2014-0312, Appeal of New Hampshire Retirement System

IX (Supp. 2014). On September 13, 1978, the PELRB certified the SEA as the dispute. The N H RS is a public employer within the meaning of RSA 273 - A:1, The following facts were found by the PELRB or are otherwise not in

N.H. Admin. Rules, Pub 302.05(a). We reverse and remand. Asso ciation (SEA), to exclude from t he unit certain supervisory positions. See respondent, Lo cal 1984, a bargaining unit represented by the State Employees’ Board (PELRB) denying the NHRS’ s petition to modify the composition of the appeals the decision of the New Hampshire Public Employee Labor Rela tions LYNN, J. The petitioner, the New Hampshire Retirement System (NHRS),

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

DeForest on the brief, and Mr. Kaplan orally), for the petitioner. Sulloway & Hollis, PLLC, of Concord (Edward M. Kaplan and Katherine

(New Hampshire Public Employee Labor Relations Board) APPEAL OF NEW HAMPSHIRE RETIRE MENT SYSTEM

No. 2014 - 312 Public Employ ee Labor Relations Board

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, Concor d, 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

decision. excluded from the bargaining unit, a nd the SEA has not filed a cross - appeal challenging that requested that the newly created position of Regulatory Compliance Officer/Staff Attorney be with respect to these positions. The PELRB also granted the petition for modification insofar as it Project Manager from the bargaining unit. The NHRS does not chall enge the PELRB’s decision text, the PELRB also refused to exclude the positions of Process Improvement Manager and In addition to denying the petition for modification with respect to the positions identified in the 1

effort s and are the sub ject of this appeal: Retiree Services Team Lead, 1 currently constituted, were affected by the new management team’s training The following NHRS positions, all members of the bargaining unit as

accountability. conducted training sessions on performance appraisals and supervisor expect ations, and job performance. She also amended job descriptions a nd program for management that focused upon evaluations, employee management team, Cain participated in the creation of a three - part training and needed assistance in managing their teams. As a member of the new that certain NHRS employees did not perform their assigned responsibilities August p. 2 2012. Under the direction of Lagos, she helped to address concerns Rosamond Cain was hired as the NHRS ’ s Human Resources Manager in

other things, instituting performance evaluations. employees, and developed a three - year business plan that involved, among management structure of the NHRS, including the training of managerial aut hority and responsibilities. Lagos institute d changes to improve the that managerial employees did not have a proper sense of the scope of their responsibility, accountability, and authority. Specifically, he was concerned effective management structure because the management team itself lacked plan. Based upon his review, Lagos concluded that the NHRS lacked an Trustees and management team, all with the goal of developing a new business methodology, written policies, and some job descriptions, and met with the p. 2 2012. Upon assuming his new position, Lagos reviewed NHRS ’s procedures, George Lagos became the executive director of the NHRS in Februa ry

through June p. 3 30, p. 2 2013. into a colle ctive bargaining agreement with effective dates from July 1, 2011, to these modifications, on December 7, 2011, the NHRS and the SEA entered enumerated positions, none of which are relevant to this appeal. Subsequent unchanged from 2004, it was specifically modified to exclude certain employee. . ..” In 2009 and 2010, while the general unit description remained employees excluded from the [applicable statutory] de finition of public follows: “E mployees of the NH Retirement System, with the exception of those at the SEA’s request. In 2004, the unit description was modified to read as from the NHRS, the PELRB i ssued three orders modifying the bargaining unit “[c] lassified state employees.” Between 2004 and 2010, and without objection exclu sive representative of a bargaining unit composed of certain of the NHRS’s 3

exclude from the bargaining unit the Team Lead, Public Information Officer, the PELRB. See N.H. Admin. Rules, Pub p. 3 302.05(a). In it, the NHRS sought to On April 8, 2013, the N HRS filed the subject modification petition with

behavioral concerns. letters summarizing conversations with employees regarding attire and NHRS submitted to the hearing officer three written warnings, as well as two performance evaluations, are placed in the employee’s personnel file. The positions now issue disciplinary letters and written warnings which, like the evaluations to the PELRB hearing officer. Cain also testified that these result in discharge. The NHRS did not submit any completed performance opportunities for promotion, lead to placement on an improvement plan, o r placed in his or her personnel file. The evaluations may affect the employee’s resources department and by Lagos, after which each employee’s evaluation is bargaining unit. The performance evaluations are reviewed by the human performance evaluations of other employees who are members of the responsibilities, i ncluding assigning work, imposing discipline, and conducting Public Information Office r, and Controller now all have similar supervisory Cain testified that, under the new management regime, the Team Leads,

employees, but were not actually performing these responsibilities. t he job description, were responsible for managing other bargaining unit Prior to the new management team’s efforts, these positions, as indicated by

collaborative problem - solving and various project initiatives. development and implementation of strategic planning initiatives, Actively participates in NHRS’ Management Team, including

. . .

problems. and disciplining employees; addressing complaints and resolving assigning and directing work; appraising performance; rewarding include interviewing, hiring and training employees; planning, organization’s policies an d applicable laws. Responsibilities Carries out supervisory responsibilities in accordance with the

descriptions for all of these positions contain the following language: and the Contr oller position was established in October 2011. The job established. The Public Information Officer position wa s established in 1988, record does not indicate when the Retiree Services Team Lead position was Accounts Team Lead positions were established on various dates in 2008; the and Controller. The Employer Auditing, Employer Reporting, and Member Accounts Team Lead (collectively “Team Leads”), Public Information Officer, Employer Auditing Team Lead, Employer Reporting Team Lead, Membe r p. 4 4

approved by the PELRB in March 2010. Officer positions were in fact included in the bargaining unit prior to the modification of the unit hearing officer’s statement is inaccurate, we assume that the Team Lead and Public Information prior to the March 2010 bargaining unit modification. Since neither party contends th at the In her decision, the hearing officer stated that these positions “appear[ed]” to have been created 2

warr anting modification of the unit. “supervisors - in - fact” constituted a mater ial change in circumstances bargaining unit. We agree that the change in the contested positions to supervisors and the employees they supervise from belonging to the same th e chang ed circumstances is mandated by RSA 273 - A:8, II, which prohibits 302. 05(a). It specifically argues that modification o f the bargaining unit under b argaining unit” pursuant to New Hampshire Admin istrative Rules, Pub supervisory - in - fact is a change sufficient to require modification of the change in status of those positions from “super visory - in - name - only to by failing to exclude certain supervisory employees from the unit, as the On appeal, the NHRS argues, among other things, that the PELRB erred

T his appeal followed. rehearing, s ee N.H. Admin. Rules, Pub 205.01(d), 205.02(a); RSA 5 p. 4 41:3 (2007). Admin. Rules, Pub 205.01, and subsequently denied NHRS’s motion for T he PELRB re viewed and approved the hearing officer’s decision, see N.H.

discretion. ’” Controller ‘ exercises supervisory auth ority involving the significant exercise of unit on the ground that there was insufficient evidence “to establish that the of an existing bargaining unit, but denied exclusion of this position from the acknowledged that the creation of a new position could warrant a modification which was created after the March 2010 modification, the hearing officer modification of an existing bargaining unit.” Regarding the Controller position, strategic plan are not material changes in circumstances warranting that the “hiring of new management and the implementation of new managerial March 2010 modification of the bargaining unit — the hearing officer found 2 Public Information Officer — positions which had bee n created prior to the petition to modify the bargaini ng unit. With regard to the Team Leads and Following an evide ntiary hearing, a PELRB hearing officer denied the

otherwise i mproperly included within the unit. warranting modification of the bargaining unit and that the positions were not circumstances regarding those positions had not changed to a degree (Supp. 201 p. 4 4). The SEA objected to the petition to modify, arguing that th e that the positions were now supervisory within the meaning of RSA 273 - A:8, II and Controller positions on the grounds that circum stances had changed and p. 5 5

because the recitations contained in the “Findings of Fact” section of the the NHRS has no factual basis upon which to rely for its modification argument question of law and fact. The SEA essentially asserts that, absent a transcript, evidentiary hearing, which is needed to address what it contends is a mixed NHRS cannot prevail on appeal because it did not provide a transcript of the As a preliminary matter, we first addres s the SEA’s assertion that the

F inally, the SEA argues that there was no material change in circumstance. because it confuses the PELRB “findings” with mere recitations of testimony. should decline review. T he SEA also contends that the NHRS’ s argument fails failed to provide a transcript of the evidentiary hearing before the PELRB, we contested positions is a mixed question of law and fact and, because the NHRS argues that the issue of whether there has been a material change in the of the modification analysis); RSA 273 - A:8, II. In response, the SEA first City of Laconia, 147 N.H. 49 p. 5 5, 497 (2002) (whether a change is material is part violation with respect to the composition of the bargai ning unit.” Cf. Appeal of is material and thus warrants modification, as it would “result in a statutory name,” are now supervisors - in - fact. The NHRS further argues that the change Officer, and Controller positions, which were previously only “supervisors - in the formation of the unit; namely, that the Team Lead, Public Information The NHRS argues that there has been a change in circumstances surrounding

bargaining unit. exclusive repr esentative . . . may file a petition for mo dification of composition of the bargaining unit, the public employer, or the incorrect to the degree of warranting modification in the recognized under the provisions of RSA 273 - A:1 is alleged to be bargaining unit are alleged to have changed, or where a prior unit Where the circumstances surrounding the formation of an existing

part: New Hamp shire Administrative Rules, Pub 302.0 p. 5 5(a) provides, in relevant

rulings on issues of law de novo.” Id. record.” Appea l of Hillsborough, 166 N.H. at 733. “We review the PELRB’ s determine whether the findings are supported by competent evidence in the would have found differently or to reweigh the evidence, but, rather, to “In reviewing the PELRB’ s findings, our task is not to determine whether we findings of fact are presumed prima facie lawful and reasona ble. RSA p. 5 541:13. of Hillsborough County Nursing Home, 166 N.H. 731, 733 (2014). The PELRB’ s clear preponderance of the evidence, that it is unjust or unreasonable.” Appeal aside the PELRB’ s order except for errors of law, unless we are satisfied, by a A:14 (2010); RSA 541:2 (2007). “Under RSA 541:13 (2007), we will not set RSA chapter 541 governs our review of PELRB decisions. See RSA 273 -

“appraising performance,” and, under the new management team, now actually bargaining unit. Under t he job description s, these positions are responsible for Controller positions ’ authority to evaluate other employee s within the We first consider t he Team Lead, Public Information Officer, and

authority. Id. at 2 p. 6 66. employees; the nature of their supervisory role; and the ir disciplinary discretion, w e consider several factors: their authority to evaluate other p ositions exercise supervisory authority involving the significant exercise of determine whether the Team Lead, Public Information Officer, and Controller belong to the same bargaining unit as the employees they supervise.” To supervisory authority involving the significant exercise of discretion may not (2012). RSA 273 - A:8, II states, in pertinent part, that “[p] ersons exercising considered as a whole. Appeal of Town of Moultonborough, 164 N.H. 257, 264 arbiter of the intent of the legislature as expressed in the words of the statute erroneous as a matter of law, or unjust or unreasonable, we are the final Although the P ELRB’ s determination will not be overturned unless it is warranting modification. Thus, we must examine the language of that statute. unit violating RSA 273 - A:8, II constitute s a material change in circumstances We agree with the NHRS that a change that would result in a bargaining

N. H. 391, 394 (2004). consider the NHRS’ s arguments. Tiberghein v. B.R. Jones Roofing Co., 151 t ranscript is not required for us to review this purely legal issue, we are free to (2012) (interpretation of court order is subject to de novo review). Because a Superintendent, Strafford County House of Corrections, 1 p. 6 63 N.H. 515, 519 “insufficient” to support the relief that the NHRS requested. See Fischer v. or all of the evidence presented, but that she foun d that evidence legally sensible construction of the hearing officer’s order is not that she rejected some whether a modification of the bargaining unit was warranted. Thus, the most turns upo n the legal implications of those facts with respect to the issue of about which evidence was presented. Rather, the di spute between the parties determinations or that there was any question as to the accuracy of the facts regarding modification of the bargaining unit hinged on credibility what she found to be true, there is no indic ation that her ultimate decision witnesses said o r what certain documents showed, rather than in terms of officer did phrase some of her factual recitations in terms of what certain mark in apply in g the principle to the record before us. Although the hearing T he SEA accurately states th e general principle of law, but it misses the

not required to believe even uncontroverted witness testimony). We disagree. 158, 1 p. 6 63 (2001) (stating that the New Hampshire Personnel Appeals Board was accept or reject, even if uncontroverted. See Appeal of Armaganian, 14 p. 7 7 N.H. inconclusive recitations of witness testimony that the hearing officer was free to factual findings. Instead, the SEA claims that these statements are merely hearing officer’s order, upon which the NHRS relie s, do not actually constitute 7

and the captains in University System likewise assigned work to subordinate department rules, and were involved in various as pects of the hiring process, in the contested positions in Moultonborough assigned work, developed complaints and resolving problems.” Like th e employees here, the employees assigning and direct ing work”; “rewarding” employees; and “addressing responsible for: “interviewing, hiring and training employees”; “planning, positions. Based upon the job description language, each position is W e next consider t he nature of the supervisory role for the contested

action. ’” University System, 131 N.H. at 3 p. 7 76 - 77 (quotation omitted). [NHRS] and the destruction of working relationships is manifest before taking us to sit by and ‘ allow events to unfold to the extent that the disruption of the Town of Stratha m, 144 N.H. 429, 432 (1999). Further, “[i]t is not necessary for sufficient to vest him with supervisory authority under the statute.” Appeal of [supervisory] authority, regardless of whether he presently exercises it, is significance. As we have stated, the fact that an employee “has such inherently problematic, the absence of completed evaluations is of little bargaining unit members evaluating other bargaining unit members is management regime was of recent vintage at the time of the hearing, and that performance evalu ations to the PELRB. However, given that the new The SEA emphasizes that the NHRS did not submit any completed

supervisory authority involving the significant exercise of discretion. evaluate other bargaining unit members shows that these positions exercise before the PELRB, we conclude that the conte sted positions’ authority to and were considered in determining step raises. Thus, based upon the facts 164 N.H. at 26 p. 7 7, the evaluations were placed in the employee’s personnel file discharged f or not progre ssing in a satisfactory manner; in Moultonborough, weight in meri t pay increase decisions and le d to a new employee being employees. In University System, 131 N.H. at 266, the evaluations were given positions in University System and Moultonborough affected subordinate N.H. at 267. As is the case here, the evaluations conducted by the contested subordinate employees in the same bargaining unit. Moultonborough, 164 contrary, because those positions also had the authority to evaluate and captains were sup er visors, and reversed the PELRB’s decision to the 376. Likewise, in Appeal of Town of Moultonborough, w e found that sergeants employees within the same bargaining unit. University System, 131 N.H. at like the contested positions here, had the authority to evaluate subordinate captains were not supervisors, we relied in part upon the fact that captains, H ampshire, 131 N.H. 368, 376 (1988). In reversing the PELRB’s decision that We focused upon similar facts i n Appeal of University System of N ew

can lead to termination. opportunities for promotion, can lead to placement on an improvement plan, o r placed in the employee’s personnel file, and can affect the employee’s do evaluate other employees in the bargaining unit. These evaluations are p. 8 8

DALIANIS, C.J.