2007-411, APPEAL OF JAMES GEEKIE & a.

the provisions of RSA chapter 12-G (2003 & Supp. 2007). RSA 12-G:43, I state,” RSA 12-G:3, I (2003), created in 2001 by RSA 12-G:3 (2003) to carry out (authority) is a public instrumentality and “body politic and corporate of the are recited here for background purposes. The Pease Development Authority No. 2007-411 or are supported by the record and consistent with DOL’s findings and rulings, The following facts, which were either found by the DOL hearing officer

Department of Labor

We affirm. Development Authority, Division of Ports and Harbors (division), cross-appeals. (the Act), RSA chapter 275-E (1999 & Supp. 2007). The respondent, Pease Labor (DOL) dismissing their claims under the Whistleblowers’ Protection Act and Mark Warrington, appeal a decision of the New Hampshire Department of Roach, IV, James Roach, Robin Hughes, Richard Cornish, Brian Manougian HICKS, J. The petitioners, James Geekie, William Roach, III, William

Chubrich & Harrigan, P.A.

THE SUPREME COURT OF NEW HAMPSHIRE for the respondent. Najjar and Stephanie V. Rosseau on the brief, and Ms. Dyleski-Najjar orally),

brief and orally), for the petitioners.

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 to press. Errors may be reported by E-mail at the following address: 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 complaint, “sworn, recorded testimony that [the Governor’s nominee for p. 2 investigation by the attorney general, giving, as alleged in their whistleblowers’ On June 15, 2006, petitioners Roach, III, and Geekie participated in an

issued W2 statements. over that function. It paid the ILA workers their wages, withheld taxes and company called Port City Stevedore and Line Handling, LLC (Port City) took Portsmouth Shipping and Cargo Handling ceased its role as pay agent and a handling labor at the Market Street Marine Terminal. At some point, Kennedy founded Portsmouth Shipping and Cargo Handling to provide linework as the line-handling labor force at the Market Street Marine Terminal. start a company to act as a pay agent so that ILA members could continue to that during roughly the same time period, ILA solicited William Kennedy to to cover line handling anymore.” Testimony before the hearing officer indicates were not going to renew their insurance policies, and therefore, were not going that point, a representative of Bulk Loader “informed [the division] that they employ line handlers until its insurance coverage was about to terminate. At expiration of Bulk Loader’s contract with the State, Bulk Loader continued to According to testimony of Geno Marconi, director of the division, after the

and issued their paychecks. terminal. The stevedore companies gave the line handlers their work orders during the respective times those companies held the contract to operate the ILA line handlers were employed by John T. Clark and Bulk Loader

perform stevedoring services at the Market Street Marine Terminal. Bulk Loader’s contract was the last given by the State for exclusive rights to the contract from that point until the contract’s expiration in August 2000. the contract prior to August 1998, and Bulk Loader, LLC (Bulk Loader) held Market Street Marine Terminal. John T. Clark Company (John T. Clark) held 2 operator and provide stevedoring services, including line handling, at the Port Authority, contracted with a stevedore company to act as terminal Prior to the creation of the division, its predecessor, the New Hampshire

handling for every ship docking at the port. Roach, III, testified that for forty years prior to July 2006, ILA provided line handling at the Market Street Marine Terminal/Port of Portsmouth. Petitioner the division as a harbormaster. ILA has been the historic labor force for line Union, Local 1947 (ILA). Petitioner Roach, III, is also employed part-time by The respondents are all members of the International Longshoreman’s

established pursuant to Laws 1957, 262:1, see RSA 12-G:2, XIX (2003). [New Hampshire] port authority,” RSA 12-G:42 (Supp. 2007), which had been things, succeeded to the “former functions, duties, and responsibilities of the (Supp. 2007) established within the authority the division which, among other p. 3 See On appeal, our standard of review is governed by RSA 541:13 (2007).

proceedings.” The hearing officer dismissed the petitioners’ complaints. found “no clear proof of any Federal preemption at this point in the make a complaint” lacked standing under the Act. Finally, the hearing officer The hearing officer further found that the petitioners “who did not actually

therefore, are not found to be the employer of the [petitioners]. division] “employ[] any person” for line handling and they, “wall” between the union and [the division]. . . . At no time did [the union and [the division]. Regardless of the thickness, there was a this use of a “buffer” or “pay agent” as a “paper wall” between the

LLC and its predecessors, at all times. The [petitioners] described were, instead, employees of Port City Stevedore & Line Handling, The [petitioners] were not employees of [the division]. They

The DOL hearing officer found:

United States Constitution. and/or the Labor Management Relations Act, and the Supremacy Clause of the the whistleblower claims are preempted by the National Labor Relations Act governmental inquiry, but the alleged retaliation affected all of them; and (3) where it appeared that only two of them actually reported or participated in the petitioners are employees of the division; (2) the petitioners have standing, On March 5, 2007, DOL held a hearing to determine whether: (1) the

Terminal.” whenever Grimmel’s vessels dock at the [division’s] Market Street Marine contract that “requires the employment of [petitioner] ILA linehandlers “allowed Nominee Marconi to induce Grimmel Industries LLC to breach” a and inquiry regarding” Marconi. The petitioners alleged that the division faith participation of [petitioners] Geekie and Roach[, III] in the investigation “suffered the loss of wages [in specified amounts] as punishment for the good DOL, alleging that they were employees of the division, and that they had In September 2006, the petitioners filed a whistleblowers’ complaint with

Appeal of Northeast Rehab. Hosp., 149 N.H. 83, 84 (2003); RSA 275-E:4, II

company that had taken over line handling.” testified that he was told “we weren’t coming in” and that “[t]here was another the port and ILA line handlers did not perform the tie-up. Petitioner Roach, III, On July 14, 2006, a ship owned by Grimmel Industries, LLC arrived at

Against Discrimination].” as Port Director, and had repeatedly violated [RSA chapter 354-A, the Law director of the division, Geno] Marconi, was incompetent, not qualified to serve observation and ultimate control.” p. 4 release ships at the employer’s place of business, under the [the division’s] contend that they “continued to perform the necessary labor to dock and of New Hampshire is the terminal operator but we sub everything out.’” They perform essential labor: in the words of . . . Port Director [Marconi]: ‘The State performed and conducted its Terminal Operator business without employees to petitioners further argue that “[the division] admitted that it intentionally that has always required the labor of line-handlers like the [petitioners].” The terminal operator at the Market Street Marine Terminal, “an economic activity The petitioners assert that in 2001, the division began acting as the

We address each contention in turn.

by instructing port customers to pay wages as a separate fee. 14, 2006, and [3] because it ‘indirectly’ employed the [petitioners] and other ILA members to perform line-handling labor prior to July to dock and release ships, [2] because it permitted the [petitioners] [1] as Terminal Operator it retained control over all labor required

In Appeal of Northeast Rehabilitation Hospital include any person acting in the interest of an employer directly or indirectly.” entity, and any common carrier who employs any person. Employer shall legal representative, trustee, receiver, trustee in bankruptcy, governmental E:1, II (1999) to “mean[] an individual, partnership, association, corporation, was not their employer as defined by RSA 275-E:1, because: to engage in any employment.” The term “Employer” is defined by RSA 275- The petitioners argue that DOL erred in determining that the division or directed by any employer, in consideration of direct or indirect gain or profit, “‘Employee’ means and includes every person who may be permitted, required, RSA 275-E:1, I (Supp. 2007) provides, in relevant part, that the term

currently employed by the employer.” Id. at 86. meaning of the term ‘employee’ as used in the Act encompasses only persons Northeast Rehab., 149 N.H. at 85. We therefore concluded that “the plain clearly protects only an ‘employee’ from prohibited actions of an employer.”

and brackets omitted). conclude as it did.” Appeal of Leonard, 147 N.H. 590, 594 (2002) (quotation only by a showing that there was no evidence from which the agency could be prima facie lawful and reasonable and this presumption may be overcome 84-85 (quotation omitted). “The agency’s factual findings . . . are presumed to agency’s order was unjust or unreasonable.” Northeast Rehab., 149 N.H. at law or if we are satisfied, by a clear preponderance of the evidence, that the RSA 541”). “Accordingly, we will reverse the agency only if it made an error of (1999) (DOL decisions in whistleblower cases “may be appealed pursuant to a putative employee is one of fact. See p. 5 The question whether a putative employer exercises direction and control over from [the division] was merely to pass through instructions from ships’ pilots.” The hearing officer found that “[t]he direction asserted by the [petitioners]

instructions of the pilot down to the line handlers.” on the dock” and that he or Cummings would use the radio to “relay[] the “[W]e are the communications network between the pilot and the line handlers establish contact with the pilot who is guiding the vessel in.” He explained: either myself or Al Cummings, would have a handheld radio with which we testified that “[w]hen a ship is approaching the dock someone from the Port, conducted down there that are detrimental to the property.” He further property manager, “mak[ing] sure that there are no activities that are Cummings, is often at the dock when a ship is berthing, it is in the role of Rather, he testified that while either he or the division’s operations manager, Al the division directs and controls performance of the line handlers’ work. This evidence, however, was not uncontroverted. Marconi denied that

him as he saw fit and his conclusions are entitled to great weight.” Appeal of finder, the hearing officer was at liberty to accept or reject the testimony before Similarly, Marconi denied having ever fired a line handler. “As a fact-

Regenesis Corp., 156 N.H. ___, ___, 937 A.2d 279, 284-85 (2007). Thus, the

no evidence from which [DOL] could conclude as it did,” id. (quotation omitted). Leonard to fire one particular line-handler.”, 147 N.H. at 594, and the petitioners have not shown that “there was on this issue is “presumed to be prima labor, and on at least one occasion Port Director Marconi exercised that power facie lawful and reasonable,” Appeal of or his assistants, directed and controlled how the line-handlers performed their and Hunter v. R.G. Watkins & Son, Inc., 110 N.H. 243 (1970). DOL’s finding note that petitioners “Roach III and Geekie testified that Port Director Marconi, (1927), overruled on other grounds by Dane v. MacGregor, 94 N.H. 294 (1947) over the performance of their work and the authority to fire line handlers. They McCarthy v. Souther, 83 N.H. 29, 37-38 The petitioners also appear to contend that the division exercised control

retaliatory discharge of workers employed by subcontractors.” Awana v. Port of explain how an owner/contractor is to carry out a duty to refrain from control over the employment of a subcontractor’s workers. Appellants do not Court of Appeals that “[c]ontrol over the jobsite does not, however, confer the position of a general contractor on a jobsite. We agree with the Washington Even taking these assertions as true, they merely place the division in

(Wash. 2005). Seattle, 89 P.3d 291, 293 (Wash. Ct. App. 2004), review denied, 108 P.3d 1228 p. 6 29 U.S.C. §§ 201 et Supreme Court, interpreting similar language in the Fair Labor Standards Act,

encompass the mere security clearance at issue here. The United States We do not read the term “permitted” in RSA 275-E:1, I, so broadly as to

becomes involved in a monetary dispute with the landlord, should intended that one who rents an office from a landlord, and who

respectively and listing Port City as their employer. petitioners (Geekie, Roach, III, Roach, IV and Hughes), signed by each of them division introduced applications for the identification badges from four of the the Port Terminal ease of access in and out of the gate.” We note that the petitioners, “[t]o facilitate employees of companies that did regular business at the division itself issued identification badges, such as those issued to the with a list of who may be making deliveries” to the ship. Marconi stated that testified, the division would “generally ask the steamship agent to provide us For instance, the Court does not believe that the Legislature are ramped up a little bit more” when a ship is in. Accordingly, Marconi the terminal, such as a scrap company or salt company, security “procedures usually sufficient identification for someone having business with a tenant at business is approved.” Marconi indicated that while a driver’s license was enter “[i]f they have business to conduct at the Port Terminal, and that beyond the guard shack. Marconi testified that persons would be authorized to 6 authorized persons were permitted to enter the Market Street Marine Terminal The testimony before DOL indicated that for security reasons, only

should not “be taken so literally as to reach an absurd result,” id. at 538. person, firm or corporation,” Legg, 576 S.E.2d at 537 (quotation omitted), reasoned that the language “any person suffered or permitted to work by a S.E.2d 532 (W. Va. 2002), the Supreme Court of Appeals of West Virginia 330 U.S. 148, 152 (1947). In Legg v. Johnson, Simmerman & Broughton, 576 own advantage on the premises of another.” Walling v. Portland Terminal Co., without any express or implied compensation agreement, might work for their work’ was obviously not intended to stamp all persons as employees who, wages.” seq. (2000), noted that “[t]he definition ‘suffer or permit to individual line-handlers from entering the Port of Portsmouth to earn their [division], through its Port Director, exercised the power to ‘permit’ or exclude at the port. They contend that the “undisputed evidence demonstrates that the allowed them to “enter the port security gate to tie up and let go” ships docking of Portsmouth by issuing identity badges to each of the eight [petitioners]” that division because the division “‘permitted’ [them] to earn their wages at the Port The petitioners argue that they meet the definition of employees of the

testimony. hearing officer was free to credit Marconi’s denial and reject contrary the State charges, as well, the dockage and wharfage, and so forth. p. 7 with the terminal operator and stevedore for paying the wages and paid for by the ship owner, and he also handles the transactions

And it also encompasses the line handling services. That is are met: if they need fuel. If they need water; ship’s stores. when the ship comes in, they see to it that any needs of the vessel Ship’s agent works on behalf of the ship, the ship owner. And

III, who stated: This evidence was largely confirmed by the testimony of petitioner Roach,

any company that is able to provide evidence of insurance.” handling companies and the division and that shipping agents are free to hire Marconi testified that there are no contractual arrangements between line

steamship agent secures line handling and stevedore services for the ship. and also contacts the division “on the availability of the berth.” In addition, the pilots, arranges piloting for the ship into the harbor; contacts U.S. Customs” the agent for the ship.” Thus, “[t]he steamship agent calls various entities, the finding. Marconi testified that “all the arrangements in a port are handled by 7 perform line handling tasks, not [the division].” The record supports this division]. The ships’ agents were the ones who contracted with the union to officer found that the petitioners “were directed by ships’ agents, not [the DOL’s factual findings support the division’s position. The hearing

relationship – contractual or otherwise – between Port City and the [division].” Port City, the [petitioners’] employer, nor is there any evidence of any argues that “as a matter of law, [it] is not a ‘person’ acting in the interest of the interest of an employer’ within the scope of” RSA 275:E-1. The division conducted the business of a Terminal Operator, thereby ‘indirectly’ acting ‘ in merely a pay agent,” Legg and that “[t]hrough the use of ‘pay agents’, the [division] The petitioners next assert that their “nominal employer after 2001 was

when such a reading would lead to an absurd result.” Cayten v. N.H. Dep’t of This court also “will not interpret statutory language in a literal manner

permits the individual to work out of the rented office. provisions to the ships, employees of the division for purposes of the Act. Payment and Collection Act simply because the landlord suffers or would render such persons, be they line handlers or persons delivering fuel or security clearance, to persons doing regular business at the port terminal, intended that the issuance of identification badges, in order to expedite Envtl. Servs., 155 N.H. 647, 653 (2007). We do not believe that the legislature

, 576 S.E.2d at 538.

be considered an “employee” of the landlord under the Wage law meanings, unless p. 8 and phrases that are defined in the common law according to their common- ‘common law.’” We agree with the division. “Generally, courts interpret words Affirmed is defined in the Act, “the statutory definition must be applied rather than the with the [petitioners].” The division counters that because the term “employer” the [petitioners’] pay agent, had the equivalent of a direct employment contract “common law of agency to find and rule that the division, as the principal of The petitioners next argue that DOL erred in failing to apply the

division was acting in the interest of the petitioners’ employer, Port City. Such evidence, however, did not compel the hearing officer to conclude that the

reach its cross-appeal. cross-appeal becomes moot if we affirm on the employment issue, we need not on the standing issue. In addition, because the division concedes that its whistleblower claims, we need not address their challenge to the DOL’s ruling the petitioners’ failure to prove their employee status disposes of their related to his part time employment with [the division] as a harbormaster.” As “Roach III agreed, at the hearing, that his Whistleblower’s Complaint was not BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., concurred. whistleblower claims. We note that the hearing officer found that petitioner that the division did not employ any of the petitioners for purposes of these could work something out. For the foregoing reasons, we conclude that DOL did not err in finding

and phone numbers. You need to contact them and see if you.

force that has been working in the area. These are their names law definition of ‘abandoned’”). people that have come to our terminal, that there is a historic labor defining ‘abandoned material,’ the administrative rule abrogates the common N.H. 794, 803 (2005) (declining to apply common law definition where, “[b]y “employee” to extend the reach of the Act. Cf. State v. Elementis Chem., 152 We will not substitute the common law of agency for the statutory definition of 964 (1981), overruled on other grounds by In re Craig T., 147 N.H. 739 (2002). Diana P., 120 N.H. 791, 794 (1980) (emphasis added), cert. denied, 452 U.S.

We have, in the past, and even in the present, we have told

Marconi testified: words, “instructed the [the division’s] potential customers to deal with” ILA. The petitioners make much of evidence that Marconi, in the petitioners’