2014-0801, Appeal of City of Concord

to January 1, 2013, and establishes a grievance procedure ending in binding certain employees a 2.25% cost - of - living wage adjustment (COLA), retroactive 2013, nearly eleven months after Leger retired. The successor CBA g ives for the successor CBA culminated in an agreement signed on December 19, 31, 2013, while negotiations for a successor CBA were ongoing. Negotiations that expired on December 31, 2012. Lieutenant Paul Leger retired on January The pertinent facts follow. The City and the Union were parties to a CBA

parti es’ collective bargaining agreement (CBA). We affirm. (Union), and a retired bargaining unit member is arbitrable pursuant to the grievance filed by the respondent, the Concord Police Supervisor [s ’] Association of the New Hampshire Public Employee Labor Relations Board (PELRB) that a HICKS, J. The petitioner, the City of Concord (City), appeals a decision

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

the brief and orally), for th e petitioner. City Solicitor’s Office, of Concord (James W. Kennedy, city solicitor, on

(New Hampshire Public Employee Labor Relations Board)

No. 2014 - 0801 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

whether the findings are supported by competent evidence in the record.” have found differently or to reweigh the evidence, bu t, rather, to determine reviewing the PELRB’s findings, our task is not to determine whether we would of fact are presumed prima facie lawful and reasonable. RSA 541:13. “In N.H. Retirement System, 167 N.H. 685, 689 - 90 ( p. 2 2015). The PELRB’s findings preponderance of the evidence, that it is unjust or unreasonable. Appeal of the PELRB’s order except for errors of law, unless we are satisfied, by a clear A:14 (2010); RSA 541:2 (2007). Under RSA 541:13 (2007), we will not set aside RSA chapter 541 governs our review of PELRB decisions. See RSA 273 –

by the arbitrator. parties “clearly and unmistakably” agreed that arbitrability was to be decided ( p. 2 2003) (quotation and brackets omitted). The Union fails to identify where the PELRB, not the arbitrator.” Appeal of Town of Durham, 149 N.H. 486, 48 8 the question of whether the parties agreed to arbitrate is to be decided by the settled that “[u]nless the parties clearly and unmistakably provide otherwise, implies that the PELRB lacked jurisdiction to decide arbitrability, it is well - Communications Workers, 475 U.S. 643, 649 - 50 (1986). Although the Union of Bedford, 142 N.H. 637, 6 39 (1998); see also AT& T Technologies v. grievance, but those arguments are not properly before us. See Appeal of Town submitted the arbitration demand. T he parties argue the merits of the therefore, that t he Union did not commit an unfair labor practice when it concluded that the Leger grievance is arbitrable under the successor CBA and, The issue before us is limited to whether the PELRB erred when it

followed. grievance.” The City unsuccessfully moved for rehearing, and this appeal [successor] CBA is not susceptible of an interpr etation w hich covers the Leger arbitrable because it could not “say, with positive assurance, that the dismissed the City’s unfair labor practice complaint and found the grievance was not a r bitrable under the terms of the successor CBA. The PELRB labor practice under RSA p. 2 273 - A:5, II(f), (g) (2010) because the Leger grievance PELRB, alleging that the Union’s demand for arbitration constituted an unfair In April 2014, the City filed an unfair labor practice complaint with the

Union subsequently demand ed arbitration. January 1, p. 2 2013 (the Leger grievance). The City denied the grievance, and the filed a grievance with the City because he did not receive the COLA effective In Ma rch 2014, more than a year after Leger retired, he and the Union

as “the successor CBA.” as “the expired CBA” and to the CBA that was signed on December 19, p. 2 201 p. 3 3, For ease of reference, we refer to the CBA that expired on December 31, 2012, and effe ct” from the date on which “it is ratified and signed by both parties.” 1, 2013, to December 31, 2015, but also provides that it will be in “full force arbitration. The successor CBA states that it covers the period from January 3

following the decision of the Police Chief.” At step three, “the UNION may Police Chief. The grievance proceeds to step three if it “remains unresolved Deputy Chief.” At step two, the grievance is then submitt ed in writing to the step two of the process if it “remains unresolved following the decision of the the Employee’s chain of Command of the grievance.” The grievance proceeds to of the grievance process requires an “E mployee” to “notify the Deputy Chief in Agreement, under express, written provisions of this Agreement.” The first step dispute by an Employee arising out of the application or interpretation of this step grievance procedure. That article defines a “grievance . . . as a claim or We begin with Article XVII of the successor CBA, which sets forth a four -

words and phrases.” Id. (quotation omitted). whole, and by construing its terms according to the common meaning of their intent. Id. at 641. “This intent is determined from the agreement taken as a examine the relevant language of the CBA as that language reflects the parties’ To determine whether the subject grievance is arbitrable, we first

142 N.H. at 640. ascertain the intent ion of the contracting parties. Appeal of Town o f Bedford, applying traditional principles of contract interpretation in an effort to resolved in favor of arbitration does not relieve us of the responsibility of Technologies, 475 U.S. at 650. However, t he principle that doubt should be that covers the dispute. Appeal of Town of Bedford, 142 N.H. at 640; see AT& T with positive assurance that the CBA is not susceptible of an interpretation arbitration clause does not include a particular grievance only if we determine Under the positive assurance standard, we may conclude that the

Technologies, 475 U.S. at 648 - 50. of Town of Bedford, 142 N.H. at 6 p. 3 39 (quotation omitted); see AT& T evidence of a purpose to exclude the claim from a rbitration can prevail. Appeal excluding a particular grievance from arbitration, only the most forceful presumption of arbitrability exists, and in the absence of any express provision assurance” sta ndard, when a CBA contains an arbitration clause, a deciding whether they agreed to arbitrate; and (4) under the “positive (3) a court should not rule on the merits of the parties’ underlying claims when the parties agreed to arbitrate is to be decided by the court, not the arbitrator; submit; (2) unless the parties clearly state otherwise, the question of w hether be required to submit to arbitration any dispute that it has not agreed to our analysis include: (1) arbitration is a matter of contract, and a party cannot Appeal of City of Nashua, 132 N.H. 699, 701 (1990). Other principles guiding arbitration clause is not susceptible of a reading that will cover the dispute.” is arbitrable “unless we can say with positive assurance that the CBA’ s We will not reverse the PELRB’s decision that the griev ance in this case

review the PELRB’s rulings on issues of law de novo. Id. Appeal of N.H. Retirement System, 167 N.H. at 690 (quotation omitted). We p. 4 4

is consistent with its common meaning”). Black’s Law Dictionary defines an (explaining that “[t]he meaning ascribed to the term employee under labor law (1971); see also Garcia v. City of Hartford, 972 A.2d 706, 713 (Conn. 2009) “employed.” See Chemical Workers v. Pittsburgh Glas s, p. 4 404 U.S. 157, 168 This definition does not include a retiree because a retiree is no longer employee” as a person “employed by a publ ic employer.” RSA 273 - A:1, IX. The Public Employee Labor Relations Act (PELRA) defines a “Public

interpretation). (2007) (explaining that we no l onger defer to the PELRB’s statutory (2011); see also Appeal of State Employees’ Assoc. of N.H., 156 N.H. 507, 510 interpretation de novo. See Appeal of Town of Deerfield, 162 N.H. 601, 602 Ins. Co., 166 N.H. 8 p. 4 4, 88 (2014). We review the PELRB’s statutory advanced by the entire statutory scheme. In the Matter of Liquidation of Home legislature’ s intent in enacting them, and in light of the policy sought to be meaning to the words used. Id. Our goal is to apply statutes i n light of the examining the language o f the statute, we ascribe the plain and ordinary a whole. Appeal of Laconia Patrolm an Assoc., 164 N.H. 552, 555 (2013). When intent of the legislature as expressed in the words of the statute considered as In matters of statutory interpretation, we are the final arbiters of the

273 - A:1, IX (2010). incorporating, by reference, the statutory definition of “Public employee,” RSA identifying the bargaining unit positions to which the word refers and by 273 - A:1).” The recogn ition clause, thus, defines the word “Employee” by successor titles (herein after called ‘Employees’ as defined pursuant to RSA Parking Supervisors and non - probationary Dispatch Supervisors or their non - probationary Police Sergeants, Police Lieutenants, non - probationary relevant part, that the Union is “the exclusive bargaining agent for all full time successor CBA, which is the recognition clause. That article provides, in To determine who is an “Employee,” we examine Article II of the

interpretation” of the successor CBA “under [its] express, written provisions.” and specifies that the dispute or claim must arise out of “the application or “griev ance[s],” defines “grievance[s]” as dispu tes or claims by “Employee[s],” The grievance and arbitration provision, thus, limits arbitration to

appeals procedures exist.” the City.” Also excluded from the process is “any matter for which statutory provisions of law or policies and regulations of appropriate authorities outside publ ished policies and regulations, provisions of RSA 273 - A and other grievance process are “[q]uestions involving the City Charter, City Ordinances, the grievance proce ss. Pursuant to Section 8 of Article XVII, excluded from the Article XVII specifies that certain disputes are expressly exclu ded from

process itself. submit said grievance to arbitration.” Step four governs the binding arbitration p. 5 5

Subcom., 141 N.H. 443, 446 (19 96); see Laws 197 p. 5 5, 490:1. Thus, we conclude between government and its employees.” Appeal of House Legislative Facilities organizations, and established the PELRB to assist in resolving disputes mandated that public employers negotiate in good faith with employee the right to organize and engage in collective bargaining with their employers, (emphasis added). “To achieve this goal, the [PELRA] granted public employees relations between public employers and their employees.” Laws 1975, 490:1 The PELRA was similarly enacted to “foster harmonious and cooperative

ambit of the collective - bargaining obligations of the stat ute.” Id. there any evidence that retired workers are to be considered as within the Id. The Court further determined that “[n]owhere in the history of the [NLRA] is to collective bargaining were those of employers and their active employees.” of the ‘working’ [person], and the labor disputes that it ordered to be subjected “[t]he inequality of bargaining power that Congress sought to remedy was that unrelated to any con cern with retirees. Id. at 166. The Court observed that is to prevent the disruption of c ommerce by dissatisfied workers, and is the term, but also upon the purpose of the NLRA, which the Court determined reaching this conclusion, the Court relied not only upon the plain meaning of Act (NLRA) d oes not include retirees. Pittsburg h Glass, 404 U.S. at 168. In concluded that the word “employee s” as used in the National Labor Relations we find Pittsburg h Glass persuasive. In that case, the Supreme C ourt In deed, in construing the term “Public Employee” as used in the PELRA,

reasoning and holding in Pittsburg h Glass. that in Rochester School Board, we “chose not to follow” the Supreme Court’s we did n ot so hold.” Thus, the Union is mistaken to the extent that it asserts retired employees in that case constituted ‘public employees’ under the PELRA, claims of former employees,” and although “we may have implied that the “we held only that the PELRB had jurisdiction to adjudicate the back - pay Appeal of Johnson, 164 N.H. p. 5 598, 603 - 04 (2013), in Rochester School Board, employees” under the PELRA, the Union is incorrect. As we explained in Hampshire PELRB, 119 N.H. 45 (19 79), we held that retirees are “[p]ublic Although the U nion suggests that in Rochester School Board v. New

word ‘employee’”). states “that retired persons are not included in the ordinary meaning of the (relying upon Black’s Law Dictionary definition and Pittsburg h Glass, court re Crafts Precision Industries, Inc., 244 B.R. 178, 184 (B.A.P. 1st Cir. 2000) ceased to work for another for hire.” Pittsburg h Glass, 404 U.S. at 1 p. 6 68; see In ‘employee’ does not include retired workers” because such workers “have International Dictionary 743 (unabridged ed. 2002). “The ordinary meaning of worker who is under wages or salary to an employer.” Webster’s Thi rd New Dictionary defines an “employee” as “one employed by another” and “any Dictionary 639 (10th ed. 2014). Likewise, Webster’s Third New International employer) under an express or implied contract of hire.” Black’ s Law “employee” as “[s]omeone who works in the service of another person (the 6

to whether it covers the Leger grievance, we apply the presumption of December 31, 2015). Accordingly, because the successor CBA is ambiguous as active at any point during the term of the successor CBA (January 1, 2013, to dispute s related to that wage increase for employees who, like Leger, were COLA would be retroactive to January 1, 2013, did not also agree to arbitrate say, with positive assurance, that the City and Union, having agreed that the began on January 1, 2013, in which case Leger would be entitled. We cann ot entitle those employees who were active a t any time during its term, which would not be entitled. On the other hand, the successor CBA can be read to became effective, in which case Leger ― who retired on January 31, 2013 ― employe es who were active as of December 19, 201 3, the date on which it hand”). On the one hand, the successor CBA can be read to entitle only those arbitration agreement is ambiguous about whether it covers the dispute at the presumption of arbitrability applies when “a validly formed and enforceable See Granite Rock Co. v. Teamsters, 5 p. 6 61 U.S. 287, 301 (2010) (explaining that effective date of the successor CBA or those active at any time during its term. “employees” are entitled to the retroactive COLA – those active as of the 142 N.H. at 640. This is because the successor CBA is ambiguous as to which interpretation that covers the Leger grievance. See Appeal of Town of Bedford, and arbitration provision in the successor CBA is not susceptible of an Nonetheless, we cannot say with positive assurance that the grievance

and (4) retirees are not “Employee[s]” within the meaning of the CBA. by “Employee[s]”; (3) the retroactive COLA at issue was granted to “employees”; to gri evances; (2) the successor CBA defines grievances as dispu tes or claims conclude that: (1) the grievance and arbitration provision restricts arbitration Thus, construing the pertinent provisions of the successor CBA, we

forward only.” by both parties [its] terms . . . will then be in full force and effect from that date XXXIV explains that “[t]his means that upon the signing of [the successor CBA] ta ke full force and effect until it is ratified and signed by both parties.” Article successor CBA “covers the period from 1/1/13 – 12/ 31 /2015” and “shall not XXXIV, which sets forth the term of that CBA. Pursuant to that article, the The last provision of the successor CBA relevant to our analysis is Article

“employee” in order to be entitled to the retroactive COLA. retroactive COLA t o “employees,” it is silent as to when a person ha s to be an to the successor CBA as “Appendix A.” Although Article VII grants the January 1, 2013.” This adjustment is reflected in the wage schedule appended wage scale shall receive a [COLA] of 2.25%” that is “[e]ffective retroactive to “WAGES,” provides, in pertinent part, that “employees assigned to the 10 step Article VII, which sets forth the retroactive COLA at issue. Article VII, entitled The third provision of the successor CBA relevant to our analysis is

an “Employee.” that, pursuant to t he recognition clause of the successor CBA, a retiree is not p. 7 7

DAL I ANIS, C. J., and CONBOY, LYN N, and BASSETT, JJ., concurred.

issues for the ar bitrator to r esolve in the first instance. apply to “retired employees who worked during the retroactive pay period,” are forth in the 2012 CBA,” and because the retroactive COLA was not intended to retroactive COLA because “he was only subject to the terms and conditions set retroactive COLA. Whether, as the City asserts, Leger i s not entitled to the similar to this case, and supports its assertion that Leger is not entitled to the F.3d 433, 441, 443 - 44 ( p. 7 7th Cir. 2011), which the City contends is factually not address the City’s reliance upon M a rca ta nte v. Cit y of Chicago, Ill., 657 Because we do not address the merits of the Leger grievance, we also do

entitled to the retroactive COLA. PELRB did not so err, we leave it to the arbitrator to decide whether Leger is that the Leger grievance was arbitrable. See id. Having con cluded that the 639. Our role is solely to decide whether the PELRB erred when it concluded entitled to the retroactive COLA. See Appeal of Town of Bedford, 142 N.H. at is not to decide the merits of the Lege r grievance and whether, in fact, he is almost a year earlier, or any other retired [Union] employee.” However, our role the “City never agreed that this benefit would extend to . . . Leger, who retired would earn a retroactiv e wage increase dating back to January 1, 2013,” and [successor] CBA, the City and the [Union] agreed that only [Union] employees Leger is not, in fact, entitled to the retroactive COLA because “[u]nder the The City also argues the merits of the Leger grievance, asserting that

under the PELRA, and a member of the . . . bargaining unit.” January of 2013, when he was still an employee of the City, a public employee and arbitration demand in this case were “based upon . . . Leger’s status in fort h the term of the successo r CBA. A nd a s the PELRB found, the grievance VII, which sets forth the retroactive COLA, and of Article XXXIV, which sets is that the grievance is a dispute over the application or interpretation of Article makes it possibl e to interpret the successor CBA to include the Leger grievance or interpretation” of that CBA “under [its] express, written provisions.” What successor CBA limits arbitrable disputes to those “arising out of the application 1109 (10th Cir. 2014). The grievance and arbitration provisio n of the be about.” Int’l Broth. of Electrical Workers v. Public Serv., p. 7 773 F.3d 1100, invoke the arbitration procedure is not as important as what the dispute must a retiree when the grievance was filed. “For our purposes, however, who may The City resists this conclusion by focusing upon the fact that Leger was

arbitrable. See id. arbitrability and affirm the PELRB’s determination that the Leger dispute is