2009-456, Appeal of New Hampshire Division of State Police

without reaching the second issue. actions were inconsistent with the terms of the parties’ agreement, we reverse

Because we hold that the PELRB erred in its decision that the Division’s parties’ collective bargaining agreement that the parties did not intend. jurisdiction over the matter; and (2) the PELRB erred by inserting terms in the (1999). The Division argues that: (1) the PELRB lacked subject matter

the Division committed unfair labor practices in violation of RSA 273-A:5, I(h) by the respondent, the New Hampshire Troopers Association (Association), that Hampshire Public Employee Labor Relations Board (PELRB) upholding claims Hampshire Division of State Police (Division), appeals a decision of the New DUGGAN, J. In these consolidated cases, the petitioner, the New

and orally), for the respondent. Molan, Milner & Krupski, PLLC, of Concord (Glenn R. Milner on the brief

State Police. to press. Errors may be reported by E-mail at the following address: attorney general, on the brief and orally), for the New Hampshire Division of Michael A. Delaney, attorney general (Lynmarie C. Cusack, assistant

(New Hampshire Public Employee Labor Relations Board) APPEAL OF NEW HAMPSHIRE DIVISION OF STATE POLICE

No. 2009-456 editorial errors in order that corrections may be made before the opinion goes Public Employee Labor Relations Board Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 22 as or troop commander to request time off and obtain a physician’s certificate. p. 2 more acceptable level.”

all future sick leave, St. Cyr was required to speak with an on duty supervisor progresses one would hope that . . . Doyle’s dedication would improve to a

or other health care provider. operations of the Troop and the level of service . . . to the motoring public.” For when making future decisions in promotions and reassignments. As time “took place on a Sunday during a snow storm,” which “hinder[ed] the sick leave in 2006 exceeded the norm and that his last unscheduled leave day

bargaining agreement, the Division may require a “certificate” from a physician waiting.” under conditions which do not allow the employee reasonable use of the time on this subject can not be deemed as unacceptable, it should be weighted respond to two call backs. His evaluation stated, “Although . . . Doyle’s stance “excessive/unscheduled absences.” In the memo, his supervisor noted that his of dependability, but his supervisor noted in the comments that he failed to

trooper is using sick leave for absences not authorized by the collective and provide a reason for his or her absence. If the Division suspects that a death in the immediate family. A trooper must request the use of sick leave Division requires the trooper to be available for “immediate return to duty, characterized as “high.” St. Cyr also received a “memo of counsel” about his the weekend.” Doyle was also rated as “Meeting Expectations” in the category 116 hours,” including 36 hours of sick-dependent time, which was punctuality were “Below Expectations,” and wrote that St. Cyr used “a total of performance evaluation. His supervisor concluded that his attendance and In February 2008, Trooper Christopher St. Cyr received his annual

troopers may use their sick leave for illness, injury, medical appointments and minimum of four hours. When a trooper is on “standby status,” however, the without prior notice. In that situation, the trooper must be paid for working a “called back” to work after a shift has concluded or prior to the start of a shift “majority were one day leaves occurring at the beginning of the weekend or on “used 92.0 hours of Sick Leave over the course of 12 work days,” and the Expectations.” However, his supervisor indicated in the comments that Doyle review. In the category of attendance/punctuality, Doyle was rated as “Meeting In December 2007, Trooper Brian Doyle received his annual performance

governs grievance procedures, overtime, and sick leave. It provides that agreement, effective from July 1, 2007, to June 30, 2009. The agreement the rank of sergeant, and the Division were parties to a collective bargaining “standby status” of troopers. A “call back” occurs when an off-duty trooper is The agreement also includes provisions regarding “call back” and

which is the exclusive representative for New Hampshire State Troopers below The following facts appear in the administrative record. The Association, agreement. p. 3 Division’s administration of contract terms set forth in the collective bargaining the performance evaluations and memoranda of counseling involved the moved for a rehearing, which the PELRB denied. This appeal followed. bargaining agreement in a manner inconsistent with its decision. The Division

troopers. The Association counters that the PELRB had jurisdiction because

personnel files and to cease and desist from administering the collective

performance evaluations are essential to the management and supervision of Finally, the Division contends that the PELRB lacked jurisdiction because use of sick leave and Doyle’s failure to respond to the two call backs from their performance evaluations, which are required by RSA 21-I:42, XIII (Supp. 2009). for performance evaluations. PELRB ordered the Division to remove all negative references to the troopers’ prevented him from responding to the call backs in these two instances.” The

N.H., 158 N.H. 258, 260 (2009). The PELRB has primary jurisdiction of all the decision is unjust or unreasonable. Appeal of State Employees’ Assoc. of argues that the PELRB lacked jurisdiction because the claims arose from the appealing party demonstrates by a clear preponderance of the evidence that of Personnel, not the collective bargaining agreement, dictate the requirements and, absent an erroneous ruling of law, we will not set aside its decision unless lacked jurisdiction because rules promulgated by the New Hampshire Division provisions of [the collective bargaining agreement] . . . even though such use When reviewing a decision of the PELRB, we defer to its findings of facts, agreement. The Division denied the allegations and argued that the PELRB making a reasonable use of his time and acting in compliance with the

commenting on sick leave usage in performance evaluations. The Division also accumulated, and when it may be used, it does not preclude the Division from bargaining agreement establishes how and at what rate sick leave is circumstances consistent with the requirements of” the collective bargaining certificate requirement in the agreement. The PELRB found that “Doyle was matter jurisdiction. Specifically, the Division argues that while the collective troopers’ personnel files because it had not previously invoked the physician’s We first address the Division’s argument that the PELRB lacked subject concluded that the Division erroneously included negative comments in the collective bargaining agreement in violation of RSA 273-A:5, I(h). It then

duty hours, and when it criticized Doyle and St. Cyr “for using sick time under criticized Doyle for being unavailable for immediate call back during his off- Association argued that the Division committed unfair labor practices when it alleged the Division committed an unfair labor practice by breaching the The PELRB determined that it had jurisdiction because the Association

on behalf of Doyle and St. Cyr, which were consolidated by agreement. The The Association filed two unfair labor practice charges with the PELRB p. 4 4

forth in this Agreement.

calendar days.

the [Division] shall state the reason(s) for any denial. leave requests within a reasonable time. If denied, upon request, Employees shall be notified as to the approval or denial of their

conform to the reasons and requirements for sick leave use set [Division] believes that the employee’s use of sick leave does not licensed health care practitioner when, for reasonable cause, the deducted from his/her allowance on the basis of workdays and not [Division] with a certificate from the attending physician or other approval, or death in the employee’s immediate family and shall be 11. p. 4 4 An employee may be required by the [Division] to furnish the attending physician, medical and dental appointments with prior endangering the health of other employees when requested by the

application with the [Division] specifying the basis for the request. 11.3 To utilize his/her sick leave, the employee must file a written

. . . .

absences due to illness, injury, or exposure to contagious diseases 11.2 An employee may utilize[ ] his/her sick leave allowance for

Article XI, Sick Leave, provides:

to decide. Id. Our review is de novo. City of Manchester, 153 N.H at 29 p. 4 4. provision or clause is ambiguous, is ultimately a question of law for this court interpretation of a collective bargaining agreement, including whether a meaning of their words and phrases.” Id. (quotation omitted). The taken as a whole, and by construing its terms according to the common 149 N.H. 688, 690 (2003). “This intent is determined from the agreement agreement, as it reflects the parties’ intent. Appeal of Nashua Police Comm’n, We begin by examining the language of the collective bargaining

Articles VII and XI of the collective bargaining agreement. agreement. Specifically, the issue is whether the PELRB correctly interpreted determine whether the PELRB correctly interpreted the collective bargaining matter jurisdiction, we believe that, instead, the dispute requires us to Although the parties characterize the issue before us as one of subject

(2006). it has been breached. See Appeal of City of Manchester, 1 p. 5 53 N.H. 289, 29 p. 4 4 examine the terms of the collective bargaining agreement to determine whether whether an unfair labor practice has been committed, the PELRB must first agreement by a public employer. See RSA 273-A:5, I(h), :6, I. In deciding unfair labor practices, including the breach of a collective bargaining 5

XIII and the rules promulgated by the division of personnel. this Agreement, to the extent that they are applicable,” including RSA 21-I:42,

commenting on these topics during troopers’ performance evaluations. expectations or criteria developed for the position in question and (d) Evaluations shall be based upon specific written performance supervisor. “subject to the provisions of law, personnel regulations and the provisions of (c) Evaluations shall be conducted by an employee’s immediate and “[m]aintaining the efficiency of governmental operations.” These rights are annually. transferring, assigning, demoting, suspending, and discharging employees”; (b) Evaluations shall be in writing and shall be conducted at least including “[d]irecting and supervising employees”; “[a]ppointing, promoting, basis. (a) All full-time classified employees shall be evaluated on a regular

classified employees, with the following elements: RSA 21-I:42, XIII establishes a performance evaluation system for all collective bargaining agreement, however, precludes the Division from additional compensation for their time. Nothing in the express terms of the It also provides that troopers who are called back to work are entitled to

the Division “retains all rights to manage, direct and control its operations,” Moreover, pursuant to Article II of the collective bargaining agreement,

employees to accrue sick leave and utilize it up to the maximum rate allowed. By its plain language, the collective bargaining agreement permits

regular compensation and overtime compensation purposes. status. Time in standby status shall be considered time worked for duty for his or her own purposes, shall be deemed to be in standby employee reasonable use of the time waiting to be called back to immediate return to duty, under conditions which do not allow the Any employee who is required by the [Division] to be available for

7. p. 5 5 Standby:

. . . . (4) hours compensation. starting time, shall be guaranteed a minimum of not less than four same day after once leaving work or before the next regular 7.3 Employees called back to work without prior notice on the

Article VII, Overtime, provides: p. 6 6

agreement.

reverse the PELRB’s ruling that the Division breached the collective bargaining bargaining agreement as prohibiting the Division’s actions. We therefore and by administrative rule, the PELRB erred in construing the collective language of Article II of the collective bargaining agreement, RSA 21-I:42, XIII troopers’ attendance and dependability are authorized under the plain

below expectations in attendance. BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, JJ., concurred.

in writing with each evaluation report. official completing the evaluation who shall concur or nonconcur

evaluation.

801.04(a)(1), and 801.05(a)(1). Because the Division’s comments on the record. See N.H. Admin. Rules, Per 801.03(a)(1), performance evaluations, to indicate whether each employee meets or falls such comments will be included in the employee’s permanent The division of personnel rules require supervisors, when conducting an opportunity to comment, in writing, on their evaluation, and

(i) Evaluation reports shall be reviewed by the supervisor of the

(h) Employees shall certify, in writing, that they have reviewed their their evaluation. (g) Employees shall have a right to nonconcur, in writing, with

process, shall be given a copy of their evaluation, and shall have (f) Employees shall be permitted to participate in the evaluation employee’s performance. (e) The evaluation format shall include a narrative summary on the in advance of any evaluation. employees shall be made aware of these performance expectations