In re Fairpoint Logistics, Inc.

171 N.H. 361

195 A.3d 825

APPEAL OF FAIRPOINT LOGISTICS, INC. & a.

(New Hampshire Department of Employment Security)

No. 2017-0362

Supreme Court of New Hampshire.

Argued: April 12, 2018

Opinion Issued: September 28, 2018

Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will on the brief), and Seyfarth Shaw LLP, of Boston, Massachusetts (Arthur Telegen and Timothy J. Buckley on the brief, and Mr. Telegen orally), for the petitioners.

Nolan Perroni, P.C., of North Chelmsford, Massachusetts (Peter J. Perroni on the brief and orally), for Claimants Represented by International Brotherhood of Electrical Workers, Local 2320, AFL-CIO.

Segal Roitman, LLP, of Boston, Massachusetts (James A.W. Shaw on the brief and orally), for Claimants Represented by Communications Workers of America, Local 1400.

Gordon J. MacDonald, attorney general (Laura E.B. Lombardi, senior assistant attorney general, on the brief and orally), for the New Hampshire Department of Employment Security.

LYNN, C.J.

The petitioners, Northern New England Telephone Operations, LLC and FairPoint Logistics, Inc. (hereinafter collectively "FairPoint"), appeal the final decision of the New Hampshire Department of Employment Security (NHES), claiming that it erred in rulings that: (1) upheld the decision of the commissioner of NHES to reopen the ruling of the appeal tribunal which found (a) certain unionized employees of FairPoint (claimants) were not entitled to collect unemployment benefits during the period they were on strike against the company because the strike resulted in a "stoppage of work" and (b) strike pay received by some of the workers constituted income deductible from their benefits; (2) affirmed a subsequent order of a second appeal tribunal which found that benefits were payable because the strike did not result in a stoppage of work; and (3) reversed the second tribunal's determination that strike pay was deductible from benefits. We reverse the appellate board's decision, reinstate in part the order of the first appeal tribunal, and find it unnecessary to address the issue of strike pay.

I

The record reflects the following pertinent facts. FairPoint is a regulated telecommunications company that provides voice and broadband internet services to residential, business, and wholesale customers throughout New Hampshire. The claimants are represented by two unions, the Communications Workers of America (CWA) and the International Brotherhood of Electrical Workers (IBEW). The collective bargaining agreements between FairPoint and the unions expired in August 2014. When negotiations failed to produce a new agreement, FairPoint implemented new terms and conditions of employment consistent with the final proposals it had made to the unions. This resulted in the unions implementing a strike in which approximately 650 New Hampshire union members ceased working. The strike lasted from October 17, 2014 to February 25, 2015. During this period, CWA workers who picketed or performed some other task on behalf of that union received strike pay.

The claimants applied for unemployment benefits for the period they were on strike. Certifying officers of NHES denied their claims on the grounds that their unemployment was due to a labor dispute that resulted in a "stoppage of work." See RSA 282-A:36 (2010) (stating that "[a] person shall be disqualified for benefits for any week with respect to which the commissioner finds that his or her total or partial unemployment is due to a stoppage of work which exists because of a labor dispute"). The claimants appealed these determinations to the appeal tribunal. See RSA 282-A:48 (2010).

Following a hearing, the appeal tribunal upheld the decisions of the certifying officers that the claimants were not entitled to benefits because the labor dispute between FairPoint and the unions resulted in a "stoppage of work." After observing that what constitutes a "stoppage of work" is unsettled in New Hampshire, the tribunal first concluded that there had been a "stoppage of work" within the meaning of RSA 282-A:36 because the claimants had elected to stop working as the result of a labor dispute. Alternatively, the tribunal determined that even if a "stoppage of work" required that there be "a substantial curtailment of the employer's business," the evidence established that this standard was satisfied. The tribunal also found that strike pay received by the CWA union members constituted deductible wages under RSA 282-A:14 (2010). See RSA 282-A:14, III(a) (stating "[a]n individual's maximum weekly benefit amount shall be reduced by all wages and earnings in excess of 30 percent ... of the individual's weekly benefit amount").

The claimants moved to reopen the case pursuant to RSA 282-A:60 (2010), which states that "[t]he commissioner may ... reopen the case on the basis of fraud, mistake, or newly discovered evidence." The commissioner granted this request. In so doing, he first found that the appeal tribunal had made a mistake of law in concluding that the term "stoppage of work" meant simply that an employee had voluntarily decided to cease working because of a labor dispute. Acknowledging that construction of this term was not settled law in New Hampshire, the commissioner concluded that the combination of this court's decision in Legacy v. Clarostat Mfg. Co., 99 N.H. 483, 486, 115 A.2d 424 (1955), guidance provided by the United States Department of Labor, court decisions from a majority of other states, and a departmental internal guidance directive, constituted persuasive authority that " ‘stoppage of work’ refers to a substantial curtailment of the employer's operations."

The commissioner then concluded that the appeal tribunal's alternative finding that there had been a substantial curtailment of work also was affected by a mistake of law because the tribunal had not articulated a standard by which it reached that determination. However, in so ruling, the commissioner adopted the same standard — substantial curtailment of work — as had been utilized by the appeal tribunal in reaching its decision. Without addressing any of the findings that the tribunal had made in support of its decision or determining whether they were sufficient to satisfy the substantial curtailment standard, the commissioner instead simply listed a number of factors that, on reopening, should be considered by the tribunal in determining whether the standard had been met. Recognizing that case law from other jurisdictions did not provide a definitive listing of factors that must be considered in reaching a decision on the issue, and that such decisions require a "case-by-case, fact-based analysis," the commissioner directed the tribunal to consider "at a minimum, a comparison of [FairPoint's] business revenues, production, services and workers hours before and after the strike," as well as any other industry-specific factors that were relevant.

Finally, with respect to strike pay, the commissioner ruled that because this issue "was intertwined with other issues presented in the Appeal Tribunal proceeding below and was not the subject of extensive testimony," it also should be reopened.

The commissioner ordered that both issues be subject to a de novo rehearing before a new appeal tribunal.¹ See RSA 282-A:61 (2010). Following the de novo hearing, the second appeal tribunal ruled that the strike did not result in a "stoppage of work," and therefore that the claimants were entitled to receive unemployment benefits for the period they were on strike. The second tribunal also found that the strike pay received by some CWA claimants constituted deductible wages within the meaning of RSA 282-A:14.

FairPoint and the claimants both asked the commissioner to reopen the second tribunal's decision. The commissioner denied these requests. With respect to FairPoint's request, the commissioner reaffirmed his original decision that the first tribunal had made a mistake of law with respect to the standard for determining whether there had been a substantial curtailment of FairPoint's operations. He also concluded that there was no basis to reopen the second tribunal's finding that the strike did not result in such a substantial curtailment of operations as to constitute a stoppage of work. As to the claimants' request, the commissioner found no basis to reopen the second tribunal's finding that the strike pay received by some CWA claimants constituted wages that had to be deducted from their benefits pursuant to RSA 282-A:14.

FairPoint and the claimants both appealed to the appellate board. See RSA 282-A:64 (2010). The board: (1) concluded that the commissioner had properly reopened the first tribunal's decision because it was based on a mistake of law as to what constituted a "stoppage of work"; (2) affirmed the second tribunal's decision finding that FairPoint failed to establish that the strike resulted in a "stoppage of work"; and (3) reversed the second tribunal's decision that the strike pay received by certain claimants constituted deductible wages. The appellate board denied FairPoint's motion for reconsideration, and this appeal followed.

II

Our standard of review is governed by RSA 282-A:67 (2010). That statute confines our review to the record and prohibits us from substituting our judgment for that of the appeal tribunal, as reversed, modified, or affirmed by the appellate board, as to the weight of the evidence on questions of fact. RSA 282-A:67, II, IV, V. We may overturn a decision of the appeal tribunal only if the substantial rights of the appellant have been prejudiced because its findings, inferences, or conclusions are "(a) [i]n violation of constitutional or statutory provisions; (b) [i]n excess of statutory authority; (c) [m]ade upon unlawful procedures; (d) [c]learly erroneous in view of the substantial evidence on the whole record; or (e) [a]ffected by other error of law." RSA 282-A:67, V² ; see Appeal of Mullen, 169 N.H. 392, 396, 149 A.3d...