In re State Employees' Ass'n of N.H., Inc.

• Decision Date: 14 January 2009
• Docket Number: No. 2008–032.,2008–032.
• Citation: In re State Employees' Ass'n of N.H., Inc., 158 N.H. 258, 965 A.2d 1103 (N.H. 2009)
• Court: New Hampshire Supreme Court
• Parties: Appeal of STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC., SEIU, LOCAL 1984 (New Hampshire Public Employee Labor Relations Board).

158 N.H. 258

965 A.2d 1103

Appeal of STATE EMPLOYEES' ASSOCIATION OF NEW HAMPSHIRE, INC., SEIU, LOCAL 1984 (New Hampshire Public Employee Labor Relations Board).

No. 2008–032.

Supreme Court of New Hampshire.

Argued: Nov. 19, 2008.

Opinion Issued: Jan. 14, 2009.

Cook & Molan, P.A., of Concord (Glenn R. Milner on the brief and orally), for the petitioner.

Nolan Perroni Harrington, LLP, of Lowell, Massachusetts (Peter J. Perroni on the brief and orally), for the respondent.

DALIANIS, J.

The petitioner, the State Employees' Association of New Hampshire, Inc., SEIU, Local 1984(SEA), appeals an order of the New Hampshire Public Employee Labor Relations Board (PELRB) denying SEA's motion to dismiss the certification petitions filed by the respondent, the New England Police Benevolent Association (NEPBA), in which NEPBA sought to represent a bargaining unit of certain officers employed by the New Hampshire Department of Corrections (DOC). In denying the motion to dismiss, the PELRB ruled that the 2007–2009 collective bargaining agreement between the State and SEA did not bar the certification petitions. See RSA 273–A:11, I(b) (1999). We reverse and remand.

The parties stipulated to or the record supports the following facts. SEA has negotiated with the State on behalf of DOC employees since 1976, when the PELRB recognized SEA as their representative pursuant to State Employees' Assoc. v. New Hampshire Public Employee Labor Relations Board, 116 N.H. 653, 655–56, 366 A.2d 494 (1976). See Appeal of State Employees' Assoc. of N.H., 156 N.H. 507, 508, 939 A.2d 209 (2007). The most recent collective bargaining agreement (CBA) between the State and SEA was executed on July 19, 2007. Article 21.1 of that agreement provides: "This Agreement as executed by the Parties is effective July 1, 2007 and shall remain in full force and effect through June 30, 2009 or until such time as a new Agreement is executed." The 2005–2007 CBA included a similar provision: "This Agreement as executed by the Parties is effective July 1, 2005 and shall remain in full force and effect through June 30, 2007 or until such time as a new Agreement is executed."

The State and SEA began negotiating the 2007–2009 CBA in January 2007. After more than thirty bargaining sessions, they reached a tentative oral agreement on June 14, 2007, which was reduced to a writing the following day, and finalized on or before June 20, 2007. This tentative agreement was submitted to the joint committee on employee relations for approval, see RSA 273–A:9 (Supp.2008), and, on June 27, 2007, its cost items were funded by the legislature, see RSA 273–A:3, II (1999). The tentative agreement was submitted to union members on June 22, 2007; voting on ratification closed on July 5, 2007. On July 9, 2007, NEPBA filed the instant petitions. Later that evening, SEA officials counted union member votes and certified that the tentative agreement was ratified by a vote of 1607 to 1405. On July 19, 2007, the Governor and SEA President signed the 2007–2009 CBA.

Even though the 2007–2009 CBA was not actually signed until July 19, 2007, its effective date, pursuant to Article 21.1, was July 1, 2007. As a result, various new terms and conditions of employment became effective for SEA bargaining unit employees before that CBA was signed. For instance, effective July 1, 2007, SEA bargaining unit members received increased reimbursement for certain expenditures and their dental plan began covering dental x-rays at 100%. Similarly, salary increases and employee contribution to health insurance premiums became effective July 6, 2007.

SEA moved to dismiss the NEPBA petitions on the ground that they were barred by the "contract bar rule" set forth in RSA 273–A:11, I(b). The PELRB hearing officer disagreed. SEA moved for rehearing, which the PELRB denied. The representation election was held in January 2008. NEPBA prevailed in the election, and this appeal followed.

When reviewing a decision of the PELRB, we defer to its findings of fact, and, absent an erroneous ruling of law, we will not set aside its decision unless the appealing party demonstrates by a clear preponderance of the evidence that the order is unjust or unreasonable. Appeal of Merrimack County, 156 N.H. 35, 39, 930 A.2d 1202 (2007) ; see RSA 541:13 (2007).

Resolving the issues on appeal requires that we interpret various provisions of RSA chapter 273–A. We are the final arbiters of legislative intent as expressed in the words of a statute considered as a whole. Appeal of Goffstown Educ. Support Staff, 150 N.H. 795, 799, 846 A.2d 1179 (2004). We begin by examining the statutory language itself, where possible ascribing the plain and ordinary meanings to the words used. Id. We do not look beyond the language of a statute to determine legislative intent if the language is clear and unambiguous. Id. Moreover, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id.

RSA 273–A:11, I(b), which governs the timing of representation elections, states:

Public employers shall extend ... to the exclusive representative of a bargaining unit ... [t]he right to represent the bargaining unit exclusively and without challenge during the term of the collective bargaining agreement. Notwithstanding the foregoing, an election may be held not more than 180 nor less than 120 days prior to the budget submission date in the year such collective bargaining agreement shall expire.

Under this provision, referred to as the "contract bar rule," see Appeal of State Employees' Assoc. of N.H., 156 N.H. at 508, 939 A.2d 209, a CBA bars an election for a new representative unless the election occurs "not more than 180 nor less than 120 days prior to the budget submission date in the year such collective bargaining agreement shall expire." RSA 273–A:11, I(b).

While the statutory contract bar rule concerns actual elections, the PELRB has promulgated New Hampshire Administrative Rules, Pub. 301.01 (Rule 301.01), which applies to certification petitions, and provides, in pertinent part:

(a) A petition for certification as the exclusive representative of a bargaining unit having no certified representative may be filed at any time. A petition for certification as the exclusive representative of a bargaining unit for which a collective bargaining agreement constituting a bar to election under RSA 273–A:11, I(b) presently exists shall be filed no more than 240 days and no less than 180 days prior to the budget submission date of the affected public employer in the year that agreement expires, notwithstanding any provisions in the agreement for extension or renewal.

(b) Any petition filed less than 180 days prior to the budget submission date of the affected public employer shall be accompanied by an explanation of why the petition could not have been filed sooner. The board shall refuse to entertain any petition filed so close to the budget submission date of the affected employer that the board cannot reasonably conduct the election called for in the petition within 120 days of the budget submission date.

Under this rule, where, as here, an exclusive bargaining representative is in place, a certification petition may not be filed sooner than 210 days nor later than 150 days before the employer's budget submission date in the year that the agreement expires. "The purpose for creating such a window is to allow for the conduct of an orderly election and still leave sufficient time, deemed 120 days prior to the budget submission date, for the parties to negotiate a CBA." Donald E. Mitchell, N.H. Public Employee Labor Relations Board, Selected Procedures and Practices before the New Hampshire Public Employee Labor Relations Board, at http://www.nh.gov/pelrb/abou t.htm# A.% 20PETITION% 20FOR% 20CERTIFICATION% 20OF% 20 BARGAININGÜNIT. Rule 301.01(a) ensures that "proper certification petitions submitted during the filing window will ultimately result in the conduct of an election within the ‘election window’ " set forth in RSA 273–A:11, I(b). Classified Employee Petitioners of the New Hampshire Office of Information Technology, No. S–0411–3 (PELRB Oct. 16, 2006),at http://www.nh.gov/pelrb/Decisions/2006/2006–181a.htm.

The parties' dispute centers upon the first sentence of RSA 273–A:11, I(b), which insulates a certified representative from challenge "during the term of the collective bargaining agreement." NEPBA contends that its petitions were not filed "during the term of the collective bargaining agreement," because by July 9, 2007, the 2005–2007 CBA had expired and the 2007–2009 CBA had not yet been executed. Relying upon decisions by the National Labor Relations Board (NLRB) interpreting its contract bar rule, NEPBA asserts that, for a contract to act as a bar to a certification petition, it must be signed by the parties. See Appalachian Shale Products Co., 121 N.L.R.B. 1160, 1162 (1958). Because the 2007–2009 CBA was not signed until after NEPBA filed its petitions, it did not bar them.

SEA counters that, even if we assume, without deciding, that the 2005–2007 CBA expired on June 30, 2007, but cf. Appeal of N.H. Dep't of Safety, 155 N.H. 201, 203, 921 A.2d 924 (2007), the 2007–2009 CBA barred the petitions because before NEPBA filed them, this CBA had been reduced to a writing, the legislature had approved legislation to fund all of its cost items, and voting on ratification had closed. Under these circumstances, SEA urges, the 2007–2009 CBA barred NEPBA's petitions.

Based upon our review of the relevant statutory scheme, construed as a whole, we hold that SEA's position best comports with the legislature's intent as expressed in the plain meaning of the pertinent statutes. We conclude, therefore, that the PELRB erred when it ruled that the 2007–2009 CBA could not act as a bar to NEPBA's petitions because the CBA had not been executed when those petitions were filed.

RSA chapter 273–A governs collective bargaining for state employees. This...