Appeal of City of Concord

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Public Employee Labor Relations Board
No. 2014-0801
APPEAL OF CITY OF CONCORD
(New Hampshire Public Employee Labor Relations Board)
Argued: September 16, 2015
Opinion Issued: January 26, 2016
City Solicitor’s Office, of Concord (James W. Kennedy, city solicitor, on
the brief and orally), for the petitioner.
Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and
orally), for the respondent.
HICKS, J. The petitioner, the City of Concord (City), appeals a decision
of the New Hampshire Public Employee Labor Relations Board (PELRB) that a
grievance filed by the respondent, the Concord Police Supervisor[s’] Association
(Union), and a retired bargaining unit member is arbitrable pursuant to the
parties’ collective bargaining agreement (CBA). We affirm.
The pertinent facts follow. The City and the Union were parties to a CBA
that expired on December 31, 2012. Lieutenant Paul Leger retired on January
31, 2013, while negotiations for a successor CBA were ongoing. Negotiations
for the successor CBA culminated in an agreement signed on December 19,
2013, nearly eleven months after Leger retired. The successor CBA gives
certain employees a 2.25% cost-of-living wage adjustment (COLA), retroactive
to January 1, 2013, and establishes a grievance procedure ending in binding
arbitration. The successor CBA states that it covers the period from January
1, 2013, to December 31, 2015, but also provides that it will be in “full force
and effect” from the date on which “it is ratified and signed by both parties.”
For ease of reference, we refer to the CBA that expired on December 31, 2012,
as “the expired CBA” and to the CBA that was signed on December 19, 2013,
as “the successor CBA.”
In March 2014, more than a year after Leger retired, he and the Union
filed a grievance with the City because he did not receive the COLA effective
January 1, 2013 (the Leger grievance). The City denied the grievance, and the
Union subsequently demanded arbitration.
In April 2014, the City filed an unfair labor practice complaint with the
PELRB, alleging that the Union’s demand for arbitration constituted an unfair
labor practice under RSA 273-A:5, II(f), (g) (2010) because the Leger grievance
was not arbitrable under the terms of the successor CBA. The PELRB
dismissed the City’s unfair labor practice complaint and found the grievance
arbitrable because it could not “say, with positive assurance, that the
[successor] CBA is not susceptible of an interpretation which covers the Leger
grievance.” The City unsuccessfully moved for rehearing, and this appeal
followed.
The issue before us is limited to whether the PELRB erred when it
concluded that the Leger grievance is arbitrable under the successor CBA and,
therefore, that the Union did not commit an unfair labor practice when it
submitted the arbitration demand. The parties argue the merits of the
grievance, but those arguments are not properly before us. See Appeal of Town
of Bedford, 142 N.H. 637, 639 (1998); see also AT&T Technologies v.
Communications Workers, 475 U.S. 643, 649-50 (1986). Although the Union
implies that the PELRB lacked jurisdiction to decide arbitrability, it is well-
settled that “[u]nless the parties clearly and unmistakably provide otherwise,
the question of whether the parties agreed to arbitrate is to be decided by the
PELRB, not the arbitrator.” Appeal of Town of Durham, 149 N.H. 486, 488
(2003) (quotation and brackets omitted). The Union fails to identify where the
parties “clearly and unmistakably” agreed that arbitrability was to be decided
by the arbitrator.
RSA chapter 541 governs our review of PELRB decisions. See RSA 273–
A:14 (2010); RSA 541:2 (2007). Under RSA 541:13 (2007), we will not set aside
the PELRB’s order except for errors of law, unless we are satisfied, by a clear
preponderance of the evidence, that it is unjust or unreasonable. Appeal of
N.H. Retirement System, 167 N.H. 685, 689-90 (2015). The PELRB’s findings
of fact are presumed prima facie lawful and reasonable. RSA 541:13. “In
reviewing the PELRB’s findings, our task is not to determine whether we would
have found differently or to reweigh the evidence, but, rather, to determine
whether the findings are supported by competent evidence in the record.”
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Appeal of N.H. Retirement System, 167 N.H. at 690 (quotation omitted). We
review the PELRB’s rulings on issues of law de novo. Id.
We will not reverse the PELRB’s decision that the grievance in this case
is arbitrable “unless we can say with positive assurance that the CBA’s
arbitration clause is not susceptible of a reading that will cover the dispute.”
Appeal of City of Nashua, 132 N.H. 699, 701 (1990). Other principles guiding
our analysis include: (1) arbitration is a matter of contract, and a party cannot
be required to submit to arbitration any dispute that it has not agreed to
submit; (2) unless the parties clearly state otherwise, the question of whether
the parties agreed to arbitrate is to be decided by the court, not the arbitrator;
(3) a court should not rule on the merits of the parties’ underlying claims when
deciding whether they agreed to arbitrate; and (4) under the “positive
assurance” standard, when a CBA contains an arbitration clause, a
presumption of arbitrability exists, and in the absence of any express provision
excluding a particular grievance from arbitration, only the most forceful
evidence of a purpose to exclude the claim from arbitration can prevail. Appeal
of Town of Bedford, 142 N.H. at 639 (quotation omitted); see AT&T
Technologies, 475 U.S. at 648-50.
Under the positive assurance standard, we may conclude that the
arbitration clause does not include a particular grievance only if we determine
with positive assurance that the CBA is not susceptible of an interpretation
that covers the dispute. Appeal of Town of Bedford, 142 N.H. at 640; see AT&T
Technologies, 475 U.S. at 650. However, the principle that doubt should be
resolved in favor of arbitration does not relieve us of the responsibility of
applying traditional principles of contract interpretation in an effort to
ascertain the intention of the contracting parties. Appeal of Town of Bedford,
142 N.H. at 640.
To determine whether the subject grievance is arbitrable, we first
examine the relevant language of the CBA as that language reflects the parties’
intent. Id. at 641. “This intent is determined from the agreement taken as a
whole, and by construing its terms according to the common meaning of their
words and phrases.” Id. (quotation omitted).
We begin with Article XVII of the successor CBA, which sets forth a four-
step grievance procedure. That article defines a “grievance . . . as a claim or
dispute by an Employee arising out of the application or interpretation of this
Agreement, under express, written provisions of this Agreement.” The first step
of the grievance process requires an “Employee” to “notify the Deputy Chief in
the Employee’s chain of Command of the grievance.” The grievance proceeds to
step two of the process if it “remains unresolved following the decision of the
Deputy Chief.” At step two, the grievance is then submitted in writing to the
Police Chief. The grievance proceeds to step three if it “remains unresolved
following the decision of the Police Chief.” At step three, “the UNION may
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submit said grievance to arbitration.” Step four governs the binding arbitration
process itself.
Article XVII specifies that certain disputes are expressly excluded from
the grievance process. Pursuant to Section 8 of Article XVII, excluded from the
grievance process are “[q]uestions involving the City Charter, City Ordinances,
published policies and regulations, provisions of RSA 273-A and other
provisions of law or policies and regulations of appropriate authorities outside
the City.” Also excluded from the process is “any matter for which statutory
appeals procedures exist.”
The grievance and arbitration provision, thus, limits arbitration to
“grievance[s],” defines “grievance[s]” as disputes or claims by “Employee[s],”
and specifies that the dispute or claim must arise out of “the application or
interpretation” of the successor CBA “under [its] express, written provisions.”
To determine who is an “Employee,” we examine Article II of the
successor CBA, which is the recognition clause. That article provides, in
relevant part, that the Union is “the exclusive bargaining agent for all full time
non-probationary Police Sergeants, Police Lieutenants, non-probationary
Parking Supervisors and non-probationary Dispatch Supervisors or their
successor titles (herein after called ‘Employees’ as defined pursuant to RSA
273-A:1).” The recognition clause, thus, defines the word “Employee” by
identifying the bargaining unit positions to which the word refers and by
incorporating, by reference, the statutory definition of “Public employee,” RSA
273-A:1, IX (2010).
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. Appeal of Laconia Patrolman Assoc., 164 N.H. 552, 555 (2013). When
examining the language of the statute, we ascribe the plain and ordinary
meaning to the words used. Id. Our goal is to apply statutes in light of the
legislature’s intent in enacting them, and in light of the policy sought to be
advanced by the entire statutory scheme. In the Matter of Liquidation of Home
Ins. Co., 166 N.H. 84, 88 (2014). We review the PELRB’s statutory
interpretation de novo. See Appeal of Town of Deerfield, 162 N.H. 601, 602
(2011); see also Appeal of State Employees’ Assoc. of N.H., 156 N.H. 507, 510
(2007) (explaining that we no longer defer to the PELRB’s statutory
interpretation).
The Public Employee Labor Relations Act (PELRA) defines a “Public
employee” as a person “employed by a public employer.” RSA 273-A:1, IX.
This definition does not include a retiree because a retiree is no longer
“employed.” See Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 168
(1971); see also Garcia v. City of Hartford, 972 A.2d 706, 713 (Conn. 2009)
(explaining that “[t]he meaning ascribed to the term employee under labor law
is consistent with its common meaning”). Black’s Law Dictionary defines an
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“employee” as “[s]omeone who works in the service of another person (the
employer) under an express or implied contract of hire.” Black’s Law
Dictionary 639 (10th ed. 2014). Likewise, Webster’s Third New International
Dictionary defines an “employee” as “one employed by another” and “any
worker who is under wages or salary to an employer.” Webster’s Third New
International Dictionary 743 (unabridged ed. 2002). “The ordinary meaning of
‘employee’ does not include retired workers” because such workers “have
ceased to work for another for hire.” Pittsburgh Glass, 404 U.S. at 168; see In
re Crafts Precision Industries, Inc., 244 B.R. 178, 184 (B.A.P. 1st Cir. 2000)
(relying upon Black’s Law Dictionary definition and Pittsburgh Glass, court
states “that retired persons are not included in the ordinary meaning of the
word ‘employee’”).
Although the Union suggests that in Rochester School Board v. New
Hampshire PELRB, 119 N.H. 45 (1979), we held that retirees are “[p]ublic
employees” under the PELRA, the Union is incorrect. As we explained in
Appeal of Johnson, 164 N.H. 598, 603-04 (2013), in Rochester School Board,
“we held only that the PELRB had jurisdiction to adjudicate the back-pay
claims of former employees,” and although “we may have implied that the
retired employees in that case constituted ‘public employees’ under the PELRA,
we did not so hold.” Thus, the Union is mistaken to the extent that it asserts
that in Rochester School Board, we “chose not to follow” the Supreme Court’s
reasoning and holding in Pittsburgh Glass.
Indeed, in construing the term “Public Employee” as used in the PELRA,
we find Pittsburgh Glass persuasive. In that case, the Supreme Court
concluded that the word “employees” as used in the National Labor Relations
Act (NLRA) does not include retirees. Pittsburgh Glass, 404 U.S. at 168. In
reaching this conclusion, the Court relied not only upon the plain meaning of
the term, but also upon the purpose of the NLRA, which the Court determined
is to prevent the disruption of commerce by dissatisfied workers, and is
unrelated to any concern with retirees. Id. at 166. The Court observed that
“[t]he inequality of bargaining power that Congress sought to remedy was that
of the ‘working’ [person], and the labor disputes that it ordered to be subjected
to collective bargaining were those of employers and their active employees.”
Id. The Court further determined that “[n]owhere in the history of the [NLRA] is
there any evidence that retired workers are to be considered as within the
ambit of the collective-bargaining obligations of the statute.” Id.
The PELRA was similarly enacted to “foster harmonious and cooperative
relations between public employers and their employees.” Laws 1975, 490:1
(emphasis added). “To achieve this goal, the [PELRA] granted public employees
the right to organize and engage in collective bargaining with their employers,
mandated that public employers negotiate in good faith with employee
organizations, and established the PELRB to assist in resolving disputes
between government and its employees.” Appeal of House Legislative Facilities
Subcom., 141 N.H. 443, 446 (1996); see Laws 1975, 490:1. Thus, we conclude
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that, pursuant to the recognition clause of the successor CBA, a retiree is not
an “Employee.”
The third provision of the successor CBA relevant to our analysis is
Article VII, which sets forth the retroactive COLA at issue. Article VII, entitled
“WAGES,” provides, in pertinent part, that “employees assigned to the 10 step
wage scale shall receive a [COLA] of 2.25%” that is “[e]ffective retroactive to
January 1, 2013.” This adjustment is reflected in the wage schedule appended
to the successor CBA as “Appendix A.” Although Article VII grants the
retroactive COLA to “employees,” it is silent as to when a person has to be an
“employee” in order to be entitled to the retroactive COLA.
The last provision of the successor CBA relevant to our analysis is Article
XXXIV, which sets forth the term of that CBA. Pursuant to that article, the
successor CBA “covers the period from 1/1/13 – 12/31/2015” and “shall not
take full force and effect until it is ratified and signed by both parties.” Article
XXXIV explains that “[t]his means that upon the signing of [the successor CBA]
by both parties [its] terms . . . will then be in full force and effect from that date
forward only.”
Thus, construing the pertinent provisions of the successor CBA, we
conclude that: (1) the grievance and arbitration provision restricts arbitration
to grievances; (2) the successor CBA defines grievances as disputes or claims
by “Employee[s]”; (3) the retroactive COLA at issue was granted to “employees”;
and (4) retirees are not “Employee[s]” within the meaning of the CBA.
Nonetheless, we cannot say with positive assurance that the grievance
and arbitration provision in the successor CBA is not susceptible of an
interpretation that covers the Leger grievance. See Appeal of Town of Bedford,
142 N.H. at 640. This is because the successor CBA is ambiguous as to which
“employees” are entitled to the retroactive COLA – those active as of the
effective date of the successor CBA or those active at any time during its term.
See Granite Rock Co. v. Teamsters, 561 U.S. 287, 301 (2010) (explaining that
the presumption of arbitrability applies when “a validly formed and enforceable
arbitration agreement is ambiguous about whether it covers the dispute at
hand”). On the one hand, the successor CBA can be read to entitle only those
employees who were active as of December 19, 2013, the date on which it
became effective, in which case Leger ― who retired on January 31, 2013 ―
would not be entitled. On the other hand, the successor CBA can be read to
entitle those employees who were active at any time during its term, which
began on January 1, 2013, in which case Leger would be entitled. We cannot
say, with positive assurance, that the City and Union, having agreed that the
COLA would be retroactive to January 1, 2013, did not also agree to arbitrate
disputes related to that wage increase for employees who, like Leger, were
active at any point during the term of the successor CBA (January 1, 2013, to
December 31, 2015). Accordingly, because the successor CBA is ambiguous as
to whether it covers the Leger grievance, we apply the presumption of
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arbitrability and affirm the PELRB’s determination that the Leger dispute is
arbitrable. See id.
The City resists this conclusion by focusing upon the fact that Leger was
a retiree when the grievance was filed. “For our purposes, however, who may
invoke the arbitration procedure is not as important as what the dispute must
be about.” Int’l Broth. of Electrical Workers v. Public Serv., 773 F.3d 1100,
1109 (10th Cir. 2014). The grievance and arbitration provision of the
successor CBA limits arbitrable disputes to those “arising out of the application
or interpretation” of that CBA “under [its] express, written provisions.” What
makes it possible to interpret the successor CBA to include the Leger grievance
is that the grievance is a dispute over the application or interpretation of Article
VII, which sets forth the retroactive COLA, and of Article XXXIV, which sets
forth the term of the successor CBA. And as the PELRB found, the grievance
and arbitration demand in this case were “based upon . . . Leger’s status in
January of 2013, when he was still an employee of the City, a public employee
under the PELRA, and a member of the . . . bargaining unit.”
The City also argues the merits of the Leger grievance, asserting that
Leger is not, in fact, entitled to the retroactive COLA because “[u]nder the
[successor] CBA, the City and the [Union] agreed that only [Union] employees
would earn a retroactive wage increase dating back to January 1, 2013,” and
the “City never agreed that this benefit would extend to . . . Leger, who retired
almost a year earlier, or any other retired [Union] employee.” However, our role
is not to decide the merits of the Leger grievance and whether, in fact, he is
entitled to the retroactive COLA. See Appeal of Town of Bedford, 142 N.H. at
639. Our role is solely to decide whether the PELRB erred when it concluded
that the Leger grievance was arbitrable. See id. Having concluded that the
PELRB did not so err, we leave it to the arbitrator to decide whether Leger is
entitled to the retroactive COLA.
Because we do not address the merits of the Leger grievance, we also do
not address the City’s reliance upon Marcatante v. City of Chicago, Ill., 657
F.3d 433, 441, 443-44 (7th Cir. 2011), which the City contends is factually
similar to this case, and supports its assertion that Leger is not entitled to the
retroactive COLA. Whether, as the City asserts, Leger is not entitled to the
retroactive COLA because “he was only subject to the terms and conditions set
forth in the 2012 CBA,” and because the retroactive COLA was not intended to
apply to “retired employees who worked during the retroactive pay period,” are
issues for the arbitrator to resolve in the first instance.
Affirmed.
DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
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