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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Public Employee Labor Relations Board
No. 2013-253


                     APPEAL OF TOWN OF BROOKLINE
            (New Hampshire Public Employee Labor Relations Board)

                          Submitted: January 22, 2014
                          Opinion Issued: April 18, 2014

      Law Offices of Shawn J. Sullivan, PLLC, of Concord (Shawn J. Sullivan
on the brief), for the petitioner.


      Devine, Millimet & Branch, P.A., of Manchester (Donald L. Smith and
Anna B. Peterson on the brief), for the respondent.


      James F. Allmendinger, of Concord, by brief, for NEA–New Hampshire, as
amicus curiae.


      LYNN, J. The respondent, the Town of Brookline (the Town), appeals the
decision of the New Hampshire Public Employee Labor Relations Board
(PELRB), based upon stipulated facts and exhibits, which found that the Town
engaged in an unfair labor practice by refusing to bargain with the petitioner,
AFSCME, Council 93 (Union). On appeal, the Town argues that the PELRB
erred by ruling that the Town had a duty to bargain with the Union even
though the bargaining unit in question, originally certified in 2001, currently
contains fewer than ten employees. We affirm.

      The following facts either were found by the PELRB or are facts to which
the parties stipulated. In October 2001, the PELRB originally approved the
bargaining unit and certified the Brookline Police Officers Association
(Association) as the bargaining unit’s exclusive representative. At the time, the
unit contained at least ten employees. As originally certified, the bargaining
unit consisted of the patrol officers and a sergeant.

       Shortly after the bargaining unit was approved, the Town filed a petition
to modify the bargaining unit to exclude the sergeant position. As a result, in
April 2002, the PELRB amended the certification between the Association and
the Town to exclude the sergeant position from the bargaining unit. Thereafter,
the Association and the Town agreed to modify the bargaining unit to include
the position of corporal, and, in April 2004, the PELRB amended the bargaining
unit description accordingly. In February 2005, the Association filed a petition
to change its union affiliation. The Town objected to the petition, in part,
because, as of February 2005, “there [were] no more than eight positions in the
bargaining unit, consisting of four full-time police officers, three part-time
police officers, and one corporal.” In April 2005, the Town withdrew its
opposition to the Association’s petition to change its affiliation. The PELRB
granted the petition for changed affiliation on April 22, 2005, and on that date
issued an amended certification of representative.

      The number of employees holding bargaining unit positions since 2001
has fluctuated. It is undisputed that when the bargaining unit was certified, it
contained at least ten employees. The PERLB found that when the instant
proceeding was heard, there were fewer than ten bargaining unit employees.

       The most recent collective bargaining agreement between the parties
expired on December 31, 2011. Before December 31, 2011, the parties began
negotiations for a successor agreement. In July 2012, the Town informed the
Union that it would no longer participate in the collective bargaining process
because the bargaining unit had fewer than ten employees and, therefore, “the
[petitioner] no longer [met] the minimum qualifications for certification under
RSA 273-A.” Thereafter, the Union filed an unfair labor practice charge against
the Town. The Town denied the charge, contending that the PELRB lacked
jurisdiction over the unfair labor practice charge because the Union
represented a bargaining unit of fewer than ten employees. The PELRB found
that the fact that the bargaining unit contained fewer than ten employees did
not divest it of jurisdiction to consider the unfair labor practice charge. It also
found that the Town committed an unfair labor practice by refusing to bargain
with the petitioner. This appeal followed.




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       Our standard of review is set forth by statute. See RSA 273-A:14 (2010)
(appeals from decisions of the PELRB are governed by RSA chapter 541); RSA
541:13 (2007). Under RSA 541:13, the party challenging the PELRB’s decision
has the burden “to show that the same is clearly unreasonable or unlawful.”
Moreover, all of the PELRB’s findings “upon all questions of fact properly before
it shall be deemed to be prima facie lawful and reasonable.” RSA 541:13. We
will not set aside or vacate the PELRB’s decision “except for errors of law,
unless the court is satisfied, by a clear preponderance of the evidence before it,
that such order is unjust or unreasonable.” Id.

       Resolving the issues in this appeal requires statutory interpretation,
which is a question of law that we review de novo. State Employees’ Assoc. of
N.H. v. State of N.H., 161 N.H. 730, 738 (2011). In matters of statutory
interpretation, we are the final arbiter of the intent of the legislature as
expressed in the words of the statute considered as a whole. Id. We first look
to the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning. 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. Id. We
construe all parts of a statute together to effectuate its overall purpose and
avoid an absurd or unjust result. Id. Moreover, we do not consider words and
phrases in isolation, but rather within the context of the statute as a whole. Id.
This enables us to better discern the legislature’s intent and to interpret
statutory language in light of the policy or purpose sought to be advanced by
the statutory scheme. Id. at 738-39.

       The Town argues that the PELRB lacked subject matter jurisdiction when
it recertified the bargaining unit in 2002, 2004, and 2005 because the
bargaining unit had fewer than ten members at these times. In the Town’s
view, the ten-employee minimum set forth in RSA 273-A:8, I (Supp. 2013) is
“jurisdictional,” such that public employers with certified units that fall below
the statutory minimum ten (10) employees are no longer subject to the Public
Employee Labor Relations Act (PELRA). According to the Town, the ten-
employee minimum is a continuous requirement, and once a bargaining unit
contains fewer than ten employees, it loses all of the protections of the PELRA.
When that occurs, the Town asserts that, in effect, the unit is deemed to have
dissolved.

      The petitioner responds that the PELRB properly determined that it had
subject matter jurisdiction based upon its ruling in State Employees
Association of New Hampshire, Local 1984, on behalf of Ashland Town
Employees v. Town of Ashland, PELRB Decision No. 1999-120 (Nov. 23, 1999).
In that case, the PELRB construed RSA 273-A:8, I, to require that there be a
minimum of ten members at the time of the initial certification of the
bargaining unit, but determined that reductions in the size of the bargaining



                                        3
unit below ten thereafter do not affect the unit’s validity or the PELRB’s
jurisdiction over it.

       We disagree with both parties’ positions. With regard to the Town’s
argument, we note that both the United States Supreme Court and this court
have observed that the term “jurisdiction” has often been used in an imprecise
and indiscriminate manner. See Steel Co. v. Citizens for Better Environment,
523 U.S. 83, 91 (1998) (admonishing lower federal courts to avoid “drive-by
jurisdictional rulings”); Union Pacific R.R. Co. v. Locomotive Engineers, 558
U.S. 67, 81 (2009) (“Recognizing that the word ‘jurisdiction’ has been used by
courts, including this Court, to convey many, too many, meanings, we have
cautioned, in recent decisions, against profligate use of the term.”) (quotation
and citation omitted); Ruel v. N.H. Real Estate Appraiser Bd., 163 N.H. 34, 42
n.2 (2011) (noting that characterization of mandatory time limits as
“jurisdictional” “may often be more misleading than illuminating”). In In the
Matter of Gray and Gray, 160 N.H. 62, 65 (2010), we explained:

      Subject matter jurisdiction is jurisdiction over the nature of the
      case and the type of relief sought; the extent to which a court can
      rule on the conduct of persons or the status of things. In other
      words, it is a tribunal's authority to adjudicate the type of
      controversy involved in the action. A court lacks power to hear or
      determine a case concerning subject matters over which it has no
      jurisdiction. A party may challenge subject matter jurisdiction at
      any time during the proceeding, including on appeal, and may not
      waive subject matter jurisdiction.

(quotations and citations omitted). Applying this principle, we conclude that,
at all pertinent times, the PELRB had jurisdiction over the petitioner, as well as
jurisdiction to adjudicate the unfair labor practice complaint at issue in this
appeal.

      RSA 273-A:8, I, provides:

             The board . . . shall determine the appropriate bargaining
      unit and shall certify the exclusive representative thereof when
      petitioned to do so under RSA 273-A:10. In making its
      determination the board should take into consideration the
      principle of community of interest. The community of interest may
      be exhibited by one or more of the following criteria, although it is
      not limited to such:

           (a) Employees with the same conditions of employment;




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          (b) Employees with a history of workable and acceptable
         collective negotiations;

           (c) Employees in the same historic craft or profession;

          (d) Employees functioning within the same organizational
         unit.

          [In] no case shall the board certify a bargaining unit of fewer
      than 10 employees with the same community of interest. For
      purposes of this section, probationary employees shall be counted
      to satisfy the employee minimum number requirement. In no case
      shall such probationary employees vote in any election conducted
      under the provisions of this chapter to certify an employee
      organization as the exclusive representative of a bargaining unit.

Pursuant to the plain meaning of the statute, it is the PELRB’s responsibility to
determine whether a bargaining unit consists of at least ten employees with the
requisite “community of interest.” Nothing in the structure or text of the
statute casts this responsibility in jurisdictional terms, or suggests that if the
PELRB makes an error in its determinations as to the size of a putative
bargaining unit it thereby loses its power to “adjudicate the type of controversy”
for which it was created — namely, to certify bargaining units and regulate the
relationship between public employers and public employee unions. To
construe this or other provisions of the PELRA as jurisdictional would
completely undercut the PELRB’s authority to carry out the important duties
assigned to it by the legislature, since, as demonstrated by the instant case, it
would permit public employers (or public employee unions) to ignore the
agency’s authority and resort to “self-help” actions whenever they believed the
PELRB had made an erroneous decision. Rather than affecting the PELRB’s
subject matter jurisdiction, the ten-employee minimum requirement, like the
“community of interest” requirement, is merely one of many mandatory
substantive provisions of law encompassed within RSA chapter 273-A that the
PELRB must follow in carrying out its responsibilities.

      The Town attempts to find support for its construction of RSA 273-A:8, I,
in Professional Fire Fighters of Wolfeboro v. Town of Wolfeboro, 164 N.H. 18
(2012). The Town argues that in Professional Fire Fighters of Wolfeboro, we
“held that bargaining between a public employer and a bargaining unit
consisting of fewer than ten (10) employees was ultra vires and that the
agreements negotiated between the employer and the uncertified bargaining
unit were null and void.” This was not our holding.

     Professional Fire Fighters of Wolfeboro concerned the interplay between
RSA 31:3 (2000) and the PELRA. Id. at 21. We concluded that the PELRA



                                        5
superseded RSA 31:3. Id. at 23. Thus, although RSA 31:3 grants
municipalities the right to recognize unions and enter into collective bargaining
agreements, the PELRA provides that the only union that a municipality may
recognize, and with which it may bargain collectively, is a union that has been
certified by the PELRB. Id.; see RSA 273-A:8, I. We explained:

      Given the broad scope of [the PELRA] and the exclusive authority it
      confers on the PELRB to recognize bargaining units, the petitioners offer
      no plausible explanation as to why, if the legislature intended to allow
      municipalities to choose to retain authority to enter into collective
      bargaining agreements with unions comprised of less than ten members,
      it would not have authorized the PELRB to certify such unions with
      employer consent. Indeed, this is exactly the procedure the legislature
      followed with its short-lived amendment to the PELRA in 2008, which
      allowed for the certification of [bargaining units] comprised of 3-10
      members with the approval of the governing body of the public employer.
      See Laws 2008, 137:1 (effective Aug. 5, 2008), repealed by Laws 2011,
      45:1 (effective July 8, 2011).

Prof. Fire Fighters of Wolfeboro, 164 N.H. at 22-23. Accordingly, because the
union in that case had never been certified by the PELRB as the exclusive
representative of the bargaining unit at issue, the selectboard had no authority
either to recognize the union or to bargain collectively with it. See id. at 19, 23.
We held, therefore, that all of the collective bargaining agreements between the
selectboard and the union were “ultra vires contracts and wholly void.” Id. at
23 (citation omitted). Contrary to the Town’s assertions, the collective
bargaining agreements in Professional Fire Fighters of Wolfeboro were void not
because the bargaining unit contained fewer than ten employees, but rather
because the union had never been certified by the PELRB and the bargaining
unit had never been approved by the PELRB. Id.

       At the same time, we find unpersuasive the petitioner’s argument that
the ten-employee minimum requirement applies only with respect to the initial
certification of a bargaining unit. Neither the word “initial” nor any similar
term appears within the text of RSA 273-A:8, I, and we are not at liberty to add
such term. State Employees’ Assoc. of N.H., 161 N.H. at 738. Although this
statute does not specifically address how decertification may be accomplished
once a bargaining unit has been certified, the PELRB has adopted regulations
that do address this matter. New Hampshire Administrative Rules, Pub
302.05(a) provides:

      Where the circumstances surrounding the formation of an existing
      bargaining unit are alleged to have changed, or where a prior unit
      recognized under the provisions of RSA 273-A:1 is alleged to be
      incorrect to the degree of warranting modification in the



                                         6
      composition of the bargaining unit, the public employer, or the
      exclusive representative . . . may file a petition for modification of
      bargaining unit.

Given that “to modify” means “to make a basic or important change,” Webster’s
Third New International Dictionary 1452 (unabridged ed. 2002), we construe
this regulation as encompassing the circumstance in which the bargaining unit
no longer qualifies for certification because the number of employees has fallen
below the statutory minimum required for certification.

       We note that in Ashland, as in this case, the town acted unilaterally in
refusing to negotiate with a union representing a bargaining unit of less than
ten employees. Ashland, PELRB Decision No. 1999-120. The town did not
seek decertification of the bargaining unit, and the PELRB did not address
whether unit membership of less than ten would warrant decertification, if
requested. In view of the entire statutory scheme and the PELRB regulations,
we conclude that the PELRB has the authority to decide whether a bargaining
unit should be decertified because it no longer is comprised of at least ten
employees. We add, however, that we agree with the petitioner and the amicus
that fluctuations in the size of a bargaining unit that result in temporary
membership below ten employees do not necessarily warrant decertification.
Applying the ten-employee requirement rigidly in such circumstances would
make the obligation to bargain an “on-again off-again” proposition that would
surely frustrate the PELRA’s goal of harmonious labor relations. Absent
legislative action resolving this question, we leave to the PELRB’s expertise and
discretion the evaluation of whether reduction in membership below ten in any
particular case is sufficiently enduring to warrant bargaining unit
decertification.

       Thus, although the Town argues that the PELRB lacked subject matter
jurisdiction when it “recertified” the bargaining unit in 2002, 2004, and 2005,
because the ten-employee requirement is not a jurisdictional requirement, the
PELRB was not without jurisdiction to decide the unfair labor practice
complaint at issue. Moreover, if an employer desires to decertify a bargaining
unit because it has fallen below the ten-employee minimum, it must file a
petition to decertify with the PELRB. See N.H. Admin. Rules, Pub 302.05(a).
Alternatively, the employer can raise the failure to comply with the ten-
employee requirement in an objection to a union-initiated petition to modify the
composition of the bargaining unit. Here, rather than take either action, the
Town unilaterally refused to bargain with the bargaining unit’s exclusive
representative. The statutory and regulatory scheme does not allow the Town
to follow this course.

       For all of the above reasons, therefore, we hold that the PELRB did not
err either when it concluded that it had jurisdiction to decide the instant unfair



                                         7
labor practice charge or when it determined that the Town engaged in an unfair
labor practice by unilaterally refusing to bargain with the bargaining unit’s
designated exclusive representative.

                                                Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred.




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