2011-438, Professional Fire Fighters of Wolfeboro, IAFF Local 3708 & a. v. Town of Wolfeboro

The petitioners appeal the order of the Superior Court

orally), for the respondent. Jackson Lewis LLP on the brief and

and orally), for the petitioners. Molan, Milner & Krupski, PLLC on the brief 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 warrant article to be null and void. p. 2 collective bargaining agreement negotiated pursuant to the 2002 discontinue negotiating with the union, and considers the

rescinds recognition of that union, directs the Town Manager to

require the [Board] to recognize the union . . . the Board . . . hereby been superseded, that the warrant article authorized but did not 2002 to recognize [the] union . . . was based on a law that had

[B]ased on the Board’s findings that the warrant article passed in

recognition of the Union. The motion stated: At its August 2010 meeting, the Board voted on a motion to rescind

successor agreement in place. also contained a status quo provision in the event that it expired without a The new agreement specified that it would expire on December 31, 2006, and thereafter, however, the negotiations broke down.

In 2004, the parties entered into a new collective bargaining agreement. either party [could] request mediation of the outstanding issues.” Shortly conduct of their future negotiations, including that “[a]fter October 1, 2010, In July 2010, the parties met and agreed on ground rules governing the

the New Hampshire [PELRB]. nothing in this agreement shall be deemed to confer jurisdiction on 2 the New Hampshire Supreme Court under RSA 273-A; however,

Public Employee Labor Relations Board (PELRB) as a bargaining unit. See

to the status quo provision of the 2004 agreement. years 2008 and 2009. As a result, the parties conducted themselves according place, the Town agrees to observe the “status quo” as defined by however, to reach a successor collective bargaining agreement during calendar

Union was not then, nor has it ever been, certified by the New Hampshire

that this agreement expires without a successor agreement in year contract extension, which expired December 31, 2007. They were unable, This agreement shall expire on December 31, 2003. In the event

firefighter and officer positions in the Wolfeboro Fire-Rescue Department. The conditions of employment.” At the time, the Union was composed of the nine bargaining contracts with said bargaining unit concerning the terms and

Selectmen (the Board) entered into a collective bargaining agreement. The 273-A:8 (1999) (amended 2008, 2011). Thereafter, the Union and the Board of

the Wolfeboro Fire-Rescue Department and make and enter into collective bargaining unit comprised of the full time Fire Fighter and Officer positions of of less than 10 employees with the same community of interest.” p. 3 under RSA 273-A:10. . . . In no case shall the [PELRB] certify a bargaining unit and shall certify the exclusive representative thereof when petitioned to do so

contract was ultra lacked authority to contract with the Union, the court concluded that the

“The [PELRB] or its designee shall determine the appropriate bargaining unit

then only for bargaining units with at least ten members.” Since the Board

other statute, RSA 273-A:8, I, as it existed in 2002, provided in pertinent part, make and enter into collective bargaining contracts with such unions.” The 31:3 (2000), provides that “Towns . . . may recognize unions of employees and

reserved the ability to recognize a collective bargaining unit to the PELRB and Local 3708, they were not authorized by law to do so” because “RSA 273-A:8 undertook to contract with the Fire Fighters through their bargaining unit, inferences in the light most favorable to the petitioners. Beane v. Dana S. facts as alleged in the petitioners’ pleadings and construe all reasonable

considered as a whole. State v. Rix 3 Here, the issue turns on the application of two statutes. The first, RSA

restraining order. The court reasoned that “[w]hen the . . . Board . . .

In reviewing the trial court’s dismissal order, we assume the truth of the

arbiters of the intent of the legislature as expressed in the words of the statute

(2007). statute as a whole. Grand China v. United Nat’l Ins. Co., 156 N.H. 429, 431 not consider words and phrases in isolation, but rather within the context of the hearing, the trial court granted the Town’s motion and vacated its temporary we ascribe the plain and ordinary meaning to the words used. Id. at 268. We do hearing. The Town moved to dismiss the entire proceeding. Following a Sales, 159 N.H. 266, 267 (2009). When examining the language of the statute, requested temporary restraining order, and scheduled the matter for further trial court’s statutory interpretation de novo. Fog Motorsports #3 v. Arctic Cat

of the relevant statutes. In matters of statutory interpretation, we are the final Resolution of the issue before us requires that we examine the language

motion if the facts pleaded do not constitute a basis for legal relief. Id. Beane & Co., 160 N.H. 708, 711 (2010). We will uphold the granting of the

injunctive relief. After a hearing, the trial court granted the petitioners’ reconsideration. This appeal followed.

vires and void. The petitioners unsuccessfully moved for The petitioners filed a verified petition for an ex

restraining order against the Town and requested temporary and permanent

new firefighter compensation plan. The motion passed unanimously. In September 2010, the Board adopted a based, was ultra

p. 4 grants the PELRB exclusive authority to certify bargaining units. Appeal of uninterrupted operation of government.” Laws 1975, ch. 490:1. The PELRA their employees and to protect the public by encouraging the orderly and

bargaining agreement, upon which the renewal and extension agreements were Union did not satisfy the requirements of RSA 273-A:8, the 2002 collective statutes. Grand China agreement that is prohibited by RSA 273-A.” It contends that because the

foster harmonious and cooperative relations between public employers and

will lead to reasonable results and effectuate the legislative purpose of the them, it “does not authorize the Town to enter into a collective bargaining

in mind previously enacted statutes relating to the same subject matter. State

4 employees or more, see Employees Labor Relations Act (PELRA), a comprehensive scheme designed “to In 1975, the legislature enacted RSA chapter 273-A, the Public

we construe them so that they do not contradict each other and so that they towns to recognize unions and enter into collective bargaining agreements with Thus, when interpreting two statutes that deal with a similar subject matter, law.” In response, the Town argues that although RSA 31:3 broadly authorizes Employees Assoc. of N.H. v. N.H. Div. of Personnel discretionary. See, 158 N.H. 338, 345 (2009). the statutory and regulatory framework of the Public Employee Labor Relations We generally assume that when the legislature enacts a provision, it has

141 N.H. 443, 446 (1996) – that is, with certified employee organizations of ten employee organizations, see Appeal of House Legislative Facilities Subcom., discretionary and not compulsory . . . .”). while the second mandates that public employers negotiate in good faith with

municipalities discretionary authority to recognize unions and enter into Hollis Educ. Assoc., 163 N.H. 337, 340 (2012). The first statute grants

with them. Under this statute, the municipality’s exercise of its authority is authorizes employee organizations to require towns to involuntarily submit to

(1968) (“The power of municipalities to recognize unions of their employees is (emphasis added)); Tremblay v. Berlin Police Union, 108 N.H. 416, 419-20 and make and enter into collective bargaining contracts with such unions.”

the right to recognize unions and enter into collective bargaining agreements administer collective bargaining agreements,” while “RSA 273-A:8 . . . RSA 31:3, by its clear and unambiguous language, grants municipalities legislative body . . . to authorize the Board . . . to negotiate, execute and contradict one another. The petitioners contend that “RSA 31:3 allows the vires, and, therefore, void ab initio. We agree with the Town.

to collective bargaining,” and, therefore, can be construed so as not to The petitioners argue that these two statutes are “independent avenues the approval of the governing body of the public employer. See

p. 5 which allowed for the certification of unions comprised of 3-10 members with legislature followed with its short-lived amendment to the PELRA in 2008, such unions with employer consent. Indeed, this is exactly the procedure the

of less than ten members, it would not have authorized the PELRB to certify

authority to enter into collective bargaining agreements with unions comprised to why, if the legislature intended to allow municipalities to choose to retain to recognize bargaining units, the petitioners offer no plausible explanation as

broad scope of this statute and the exclusive authority it confers on the PELRB

employees and their employers in the State of New Hampshire. Given the designed to encompass all aspects of collective bargaining between public As noted previously, the PELRA is a comprehensive statute that is

chapter [the PELRA] shall terminate or modify prior to August 23, 1978 such pre-existing agreements by specifically providing that, “Nothing in this collective bargaining agreements that were already in existence. It addressed

which exist and existing contracts as of the effective date of this law will not be

(emphasis added); see 1975, 490:3, as amended by Laws 1977, 437:4 (effective Sept. 3, 1977) bargaining agreement in existence on the effective date of this chapter.” Laws

5 cognizant of the fact that it was legislating against a background that included

Conference Report on HB 516) (remarks of Sen. Brown: “[B]argaining units

of public employee labor relations. bargaining unit, certification of an exclusive representative, or collective

Furthermore, when it first enacted the PELRA, the legislature was supra intended to occupy the entire field covered by the prior enactment. 1A Singer, 2011). 137:1 (effective Aug. 5, 2008), repealed by Laws 2011, 45:1 (effective July 8,

because the PELRA plainly evinces a legislative intent to occupy the entire field avoid the first exception, it is clear that the second exception would apply RSA 31:3 and the PELRA could theoretically be read harmoniously so as to

the later act conflicts with the earlier act; or (2) when the later act clearly is

an earlier one is disfavored, Board of Selectmen Moreover, although construction of a later statute as impliedly repealing

S.W.3d 347, 351 (Ark. 2002). Even if we were to agree with the petitioners that that subject in a general fashion. Board of Selectmen v. Planning Bd. Government v. Kempton, 155 P.3d 226, 240 (Cal. 2007); Thomas v. State, 79 § 23.9, at 453-54 (2009); see Professional Engineers in California

principle is subject to two well-recognized exceptions: (1) when it is clear that

Construction § 51:5, at 282-83 (7th ed. 2008). N.H. 150, 152 (1978); 2B N. Singer & J.D. Singer, Statutes and Statutory

statute deals with a subject in a specific way and the earlier enactment treats statutes, however, the later statute will control, particularly when the later question of fact for the trial court. Healey v. Town of New Durham

p. 6 legally certify the Union. Although the Board acknowledged that “it was aware

Board’s claim. Laches is an equitable doctrine, the application of which is a

them, fail to demonstrate sufficiently that the Board knew that it was unable to Accordingly, the agreement, as well as the subsequent agreements, are ultra had constructive,

unreasonable and that prejudice resulted from the delay. State v. Weeks

resulting prejudice.” N.H. Donuts, Inc. v. Skipitaris 6 plaintiffs, the conduct of the defendants, the interests to be vindicated, and the The petitioners first argue that the doctrine of laches should bar the

each argument in turn.

Appeal of City of Laconia Here, the petitioners’ pleadings, viewed in the light most favorable to that the Town had no authority to recognize the non-PELRB-certified Union. law. Id agreements was superseded by the enactment of the PELRA, and, therefore, legally certify the petitioners.” The petitioners contend that because the Board N.H. 237, 240 (1991). municipalities the right to recognize unions and enter into collective bargaining, 134 The party asserting laches bears the burden of proving both that the delay was

should apply to bar a suit, a court should consider “the knowledge of the and prejudicial. Healey, 140 N.H. at 241. In determining whether the doctrine doctrine, laches will constitute a bar to suit only if the delay was unreasonable their equitable arguments for consideration by the trial court. We address

is principally a question of the inequity of permitting the claim to be enforced. . The doctrine of laches is not a mere matter of the elapse of time, but unless we find it is unsupported by the evidence or erroneous as a matter of “short of showing that the Board . . . or its counsel knew that it was unable to 232, 241 (1995). Therefore, we will not overturn the trial court’s decision For these reasons, we hold that the portion of RSA 31:3 which grants, 140 N.H.

termed ultra

Board lacked actual knowledge. Accordingly, the petitioners urge us to remand 273-A, the trial court should not have truncated its analysis after finding the

as well as actual, knowledge of the effect of RSA chapter

laches and equitable estoppel arguments by concluding that the evidence fell The petitioners also argue that the trial court erred when it rejected their occur until 2002 – long after the hold-harmless provision expired. pursuant to the PELRA. Here, recognition of the union by the Town did not vires, and the contract is wholly void.”). beyond the scope of the municipality’s powers, such an attempt to contract is 735 (1983) (“Where a municipal governing body enters into a contract which is vires contracts and wholly void. Marrone v. Town of Hampton, 123 N.H. 729,

23, 1978, collective bargaining agreements are valid only if entered into nullified by this bill.”). The clear import of this language is that after August p. 7 Healey

representation to his or her injury.

fourth, the other party must have been induced to rely upon the

the intention of inducing the other party to rely upon it; and the matter; third, the representation must have been made with representation was made must have been ignorant of the truth of

knowledge of those facts; second, the party to whom the

ambiguous, is ultimately a question of law for this court to decide. Appeal of collective bargaining agreement, including whether a provision or clause is

first, a representation or concealment of material facts made with

reform the agreement into individual contracts. The interpretation of a

must prove four elements: attempt to invoke the doctrine of equitable estoppel. A party claiming estoppel

Finally, the petitioners assert that the trial court erred when it refused to

ruling.

Similarly, we find no error in the trial court’s rejection of the petitioners’

unenforceable by any court of competent jurisdiction, then such

concealed its inability to do so. Accordingly, we will not disturb the trial court’s In the event that any Article, Section, or portion

Section 16 of the agreement, titled, “Savings Clause,” provides:

7

petitioners’ laches argument. the trial court sustainably exercised its discretion when it rejected the is found to violate State law or is found to be unlawful and

N.H. Div. of State Police, 160 N.H. 588, 591 (2010). Our review is de novo. Id.

RSA chapter 273-A to warrant the application of the doctrine of laches. Thus,

conclude that the petitioners failed to allege facts that would indicate that the evidence or erroneous as a matter of law. Id. Upon a review of the record, we uphold the trial court’s denial of that claim unless it is unsupported by the burden of proving the elements of their estoppel claim. Id. at 240. We will , 140 N.H. at 239-240 (quotation omitted). The petitioners bear the

Town counsel, the Board lacked sufficient knowledge of the ramifications of until the summer of 2010, when the Board received advice on the issue from record, therefore, we find no error in the trial court’s factual conclusion that

notice of the issue for purposes of laches.” See

the interplay between RSA 31:3 and RSA 273-A:8. Based on our review of the 273-A:8, II (1999), see id. at 94, here, there was no such authority explaining 93-94. Unlike Appeal of Laconia, in which case law explained the scope of RSA

“knowledge of enactment of a statute alone may not give the municipality of the statutes from the beginning,” the trial court correctly noted that p. 8 Affirmed

contention. amended to correct the legal infirmity.” Thus, we reject the petitioners’

there is no ‘specific Article, Section, or portion’ of the agreement which could be

8

agreement but to the ability of a party to enter into the agreement at all, and here, “[t]he legal infirmity does not go to any ‘Article, Section, or portion’ of the portion” that is unlawful and unenforceable. As the trial court noted, however,

This clause unambiguously limits amendment to “any Article, Section or

DALIANIS, C.J., and HICKS and LYNN, JJ., concurred. effect. the remainder of this Agreement shall continue in full force and.

necessary to conform with such law, rule or regulation; however, specific Article, Section, or portion shall be amended to the extent