2008-032, APPEAL OF STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC., SEIU, LOCAL 1984

The petitioner, the State Employees’ Association of New

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

(New Hampshire Public Employee Labor Relations Board) page is: http://www.courts.state.nh.us/supreme.

APPEAL OF STATE EMPLOYEES’ ASSOCIATION OF NEW HAMPSHIRE, INC.,

editorial errors in order that corrections may be made before the opinion goes No. 2008-032 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

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 insurance premiums became effective July 6, 2007. p. 2 100%. Similarly, salary increases and employee contribution to health the appealing party demonstrates by a clear preponderance of the evidence that for certain expenditures and their dental plan began covering dental x-rays at

election, and this appeal followed.

and, absent an erroneous ruling of law, we will not set aside its decision unless July 1, 2007, SEA bargaining unit members received increased reimbursement

The representation election was held in January 2008. NEPBA prevailed in the

2007 or until such time as a new Agreement is executed.” effective July 1, 2005 and shall remain in full force and effect through June 30, included a similar provision: “This Agreement as executed by the Parties is When reviewing a decision of the PELRB, we defer to its findings of fact, bargaining unit employees before that CBA was signed. For instance, effective submitted to the joint committee on employee relations for approval,

hearing officer disagreed. SEA moved for rehearing, which the PELRB denied. barred by the “contract bar rule” set forth in RSA 273-A:11, I(b). The PELRB the Governor and SEA President signed the 2007-2009 CBA. SEA moved to dismiss the NEPBA petitions on the ground that they were tentative agreement was ratified by a vote of 1607 to 1405. On July 19, 2007, evening, SEA officials counted union member votes and certified that the

2009 or until such time as a new Agreement is executed.” The 2005-2007 CBA

various new terms and conditions of employment became effective for SEA and finalized on or before June 20, 2007. This tentative agreement was 2007, its effective date, pursuant to Article 21.1, was July 1, 2007. As a result, Even though the 2007-2009 CBA was not actually signed until July 19,

July 5, 2007. On July 9, 2007, NEPBA filed the instant petitions. Later that submitted to union members on June 22, 2007; voting on ratification closed on the legislature, see RSA 273-A:3, II (1999). The tentative agreement was effective July 1, 2007 and shall remain in full force and effect through June 30, 273-A:9 (Supp. 2008), and, on June 27, 2007, its cost items were funded by of that agreement provides: “This Agreement as executed by the Parties is see RSA (CBA) between the State and SEA was executed on July 19, 2007. Article 21.1 agreement on June 14, 2007, which was reduced to a writing the following day, 2007. After more than thirty bargaining sessions, they reached a tentative oral The State and SEA began negotiating the 2007-2009 CBA in January the PELRB recognized SEA as their representative pursuant to

156 N.H. 507, 508 (2007). The most recent collective bargaining agreement 116 N.H. 653, 655-56 (1976). See Appeal of State Employees’ Assoc. of N.H., Employees’ Assoc. v. New Hampshire Public Employee Labor Relations Board,

has negotiated with the State on behalf of DOC employees since 1976, when The parties stipulated to or the record supports the following facts. SEA provisions in the agreement for extension or renewal.

p. 3 employer in the year that agreement expires, notwithstanding any days prior to the budget submission date of the affected public exists shall be filed no more than 240 days and no less than 180

constituting a bar to election under RSA 273-A:11, I (b) presently

agreement shall expire.

of a bargaining unit for which a collective bargaining agreement any time. A petition for certification as the exclusive representative

(b) Any petition filed less than 180 days prior to the budget budget submission date in the year such collective bargaining may be held not more than 180 nor less than 120 days prior to the bargaining agreement. Notwithstanding the foregoing, an election

agreement shall expire.” RSA 273-A:11, I(b). days prior to the budget submission date in the year such collective bargaining

bargaining unit having no certified representative may be filed at (a) A petition for certification as the exclusive representative of a

pertinent part: (Rule 301.01), which applies to certification petitions, and provides, in PELRB has promulgated New Hampshire Administrative Rules, Pub. 301.01 While the statutory contract bar rule concerns actual elections, the exclusively and without challenge during the term of the collective

representative unless the election occurs “not more than 180 nor less than 120 states: Employees’ Assoc. of N.H., 156 N.H. at 508, a CBA bars an election for a new Under this provision, referred to as the “contract bar rule,” see Appeal of State

unambiguous.

ordinary meanings to the words used.

a bargaining unit . . . [t]he right to represent the bargaining unit as expressed in the words of a statute considered as a whole. Public employers shall extend . . . to the exclusive representative of

RSA 273-A:11, I(b), which governs the timing of representation elections,

statutory scheme and not in isolation. Id.

Id. Moreover, we interpret statutes in the context of the overall

of a statute to determine legislative intent if the language is clear and

examining the statutory language itself, where possible ascribing the plain and Goffstown Educ. Support Staff, 150 N.H. 795, 799 (2004). We begin by

provisions of RSA chapter 273-A. We are the final arbiters of legislative intent Resolving the issues on appeal requires that we interpret various

35, 39 (2007); see RSA 541:13 (2007). the order is unjust or unreasonable. Appeal of Merrimack County, 156 N.H. parties. p. 4 contract to act as a bar to a certification petition, it must be signed by the

Board (NLRB) interpreting its contract bar rule, NEPBA asserts that, for a

NEPBA’s petitions.

not yet been executed. Relying upon decisions by the National Labor Relations

Donald E. Mitchell, N.H. Public Employee Labor Relations Board, 4

closed. Under these circumstances, SEA urges, the 2007-2009 CBA barred approved legislation to fund all of its cost items, and voting on ratification had NEPBA filed them, this CBA had been reduced to a writing, the legislature had by July 9, 2007, the 2005-2007 CBA had expired and the 2007-2009 CBA had were not filed “during the term of the collective bargaining agreement,” because of the collective bargaining agreement.” NEPBA contends that its petitions 2007 CBA expired on June 30, 2007,

days prior to the budget submission date, for the parties to negotiate a CBA.”

A:11, I(b). in the conduct of an election within the ‘election window’” set forth in RSA 273certification petitions submitted during the filing window will ultimately result

N.H. 201, 203 (2007), the 2007-2009 CBA barred the petitions because before date.

I(b), which insulates a certified representative from challenge “during the term SEA counters that, even if we assume, without deciding, that the 2005-

petitions, it did not bar them. the conduct of an orderly election and still leave sufficient time, deemed 120 Because the 2007-2009 CBA was not signed until after NEPBA filed its the agreement expires. “The purpose for creating such a window is to allow for See Appalachian Shale Products Co., 121 N.L.R.B. 1160, 1162 (1958). than 150 days before the employer’s budget submission date in the year that

TION%20OF%20BARGAINING%20UNIT. Rule 301.01(a) ensures that “proper

called for in the petition within 120 days of the budget submission

The parties’ dispute centers upon the first sentence of RSA 273-A:11,

http://www.nh.gov/pelrb/Decisions/2006/2006-181a.htm. Information Technology, No. S-0411-3 (PELRB Oct. 16, 2006), at

Classified Employee Petitioners of the New Hampshire Office of place, a certification petition may not be filed sooner than 210 days nor later

http://www.nh.gov/pelrb/about.htm#A.%20PETITION%20FOR%20CERTIFICA Relations Board, at Procedures and Practices before the New Hampshire Public Employee Labor employer that the board cannot reasonably conduct the election filed so close to the budget submission date of the affected Selected been filed sooner. The board shall refuse to entertain any petition

Under this rule, where, as here, an exclusive bargaining representative is in

accompanied by an explanation of why the petition could not have submission date of the affected public employer shall be p. 5 5

negotiations on all or part of the entire agreement.” RSA 273-A:3, II(b). modifying the terms of the cost items submitted to it, “either party may reopen

recommendations to the legislature.

employment affecting state employees in the classified system.” RSA 273-A:9; cost items in CBAs affecting state employees. execute it, they must file it with the PELRB. See RSA 273-A:16 (Supp. 2008). 273-A:4 (Supp. 2008). Moreover, fourteen days after the parties to a CBA I(e) (1999). reduced to writing and shall contain workable grievance procedures.” RSA failing to submit to the legislative body any negotiated cost item. RSA 273-A: p. 5 5, “Every agreement negotiated under the terms of this chapter shall be submission date. good faith with the exclusive representative of its employees as well as by serve written notice of this intent at least 120 days before the State’s budget which negotiations are being conducted.” Any party seeking to bargain must rejects any part of the submission or takes any action that would result in

committee on employee relations reviews the items first and then submits cost items contained therein to the proper legislative body. RSA 273-A:3, II(b); See RSA 273-A:9, V(d). The joint its employees regarding all cost items and “terms and conditions of The New Hampshire legislature is the legislative body that approves the

operating budget.”

when those petitions were filed. public employer commits an unfair labor practice by refusing to negotiate in items. See Appeal of Timberlane Reg. School Bd., 142 N.H. 830, 83 p. 5 5 (1998). A requires an appropriation by the legislative body of the public employer with unenforceable until the proper legislative body ratifies the agreement’s cost between a public employer and the union representing its employees are see Appeal of Inter-Lakes Sch. Bd., 147 N.H. 28, 34 (2001). CBAs negotiated

Assuming that the parties reach agreement, they must then submit the This chapter obligates the State to negotiate with the certified representative of

than 120 days before the deadline for submission of the governor’s proposed

therefore, that the PELRB erred when it ruled that the 2007-2009 CBA could as expressed in the plain meaning of the pertinent statutes. We conclude, “any benefit acquired through collective bargaining whose implementation see RSA 273-A:3 (1999). A cost item, as defined by RSA 273-A:1, IV (1999), is

RSA chapter 273-A governs collective bargaining for state employees.

whole, we hold that SEA’s position best comports with the legislature’s intent Based upon our review of the relevant statutory scheme, construed as a p. 6 6

opportunity to change or eliminate their bargaining representative. bargaining relationship and, at the same time, afford employees a reasonable

the contract is executed.” years of its term to an election petition filed by an employee or rival union after which the contract bars petitions for elections.” of [an] existing collective bargaining agreement is an ‘insulated period’ during

contract-bar policy is the proposition that the delay of the right to select Manufacturing Corporation, 242 N.L.R.B. 5, p. 6 6 (1979). “Basic to the whole . . .

The contract bar doctrine is designed to promote stability in the collective

N.L.R.B. 417, 418 (1982). is reduced to a writing and executed by the parties “will act as a bar for up to 3 Crompton Company, Inc., 2 p. 6 60

A:4, but its cost items had been approved by the legislature, p. 6 683 (7th Cir. 1994). At the conclusion of this window period, “the final 60 days background, we explain the NLRB’s contract bar rule. end of the contract.” N.L.R.B. v. Dominick’s Finer Foods, Inc., 28 F.3d 678, election unless a petition is filed more than 60 and less than 90 days before the valid contract not exceeding three years in duration will bar a representation Food Sales, Inc., 202 F.3d 1258, 1260 n.1 (10th Cir. 2000). Accordingly, “a be filed, notwithstanding the existence of a valid CBA. See N.L.R.B. v. F & A NLRB, however, has established a thirty-day period during which petitions may them despite the fact that it was unsigned. City Markets, 273 N.L.R.B. 469, 469 (1984). The

Under the NLRB’s contract bar rule, a contract of definite duration that

petitions, not only was the CBA reduced to a writing, as required by RSA 273decisions). Before we address this contention on its merits, by way of unsigned when NEPBA filed them. The record shows that when NEPBA filed its N.H. 9 p. 6 6, 99 (1977) (urging newly created PELRB to look for guidance to NLRB ruled that the 2007-2009 CBA could not bar NEPBA’s petitions because it was consistent with decisions of the NLRB. See University System v. State, 117 NEPBA argues that the PELRB’s decision is correct, in part, because it is

circumstances, is merely a ministerial act. term” of the 2007-2009 CBA, and, thus, that the 2007-2009 CBA could bar these circumstances, we hold that NEPBA’s petitions were filed “during the that the legislature act only upon signed CBAs. II(b), and union members had completed voting on whether to ratify it. Under agreements will be signed, see RSA 273-A:3,

Given this legislative scheme, we conclude that the PELRB erred when it

Municipal Corporations § 29.23, at 349 (3d ed. 1999).

Mass. Gen. Laws ch. 150E, § 7 (West Supp. 2008). Execution, under these

take place before they are enforceable. There is no requirement, for instance,

unenforceable until it is executed. While the scheme contemplates that such Nothing in this legislative scheme suggests that a CBA remains of maintaining stability of collective bargaining relationships.”

p. 7 guided by [its] interest in stability and fairness in collective-bargaining processing of the petition and the holding of an election.

device early adopted by the [NLRB] in the exercise of its discretion as a means

contract bar or waive its application consistent with the facts of a given case, and is otherwise timely, the contract subsequently entered into will not bar the

serve as a bar, so long as those informal documents are signed.”

contract bar rule, is not mandated by statute. Rather, it “is an administrative

executed with the employer is valid and binding.

Because it is an administrative device, “[t]he [NLRB] has discretion to apply a execution date of a contract that is effective either immediately or retroactively Modern Litho, Inc., 328 N.L.R.B. 860, 860-61 (1999) (quotation omitted).

Significantly, the NLRB’s contract bar rule, unlike New Hampshire’s

must the signatures appear on the same document.” wishes on the basis of illusory or fabricated agreements.” incumbent union loses, the contract is null and void. Id. at 469-70. that unions and employers may collude to defeat employees’ representational Id. If, however, the N.L.R.B. at 469. If the incumbent union prevails in the election, any contract effect some or all of its provisions.” City Markets, 273

Under the NLRB’s contract bar rule, if a petition is filed before the

successful conclusion of negotiations, the [NLRB] has held that informal protected from such deception.” Id. executed, written agreement is designed to assure that employee rights are Massachusetts, 349 N.L.R.B. 762, 764 (2007). “Requiring evidence of an

the processing of an election petition, is essentially an effort to avert the danger “The rule of Appalachian Shale, that only a written agreement will bar filed, “even though the parties consider it properly concluded and put into 03.

not always ceremonially sit down to sign a formal, final, document upon the Maryland, Inc., 338 N.L.R.B. 1002, 1002 (2003). “Recognizing that parties do

N.L.R.B. at 1162-63. To satisfy the signature requirement, however, “the

the bargaining relationship,” and be signed by the parties before a petition is substantial terms and conditions of employment deemed sufficient to stabilize the NLRB has required that, to serve as a bar, the agreement “must contain N.L.R.B. v. Arthur Sarnow Candy Co., Inc., 40 F.3d 552, 557 (2d Cir. 1994), choosing representation over a specified period” not to exceed three years, Because the NLRB’s contract bar “prevents employees from freely

Paragon Products Corporation, 134 N.L.R.B. 662, 663 (1961). representatives can be justified only where stability is deemed paramount.” circumstances, and, thus, “the policy considerations justifying the

p. 8 change of bargaining representative. Collusion is not an issue under these stability in labor relations appears to outweigh the employees’ interest in a that differ from ours. waived its own contract bar rule. Under these circumstances, the interest in

NEPBA points, Maine, Massachusetts and Vermont, have statutory schemes 8 CBA which union members had already voted to ratify -- it may well have before it may bar a petition. To the contrary, the three jurisdictions to which Hampshire’s that has adopted the NLRB’s requirement that a CBA be signed

Massachusetts Division of Labor Relations may waive for good cause shown.

a given case may demand.

of the legislation necessary to fund the agreement’s cost items, and a written http://www.lawlib.state.ma.us/456CMR14.pdf. Moreover, the statutory its overall intent to mirror the NLRB’s contract bar rule. that all cost items be approved by a legislative body, approval by the legislature directed us to any jurisdiction with a statutory scheme similar to New See 456 Code Mass. Rules § 14.06(1)(a), available at that Maine has adopted the NLRB’s signature requirement is consistent with statutory mandate that bargaining take place within a certain time frame and Similarly, the Massachusetts rule is an administrative rule that the

http://www.state.vt.us/vlrb/NCaseLaw_II.htm#A. of Labor Relations Decisions, at

rule that the Vermont Labor Relations Board may apply or waive as the facts of By contrast, the Vermont contract bar rule is merely an administrative

http://janus.state.me.us/mlrb/decisions/rep/00-ud-04.htm. Thus, the fact with the NLRB’s jurisprudence. Had the NLRB been faced with these facts -- a Support Staff Assoc./MEA/NEA, No. 00-UD-04 (M.L.R.B. Apr. 26, 2000), at § 967(2) (West 2007), is expressly based upon the NLRB’s rule. See MSAD 16 Maine’s contract bar rule, set forth by statute, see 26 Me. Rev. Stat. Ann.

NEPBA argues as well that the PELRB’s decision is correct because it is did. We, therefore, are not persuaded that the PELRB’s decision is consistent involving a private sector employer, the NLRB would have ruled as the PELRB Shale rule do not arise in this case.” YWCA, 349 N.L.R.B. at 764. signed, we have no way of knowing whether, if faced with identical facts Appalachian

including its self-imposed requirement that to act as a bar, a contract must be Given the NLRB’s broad discretion to waive its own contract bar rule,

of State Employees’ Assoc. of N.H., 156 N.H. at 511. a creature of statute, and the PELRB has no discretion to waive it. See Appeal agreements.” Id. at 861. By contrast, the New Hampshire contract bar rule is that agreement expires,”

p. 9 on remand.

RSA 273-A:11, I(b). These are among the issues that the parties may address

timely as having been filed “no more than 240 days and no less than 180 days filed its petitions during the term of the 2007-2009 CBA, they were nonetheless consistent with this opinion. We do not address whether, even though NEPBA

submission date in the year such collective bargaining agreement shall expire.”

they were filed, we reverse its ruling and remand for further proceedings

bar is consistent with the statutory scheme there. place “not more than 180 nor less than 120 days prior to the budget

BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred.

2009 CBA could not bar NEPBA’s petitions because it was not signed before

requires a collective bargaining agreement to be signed before it may act as a not before us. Nor do we address whether the January 2008 election took

Because we conclude that the PELRB erred when it ruled that the 2007-

Laws ch. 150E, §§ 1, 7 (Supp. 2008). Accordingly, that Massachusetts

executed before it is submitted to the Massachusetts Labor Commission for scheme in Massachusetts expressly requires that a public sector CBA be