In re Laconia Patrolman Ass'n

• Decision Date: 08 February 2013
• Docket Number: No. 2012–057.,2012–057.
• Citation: 62 A.3d 787,164 N.H. 552
• Parties: Appeal of LACONIA PATROLMAN ASSOCIATION (New Hampshire Public Employee Labor Relations Board).
• Court: New Hampshire Supreme Court

164 N.H. 552

62 A.3d 787

Appeal of LACONIA PATROLMAN ASSOCIATION (New Hampshire Public Employee Labor Relations Board).

No. 2012–057.

Supreme Court of New Hampshire.

Argued: Oct. 11, 2012.

Opinion Issued: Feb. 8, 2013.

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

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

BASSETT, J.

The petitioner, Laconia Patrolman Association (Association), appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB) finding that the respondent, the Laconia Police Commission (Commission), did not commit certain unfair labor practices. We affirm.

The parties stipulated to, or the administrative record supports, the following facts. The Association represents police officers and detectives in the Laconia Police Department. The Association and the Commission had a collective bargaining agreement (CBA) that expired on June 30, 2010. Before the CBA expired, the Association and the Commission reached a tentative agreement on a successor CBA. During negotiations, Laconia's city manager informally reviewed the parties' proposals and recommended changes that she believed would improve their chances of obtaining the approval of the Laconia City Council (Council). The parties incorporated the city manager's suggestions into the tentative agreement, which was ratified by the parties.

The tentative agreement was presented to the Laconia City Council for approval on February 8, 2010. At that meeting, the city manager said that she could no longer support the tentative agreement. Several Council members expressed concern that the agreement granted increased leave and compensatory time to employees and would result in increased retirement pay-outs. The Council requested a new draft of the agreement, and the members went through each line of the agreement suggesting changes to specific provisions. The Council did not take a formal vote on the tentative agreement until October 2010 when it rejected the cost items contained therein.

On June 24, the Commission, knowing that the Council wanted it to reduce its budget by $35,000, nonetheless voted to grant step increases effective after the expiration of the CBA on July 1. In response, the Council voted on June 28 to remove $100,000 from the Commission's budget. Two days later, the Commission rescinded its previous vote.

The Association filed an unfair labor practice charge with the PELRB, alleging that the Commission violated RSA 273–A:3, II (2010) when it failed to ensure that the Council voted upon cost items within thirty days. It further alleged that the Council interfered with the negotiations and that the Commission's acquiescence to the Council's interference amounted to a failure to bargain in good faith. The Association also claimed that the Commission committed an unfair labor practice when it rescinded the step increases.

The case was submitted to the PELRB on stipulated facts and documentary evidence. The PELRB ruled that the Council's failure to vote on the cost items in the tentative agreement within thirty days, as required by RSA 273–A:3, II(c), did not constitute an unfair labor practice by the Commission. The PELRB stated that "the [Commission] cannot be held responsible for an unfair labor practice based on the conduct of the [Council], at least on the record presented for decision in this case." It found that the Commission had "no control or authority over whether the [Council] discharge[d] its statutory responsibility," and there was "no evidence suggesting that the Commission promoted or encouraged the [Council] to abdicate its duty to vote within the thirty day period."

To the extent that the Association argued that the Council interfered improperly with the Commission's bargaining power, the PELRB determined that such claims could not be brought against the Commission. It further stated that the record was insufficient to establish that the Council improperly usurped the Commission's bargaining authority.

The PELRB also ruled that the Commission did not commit an unfair labor practice when it rescinded the step increases. The PELRB determined that the Commission was not obligated to provide the post-CBA step increases under the status quo doctrine. It further stated that the step increases were cost items that required the Council's approval, and, absent its approval, the Commission "retained the right to reverse its earlier vote and withhold" the step increases.

On appeal, the Association argues that the PELRB erred when it ruled that the Commission was not required to ensure that the Council voted on the tentative agreement within thirty days. It further argues that the PELRB erred when it failed to find that the Commission ceded its responsibilities to the Council. Finally, it argues that the Commission engaged in an unfair labor practice when it rescinded the step increases.

In reviewing a decision of the PELRB, "[w]e adhere to the standard of review set forth in RSA 541:13 (2007)." Appeal of Town of Deerfield, 162 N.H. 601, 602, 34 A.3d 734 (2011). "[T]he order or decision appealed from shall not be set aside or vacated except for errors of law, unless [we are] satisfied, by a clear preponderance of the evidence before [us], that such order is unjust or unreasonable." RSA 541:13. "This court is not free to substitute its judgment on the wisdom of an administrative decision for that of the agency making the decision." Appeal of Prof. Firefighters of E. Derry, 138 N.H. 142, 145, 635 A.2d 1352 (1993). "The PELRB's findings of fact are presumptively lawful and reasonable, and will not be disturbed if they are supported by the record." Appeal of Town of Deerfield, 162 N.H. at 602, 34 A.3d 734. "However, we act as the final arbiter of the meaning of the statute, and will set aside erroneous rulings of law." Id.

We first address whether the PELRB erred in ruling that the Commission was not responsible for ensuring that the Council voted on the tentative agreement's cost items within thirty days. Resolution of this issue requires that we interpret the language of RSA 273–A:3, II. In matters of statutory interpretation, we are the final arbiters of the intent of the legislature as expressed in the words of the statute considered as a whole. Prof. Fire Fighters of Wolfeboro v. Town of Wolfeboro, 164 N.H. 18, 20–21, 48 A.3d 900 (2012). When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. at 21, 48 A.3d 900. We do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Frost v. Comm'r, N.H. Banking Dep't, 163 N.H. 365, 375, 42 A.3d 738 (2012).

RSA 273–A:3, II(b) provides, in pertinent part, that "[o]nly cost items shall be submitted to the legislative body of the public employer for approval." RSA 273–A:3, II(c) provides, in pertinent part:

If the public employer is a local political subdivision with a city or town council form of government cost items shall be submitted within 30 days to the city council or aldermen or to the town council for

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