2010-764 Appeal of Town of Deerfield (New Hampshire Public Employee Labor Relations Board)

Nolan Perroni Harrington, LLP

(New Hampshire Public Employee Labor Relations Board)

No. 2010-764

Public Employee Labor Relations Board

employees: six full-time patrol officers, two part-time patrol officers, a corporal, the Town’s police department. The proposed bargaining unit consisted of ten petitioner petitioned for certification, seeking to represent certain employees of The following facts are taken from the record. On March 24, 2010, the

consisting of certain employees in the Town’s police department. We reverse. Association, as the exclusive bargaining representative for a bargaining unit (PELRB) certifying the petitioner, the New England Police Benevolent decision of the New Hampshire Public Employee Labor Relations Board DALIANIS, C.J. The respondent, the Town of Deerfield (Town), appeals a

Upton & Hatfield, LLP

orally), for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE , of North Conway (Robert Upton II on the brief and

on the brief and orally), for the petitioner.

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 p. 2 22 as 2

fewer than ten employees because one of the part-time patrol officers was an The Town argues that the bargaining unit certified in this case contained

certify it. Appeal of Town of Conway requires a bargaining unit to have at least ten employees before the board may 607 (1993). Except under circumstances that do not apply here, RSA p. 2 273-A:8, I, supervise.” RSA 273-A:8, II; see Appeal of East Derry Fire Precinct, 137 N.H. discretion may not belong to the same bargaining unit as the employees they “[p]ersons exercising supervisory authority involving the significant exercise of Appeal of Univ. System of N.H. Bd. of Trustees employed seasonally, irregularly or on call.” RSA 273-A:1, IX(d). In addition, We adhere to the standard of review set forth in RSA 541:13 (2007). the statutory definition of “[p]ublic employee” are “[p]ersons . . . [who are] also Appeal of Town of Conway, 121 N.H. at 373. Among those excluded from statutory definition of “[p]ublic employee.” See RSA 273-A:1, IX (2010); see towards the ten-employee minimum because they are excluded from the other grounds by Laws 1983, 270:2. Certain employees are not counted

deferential review.” Appeal of Town of Litchfield, 147 N.H. 415, 416 ( p. 2 2002). member of a bargaining unit . . . is an issue of law which is not subject to interpretation). Moreover, “[t]he ultimate issue of statutory eligibility to be a (explaining that we no longer accord deference to PELRB’s statutory corporal and the department’s secretary. This appeal followed. unit consisting of six full-time patrol officers, two part-time patrol officers, the Appeal of State Employees’ Assoc. of N.H., 156 N.H. 507, 510 (2007) 2010, the PELRB certified the petitioner as the representative of the bargaining law.” Appeal of Univ. System of N.H. Bd. of Trustees, 147 N.H. at 629; see arbiter of the meaning of the statute, and will set aside erroneous rulings of Thereafter, the Town unsuccessfully moved for rehearing. On October 22, supported by the record. Id PELRB denied the Town’s motion and upheld the hearing officer’s decision..; RSA 541:13. “However, we act as the final are presumptively lawful and reasonable, and will not be disturbed if they are Town sought review of the hearing officer’s decision on August 13, 2010. The recognizing the proposed bargaining unit and certifying its composition. The unlawful, or clearly unjust or unreasonable. Id. The PELRB’s findings of fact On July 27, 2010, a hearing officer granted the petition for certification, succeed on appeal, the appealing party must show that the PELRB’s decision is

bargaining unit. See RSA p. 2 273-A:8, I (2010). patrol officers, the corporal and the secretary) were not proper members of the ten employees because three of its proposed members (one of the part-time that the proposed bargaining unit did not include the statutory minimum of and the department’s secretary. The Town objected to the petition, asserting statute considered as a whole. Appeal of State Employees’ Assoc. of N.H. p. 3 We are the final arbiters of legislative intent as expressed in the words of a Resolving this issue requires that we engage in statutory interpretation.

employee for the purpose of determining whether the requisite number of therefore, erred when it certified the bargaining unit and included this on-call shift by the time of the hearing before the hearing officer. The PELRB, Here, the patrol officer in question worked on-call and had no regular certification order is issued. rejected the Town’s assertion that the ten-employee rule must be met when the at the time the PELRB examines the authorization cards.” The hearing officer ‘snapshot’ of the numerical sufficiency of the proposed bargaining unit is taken properly included in the bargaining unit. As the hearing officer explained, “The examined the authorization cards pursuant to RSA 273-A:10, IX (2010), he was worked a regular shift when the petition was filed and when the PELRB had a regular shift. The hearing officer concluded that because the officer regular schedule until May 1, 2010, when he became “on-call,” and no longer representative thereof when petitioned to do so under RSA 273-A:10. . . . [I]n The hearing officer found that the part-time officer in question worked a shall determine the appropriate bargaining unit and shall certify the exclusive RSA 273-A:8, I, provides, in pertinent part: “The board or its designee

Town of Conway, 121 N.H. at 373. contains fewer than ten employees, the PELRB may not certify it. See Appeal of absent the public employer’s prior approval. If the proposed bargaining unit bargaining unit that the PELRB certifies must contain at least ten employees (Emphasis added.) The plain meaning of this statutory provision is that the . . . without the prior approval of the governing body of the public employer.” no case shall the board certify a bargaining unit of fewer than 10 employees

time patrol officer in its count of bargaining unit employees. confine our analysis to whether the PELRB erred by including the on-call, partstatutes in the context of the overall statutory scheme and not in isolation. Id was not error to include the corporal in the bargaining unit. Therefore, we. intent if the language is clear and unambiguous. Id For the purposes of this appeal, we will assume, without deciding, that it. Moreover, we interpret Id. We do not look beyond the language of a statute to determine legislative where possible ascribing the plain and ordinary meanings to the words used. N.H. 258, 260 (2009). We begin by examining the statutory language itself,

unlawfully by certifying it. than the requisite ten employees, the Town contends that the PELRB acted meaning of RSA 273-A:8, II. Since the bargaining unit certified contained fewer on-call employee and because the corporal was a supervisor within the p. 4 4

Reversed

DUGGAN, HICKS, CONBOY and LYNN, JJ., concurred.

implement.” Appeal of Wilson add to, detract from, or modify the statute which they are intended to to effectuate the purpose of the statute,” these rules and practices “may not recognize that the PELRB may adopt rules and practices that “fill in the details examines the authorization cards, the ten-employee rule is satisfied. While we bargaining unit when a petition to recognize the unit is filed and the PELRB. lawfully decide that as long as there are ten employees in a proposed requirement. We disagree with the petitioner’s contention that the PELRB could unit that contains fewer than ten employees. The PELRB may not modify this governing statute plainly states that the PELRB may not certify a bargaining Nor may they “contradict the terms of a governing statute.” Id. Here, the

Appeal of Town of Stratham, 1 p. 4 44 N.H. 429, 430-31 (1999). employees existed. Id.; see Appeal of Town of Litchfield, 147 N.H. at 416-18;