2021-0248, Appeal of State of New Hampshire

Gover nor: (1) sent an email to all state employees concerning collective unfair labor practices, in v iolation of RSA 273 - A:5, I (2010), when the Employee Labor Relations Board (PELRB) ruling that the State committed DONOVAN, J. The State appeals an order of the New Hampshire Public

orally), for the State. general (Laura E. B. Lombardi, senior assistant attorney general, on the brief and John M. Formella, attorney general, and Anthony J. Galdieri, solicitor

Association Locals 40 and 45. on the memorandum of law and orally), for the New England Police Benevolent Nolan Pe r roni, PC, of North Chelmsford, Massachusetts (Peter J. Perroni

Association of NH, Inc., SEIU Local 1984. Gary Snyder, of Concord, on the brief and orally, for the State Employees ’

(New Hampshire Public Employee Labor R elations Board) APPEAL OF STATE OF NEW HAMPSHIRE

No. 2021 - 0248 Public Employee Labor Relations Board

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email 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

members’ rights and the administration of un ion business, see RSA p. 2 273 - A:5, constituted direct dealing, see RSA 273 - A:5, I(e), and interfered with union violation of RSA 273 - A:5, I. T he PELRB concluded that the Governor’s email 2021, issued an order ruling that the State engaged in unfair labor practices in the Executive Council. The PE LRB consolidated the cases, and, i n February sent the email to state employees and refused to send the fact - finder’s report to alleging that the State committed unfair labor practice s when the Governor Thereafter, the Unions filed unfair labor complaints with the PELR B

report to the Executiv e Council pursuant to RSA p. 2 273 - A:12, II. December 18, the Governor announced that he would not send the fact - finder’s the Governor’s email on an inte rnet portal accessible by state employees. On members voted to accept the report. On December 5, the State posted a li nk to them to get them to vote against the fact - finder’s report.” Ultimately, SEA’s were angry and confused,” and “[m]any believed the Gove rnor tried to mislead members regarding the fact - finder’s report. According to SEA, the “[c]allers Following the Governor’s email, SEA began receiving inquiries from its

Governor’s email is set forth in the Appendix to this opinion. c oncerning the fact - finder’s report and the State’s proposal. The full text of the i ncluding employees of the bargaining units represented by the Unions — the informational meeting, the Governor sent a n email to all state employees — its members regarding the nego tiations. Approximately ninety minutes before 3, p. 2 2019, prior to its membership vote, SEA held an informational meeting with a membership vote on the report pursuant to RSA 273 - A:12, II. On December which the Unions declined. In late 2019, SEA announced its intention to hold NEPBA accepted them. The State also submitted an alternative proposal, The State rejected the fact - finder’s report and recommendations, and

recommendations for resolving the impasse. (Supp. p. 2 202 1). In November 2019, the fact finder issued a report making fact finder to assist them with resolving their disputes. See RSA 273 - A:12 the parties proceeded to impasse resolution procedures and engaged a neutral collective bargaining agreement. After the negotiations reached an impasse, December 2018, the Unions and the State began negotiati ng a multi - year 40 and 45 (NEPBA) — represent several state employee bargaining units. In SEIU Local 1984 (SEA) and New England Police Benevolent Association, Locals undisputed. The Unions — State Employees’ Association of New Hampshire, The following facts were found by the PELRB or are otherwise

PELRB erred by concluding otherwise. Accordingly, we reverse and remand. conclude that the State did not commit unfair labor practices and that the of a neutral fact finder to the Executive Council for its consideration. We bargaining negotiations involving the State; and ( p. 2 2) refused to send the report p. 3 3

“restrain [ing], coerc[ing] or otherwise interfer[ing] with its employees in the RSA 27 p. 3 3 - A:5, I, prohibits public employers from, among other things,

business in violation of RSA 27 p. 3 3 - A:5, I(a) and (b). W e agree. email interfered with state employees’ rights and the administration of union The State first argues that the PELRB erred by ruling that the Governor’s

A. Governor’s Email

beyond the language of the statute to determine its meaning. Id. at 49 p. 3 3 - 94. Id. If the language of the statute is clear and unambiguous, we will not look might have said or add language that the legislature did not see fit to include. we interpret the statute as written and will not consider what the legislature its overall purpose and to avoid an absurd or unjust result. Id. Furthermore, statute as a whole. Id. We construe all parts of a statute together to effectuate consider words and phrases in is olation, but, rather, within the context of the plain and ordinary meaning to the words used in the statute. Id. We do not N.H. 490, 493 (2018). When examining statutory language, we ascribe the w e review de novo. See Appeal of New England Police Benevolent Ass’n, 171 RSA chapter 273 - A. Statutory interpretation presents a question of law, which Resolving this appeal also requires that we interpret several provisions of

competent evidence in the record. Appeal of SEA, 171 N.H. at p. 3 394. but, rather, to determine whether the PELR B’s findings are supported by determine whether we would have found differently or to reweigh the evidence, SEA, 171 N.H. at 394; see RSA 541:13. Accordingly, our task is not to factual fin dings are presumed prima facie lawful and reasonable. Appeal of Center), 171 N.H. 391, 394 (2018); see RSA 541:13 (2021). The PELRB’s order is unjust or unreasonable. Appeal of SEA (Sununu Youth Services unless we are satisfied, by a clear preponderance of the evidence, that such A:14 (2010). We will not set aside the PELRB’s order except for errors of law, RSA chapter 541 governs our review of PELRB decisions. See RSA 273 -

a motion for reconsideration, which was denied. This appeal followed. do so was also an unfair labor practice. See RSA 27 p. 3 3 - A:5, I(g). The State filed to send the report pursuant to RSA 273 - A:12, II, and, therefore, his refusal to the Executive Council, the PELRB concluded that the Governor was obligated With respect to the Governor’s refusal to send the fact - finder’s report to

was an unfair labor practice under RSA 27 p. 3 3 - A:5, I(g). presentation to union members in violation of RSA 2 73 - A:12, I(a), and, thus, I(a), (b). The PELRB also concluded that the email constituted a direct p. 4 4

and the State’s proposal “so that [they could] make an educated decision.” which was intended to inform SEA’s members about the fact - finder’s report opportunity to respond to the Governor’s email at the informational meeting, 298, 121 N.H. at 9 p. 4 46. Indeed, the record demonstrates that SEA had an respond to the Governor’s email prior to the membership vote. AFL - CIO Local manner limitations” and there is no evidence that SEA lacked an opportunity to interference, a s RSA 273 - A:5 does not contain “reasonable time, place a nd email shortly before SEA’s informational meeting is insufficient to constitute Appeal of City of Portsmouth, 140 N.H. at 439. T hat the Governor sent the favor of the fact - finder’s report. AFL - CIO Local 298, 121 N.H. at 946; see employees would lose their jobs or be the victims of retaliation” if they voted in RSA 273 - A:5, I(a) and (b). The email “did no t contain any threats that AFL - CIO Local 298, we conclude that the Governor’s email did not violate In light of our decisions in Appeal of City of Portsmouth and Appeal of

including the day of election.” Id. (quotation and emphasis omitted). other means of communications were not available [to the union] up to and observation that “there was no evidence that personal delivery to employees or “reasonable time, place and manner limitations” and citing the PELRB’s letter by mailing a rebuttal letter,” noting that RSA 2 73 - A:5 does not impose argument that “it did not have sufficient time to respond to the [employer’s] retaliation by the [employer].” Id. at 9 p. 4 46. We also rejected the union’s contain any threats that emplo yees would lose their jobs or be the victims of CIO Local 298, 121 N.H. at 946 - 47. We reasoned that the letter “did not letter to its employees three days before a union representation election. AFL that a public employer did not violate RSA 273 - A:5, I(a) and (b) by mailing a Similarly, in Appeal of AFL - CIO Local 298, 121 N.H. 944 (1981), we held

rise to the level of, interference.” Id. (quotations omitted). whether intended or not and whether just ified or not, does not amount to, or explained that, under RSA 273 - A: p. 5 5, I(a) and (b), “[p]roof of disruptive effect, employer did not violate RSA 273 - A:5, I(a) or (b). Id. at p. 4 439. W e further “did n ot contain elements of ‘intimidation, coercion, or misrepresentation,’” the reversed the PELRB’s ru ling, holding that, because the employer’s statements truthfulness of the union leadershi p.” Id. at 437 (quotation s omitted). W e administration of union business by “creat[ing] doubt in the effectiveness and the employer’s statements had “a disruptive effect” on union members and the activities. Id. at 436 - 37. I n reaching its decision, the PELRB determined that employer made statements to a local newspaper about her views on union ruled that a public employer violated RSA 273 - A:5, I(a) and (b) when the A.” Appeal of City of Portsmouth, 140 N.H. at 438. In that case, the PELRB “what speech constitutes ‘interference’ within the meaning of RSA chapter 273 - Board of Fire Commissioners, 140 N.H. 435 (1995), we addressed the issue of employee organization,” RSA 273 - A:5, I(b). In Appeal of City of Portsmouth, “dominat[ing] or . . . interfer[ing] in the formation or administrati on of any exercise of the r ights conferred by this chapter,” RSA 273 - A:5, I(a), and from 5

that any such misrepresentation was not part of an attempt to coerce which the State’s proposal differed from the fact - finder’s report, we conclude Even ass uming that the Governor’s email misrepresented the extent to

increased healthcare costs under the State’s proposal. that the email misstated the extent to which the State would have absorbed compared to what the fact finder recommended.” The Unions further argue “severely downplay[ed] the value and significance of the State’s wage proposals that the G overnor identified in the email as part of the State’s proposal, they w ere misrepresentation s because, when considered in light of the specific items upon in good faith by all parties.” The Unions argue that these statements recommendation to re - open an old contract that had previously been agreed the fact - finder’s recommendations, with the exception of a single upon the Governor’s statement that the State’s proposal inc luded “nearly all and heavily favored the union leadership’s requests.” The Unions also rely put forward a proposal that was nearly identical to the fact - finder’s conclusions that, upon receiving the fact - finder’s repor t, he “instructed State negotiators to To support their argument, the Unions point to the Governor’s statement

collective - bargaining process.”). to undue employer influence upon labor organizations in connection with the Regulations § 1478, at 30 p. 5 5 (“Employer domination or interference . . . pertains reasonable tendency to coerce . . . .”); 48A Am. Jur. 2d Labor and Labor considered from the employees’ point of view, whether the action had a the employer’ s action, but whether the action tends to coerce or not or, Labor Regulations § 1336, at 2 15 (2005) (“[T]he issue is not the label placed on administration. S ee RSA 273 - A:5, I(a) - (b); see also 48A Am. Jur. 2d Labor and coerce employees or to unduly influence unions in their formation or such cases, w e must consider w hether the misrepresentation has a tendency to sufficient to establish that the communication constitutes interference. In employer’s communication may contain a misrepresentation is not alone facts”). However, for the purposes of RSA 273 - A:5, I(a) and (b), the fact t hat a n (defining “misrepresentation” as “an assertion that does not accord with the is a false factual assertion. See Black’s Law Dictionary 1091 (9th ed. 2009) City of Portsmouth, 140 N.H. at 439 (quotation omitt ed). A misrepresentation “contain[s] elements of intimidation, coercion, or misrepresentation.” Appeal of does not constitute interference under RSA 273 - A:5, I(a) and (b) unless it Portsmouth, we held that an employer’s communication with its employees interference. We disagree. As explained above, in Appeal of City of minimum a misrepresentation,” and, therefore, the email constituted Nonetheless, t he Unions argue that “the Governor’s comments were at

Appeal of City of Portsmouth, 140 N.H. at 439 (quotation omitted). that “[p]roof of disruptive effect” is insufficient to constitute interference. have caused anger and confusion among some of SEA’s members, we have held (Quotation omitted.) Moreover, to the extent that the Governor’s email may p. 6 6

communicating with its employees. Id. “The fundamental inquiry. . . is employer does not commit a per se unfair labor practice by merely RSA chapter 273 - A.” Id. (quotation and brack ets omitted). However, an seriously compromises the negotiating process and frustrates the purpose of (200 p. 6 6). “Dealing directly with employees is generally forbidden because it an exclusive rep resentative. Appeal of Town of Hampton, 154 N.H. 132, 134 must refrain from negotiating with any union member who is not designated as exclusive representative of a bargaining unit.” Accordingly, a public employer prohibits public employers from “refus[ing] to negotiate in good faith with the constituted direct dealing in violation of RSA 273 - A:5, I(e). RSA 273 - A:5, I(e) Next, the State challenges the PELRB’s ruling that the Governor’s email

interference in violation of RSA 273 - A:5, I(a) and (b). conclude that the PELRB erred by ruling that the Governor’s email constituted the rest of the email, this statement was not a misrepresentation. We therefore still negotiating with “the remaining unions.” Thus, when considered in light of State had re ached an agreement with only two of the unions and that it was negotiations. Moreover, the Governor expressly stated in the email that the agreement. Rather, the statement merely described the fact finder’s role in the that, at the time the Governor sent the email, the parties had reached an disagree. Contrary to the Unions ’ argument, t his statement did not suggest had been reached, and the parties were still at an impasse.” Again, w e misrepresentation because, “at the time of sending the email, no compromise to help [the parties] reach a comprom ise.” It argue s that this statement was a SEA also points to the Governor’s statement that the fact finder “worked

and (b). vote, the statements did not constitute interference under RSA 2 p. 7 73 - A:5, I (a) the fact - finder’s report or otherwise to unduly influence SEA’s membership statements did not have a tendency to intimidate or coerce employees to reject employees than the State’s proposal. We therefore conclude that, because the the fact - finder’ s report, he did not re present the report as less favorable to Governor minimized some of the differences between the State’s proposal a nd for [the employees’] hard work and commitment to our state.” Thus, even if the Governor stated that “the fact - finder’s report is fair and shares my appreciation recommendation as disadvantageous to employees. To the contrary, the contract.” Nothing in the Governor’s email attempted to portray the excluded the S tate’s proposal excl uded “a single recommendation to re - open an old Governor specifically identify his misgivings with the report, noting only that did not expressly urge employees to vote against the report. Nor did the chara cterize the State’s proposal as superior to the fact - finder’ s report, and it state’s proposal offers to state employees,” his email did not expressly “hope” that the Unions would “reconsider the many valuable benefits that the influence upon SEA’s membership vote. Although the Governor expressed his employees to reject the fact - finder’s report or otherwise to exert undue 7

public employer shall in turn have the right to make a public employer, the chief negotiator for the board of the employer. If this request is approved by the board of the make a presentation directly to the board of the public (1) The chief negotiator for the bargaining unit may request to

not otherwise governed by ground rules: employees 90 days, prior to the budget submission date, and if agreement on a contract within 60 days, or in the case of state have bargained to impa sse, or if the parties have not reached I. (a) Whenever the parties request the board’s assistance or

forth the first step of impasse resolution. The statute provides: because, in its view, the email was contrary to RSA 2 p. 7 73 - A:12, I(a), which sets Nonetheless, SEA arg ue s that the Governor’s email was direct dealing

Governor’s email constituted direct dealing in violation of RSA 2 p. 7 73 - A:5, I(e). members. We therefore conclude that the PELRB erred by ruling that the Governor intende d to bypass the Unions and negotiate directly with union id. When c onsidered as a whole, nothing in the email indicates that the his “hope that the remaining unions will reconsider” the State’s proposal. Cf. that the State had reached an agreement with two other unions and expressing the Governor acknowledged the Unions ’ role in the negotiations, a nnouncing Lodge Nursing v. N.L.R.B., 164 F.3d 867, 880 (4th Cir. 1999). To the contrary, directly to [the State] if they were unhappy with [the Unions].” Americare Pine Nor, for that matter, did the Governor “encourage employees to come

Union’s fault and actively solicited . . . input” on other employees’ views). dealing when he “told [an employee] that the failure of negotiations was the 25 p. 7 7 F.3d 1, 7 (1st Cir. 2001) (concluding that employer engaged in direct employees’ views on the negotiations. Cf. Ryan Iron Works, Inc. v. N.L.R.B., the Governor blame the Unions for the impasse or solicit feedback about state that the teachers could not r efuse to sign without risking their jobs”). Nor did teachers, without consulting the union, offering lower wages and “indicat[ing] that school board engaged in direct dealing when it sent contracts directly to Appeal o f Franklin Education Assoc., 136 N.H. 332, 335 - 37 (1992) (concluding negotiations, the email did not contain threats of retaliation or job loss. Cf. Governor sent the email directly to state employees during the course of the in violation of RSA 273 - A:5, I(e). Although, as the Unions point out, the We conclude that the Governor’s email did not constitute direct dealing

omitted). Pratt & Whitney Air Craft Div., p. 7 7 p. 8 89 F.2d 121, 134 (2d Cir. 1986) (quotation employees, rather th an with the employees through the Union.” N.L.R.B. v. whether the employer has chosen to deal with the Union through the 8

performance.”). We will not presu me th at the legislature intended this result. decisions while also permitting them a reasoned critique of their unions’ its employees. . . aids the workers by allowing them to make informed 7 p. 8 89 F.2d at 134 (“Granting an employer the opportunity to communicate with of City of Portsmouth, 140 N.H. at 438; see also Pratt & Whitney Air Craft Div., disrupting “the free flow of informati on from both union and employer.” Appeal in resolving disputes when their negotiations reach an impasse — by would contravene the purpose of RSA 273 - A:12 — which is to assist the partie s employees about the negotiations after the initial sta ges of impasse resolution Moreover, precluding public employers from communicating with their employees is not a per se unfair labor practice under RSA 273 - A:5.”). 154 N.H. at 134 (“[T]he mere act of communication by an employer with its stages in the process. See RSA 273 - A:12; see also Appeal of Town of Hampton, mediation and fact finding, not to limit the parties’ communications at later I(a) to encourage discussion between the parties before they proceed to statute’s plain language indicates that the legislature intended RSA 273 - A:12, We disagree with the Unions ’ interpretation of RSA 273 - A:12, I(a). The

violated RSA 273 - A:12, I(a), and, thus, was an unfai r labor practice. SEA argue s that the PELRB correctly concluded that the Governor’s email negotiations during the later stages of impasse resolution. For these reasons, prohibited from communicating directly with its employees about the not request a direct presentation pursuant to RSA 273 - A:12, I(a), it was issues is otherwise prohibited.” Thus, SEA argues that, because the State did then it must be presumed direct presentation of bargaining proposals and presentation is permitted under these limited circumstances, but nowhere else, circumstance[s] described [in the statute].” In SEA’s view, “if direct instead to only permit direct presentation to employees under specific limited limit direct presentations to employees and prohibited them generally, choosing SEA argues that, by enacting RSA 273 - A:12, I(a), “the legislature chose to

step of impasse resolution, mediation and fact finding, s ee RSA 273 - A:12, I(b). presentation pursuant to RSA 273 - A:12, I(a), the parties proceed to the second RSA 273 - A:12, I(a). If neither party requests the opportunity to make a direct

born e by the party making the presentation. employer. The cost of the respective presentations shall be right to make a presentation directly to the board of the public chief negotiator for the bargaining unit shall in turn have the u nit. If this request is approved by the bargaining unit, the may request to make a presentation directly to the bargaining (2) The chief negotiator for the board of the public employer

the presentation. respective presentations shall be borne by the party making presentati on directly to the bargaining unit. The cost of the p. 9 9

confirmed an appointment by the Governor.” Id. at 546. Nonetheless, we would indicate that a person becomes a commissioner after the Council has e xplained that “a strict reading of RSA 126 - A:4 (Supp. 1 p. 9 973) and RSA 21: 31 - a appointment. Id. at 543 - 45. Rejecting the commission’s argument, we arguing that the Council’s favorable vote for one of the nominees constituted an members of the advisory commission filed a peti tion for a writ of mandamus, nominees. Id. The Governor subsequently negated the confirmations, and nominees’ names to the Executive Council, which voted favorably for two of the more nominees.” Id. at 542 - 43 (quotation omitted). The Governor sent the Health and Welfare “shall be appointed by the governor and council from two or RSA 126 - A:4 (Supp. 1973), which provided, in part, that the Commissioner of individuals to serve as Commissioner of Hea lth and Welfare pursuant to is instructive. In Brouillard, an advisory commission no minated four Our decision in Brouillard v. Governor and Council, 114 N.H. 541 (1974),

consent of the council.” RSA 21:31 - a (2020); see RSA 21:1 (2020). phrase “governor and council” to mean “the governor with the advice and A:1, II(a)(1) (2010). In general, w hen interpreting statutes, we construe the employer” in RSA 273 - A:12, II means “the governor and council.” RSA 273 - For “executive branch state employees,” the term “board of the public

as is otherwise per mitted by law. shall vote to accept or reject so much of his recommendations organization and to the board of the public employer, which submitted to the full membership of the employee recommendations, his findings and recommendations shall be If either negotiating team rejects the neutral p arty’s

RSA 273 - A:12, II provides:

with this chapter or any rule adopted under this chapter.”). We agree. shall be a prohibited practice for any public employer . . . [t]o fail to comply refusal to do so was not an unfair labor practice. See RSA 273 - A:5, I(g) (“It to send the fact - finder’s report to the E xecutive Council, and, therefore, his The State next argues that RSA 273 - A:12, II did not require the Governor

B. Submission to the Executive Council

reverse the PELRB’s decision on this issue and remand. practice in violation of RSA 273 - A:5, I(a), (b), (e), and (g). Accordingly, we Governor’s email violated RSA 273 - A:12, I(a) and constituted an unfair labor We therefore conclude that the PELRB erred by ruling that the

(quotation omitted)). together to effectuate its overall purpose and avoid an absurd or unjust result.” See Holt v. Keer, 167 N.H. 232, 23 p. 9 9 (2015) (“[W]e construe all parts of a statute p. 10 10

impasse negotiations and to make the parties vulnerable to the publicity that that “part of” the purpose of RSA 273 - A:12 is “to broaden participation in language from Appeal of Derry Education Association, 138 N.H. 69, 73 (1993), the intent of the legislature.” To support this argument, the Unions rely upon of “governor and council” set forth in RSA 21:31 - a “would be inconsistent with RSA 21:31 - a “is not definitive for all statutes” and that adopting the definition substantially different in content and purpose.” They further argue that Sunapee Difference is not controlling because “RSA 273 - A and RSA 4:40 are Governor to submit the report to the Executive Council. The Uni ons argue that Governor rejects a fact - finder’s report, RSA 273 - A:12, II does not require the In light of our holding in Sunapee Difference, we conclude that, if the

1906)). Id. at 791 (quoting In re Opinion of the Jus tices, 78 N.E. 311, 312 (Mass. official body whose opinion could never relieve him from the duty of deciding. ’” that the Governor is not “‘ obliged to ask advice, in the first instance, from an Massachusetts case interpr eting language similar to RSA 21:31 - a as meaning amendment himself.” I d. at 792. In so holding, we relied upon a lease amendment to the Executive Council when he did no t approve the concluded that “RSA 4:40 did not require the Governor to present the proposed “governor and council” in RSA 4:40, I, as consistent with RSA 21:31 - a, we of the parties ’ lease to the Executive Council. Id. at 790 - 92. Interpreting state - owned property — did not require the Governor to submit an amendment that case, we held that RSA 4:40, I (2020) — which gove rns the disposal of State of N ew H ampshire, 164 N.H. 778 (2013), supports this conclusion. In See RSA 273 - A:1, II(a)(1); RSA 21:31 - a. Our decision in Sunapee Difference v. require the Governor to submit the report to the Council for its consideration. the Governor ’s rejection of a fact - finder’s report, RSA 273 - A:12, II does not We further conclude that, because the Executive Council cannot override

by the stat e, represented by the governor as chief executive” (emphasis added)). affecting state employees in the classified system generally shall be negotiated (providing that “[a]ll cost items and terms and conditions of employment Facilities Subcom., 141 N.H. 443, 446 (1996); see RSA 273 - A:9, I (Supp. 2021) “sole authority to direct the negotiation process.” Appeal of House Legislative ‘consent of the council.’”). To hold otherwise would undermine the Governor’s 21:31 - a the sole power of appointment lies with the Governor subject to the See RSA 273 - A:12, II; cf. Brouillard, 114 N.H. at 547 (“In accordance with RSA Executive Council cannot unilaterally accept the report on the State’s behalf. Governor rejects a fact - finder ’ s report pursuant to RSA 2 73 - A:12, II, the Applying the reasoning of Brouillard to this case, we conclude that, if the

nominees to the Council,” the Council’s vote was not an appointment. Id. and in fact was contrary to hi s intention when he submitted the names of the concluded that, because “this result was not contemplated by the Governor p. 11 11

doubt attend an impasse.” Id. at 73 (quotations omitted). We further negotiations and to make the parties vulnerable to the publicity that will no “part of [RSA chapter 273 - A’s] purpose is to broaden participation in impasse binding vote would lead to absurd results. Id. at 72 - 73. We explained that requiring submission of a fact - finder’s report to a legislative body for a non - In reaching that conclusion, we rejected the school board’s argument that bind the parties by a vote on non - cost items.” Appeal of Derry, 138 N.H. at 73. report “to [its] legislative body for review, but that the legislative body may not that RSA 273 - A:12, III(a) required a school board to submit a fact - finder’s goal described in Appeal of Derry, 138 N.H. at 7 3. In Appeal of Derry, we held We are also unpersuaded by the Unions ’ reliance upon the legislative

Difference is instructive. RSA 273 - A:12, II differ “in content and purpose,” our decision in Sunapee only the Governor under such circumstance s. Thus, although RSA 4:40, I, and rejected, we interpret the phrase “shall vote” in RSA 273 - A:12, II as referencing Council cannot unilaterally accept a fact - finder’s report that the Governor has RSA 273 - A:1, II(a)(1). Moreover, because, as explained above, the Executive of the pu blic employer” include s the Executive Council. RSA 273 - A:12, II; see not mean that, in every case involving state employee negotiations, the “board submission of the fact - finder’s report to “the board of the public employer” does a whole . . . .” (quotation omitted)). That RSA 273 - A:12, II mandates words and phrases in isolation, but rather within the context of the statute as New England Police Benevolent Ass’n, 171 N.H. at 493 (“We do not consider RSA 21:31 - a, informs our interpretation of RSA 273 - A:12, II. See Appeal of Difference, our construction of the phra se “governor and council,” as defined by enforcement of a provision mandatory.”). Nonetheless, as in Sunapee general rule of statutory construction that . . . the word ‘shall’ makes see In the Matter of Bazemore & Jack, 153 N.H. 351, 354 (2006) (“It is a mandato ry language “shall be submitted” and “shall vote.” RSA 273 - A:12, II; We recognize that, unlike RSA 4:40, I, RSA 273 - A:12, II, contains the

of his recommendations as is otherwise permitted by law.” (Emphase s added.) t he board of the public employer, which shall vote to accept or reject so much recommendations, his findings and recommendations shall be submitted to . . . provides, in relevant part: “If either negotiating team rejects the neutral party’s Difference, 164 N.H. at 791 - 92. Simi lar to RSA 4:40, I, RSA 273 - A:12, II consideration of a lease amendment that the Governor rejected. See Sunapee concluded that RSA 4:40, I, did not require the Ex ecutive Council’s RSA 4:40, I. Notwithstanding this requirement, in Sunapee Difference, we leasing of state - owned properties” to “the governor and coun cil for approval.” RSA 4:40, I, requires submission of “all requests for the disposal or

finder’s report to the council for a vote.” We are unpersuaded. this goal “is not met if the Governor can simply choose to not submit the fact will no doubt attend an impasse.” (Quotations omitted.) In the Unions ’ view, p. 12 12

recommendations, his findings and recommendations shall be If either negotiating team rejects the neutral party’s

RSA 273 - A: p. 12 12, II provides:

was not an unfair labor practice. See RSA 273 - A:5, I(e) & (g). report to the Executive Council for a vote, and, therefore, his refusal to do so A: p. 12 12, II (Supp. 2021) did not require the Governor to submit the fact - finder’s review standards. We b egin by addressing the State’s argument that RSA 273 - We agree with the majority’s summary of the facts and statement of our

respectfully dissent. PELRB erred, and that the State committed no unfair labor practices. We bargaining negotiat ions involving the State. Th e majority concludes that the for a vote; and (2) sent an email to all state employees concerning collective refused to submit the report of a neutral fact - finder to the Executive Council labor practices, in violation of RSA 273 - A:5, I (2010), when the Governor: (1) Employee Labor Relations Board (PELRB) ruled that the State committed unfair HICKS and BASSETT, JJ., dissenting. The New Hampshire Public

dissented. specially assigned under RSA 490:3, concurred; HICKS and BASSETT, JJ., HANTZ MARCONI, J., and ABRAMSON, J., retired superior court justice,

273 - A:5, I(g). report to the Executive Council was an unfair labor practice pursu ant to RSA PELRB erred by ruling that the Governor’s refusal to send the fact - finder’s finder’s report that the Governor has rejected. We therefore conclude that the 273 - A: p. 12 12, II to require a non - binding vote o f the Executive Council on a fact - 138 N.H. at 73. Thus, we will not assume that the legislature intended RSA “increase the pressure on the parties to reach agreement.” Appeal of Derry, negotiations, its no n - binding vote on a fact - finder’s report is less likely to authority, and therefore has no further role in coll ective bargaining RSA 273 - A:3, II(b) (Supp. 2021). Because the Executive Council lacks this accept or reject cost items set forth in collective bargaining agreements. See Council. Unlike the Executive Council, legislative bodies have au thority to presented in this case involves submitting such reports to the Executive submitting fact - finders’ reports to legislative bodies, whereas the question We conclude that Appeal of Derry is distinguishable because it involved

by “increas [ing] the p ressure on the parties to reach agreement.” Id. likely serve this goal by “heighten[ing] public scrutiny of the negotiations” and explained that requiring submission o f the report to the legislative body would p. 13 13

construe it, is inconsistent with Part II, Article 62. Furthermore, even 154 N.H. 457, 466 (2006), we are not persuaded that the statute, as we inescap able grounds, Gen. Elec. Co. v. Comm’n, N.H. Dep’t of Revenue Admin., statutes are presumed constitutional and will only be declared invalid upon power of another.” State v. Carter, 167 N.H. 161, 166 (2014). Given that we have held that it is violated only when one branch usurps “an essential that there must be some overlap among the three branc hes of government, and separation of powers provision in the State Constitution expressly recognizes land.” N.H. CONST. pt. II, art. 62 (emphase s added). In addition, the for ordering and directing th e affairs of the state, according to the laws of the them, or the majority of them, may and shall, from time to time hold a council, authority to convene the council, from time to time, at his discretion; and, with Article 6 2 provides in part: “And the Governor shall have full power and

and Executive Council and undermine the proper functioning of this body.” alter the constitutionally determined roles and responsibilities of the Governor finder’s report be submitted to the Council for a vote “would fundamentally the Council falls within the Governor’s discretion, and requiring that the fact - State contends that under Article 62, the full power and authority to convene government required by the constitution. See N.H. CONST. pt. I, art. 37. The violates the separation of powers a mong the three branches of state authority under Part II, Article 62 of the State Constitution, and thereby finder’s report to the Council for a vote, it encroaches upon the Governor’s The State argues that if the statute mandates submission of the fact -

of RSA 273 - A:12, II. correctly concluded that the State failed to comply with the plain requirements the Council never had an opportunity to vote on it. Accordingly, the PELRB was “submitted” to the Governor, it was never submitted to the Council, and 153 N.H. 351, 354 (2006). Here, even if we assume that the fact - finder’s report enforcement of the provision mandatory. In the Matter of Bazemore & Jack, by law. As the majority acknowledges, use of the word “shall” makes reject so much of the fact - finder’s recommendations as is otherwise permitted shall be submitted to the Governor and Council, which shall vote to accept or 273 - A:12, II provides that t he findings and recommendations of the fact - finder to resolve this issue. When read in conjunction with RSA 273 - A:1, II(a)(1), RSA We need look no further than the plain language of the relevant statutes

“the governor and council.” RSA 273 - A:1, II(a)(1) (2010). employees,” the term “board of the public employer” in RSA 273 - A:1 2, II means We agree with the majority that, in regard to “executive branch state

as is otherwise permitted by law. shall vote to accept or reject so much of his recommendations organization and to the board of the public employer, which submitted to the full membership of the employee p. 14 14

approval. — requests to dispose of or lease state - owned property require the Council’s requirement of submission to the Governor and Council for approval a nullity when the Governor approved it. Thus, our holding did not render the statute’s — the Executive Council retained the authority to reject such a request even owned property, the Governor could not approve such a proposal unilaterally Governor to unilaterally determine not to approve a proposal to lease state to the Council in RSA 4:40 superfluous. While our holding allowed the Second, our holding in Sunapee Difference did not render the references

vote. Difference there was no legislative mandate requiring Governor and Council to lease amendment there at issue. Thus, unlike in the instant case, in Sunapee mandated the Governor and Council to vote to accept or reject the proposed reject the proposal. Nothing in the stat utes construed in Sunapee Difference to Governor and Council, but also that Governor and Council vote to accept or RSA 273 - A:12, II mandates not only that the fact - finder’s report be submitted Sunapee Differe nce is easily distinguished from the instant case. First,

not approve the amendment himself.” Id. at 792. present the proposed lease amendment to the Executive Council when he did those principles, we concluded that RSA 4:40 “did not require the Governor to (quoting Opinion of the Justices, 78 N. E. 311, 312 (Mass. 1906)). Guided by becomes complete and effective.’” Sunapee Difference, 164 N.H. at 791 concurrence shall accompany the affirmative act and enter into it before it pro vision for advice of council is a requirement that their approval and any action is called for, and what action, if any, is desirable; and that the upon the Governor to determine as the supreme executive magistrate whether the Massachusetts court’s reasoning “‘that the responsibility rests primarily was plainly of the opinion that no pardon should be gr anted. We also noted was not obliged to bring before the council an application for pardon when he a Massachusetts Supreme Judicial Court opinion holding that the Governor “the governor with the advic e and consent of the council.” We then considered language, we noted that RSA 21:31 - a (2020) defines “governor and council” as to be submitted “to the governor and council for approval.” Interpreting that provides that requests for the disposal or leasing of state - owned properties are property, not labor negotiations. At issue was RSA 4:40, I (2020), which Sunapee Difference dealt with the disposal or leasing of state - owned

Hampshire, 164 N.H. 778 (2013). We disagree. Council for its c onsideration, citing Sunapee Difference v. State of New that the statute does not require the Governor to submit the report to the Despite the plain language of RSA 273 - A:12, II, the majority concludes

that it usurps “an essential power” of the Governor. assuming that it is inconsistent as the S tate contends, we are not persuaded p. 15 15

ability to veto the Governor’s acceptance of a fact - finder’s report. effective. That definition does not apply to RSA 273 - A:12, II, as it would give the Council the definition, the Council’s approval and concurrence is required in order for a proposal to become consent of the council.” Sunapee Difference, 164 N.H. at 791; see RSA 21:31 - a. Under this that the phrase “governor and council” in RSA 4:40 meant “the gov ernor with the advice and and council” applicable to RSA 4:40 is not applicable here. In Sunapee Difference, we concluded The majority’s reliance upon Sunapee Difference is flawed because the definition of “governor 1

before determining “whether any action is called for, and what action, if any, is coun cil”) as mandating that the Governor always seek the Council’s advice council” in RSA 21:31 - a (“the governor with the advice and consent of the The court declined to construe the statutory definition of “governor and any, is desirable.” Sunapee Difference, 164 N.H. a t 791 (quotation omitted). the Governor to determine “whether any action is called for, and what action, if that, under the statutory scheme at issue, the responsibility lay primarily with Third, our holding in Sun apee Difference rested upon the foundation

legislature did not enact superfluous words). 1 (stating that we must give effect to all words in a statute, and presume that the our canons of statutory construction. See State v. Parr, 175 N.H. 52, 56 (2022) “board of the public employer” means the Governor alone. This is contrary to requiring the Council’s participation. In essence, the majority concludes that upon the fact - finder’s report. Yet the majority interprets RSA 273 - A:12 as not for the board of the public employer under tha t statute is to consider and vote state employees are the roles set forth in RSA 273 - A:12. And the primary role only roles assigned to the board of the public employer of executive branch public employee” is rende red superfluous by the majority’s interpretation. The Similarly, the inclusion of the Council in the definition of “board of the

Council. majority’s construction of RSA 273 - A:12 negates any substantive role for the finder’ s report be submitted to the Governor and Council for a vote ? The the Governor and Council, and what is the purpose of providing that a fact report. What, then, is the purpose of defining “board of the public employer” as A:12, II in those instances in which the union’s negotiating team rejects the fact - finder’s report that he has accepted to the Council pursua nt to RSA 273 - 273 - A:12, II, it follows that there is also no reason for the Governor to submit a that he has rejected to the Council for a non - binding vote pursuant to RSA correct that there is no reason for the Governo r to submit a fact - finder’s report (subject only to approval of cost items by the legislature). If the majority is finder’s report and enter into a collective bargaining agreement with a union Governor could, without consent of the Executive Council, approve a fact - 273 - A:9, I; Appeal of N.H. Troopers Ass’n, 175 N.H. p. 16 167, 177 (2022). Thus, the executive, has the sole authority to direct the negotiation process. See RSA RSA 273 - A:1, I(a)(1) and RSA 273 - A:12, II superfluous. The Governor, as chief Here, in contrast, the majority’s construction renders language in both 16

reconsidering his position or in formulating ne w proposals in his continuing advice and vote of the Council, while non - binding, may aid the Governor in that the report be submitted to the Governor and Council for a vote — the chief executive, prev iously rejected the report, RSA 273 - A:12, II still requires parties in ultimately reaching an agreement. Even though the Governor, as position on the report, is one step mandated by the legislature to assist the finder’s report to the Council, resulting in the expression of the Council’s of reaching agreement on a contract. RSA 273 - A:3, I. Submission of the fact the Governor continues to be obliged to negotiate in good faith towards the goal Governor’s decision to reject the fact - finder’s report does not end the matter — party seeking to obtain or lease the property in question. Here, however, the he was under no obligation to continue to attempt to reach agreement with the was reasonable because under RSA 4:40, the Governor’s decision was final — would be gained by requiring him to submit the proposal to the Council. That approve of a proposal to dispose of or lease state - owned property, then nothing Sunapee Difference, we concluded, for good reason, that if the Governor did not that is intend ed to assist parties in reaching agreement on a contract. In RSA 273 - A:12 is part of a statutory scheme governing labor relations

majority construes the statute. his “vote” to accept or reject it. That would be nonsensical, yet that is how the Governor to “submit” a repo rt, which he has just rejected, to himself alone, for paraphrase Sunapee Difference, nothing could ever be gained by requiring the take no action on that same report, then the statute serves no purpose. To Gove rnor, who just rejected the fact - finder’s report, to unilaterally decide to to submit that same report to the Council for a vote. If the statute permits the Governor, who just rejected the fact - finder’s report, unilaterally decide whether is incongruous at best to construe RSA 273 - A:12, II as requiring only that the A:12, II that the report be submitted to the Governor and Council for a v ote. It finder’s report. It was that action that triggered the requirement in RSA 273 responsibility as “supreme executive magistrate” when he rejected the fact governor as chief executive,” RSA 273 - A:9, I. The Governor exercised his the Public Employee Labor Relations Act, the State is “represented by the called for, and what action, if any, is desirable. Id. (quo tation omitted). Under to determine, “as the supreme executive magistrate,” whether any action is A:12, II does not involve a responsibility that rests primarily upon the Governor of whether the fact - finder’s report should be submitted for a vote. RSA 273 - Here, by contrast, the legislature has specifically addressed the question

conditions.” Id. (quotation omitted). could ever be gained by asking the council to give advice under such from the above - referenced Massachusetts case, the court noted that “[n]othing submit the proposed amendment to the Council for a vote. See id. Quoting RSA 4:40, I, it would be illogical to construe the statute as requiring him to determined that the proposed lease amendment should not be approved under desirable.” In other words, the court concluded that, once the Governor p. 17 17

negotiate and enter into collective bargaining agreements. Thus, nothing was not binding — school boards, not legislative bodies, have a uthority to items. The court explained that the legislative body’s vote on non - cost items First, the fact - finder’s report in Appeal of Derry involved purely non - cost

of Derry, 138 N.H. at 73. Th is attempt fails for two reasons. “less likely” to increase the pressure on the parties to reach agreement. Appeal Council lacks this authority, its non - binding vote on a fact - finder’s report is A:3, II(b) (Supp. 2021). The majority concludes that because the Executive reject cost items set forth in collective bargaining agreements. See RSA 273 unlike the Executive Council, legislative bodies have authority to accept or it involved submitting a fact - finder’s report to a legislative body, arguing that The majority attempts to distinguish Appeal of Derry on the grou nd that

Governor has already rejected the report. require submission to and a vote by the Council despite the fact that the the r eport when RSA 273 - A:12, II comes into play — the statute is intended to the statutory scheme anticipates that the Governor may have already rejected vote simply because the Governor has rejected the fact - finder’s report. Indeed, here that nothing could ever be gained by asking the Council to give advice and pressure on the parties to reach agreement. See id. Thus, it is not the case expression of the Executive Council’s position on the report can increase the binding vote can heighten public scrutiny of the negotiations, and the was true in Appeal of Derry, submissio n of the report to the Council for a non and Council for their consideration and a vote furthers that same purpose. As Here, requiring that the fact - finder’s report be submitted to the Governor

the statute as requiring that the report be submitted. could increase the pressure on the parties to reach agreement, we const rued Appeal of Derry would likely heighten public scrutiny of the negotiations and Noting that s ubmission of the fact - finder’s report to the legislative body in vulnerable to the publicity that will no doubt att end an impasse. Id. at 73. broaden participation in impasse negotiations and to make the parties legislative history and determined that part of RSA 273 - A:12’s purpose is to Educ. Assoc., 138 N.H. 69, 73 (1993). To answer that question, we examined body cannot bind the parties by a vote on non - cost items. Appeal of Derry only non - cost items to its legislative body for review, even though the legislative R SA 273 - A:12, III(a) requires a school board to submit a fact - finder’s report on report. In Appeal of Derry Education Association, we considered whether requirement in RSA 273 - A:12, II that the Governor and Council vote on the Moreover, our case law makes clear why the legislature included the

reach agreement on a contract. where the Governor has an ongoing duty to negotiate in good faith in ord er to rationale supporting the result in Sunapee Difference does not apply here, efforts, required by RSA 273 - A:3, to reach agreement on a contract. Thus, the p. 18 18

A:5, I(a) and (b).” Id. at 439 (emphasis added). union failed to demonstrate “interference . . . within the meaning of RSA 273 - “did not contain elements of ‘intimidation, coercion, or misrepresentation,’” the explains, in that case the court held that, because the employer’s statements Appeal of City of Portsmouth, 140 N.H. 435, 438 (1995). As the majority speech constitutes ‘interference’ within the meaning of RSA chapter 273 - A.” In Appeal of City of Portsmouth, the court addressed the issu e of “what

rights conferred by this chapter,” RSA 273 - A:5, I(a). coerc[ing] or otherwise interfer[ing] with its employees in the exercise of the A:5, I, prohibits pub lic employers from, among other things, “restrain[ing], Appeal of Town of Hampton, 154 N.H. 132, 134 (2006). In addition, RSA 273 the negotiating process and frustrates the purpose of RSA chapter 273 - A.” directly with employees is generally forbidden because it seriously compromises in good faith with the exclusive representative of a bargaining unit.” “Dea ling RSA 273 - A:5, I(e) prohibits public employers from refusing “to negotiate

Again, we respectfully disagree. stat e employees in the exercise of their rights under RSA chapter 273 - A. argues that the PELRB erred by ruling that the Governor’s email interfered with We now turn to the second issue presented by this appeal. The State

for a vote. the Governor refused to submit the fact - finder’s report to the Executive Council PELRB’s determination that the State committed an unfair labor practice when Council renders the statute nonsensical. Accordingly, we would affirm the unilaterally refer the same report to himself absent advice or input from the statute as permitting the Governor, after rejec ting a fact - finder’s report, to a vote furthers the purpose of R SA 273 - A:12, II. Moreover, construing the submission of the fact - finder’s report to the Council for a vote. Requiring such We conclude t hat the plain language of RSA 273 - A:12, II required

directly at odds with both its plain language and acknowledged purpose. factual situations is no t a sound reason to construe the statute so that it is Whether that legislative purpose is “less likely” to be fulfilled here than in other and doing so furthers the legislature’s purpose in enacting RSA 273 - A:12, II. Governor and Council “shall vote to accept or reject” the fact - finder’s report, Plaisted, 149 N.H. 522, 526 (2003). The legislature has determined that the of public policy are reserved for the legislature. In the Matter of Plaisted & Second, it is not the court’s role to second - guess the legislature. Matters

the fact - finder’s report in Appeal of Derry. parties to r each agreement than the non - binding vote of the legislative body on Council on a fact - finder’s report is less likely to increase the pressure on the supports the majority’s speculation that a non - binding vote of the Executive p. 19 19

material, misleading statement. It w as sent just 90 minutes before the SEA’s portal regularly accessed by state employees. It contained at least one email, and soon thereafter a link to the email was posted on the NH First web The email was sent directly to bargaining unit employees using work

by competent evidence in the record. See RSA 541:13 (2021). the unions.” This ruling is neither unjust nor unreasonable, and is supported reject the fact - finder’s report, and reject any contrary recommendations from employees to pressure the unions to accept the State’s bargaining proposal, bargaining position to the bargaining unit made in an effort to convince ruled, however, that the email constituted “a direct presentation of the State’s otherwise to exert undue influence upon SEA’s me mbership vote.” The PELRB part of an attempt to coerce employees to reject the fact - finder’s report or differed from the fact - finder’s report, . . . any such misrepresentation was not the Governor’s email misrep resented the extent to which the State’s proposal therefore, telling. Instead, the majority concludes that “[e]ven assuming that contain a misrepresentation, it would have said so. That it did not so find, is, If the majority could have found that the Governor’s email did not

offers 1. 16% in year 1 and 1.16% in year 2.” and 1.16% in year 2 whereas the proposal o utlined in the Governor’s email the fact that the fact finder recommended a wage increase of 2.86% in year 1 As the PELRB aptly stated, “It is difficult to reconcile this characterization with old contract that had previou sly been agreed upon in good faith by all parties.” fact - finder’s recommendations, with the single recommendation to re - open an statement in the Governor’s email that the State had “proposed nearly all the supported by competent evidence in the record. Most significant is the differences between the two, particularly with respect to wages.” This finding is fact finder’s recommendations even though there are clear substantive the email “includes language designed to align the State’s proposal with the Youth Services Center), 171 N.H. 391, 394 (2018). Here, the PELRB found that are supported by competent evidence in the record. Appeal of SEA (Sununu reweigh the evidence, but, rather, to determine whether the PELRB’s findings determine whether we would have found differently from the PELRB or to We note, as does the majority, that our task on appeal is not to

absorbed increased healthcare costs under the State’s proposal. argue that the email misstated the extent to which the State would have previously been agreed upon in good faith by a ll parties.” The Unions further exception of a single recommendation to re - open an old contract that had proposal included “nearly all the fact - finder’s recommendations, with the favored the un ion leadership’s requests,” and his statement that the State’s proposal that was nearly identical to the fact - finder’s conclusions and heavily the fact - finder’s report, he “instructed State negotiators to put forward a misrepresentations, including the Governor’s statement that, upon receiving Here, the Unions contend that the Governor’s email containe d several p. 20 20

we respectfully dissent. for a vot e in violation of RSA 273 - A:12 and by sending the December 3 email, practices by failing to submit the fact - finder’s report to the Executive Council Because we agree with the PELRB that the State committed unfair labor

membership vote.” rejec t the fact - finder’s report or otherwise to exert undue influence upon SEA’s statements in the email were “not part of an attempt to coerce employees to soon be delivered. Thus, we do not agree with the majority that the misleading the Governor’s hope that a new contract based on the State’s proposal could made directly to employees . . . might be expected to include.” And it expressed captured, as the PELRB stated, “the essence of what a bargaining presentation scheduled informational meeting on the fact - finder’s recommendations. It p. 21 21