The New Hampshire Supreme Court, in a 3-2 opinion released Thursday, said Gov. Chris Sununu’s actions during contract negotiations with some state employee bargaining units in 2019 were legal — including his unilateral decision not to bring a fact-finder’s report before the Executive Council for a non-binding vote.
The opinion, written by Justice Patrick Donovan, overturns the findings of the Public Employee Labor Relations Board (or PELRB), which found that Sununu’s email to union members sent 90 minutes before a union informational meeting interfered with the bargaining process.
In a joint dissenting opinion, Justices Gary Hicks and James Bassett concluded the email contained “at least one material, misleading statement” related to wages.
Negotiations between the governor and the State Employees Association as well as the New England Police Benevolent Association began in 2018 before reaching an impasse, prompting the involvement of an independent fact-finder.
Approximately 90 minutes before an informational meeting organized by the union on the fact-finder’s report in December 2019, Sununu sent state workers an email that the SEA would later argue misrepresented the differences between the state’s offer on wages and benefits, and the fact-finder’s position.
But the justices overturned the PELRB’s findings and wrote that Sununu’s communication didn’t violate state law because it didn’t “have a tendency to intimidate or coerce employees to reject the fact-finder’s report or otherwise to unduly influence SEA’s membership vote.” The email, the court said, “did not constitute interference.”
Also at issue was the governor’s decision not to bring the fact-finder’s report before the Executive Council, where Democrats were in the majority at the time. The court’s majority found that because Sununu rejected the report, he was not required to submit it for a non-binding vote under state statute.
In their dissent, Hicks and Bassett said that interpretation of the statute, which uses the word “shall” to describe the governor’s obligation, is “nonsensical.”
“If the statute permits the governor, who just rejected the fact-finder’s report, to unilaterally decide to take no action on that same report, then the statute serves no purpose,” the justices wrote.
In a statement following the court’s decision, the State Employees Association said the majority opinion “does not accurately apply or interpret” the state’s collective bargaining statute.
“The SEA is concerned this decision will upset the delicate balance of power between workers and public employers, allowing employers to exercise too much unilateral authority in the collective bargaining process,” said Gary Snyder, legal counsel for the union.
The two sides did ultimately reach agreement on a contract in June 2021 that is set to expire next summer.
