2013-253, Appeal of Town of Brookline

Law Offices of Shawn J. Sullivan, PLLC, of Concord (Shawn J. Sullivan

(New Hampshire Public Employee Labor Relations Board) APPEAL OF TOWN OF BROOKLINE

erred by ruling that the Town had a duty to bargain with the Union even

No. 2013-253 Public Employee Labor Relations Board

AFSCME, Council 93 (Union). On appeal, the Town argues that the PELRB THE SUPREME COURT OF NEW HAMPSHIRE

James F. Allmendinger, of Concord, by brief, for NEA–New Hampshire, as

Devine, Millimet & Branch, P.A., of Manchester (Donald L. Smith and

engaged in an unfair labor practice by refusing to bargain with the petitioner, page is: http://www.courts.state.nh.us/supreme. (PELRB), based upon stipulated facts and exhibits, which found that the Town a.m. on the morning of their release. The direct address of the court's home decision of the New Hampshire Public Employee Labor Relations Board reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 LYNN, J. The respondent, the Town of Brookline (the Town), appeals the

amicus curiae.

Anna B. Peterson on the brief), for the respondent.

to press. Errors may be reported by E-mail at the following address: on the brief), 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 with the petitioner. This appeal followed.

p. 2 found that the Town committed an unfair labor practice by refusing to bargain not divest it of jurisdiction to consider the unfair labor practice charge. It also that the fact that the bargaining unit contained fewer than ten employees did

represented a bargaining unit of fewer than ten employees. The PELRB found

jurisdiction over the unfair labor practice charge because the Union the Town. The Town denied the charge, contending that the PELRB lacked RSA 273-A.” Thereafter, the Union filed an unfair labor practice charge against

[petitioner] no longer [met] the minimum qualifications for certification under

because the bargaining unit had fewer than ten employees and, therefore, “the Union that it would no longer participate in the collective bargaining process negotiations for a successor agreement. In July 2012, the Town informed the

expired on December 31, 2011. Before December 31, 2011, the parties began The most recent collective bargaining agreement between the parties

proceeding was heard, there were fewer than ten bargaining unit employees. contained at least ten employees. The PERLB found that when the instant

has fluctuated. It is undisputed that when the bargaining unit was certified, it The number of employees holding bargaining unit positions since 2001

issued an amended certification of representative.

granted the petition for changed affiliation on April 22, 2005, and on that date

opposition to the Association’s petition to change its affiliation. The PELRB police officers, and one corporal.” In April 2005, the Town withdrew its bargaining unit, consisting of four full-time police officers, three part-time

because, as of February 2005, “there [were] no more than eight positions in the

to change its union affiliation. The Town objected to the petition, in part,

unit description accordingly. In February 2005, the Association filed a petition the position of corporal, and, in April 2004, the PELRB amended the bargaining the Association and the Town agreed to modify the bargaining unit to include

the Town to exclude the sergeant position from the bargaining unit. Thereafter,

April 2002, the PELRB amended the certification between the Association and to modify the bargaining unit to exclude the sergeant position. As a result, in Shortly after the bargaining unit was approved, the Town filed a petition

unit consisted of the patrol officers and a sergeant. unit contained at least ten employees. As originally certified, the bargaining (Association) as the bargaining unit’s exclusive representative. At the time, the

bargaining unit and certified the Brookline Police Officers Association

the parties stipulated. In October 2001, the PELRB originally approved the The following facts either were found by the PELRB or are facts to which

contains fewer than ten employees. We affirm. though the bargaining unit in question, originally certified in 2001, currently subject matter jurisdiction based upon its ruling in State Employees

p. 3 The petitioner responds that the PELRB properly determined that it had

dissolved.

When that occurs, the Town asserts that, in effect, the unit is deemed to have

minimum of ten members at the time of the initial certification of the

“jurisdictional,” such that public employers with certified units that fall below

contains fewer than ten employees, it loses all of the protections of the PELRA. employee minimum is a continuous requirement, and once a bargaining unit bargaining unit, but determined that reductions in the size of the bargaining Employee Labor Relations Act (PELRA). According to the Town, the ten- In that case, the PELRB construed RSA 273-A:8, I, to require that there be a Employees v. Town of Ashland, PELRB Decision No. 1999-120 (Nov. 23, 1999). view, the ten-employee minimum set forth in RSA 273-A:8, I (Supp. 2013) is Association of New Hampshire, Local 1984, on behalf of Ashland Town bargaining unit had fewer than ten members at these times. In the Town’s it recertified the bargaining unit in 2002, 2004, and 2005 because the

the statutory minimum ten (10) employees are no longer subject to the Public that such order is unjust or unreasonable.” Id. unless the court is satisfied, by a clear preponderance of the evidence before it, have said or add language that the legislature did not see fit to include. Id. We will not set aside or vacate the PELRB’s decision “except for errors of law, according to its plain and ordinary meaning. Id. We interpret legislative intent The Town argues that the PELRB lacked subject matter jurisdiction when

the statutory scheme. Id. at 738-39. statutory language in light of the policy or purpose sought to be advanced by This enables us to better discern the legislature’s intent and to interpret phrases in isolation, but rather within the context of the statute as a whole. Id. avoid an absurd or unjust result. Id. Moreover, we do not consider words and construe all parts of a statute together to effectuate its overall purpose and

from the statute as written and will not consider what the legislature might it shall be deemed to be prima facie lawful and reasonable.” RSA 541:13. We to the language of the statute itself, and, if possible, construe that language expressed in the words of the statute considered as a whole. Id. We first look interpretation, we are the final arbiter of the intent of the legislature as N.H. v. State of N.H., 161 N.H. 730, 738 (2011). In matters of statutory which is a question of law that we review de novo. State Employees’ Assoc. of Our standard of review is set forth by statute. See RSA 273-A:14 (2010) Resolving the issues in this appeal requires statutory interpretation,

Moreover, all of the PELRB’s findings “upon all questions of fact properly before has the burden “to show that the same is clearly unreasonable or unlawful.” 541:13 (2007). Under RSA 541:13, the party challenging the PELRB’s decision (appeals from decisions of the PELRB are governed by RSA chapter 541); RSA p. 4 (a) Employees with the same conditions of employment;

not limited to such: be exhibited by one or more of the following criteria, although it is

principle of community of interest. The community of interest may

determination the board should take into consideration the

waive subject matter jurisdiction. petitioned to do so under RSA 273-A:10. In making its any time during the proceeding, including on appeal, and may not unit and shall certify the exclusive representative thereof when jurisdiction. A party may challenge subject matter jurisdiction at The board . . . shall determine the appropriate bargaining

RSA 273-A:8, I, provides:

appeal.

determine a case concerning subject matters over which it has no

jurisdiction to adjudicate the unfair labor practice complaint at issue in this and indiscriminate manner. See Steel Co. v. Citizens for Better Environment,

controversy involved in the action. A court lacks power to hear or words, it is a tribunal's authority to adjudicate the type of rule on the conduct of persons or the status of things. In other

at all pertinent times, the PELRB had jurisdiction over the petitioner, as well as have observed that the term “jurisdiction” has often been used in an imprecise

case and the type of relief sought; the extent to which a court can

(quotations and citations omitted). Applying this principle, we conclude that, argument, we note that both the United States Supreme Court and this court “jurisdictional” “may often be more misleading than illuminating”). In In the We disagree with both parties’ positions. With regard to the Town’s

and citation omitted); Ruel v. N.H. Real Estate Appraiser Bd., 163 N.H. 34, 42 cautioned, in recent decisions, against profligate use of the term.”) (quotation courts, including this Court, to convey many, too many, meanings, we have

jurisdictional rulings”); Union Pacific R.R. Co. v. Locomotive Engineers, 558

Subject matter jurisdiction is jurisdiction over the nature of the

Matter of Gray and Gray, 160 N.H. 62, 65 (2010), we explained:

n.2 (2011) (noting that characterization of mandatory time limits as jurisdiction over it. unit below ten thereafter do not affect the unit’s validity or the PELRB’s

U.S. 67, 81 (2009) (“Recognizing that the word ‘jurisdiction’ has been used by

523 U.S. 83, 91 (1998) (admonishing lower federal courts to avoid “drive-by in Professional Fire Fighters of Wolfeboro v. Town of Wolfeboro, 164 N.H. 18

p. 5 The Town attempts to find support for its construction of RSA 273-A:8, I,

PELRB must follow in carrying out its responsibilities. substantive provisions of law encompassed within RSA chapter 273-A that the

“community of interest” requirement, is merely one of many mandatory

subject matter jurisdiction, the ten-employee minimum requirement, like the

PELRB had made an erroneous decision. Rather than affecting the PELRB’s agency’s authority and resort to “self-help” actions whenever they believed the would permit public employers (or public employee unions) to ignore the

assigned to it by the legislature, since, as demonstrated by the instant case, it

completely undercut the PELRB’s authority to carry out the important duties construe this or other provisions of the PELRA as jurisdictional would relationship between public employers and public employee unions. To

for which it was created — namely, to certify bargaining units and regulate the

bargaining unit it thereby loses its power to “adjudicate the type of controversy” PELRB makes an error in its determinations as to the size of a putative statute casts this responsibility in jurisdictional terms, or suggests that if the

requisite “community of interest.” Nothing in the structure or text of the

determine whether a bargaining unit consists of at least ten employees with the

Pursuant to the plain meaning of the statute, it is the PELRB’s responsibility to

organization as the exclusive representative of a bargaining unit.

under the provisions of this chapter to certify an employee

shall such probationary employees vote in any election conducted to satisfy the employee minimum number requirement. In no case purposes of this section, probationary employees shall be counted

Professional Fire Fighters of Wolfeboro concerned the interplay between than 10 employees with the same community of interest. For

consisting of fewer than ten (10) employees was ultra vires and that the

RSA 31:3 (2000) and the PELRA. Id. at 21. We concluded that the PELRA

unit were null and void.” This was not our holding. [In] no case shall the board certify a bargaining unit of fewer agreements negotiated between the employer and the uncertified bargaining unit. “held that bargaining between a public employer and a bargaining unit (2012). The Town argues that in Professional Fire Fighters of Wolfeboro, we

(d) Employees functioning within the same organizational

(c) Employees in the same historic craft or profession;

collective negotiations; (b) Employees with a history of workable and acceptable incorrect to the degree of warranting modification in the

p. 6 recognized under the provisions of RSA 273-A:1 is alleged to be

such term. State Employees’ Assoc. of N.H., 161 N.H. at 738. Although this

bargaining unit are alleged to have changed, or where a prior unit Where the circumstances surrounding the formation of an existing

See Laws 2008, 137:1 (effective Aug. 5, 2008), repealed by Laws 2011, members with the approval of the governing body of the public employer. 6 allowed for the certification of [bargaining units] comprised of 3-10

term appears within the text of RSA 273-A:8, I, and we are not at liberty to add certification of a bargaining unit. Neither the word “initial” nor any similar the ten-employee minimum requirement applies only with respect to the initial

302.05(a) provides:

followed with its short-lived amendment to the PELRA in 2008, which

either to recognize the union or to bargain collectively with it. See id. at 19, 23.

At the same time, we find unpersuasive the petitioner’s argument that

that do address this matter. New Hampshire Administrative Rules, Pub once a bargaining unit has been certified, the PELRB has adopted regulations statute does not specifically address how decertification may be accomplished

employer consent. Indeed, this is exactly the procedure the legislature it would not have authorized the PELRB to certify such unions with representative of the bargaining unit at issue, the selectboard had no authority bargaining agreements with unions comprised of less than ten members,

Prof. Fire Fighters of Wolfeboro, 164 N.H. at 22-23. Accordingly, because the unit had never been approved by the PELRB. Id. because the union had never been certified by the PELRB and the bargaining because the bargaining unit contained fewer than ten employees, but rather bargaining agreements in Professional Fire Fighters of Wolfeboro were void not 23 (citation omitted). Contrary to the Town’s assertions, the collective selectboard and the union were “ultra vires contracts and wholly void.” Id. at We held, therefore, that all of the collective bargaining agreements between the

union in that case had never been certified by the PELRB as the exclusive municipalities to choose to retain authority to enter into collective

45:1 (effective July 8, 2011).

superseded RSA 31:3. Id. at 23. Thus, although RSA 31:3 grants

no plausible explanation as to why, if the legislature intended to allow confers on the PELRB to recognize bargaining units, the petitioners offer Given the broad scope of [the PELRA] and the exclusive authority it

certified by the PELRB. Id.; see RSA 273-A:8, I. We explained: recognize, and with which it may bargain collectively, is a union that has been agreements, the PELRA provides that the only union that a municipality may municipalities the right to recognize unions and enter into collective bargaining petition to decertify with the PELRB. See N.H. Admin. Rules, Pub 302.05(a).

p. 7 unit because it has fallen below the ten-employee minimum, it must file a complaint at issue. Moreover, if an employer desires to decertify a bargaining PELRB was not without jurisdiction to decide the unfair labor practice

because the ten-employee requirement is not a jurisdictional requirement, the

err either when it concluded that it had jurisdiction to decide the instant unfair

jurisdiction when it “recertified” the bargaining unit in 2002, 2004, and 2005,

For all of the above reasons, therefore, we hold that the PELRB did not

Thus, although the Town argues that the PELRB lacked subject matter

decertification.

to follow this course. representative. The statutory and regulatory scheme does not allow the Town

particular case is sufficiently enduring to warrant bargaining unit 7

employees. We add, however, that we agree with the petitioner and the amicus Town unilaterally refused to bargain with the bargaining unit’s exclusive

discretion the evaluation of whether reduction in membership below ten in any legislative action resolving this question, we leave to the PELRB’s expertise and surely frustrate the PELRA’s goal of harmonious labor relations. Absent

unit should be decertified because it no longer is comprised of at least ten composition of the bargaining unit. Here, rather than take either action, the employee requirement in an objection to a union-initiated petition to modify the Alternatively, the employer can raise the failure to comply with the ten-

make the obligation to bargain an “on-again off-again” proposition that would We note that in Ashland, as in this case, the town acted unilaterally in

we conclude that the PELRB has the authority to decide whether a bargaining requested. In view of the entire statutory scheme and the PELRB regulations, Given that “to modify” means “to make a basic or important change,” Webster’s whether unit membership of less than ten would warrant decertification, if bargaining unit.

Applying the ten-employee requirement rigidly in such circumstances would membership below ten employees do not necessarily warrant decertification. that fluctuations in the size of a bargaining unit that result in temporary

seek decertification of the bargaining unit, and the PELRB did not address ten employees. Ashland, PELRB Decision No. 1999-120. The town did not exclusive representative . . . may file a petition for modification of refusing to negotiate with a union representing a bargaining unit of less than composition of the bargaining unit, the public employer, or the

below the statutory minimum required for certification. no longer qualifies for certification because the number of employees has fallen this regulation as encompassing the circumstance in which the bargaining unit Third New International Dictionary 1452 (unabridged ed. 2002), we construe p. 8 8

A f f i r m e d .

designated exclusive representative.

labor practice by unilaterally refusing to bargain with the bargaining unit’s labor practice charge or when it determined that the Town engaged in an unfair

DALIANIS, C.J.