2007-112, APPEAL OF STATE EMPLOYEES' ASSOCIATION OF NH

The State Employees’ Association of New Hampshire,

for the respondent. Cook & Molan, P.A., of Concord (Glenn R. Milner on the brief and orally), to press. Errors may be reported by E-mail at the following address: on the brief and orally), for the petitioner. Nolan Perroni Harrington, LLP, of Lowell, Massachusetts (Peter J. Perroni

(New Hampshire Public Employee Labor Relations Board) APPEAL OF STATE EMPLOYEES’ ASSOCIATION OF NEW HAMPSHIRE

editorial errors in order that corrections may be made before the opinion goes No. 2007-112 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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

unjust or unreasonable.” party demonstrates by a clear preponderance of the evidence that the order is erroneous ruling of law, we will not set aside its decision unless the appealing

decision in states: RSA p. 2 273-A:11, I(b), which governs the timing of representation elections, voted overwhelmingly to be represented by NEPBA. window.” At the election, both the conservation officers and the supervisors (2006) (quotation omitted). proceeding to election, even if the election takes place beyond the election Appeal of Town of Hampton, 154 N.H. 132, 134 18 deadline, finding that “[t]he circumstances of this case justify these matters

decision of the PELRB, we defer to its findings of fact, and, absent an the union’s appeal is governed by RSA 541:13 ( p. 2 2007). “When reviewing a and seeks to have the results of the October 27 election voided. Our review of representation election to occur after the deadline set by the contract bar rule, RSA 273-A:11, I(b) (1999). On appeal, SEA argues that the PELRB erred by permitting a the scheduled election would run afoul of the “contract bar rule” set forth in the PELRB recognized the union as their representative pursuant to our Game’s then-pending budget submission date was February 15, 2007, and that SEA has negotiated on behalf of Fish and Game employees since 1976, when between SEA and the State running from July 1, 2005, through June 30, 2007.

119 N.H. 8 p. 2 22, 825-26 (1979), however, the hearing officer waived the October case was October 18, 2006. Relying upon State Employees’ Assoc. v. Cheney, 120 days prior to the employer’s budget submission date, id., which in this 286-87 (2003). That rule requires representation elections to occur at least

election scheduled for October p. 2 27. The hearing officer recognized that Fish and bargaining units, and ordering the question of representation to proceed to an conservation officers – were covered under a collective bargaining agreement later, the hearing officer issued a decision certifying NEPBA’s proposed officer conducted a hearing on the matter on October 9, 2006. Three days SEA filed timely exceptions to NEPBA’s petitions, and a PELRB hearing and Game employees. union, to serve as their representative. Fish and Game employees have never actually elected the SEA, or any other Relations Board, 116 N.H. 653, 655-56 (1976). In the ensuing thirty-one years,

State Employees Assoc. v. New Hampshire Public Employee Labor

At the time of NEPBA’s filing, Fish and Game employees – including the

the representative of the larger bargaining unit covering all other classified Fish include approximately forty individuals; NEPBA did not seek to replace SEA as keeping with the spirit of the law. p. 3 actual election prior to 1 p. 2 20 days is found by the Board to be in

the setting of the election date prior to the 120 days and not the

of RSA 273-A:3, and given the special circumstances of this case,

representation . . . which was established prior to the effective date petition for decertification, and especially when there is a unit [of] bargaining unit as has been raised properly in this case by the

purposes. When there is doubt as to the choice of employees in a

RSA ch. 273-A, the PELRB’s application of the statute was proper voice in choosing the SEA as their bargaining representative under circumstances presented, wherein the public employees had no record and are in keeping with the spirit of the law. Under the

statute, the administration of the law must be made to fit its Board finds, however, that, as with many of the time periods in the the 120 days prior to the budget submission date impossible. The

The PELRB rulings at issue find adequate support in the agreement shall expire. the PELRB’s rulings: expressed in the words of a statute,” id. at 826 (quotation omitted), we affirmed noting that “this court is the final arbiter of the intent of the legislature as Cheney, 119 N.H. at 825 (quotation and emphasis omitted). On appeal, after

the employees earlier makes the holding of such an election within

contract bar rule. budget submission date in the year such collective bargaining

held within 120 days of the budget submission date.” exists that would violate the contract bar rule by resulting in an election being Difficulties in arranging for hearings and the extension granted to

unless granted by statute). In Cheney, the PELRB had found the following: School Dist., 142 N.H. 837, 841 (1998) (PELRB generally lacks equity powers

schedule a representation election after the deadline established by the We have also, however, recognized the authority of the PELRB to may be held not more than 180 nor less than 120 days prior to the bargaining agreement. Notwithstanding the foregoing, an election administrative rules governing elections for non-represented bargaining units). exclusively and without challenge during the term of the collective Manchester, 149 N.H. at 287 (discussing contract bar rule during analysis of

“precluded from entertaining those petitions where a certified representative We have noted that in accordance with this statute, the PELRB is ordinarily

a bargaining unit . . . [t]he right to represent the bargaining unit Public employers shall extend . . . to the exclusive representative of p. 4 4

erroneous.

PELRB’s statutory interpretation no longer necessary or desirable). Cheney to the extent that the case grants the PELRB authority to waive the is but a “remnant of abandoned doctrine.” Id. at 725. We therefore overrule omitted)). Indeed, the rule of Cheney, which is apparently only rarely invoked, to be seen so clearly as error that its enforcement [is] . . . doomed.” (quotation reconsider a previous holding, the question is . . . whether the ruling has come

See State v. Holmes, 15 p. 4 4 N.H. 723, 724 (2007) (“When asked to

under a highly deferential reading of the statute, can now be seen as clearly 273-A:11, I(b). We hold that the Cheney decision, which approved of that act In Cheney, the PELRB failed to follow the explicit rule set forth by RSA

138 N.H. at 720 (twenty years after labor act’s passage, continued deference to Somersworth School Dist., 1 p. 4 42 N.H. at 840; see also Appeal of State of N.H., State of N.H., 149 N.H. 674, 677 (2003) (quotation omitted); see Appeal of agencies, “[does] not possess the power to contravene a statute.” DeVere v. however, we have routinely held that the PELRB, like other administrative 273-A’s] passage.” Appeal of State of N.H., 138 N.H. at 720. More recently, justified for a time by “the experimental atmosphere surrounding [RSA chapter 826. Our “unusual” deference to the PELRB on statutory interpretation was Appeal of State of N.H., 138 N.H. 716, 719-20 (1994), with Cheney, 119 N.H. at RSA chapter 273-A, as was the case when we decided Cheney. Compare ceased to accord deference to the PELRB’s interpretation of the provisions of questionable precedential value today.” SEA correctly notes that we have Nevertheless, we agree with SEA’s argument that Cheney is “of

Accordingly, we affirm the board’s order. reliance upon that case here was either erroneous or unreasonable. prior to budget submission was proper; we cannot say that the PELRB’s Cheney that the PELRB’s scheduling of an election for just under 120 days the union actually representing them. On such facts, we were satisfied in both cases the employees in the proposed bargaining units had never elected the deadline established by the contract bar rule had passed. Furthermore, in omitted), neither set of petitions could proceed to representation elections until that unit. Due to “[d]ifficulties in arranging for hearings,” id. at 825 (quotation change the composition of a bargaining unit and the certified representative of legally significant facts in Cheney. Both cases involved timely petitions to case at hand. We disagree, and find that the facts of this case parallel the SEA principally argues that Cheney is “easily distinguishable” from the

Id.

required by RSA p. 5 5 p. 4 41:13 to set aside the PELRB’s decision. We hold that the SEA has not met the burden of proof constituted a clear abuse of discretion. and reasonable. We cannot say that its rulings were erroneous or 5

this opinion. representation of a bargaining unit filed with the PELRB on or after the date of

ruling shall apply prospectively, and only to petitions involving the expressed will of Fish and Game’s conservation officers. Accordingly, our our prior ruling. The interests of justice also call for recognition of the representation election – where NEPBA and the PELRB reasonably relied upon

to a harsh result – namely, the nullification of an otherwise valid DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

728, 729-30 (2003); Hampton Nat’l Bank v. Desjardins, 114 N.H. 68, 73 (1974).

See Lee James Enters. v. Town of Northumberland, 149 N.H.

We find, however, that a retroactive application of our holding would lead

273-A:11, I(b) if it so desires. contract bar rule. The legislature, of course, may create exceptions to RSA