2012-057, Appeal of Laconia Patrolman Association

Molan, Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief

agreement on a successor CBA. During negotiations, Laconia’s city manager Opinion Issued: February 8, 2013 the CBA expired, the Association and the Commission reached a tentative Argued: October 11, 2012

(New Hampshire Public Employee Labor Relations Board)

collective bargaining agreement (CBA) that expired on June 30, 2010. Before

Laconia Police Department. The Association and the Commission had a following facts. The Association represents police officers and detectives in the The parties stipulated to, or the administrative record supports, the

No. 2012-057 Public Employee Labor Relations Board

affirm. Commission (Commission), did not commit certain unfair labor practices. We Relations Board (PELRB) finding that the respondent, the Laconia Police

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

(Association), appeals a decision of the New Hampshire Public Employee Labor BASSETT, J. The petitioner, Laconia Patrolman Association

Laurel A. Van Buskirk on the brief, and Mr. Broth orally), for the respondent. Devine, Millimet & Branch, P.A., of Manchester (Mark T. Broth and

to press. Errors may be reported by E-mail at the following address: and orally), for the petitioner.

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 stated that the record was insufficient to establish that the Council improperly

p. 2 that such claims could not be brought against the Commission. It further

improperly with the Commission’s bargaining power, the PELRB determined To the extent that the Association argued that the Council interfered

thirty day period.”

promoted or encouraged the [Council] to abdicate its duty to vote within the responsibility,” and there was “no evidence suggesting that the Commission “no control or authority over whether the [Council] discharge[d] its statutory

record presented for decision in this case.” It found that the Commission had

unfair labor practice based on the conduct of the [Council], at least on the The PELRB stated that “the [Commission] cannot be held responsible for an 273-A:3, II(c), did not constitute an unfair labor practice by the Commission.

the cost items in the tentative agreement within thirty days, as required by RSA

documentary evidence. The PELRB ruled that the Council’s failure to vote on

The case was submitted to the PELRB on stipulated facts and

committed an unfair labor practice when it rescinded the step increases.

to bargain in good faith. The Association also claimed that the Commission

Commission’s acquiescence to the Council’s interference amounted to a failure alleged that the Council interfered with the negotiations and that the ensure that the Council voted upon cost items within thirty days. It further

alleging that the Commission violated RSA 273-A:3, II (2010) when it failed to

The Association filed an unfair labor practice charge with the PELRB,

days later, the Commission rescinded its previous vote.

voted on June 28 to remove $100,000 from the Commission’s budget. Two

effective after the expiration of the CBA on July 1. In response, the Council

reduce its budget by $35,000, nonetheless voted to grant step increases On June 24, the Commission, knowing that the Council wanted it to

until October 2010 when it rejected the cost items contained therein.

provisions. The Council did not take a formal vote on the tentative agreement went through each line of the agreement suggesting changes to specific outs. The Council requested a new draft of the agreement, and the members

compensatory time to employees and would result in increased retirement pay-

expressed concern that the agreement granted increased leave and could no longer support the tentative agreement. Several Council members approval on February 8, 2010. At that meeting, the city manager said that she

The tentative agreement was presented to the Laconia City Council for

into the tentative agreement, which was ratified by the parties. City Council (Council). The parties incorporated the city manager’s suggestions

believed would improve their chances of obtaining the approval of the Laconia informally reviewed the parties’ proposals and recommended changes that she review set forth in RSA 541:13 (2007).” Appeal of Town of Deerfield, 162 N.H.

p. 3 In reviewing a decision of the PELRB, “[w]e adhere to the standard of

practice when it rescinded the step increases. Council. Finally, it argues that the Commission engaged in an unfair labor

when it failed to find that the Commission ceded its responsibilities to the

expressed in the words of the statute considered as a whole. Prof. Fire Fighters tentative agreement within thirty days. It further argues that the PELRB erred that the Commission was not required to ensure that the Council voted on the On appeal, the Association argues that the PELRB erred when it ruled

interpretation, we are the final arbiters of the intent of the legislature as that we interpret the language of RSA 273-A:3, II. In matters of statutory agreement’s cost items within thirty days. Resolution of this issue requires

was not responsible for ensuring that the Council voted on the tentative increases. Commission “retained the right to reverse its earlier vote and withhold” the step cost items that required the Council’s approval, and, absent its approval, the meaning to the words used. Id. at 21. We do not consider words and phrases

decision.” Appeal of Prof. Firefighters of E. Derry, 138 N.H. 142, 145 (1993). on the wisdom of an administrative decision for that of the agency making the

(2011). not see fit to include. Frost v. Comm’r, N.H. Banking Dep’t, 163 N.H. 365, 375 We first address whether the PELRB erred in ruling that the Commission what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider in isolation, but rather within the context of the statute as a whole. Id. We under the status quo doctrine. It further stated that the step increases were examining the language of the statute, we ascribe the plain and ordinary of Wolfeboro v. Town of Wolfeboro, 164 N.H. 18, 20-21 (2012). When

unreasonable.” RSA 541:13. “This court is not free to substitute its judgment

meaning of the statute, and will set aside erroneous rulings of law.” Id. Deerfield, 162 N.H. at 602. “However, we act as the final arbiter of the not be disturbed if they are supported by the record.” Appeal of Town of that the Commission was not obligated to provide the post-CBA step increases “The PELRB’s findings of fact are presumptively lawful and reasonable, and will labor practice when it rescinded the step increases. The PELRB determined The PELRB also ruled that the Commission did not commit an unfair

preponderance of the evidence before [us], that such order is unjust or or vacated except for errors of law, unless [we are] satisfied, by a clear 601, 602 (2011). “[T]he order or decision appealed from shall not be set aside

usurped the Commission’s bargaining authority. include, and we decline to do so. See Appeal of City of Franklin, 137 N.H. 723, p. 4 require adding words to the statute that the legislature did not see fit to within thirty days. To impose such a duty on the public employer would

Commission – to ensure that the legislative body – here, the Council – votes

language of RSA 273-A:3, II(b) or (c) that requires a public employer – here, the

unlawful. See RSA 541:13. Contrary to the Association’s assertions, there is nothing in the plain PELRB, we do not find the PELRB’s interpretation to be clearly unreasonable or role. Although the Association interprets the evidence differently than did the its statutory obligation.

the Commission improperly allowed the Council to take over its bargaining thirty days after their submission. The Council failed, however, to comply with

uphold the PELRB’s determination that the evidence failed to demonstrate that required the Council to vote upon the tentative agreement’s cost items within over the collective bargaining process.” We disagree with the Association and they were cost items that required the Council’s approval to become binding Because Laconia has a city council form of government, RSA 273-A:3, II(c) PELRB compelled it to find that the Commission “allowed the [Council] to take

doctrine, the Commission could lawfully rescind the step increases because employer. The Association, in effect, argues that the evidence before the vote to accept or reject the cost items.

See RSA 541:13; see also Appeal of Town of Deerfield, 162 N.H. at 602.

vote to grant step increases. The PELRB ruled that under the status quo Commission did not cede to the Council its responsibilities as a public that the Commission committed an unfair labor practice when it rescinded its submission, the city council, aldermen, or the town council shall Finally, we address whether the PELRB erred when it failed to conclude council for approval. Within 30 days of the receipt of the within 30 days to the city council or aldermen or to the town

Because the record supports the PELRB’s factual finding, we will not disturb it.

We next address whether the PELRB erred when it found that the

or town council form of government cost items shall be submitted

encouraged the Council to abdicate its duty to vote within the 30 day period.” there was “no evidence suggesting that the Commission promoted or control over whether the Council complied with its statutory duty and that

If the public employer is a local political subdivision with a city

273-A:3, II(c) provides, in pertinent part:

727-28 (1993). Moreover, the PELRB found that the Commission had no

be submitted to the legislative body of the public employer for approval.” RSA RSA 273-A:3, II(b) provides, in pertinent part, that “[o]nly cost items shall p. 5 Affirmed.

practice.

ultimate determination that the Commission did not commit an unfair labor

benefit acquired through collective bargaining.” RSA 273-A:1, IV (emphasis body of the public employer for approval.” A cost item is defined as “any submit them to the Council for approval. We, therefore, uphold the PELRB’s bargaining, the Commission was free to rescind them and had no obligation to Accordingly, because the step increases did not result from collective

RSA 273-A:3, II(b) requires that “only cost items be submitted to the legislative

that needed to be submitted to the legislative body under RSA 273-A:3, II(c).

the step increases were not cost items as defined by RSA 273-A:1, IV (2010). However, we reject this argument because, contrary to the ruling of the PELRB, labor practice when it failed to submit the step increases to the Council. acquired through collective bargaining”; therefore, they were not cost items DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.

i.e., the conditions under which the employees worked. Appeal of Alton School

The Association maintains that the Commission committed an unfair the statute. Similarly, the post-CBA step increases here were not “benefits collective bargaining and, therefore, were not cost items within the meaning of the Commission remained free to rescind them. Cf. id. employer because those step increases were benefits not acquired through legislative body’s vote to fund status quo step increases did not bind a public not the obligation, to grant step increases during the status quo period. See id. added). In Appeal of Alton School Dist., 140 N.H. at 310-11, we held that a commit an unfair labor practice. See Appeal of N.H. Dept. of Safety, 155 N.H. grounds, the PELRB’s ultimate determination that the Commission did not increases] after a CBA expires.” Appeal of Alton School Dist., 140 N.H. at 307

execution of a successor agreement, the parties must maintain the status quo, Upon expiration of a collective bargaining agreement, but prior to the

at 307-08. Because the decision to grant the step increases was discretionary,

(quotation omitted). Therefore, a public employer retains the discretion, but conclude that this ruling was error, we nonetheless uphold, on alternative 245-47 (1993). The status quo doctrine “does not require payment of [step obligations and that approval was neither sought nor obtained. Although we Dist., 140 N.H. 303, 307 (1995); Appeal of Milton School Dist., 137 N.H. 240,

grounds, we will sustain it if there are valid alternative grounds to support it.”). 201, 203-04 (2007) (“When the Board bases its decision upon mistaken