New Hampshire Dept. of Revenue Administration v. Public Emp. Labor Relations Bd., 7739

• Decision Date: 02 December 1977
• Docket Number: No. 7739,7739
• Parties: , 97 L.R.R.M. (BNA) 2095 The NEW HAMPSHIRE DEPARTMENT OF REVENUE ADMINISTRATION v. PUBLIC EMPLOYEE LABOR RELATIONS BOARD and the State Employees Association of New Hampshire, Inc.
• Court: New Hampshire Supreme Court

Page 1085

380 A.2d 1085

117 N.H. 976, 97 L.R.R.M. (BNA) 2095

The NEW HAMPSHIRE DEPARTMENT OF REVENUE ADMINISTRATION v. PUBLIC EMPLOYEE LABOR RELATIONS BOARD and the State Employees Association of New Hampshire, Inc.

No. 7739.

Supreme Court of New Hampshire.

Dec. 2, 1977.

David H. Souter, Atty. Gen., and Wilbur A. Glahn III, Asst. Atty. Gen., for the State.

Cleveland, Waters & Bass, Concord (Howard J. Zibel, Concord, orally), for the State Employees Association.

Sheehan, Phinney, Bass & Green, Manchester (Bradford E. Cook, Manchester, orally), for the Public Employee Labor Relations Board.

DOUGLAS, Justice.

This is an appeal from the Public Employee Labor Relations Board's (PELRB) certification of a bargaining unit within the Department of Revenue Administration under RSA ch. 273-A (Supp.1975). After an extended course of negotiations between the Department and the State Employees' Association (SEA), which sought the certification, the Board unanimously included within the unit eleven employees that the Department sought to exclude six as supervisory personnel, RSA 273-A:8 II (Supp.1975), and five as confidential employees. RSA 273-A:1 IX(c) (Supp.1975). In its appeal, the Department named both the SEA and the Board as appellees. The Department contends inter alia that the Board committed errors of fact and law in deciding that the eleven employees were neither confidential nor supervisory. It disagrees with the Board for failing to compile an adequate record for review and at very least requests a remand for that purpose.

In reviewing a decision of (an administrative agency), a court must consider both the facts found and the application of the relevant statute by the agency." E. I. du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 54, 97 S.Ct. 2229, 2234, 53 L.Ed.2d 100 (1977). Administrative interpretation of a statute is entitled to deference, but is not ordinarily controlling. Batterton v. Francis, 432 U.S. 416, 424, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); E. I. du Pont de Nemours & Co. v. Collins, supra 97 S.Ct. at 2234. However, when the legislature has entrusted the administrative agency with the primary authority for interpreting the statute, such interpretations may have persuasive effect. Batterton v. Francis, supra 97 S.Ct. at 2405; see General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).

We believe that the legislature intended to vest the Board with primary authority to define the terms "supervisory" and "confidential" as used in RSA ch. 273-A (Supp.1975). Those terms are employed in the statute without any elaboration. In contrast, the National Labor Relations Act is quite explicit in defining "supervisor." 29 U.S.C.A. § 152(11) (1973). Considering the importance of this act and its long history, the General Court was certainly aware of its existence and could have relied upon it to delineate the term in the state law. That the legislature chose to ignore the convenient definition, or create its own, is significant. Cf. RSA 273-A:1, 13 (Supp.1975) (definitions of other terms used in chapter 273-A). Furthermore, as the SEA argues, we implicitly recognized the Board's authority to define "supervisor" in University System v. State, 117 N.H. 96, 369 A.2d 1139 (1977). In that case, we upheld the Board's exclusion of personnel from that category who would have qualified as supervisors under the NLRA. Since there is no other definition available in the statute or its legislative history, the logical body to develop the meaning of ambiguous terms is the one to which the legislature committed the administration of the statute, the PELRB. Thus, we believe that the Board's determination that the eleven disputed employees were not excluded as supervisory or confidential would be upheld unless it constitutes a gross abuse of discretion.

However, we are not able to affirm the Board's order in this case. Even though our review is limited, we require that the administrative agency develop a record for its decision. Foote v. State Personnel Comm'n, 116 N.H. 145, 148, 355 A.2d 412, 414 (1976); Society for Protection of N. H. Forests v. Site Evaluation Comm., 115 N.H. 163, 172-74, 337 A.2d 778, 786-87 (1975). The Board has failed to disclose which standard from among many suggested it is using to determine whether these employees are excluded. Nor has it made findings of basic fact regarding the application of that standard. Scarborough v. Arnold, 117 N.H. ---, 379 A.2d 790 (1977). The Department argues that this failure justifies a remand; the SEA rejoins that the facts here are relatively simple, see Foote v. State Personnel Comm'n, supra 116 N.H. at 148, 355 A.2d at 414, and that the case can be decided on the transcript below and the briefs. It also contends that as the Department had within its control the knowledge of the employees' functions, it had the burden of going forward with the evidence to justify exclusion from the bargaining unit. See K. Davis, Administrative Law Text § 14.12 (3d ed. 1972). Whether either of the SEA's arguments would justify reviewing this case...