to all employees in the bargaining unit in accordance with state

Nor do we need to address the Division’s contention that the Board erred by assumption of non-ambiguous language, that the Board exceeded its authority. ambiguous, we need not address the Division’s contention, premised upon the and other extrinsic evidence to discern the intent of the parties. Wheeler v. Accordingly, the Board was justified in examining the parties’ past practices 8

Division’s unilateral change in practices precipitated results contrary to that 1.5. Article 1.5 provides that “[t]he provision[s] of this Agreement shall be some incidents as to which the contract is entirely silent.”). If we find that the ambiguity or uncertainty in the contract itself, or where the evidence relates to

regard to the manner of calculating annual and sick leave is inherently

evidenced their acceptance of a practice not specifically expressed in the CBA.

had committed an unfair labor practice by this continuing violation of Article CBA, Article 1.5.” Indeed, at oral argument, the Division acknowledged that it to aid in the construction of a contract; but this is only where there is an deducting leave “resulted in unequal treatment of employees in violation of the Nurse, 20 N.H. 220, 221 (1849) (“There are cases where usage may be received The Division contends that the pre-July 1, 2004 method of accruing and

Having found that the language used by the parties in the CBA with

CBA was ambiguous, the Board also determined that the parties’ actions IV In addition to determining that the language used by the parties in the ambiguity. disagreement to be wholly reasonable, and we agree with the Board’s finding of an ambiguity. meaning of the provisions. For all of the reasons noted, we believe that

the CBA. per “day,” we see nothing in the rule that eliminates the ambiguous nature of

N.H. at 690. Here, the Division and the Association clearly differ as to the

Absent explicit language in Per 1203.01(c) regarding the rate of leave utilization those already found in Article 10.1 of the CBA (“1 ¼ days = 10 hours,” etc.). indicating that it would change the practice, effective July 1, 2004.

p. 9 over one year later that the Administration Division issued a memorandum he requested clarification from the Administration Division, and that it was leave hour accrual and utilization first came to his attention in May 2003, that

Colonel Frederick Booth, the Division’s director, testified that the question of

the system was to be changed, nor did the Division indicate any intent to do so. CBA, effective in 2001, neither the Association nor the Division suggested that The Board found that as late as the negotiations period for the latest

may have been scheduled to work.” or allowed to deduct fewer hours of leave than a trooper taking that shift off secretaries, payroll clerks and other administrative staff were either instructed

some time prior to 1997 and perhaps as early as 1986, troopers, troop

would be charged only for eight hours of leave. The Board found that “[a]t

change the hours reported, based upon previous experience that the trooper forms and weekly reports, would change or instruct administrative staff to supervising sergeants and lieutenants, who had access to both the request The Board heard further testimony indicating that, in some instances,

request forms with the weekly duty reports. supervisors directly instructed new troopers as to how to reconcile the leave

above methods of recording and calculating and that, in some instances,

supervisory employees, administrative staff, and troopers were aware of the Board heard testimony that all levels of authority, including management and practice “[f]rom at least 1997 and, more probably than not since 1986.” The

the trooper’s earned leave time. The Board found that this was common

(Administration Division) deducted only eight hours of annual/sick leave from

leave for each day, and the Department of Safety, Division of Administration weekly duty report and indicated the actual number of hours on annual/sick annual/sick leave request form and indicated eight hours of leave, completed a

(citation omitted)); cf

sick leave, a trooper working a shift of more than eight hours completed an

unless they are lacking in evidential support or tainted by error of law.” of review is more deferential. We will sustain [its] findings and conclusions looked to extrinsic evidence to determine the intent of the parties, our standard

parties: prior to July 1, 2004, in order to claim a full day of annual and/or In reviewing the Board’s determinations, we do not engage in a de The Board’s findings of fact included the following, stipulated by both

terms of a contract are indeed ambiguous, and the fact finder has properly Behrens v. S.P. Constr. Co., 153 N.H. 498, 500-01 (2006) (“Where . . . the decisions. See Appeal of Town of Newport, 140 N.H. 343, 345 (1995); see also review of the evidence before the Board, but we require record support for its

its brief and at oral argument, the Division invites us to follow the guidance of in the past does not constitute a waiver of the same subject in the future.” In

side is making a mistake in complying with the CBA, the existence of that error

practices were “mistaken” and that “the CBA specifically provides that if either The Division contends that the pre-July 1, 2004 leave calculation

period of time demonstrated acceptance of it. practice existed and by their respective actions over the protracted

lead us to the conclusion that both parties had knowledge that the

multiple agreements between the parties over that period of time

first discovery by a payroll clerk after many years of existence, and continuation of the practice for a year even following its alleged The pervasive existence of this condition of work, the

. . . .

sick leave, that member was only charged with (8) hours of leave.

the Division by members taking a full shift or day off as annual or

regardless of the number of leave hours scheduled or reported to established a past practice. This past practice provided that of only eight (8) hours convince us that the course of dealings

widespread use and duration of reporting full shifts taken as leave

calculations and leave time reductions were undertaken, and the

correcting reporting forms, the volume of occasions on which the substantial period of time, the affirmative actions taken of continued openly. With this condition of work existing over such a

the parties’ CBA’s that would have clarified the practice, it

the parties substituted or modified relevant express language in term was raised in the context of negotiations and, while neither of adhered to in the future was the phrase “day for a day”. . . . This

benefit and then moves to rectify the mistake, the fact that the benefit was

the parties to confirm that the past practice was going to be

228 (Mich. 1996)—specifically, that when an employer mistakenly awards a

and how it would be deducted. The common reference utilized by obvious to the Division regarding the accumulation of leave time years the troopers made their interest, concern and position

Association and the Division] and during negotiations over many

the course of the employment relationship between [the There is sufficient credible testimony to establish that over

we agree with the Board’s determination that: Our review of the record reveals that it supports the Board’s findings and p. 11 A f f i r m e d

negotiation between the parties. See amount, accrual, and utilization of annual and/or sick leave is subject to not specifically expressed in the CBA. We further agree that calculation of the

Port Huron

so that there was an agreement to modify the contract.

ambiguous and that the parties’ actions evidence their acceptance of a practice In sum, we agree with the Board that the language of the CBA is 11

amend any perceived unambiguous language of the CBA. deduction policy without first negotiating with the Association. practice beginning on July 1, 2004, by unilaterally modifying the leave decision and order on the basis that the Division committed an unfair labor meeting of the minds with respect to the new terms or conditions

widely acknowledged and mutually accepted past practice would serve to

obligated to negotiate particular decision). We therefore affirm the Board’s to supplant the contract language must show the parties had a mutually accepted that it amends the contract. The party seeking believe that Port Huron controls unless the past practice is so widely acknowledged and DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

noted, our review of the record supports these findings. We believe that this practice by their respective actions over a protracted period of time. As already utilization existed and that they had demonstrated an acceptance of that 288, 292 (2000) (setting out three-part test to determine whether Division is

Even if we were to hold that the language of the CBA is unambiguous, we employment. We hold that the unambiguous contract language

subsequent mistake, we find it inapplicable here.

both parties had knowledge that the pre-July 1, 2004 practice for leave

to clear contract language can create a term or condition of [T]he question presented is whether a past practice that is contrary unambiguous contract language and, as conceded by the Division, a , 550 N.W.2d at 232. As Port Huron is premised upon both continue awarding it: awarded, even for a lengthy period of time, does not bind the employer to