Appeal of City of Portsmouth

667 A.2d 345, 140 N.H. 435, 1995 N.H. LEXIS 171, 152 L.R.R.M. (BNA) 2700
CourtSupreme Court of New Hampshire
DecidedNovember 15, 1995
DocketNo. 94-256
StatusPublished
Cited by5 cases

This text of 667 A.2d 345 (Appeal of City of Portsmouth) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Appeal of City of Portsmouth, 667 A.2d 345, 140 N.H. 435, 1995 N.H. LEXIS 171, 152 L.R.R.M. (BNA) 2700 (N.H. 1995).

Opinion

HORTON, J.

The petitioner, the Board of Fire Commissioners of the City of Portsmouth (the fire commission), appeals the ruling of the New Hampshire Public Employee Labor Relations Board (PELRB) that a fire commissioner’s comments reported in a local newspaper were an unfair labor practice in violation of RSA 273-A:5, 1(a) and (b) (1987). The fire commission argues that the comments were an exercise of free speech protected by the State and Federal Constitutions and that the PELRB erred in interpreting RSA 273-A:5. We reverse on statutory grounds.

On May 15, 1991, at a public meeting of the fire commission, a member of the respondent, Portsmouth Firefighters, Local 1313 (the [436]*436union), provided to the press an alcoholic rehabilitation agreement between the Portsmouth Fire Department and a union member. The union’s executive board authorized the release of the agreement to the press in retaliation for the member’s criticism of the union for failing to help him after he was suspended for losing his driver’s license.

Later that evening, a newspaper reporter contacted Sheila Loch, one of the fire commissioners, at her home and asked her to comment on the release of the agreement. When she asked the reporter for his source of the copy of the agreement, she was told that someone in a firefighter’s uniform had supplied it. The reporter implied that it had come from a union member. Loch responded that what the union had done was reprehensible. In addition, she made negative comments about the union and its leadership. The following day, Loch’s comments appeared in Foster’s Daily Democrat in an article entitled, “Commissioners slam union for releasing part of personnel file.” This article, which is the basis of the union’s unfair labor practice complaint, contained the following:

Commissioner Sheila Loch said she was furious about what happened. “Everyone has the right to expect their privacy respected .... As a human being it concerns me that a person would belong to the kind of group that would do something like that.”
“To me it’s low. It’s below classless.”
Ms. Loch said she believes the union has been led astray by its leadership. “I am not sure they have done themselves a favor in who they have representing them. I question whether they have chosen the best they could.”
She said she believes there are a number of individuals in the union who are able to compromise and view matters with common sense. “I don’t think these people are in the leadership,” adding she believes the union leadership hurt members during recent contract negotiations.

The union filed unfair labor practice charges with the PELRB. The PELRB’s ruling that the fire commission had committed unfair labor practices was reversed on appeal due to an evidentiary error, and the case was remanded to the PELRB. See Appeal of City of Portsmouth, Bd. of Fire Comm’rs, 137 N.H. 552, 630 A.2d 769 (1993).

On remand, the PELRB again ruled that the fire commission had committed unfair labor practices in violation of RSA 273-A:5, 1(a) [437]*437and (b). The PELRB found that Loch’s comments violated the statute when she specifically attacked the union leadership and suggested that leadership hurt members during recent contract negotiations. The board found “no evidence that [Loch’s] criticism was justified,” and it expressed concern about the implications of the comments for future negotiations. Finally, the board found that Loch’s comments, “whether intended or not,” had “a disruptive effect,” “created doubt in the effectiveness and truthfulness of the union leadership,” and created “confusion and interference with the administration” of the union. The fire commission’s motion for rehearing was denied. This appeal followed.

The findings of the PELRB “are deemed prima facie lawful and reasonable.” Appeal of Town of Pelham, 124 N.H. 131, 135, 469 A.2d 1295, 1297 (1983). Absent error of law, this court will not overturn a ruling of the PELRB unless we find that it abused its discretion. Appeal ofAFL-CIO Local 298, 121 N.H. 944, 947, 437 A.2d 260, 262 (1981). This reflects the standard of review set forth in RSA 541:13 to which we strictly adhere. Appeal of State of N.H., 138 N.H. 716, 720, 647 A.2d 1302, 1305 (1994).

The fire commission first argues that the comments regarding the union and union leadership which were published in the press are protected by the New Hampshire and United States Constitutions as the exercise of free speech. Because we resolve this case on statutory grounds, we need not reach the constitutional issues. See Appeal of Astro Spectacular, 138 N.H. 298, 299, 639 A.2d 249, 250 (1994).

RSA 273-A:5 prohibits unfair labor practices. It reads, in pertinent part:

I. It shall be a prohibited practice for any public employer:
(a) To restrain, coerce or otherwise interfere with its employees in the exercise of the rights conferred by this chapter;
(b) To dominate or to interfere in the formation or administration of any employee organization; ....

RSA 273-A:5, 1(a), (b) (1987). The fire commission argues that the PELRB erred when it interpreted RSA chapter 27S-A as prohibiting Loch’s comments to the press, and it urges us to adopt the standard of protection contained in the National Labor Relations Act (NLRA).

The NLRA provides, in pertinent part:

[438]*438The expressing of any views, argument, or opinion . . . shall not constitute or be evidence of an unfair labor practice ... if such expression contains no threat of reprisal or force or promise of benefit.

Labor Management Relations (Taft-Hartley) Act § 8(c), 29 U.S.C.- § 158(c) (1988). The fire commission argues that by limiting prohibited speech to expressions containing threats or promise of benefits, the NLRA establishes the minimum acceptable protection of free speech for public employers. The fire commission then argues that even if the federal standard is not adopted, the comments at issue did not amount to interference with the administration of a union. The union counters that because the “free speech plank” contained in the NLRA does not exist in RSA chapter 273-A, we should limit our inquiry to deciding whether the comments were coercive. The union then argues that the comments were coercive, even if viewed in light of the federal statute. We find that the speech was not coercive, and that it did not amount to interference with the administration of the union. We decline, however, to impute the requirements of section 8(c) of the NLRA to RSA chapter 273-A.

The issue before us is what speech constitutes “interference” within the meaning of RSA chapter 273-A. Although we resolve this case on nonconstitutional grounds, we recognize that the first amendment is a significant factor in our construction of the statute.

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Bluebook (online)
667 A.2d 345, 140 N.H. 435, 1995 N.H. LEXIS 171, 152 L.R.R.M. (BNA) 2700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/appeal-of-city-of-portsmouth-nh-1995.