Preview:

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ U.S. District Court No. 2005-564 STEPHEN A. DILLMAN v. TOWN OF HOOKSETT Argued: February 22, 2006 Opinion Issued: April 7, 2006 Brown, Olson & Gould, P.C., of Concord (Richard C. Mooney on the brief and orally), for the plaintiff. Warren D. Atlas and Laurie W. Engdahl, of Bedford, Massachusetts (Mr. Atlas and Ms. Engdahl on the brief, and Mr. Atlas orally), and Thomas B. Merritt, of Littleton, on the brief, for the defendant. DALIANIS, J. Pursuant to Supreme Court Rule 34, the United States District Court for the District of New Hampshire (Muirhead, J.) certified the following question for our consideration: Whether, under New Hampshire law, including N.H. RSA 273-A, an individual public sector union member may be assigned his union's right under N.H. RSA 542:8 to seek a vacation, confirmation, correction, or modification of an arbitration award entered in an arbitration conducted pursuant to a collective

bargaining agreement between the member's union and his employer. We respond in the negative. The district court's order provides the following facts. The defendant, Town of Hooksett (Hooksett), terminated the employment of the plaintiff, Stephen Dillman, on May 24, 2002. At the time of his termination, Dillman was a member of the Hooksett Permanent Firefighter Association I.A.F.F., Local 3264 (the Union), which served as a certified union for Hooksett firefighters. The Union's collective bargaining agreement with Hooksett included a grievance article that specifically provided it was subject to the provisions of RSA chapter 542. The Union filed a grievance with Hooksett on behalf of Dillman following his termination. Arbitration was held in accordance with the collective bargaining agreement, resulting in an award by the arbitrator finding that Hooksett had "just cause" for terminating Dillman. Dillman subsequently brought suit in superior court, alleging that the Union had assigned him its rights under RSA 542:8 (1997) to seek review, modification, and correction of the arbitrator's award. Hooksett, alleging a federal question, removed the case to federal court. It then moved to dismiss the case for lack of subject matter jurisdiction, arguing that Dillman lacked standing under RSA 542:8, either directly or by any purported assignment. Recognizing that "[t]he right to assign the claim of a bargaining unit to an individual has not been determined under New Hampshire law," the district court certified the above question to this court. The right to seek judicial review of an arbitration award is granted by RSA 542:8, which states, in relevant part: At any time within one year after the award is made any party to the arbitration may apply to the superior court for an order confirming the award, correcting or modifying the award for plain mistake, or vacating the award for fraud, corruption, or misconduct by the parties or by the arbitrators, or on the ground that the arbitrators have exceeded their powers. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Soraghan v. Mt. Cranmore Ski Resort, 152 N.H. 399, 401 (2005). We first examine the language of a statute and, where possible, we ascribe the plain and ordinary meanings to the words used. Id. Reading RSA 542:8 in this light, we find it plainly provides that

2

being a party to an arbitration is a precondition to applying for a judicial order confirming, correcting, modifying, or vacating the arbitration award. We reached a similar conclusion in O'Brien v. Curren, 106 N.H. 252 (1965), after considering whether plaintiffs represented by a union in arbitration proceedings could attack the arbitration award despite their absence from those proceedings. The right of such plaintiffs to intervene, we said, "was not guaranteed by [RSA 542:8] since they were not `parties' to the arbitration." Id. at 257. Though we have not been asked to revisit the matter in the four intervening decades, we note that other jurisdictions contemplating analogous issues under federal labor laws have articulated the principle that an individual employee represented by a union "generally does not have standing to challenge, modify, or confirm an arbitration award because the employee was not a party to the arbitration." Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 131 (4th Cir. 2002); see also Cleveland v. Porca Co., 38 F.3d 289, 296-97 (7th Cir. 1994); cf. Aloisi v. Lockheed Martin Energy Systems, Inc., 321 F.3d 551, 558 (6th Cir. 2003). "This rule follows from the fact that the union and the employer, and not the individual employee, are usually the only signatories to the CBA." Aloisi, 321 F.3d at 558. An exception to this general rule exists when the union has breached its duty of fair representation to the employee. Bryant, 288 F.3d at 131; cf. O'Brien, 106 N.H. at 257 (authority of bargaining agent is subject to fiduciary duty of fair representation, and individual employees have the right to question whether union performed that duty in arbitration proceedings). Thus, to have standing to challenge an arbitration proceeding to which a representative union and the employer were the only parties, an individual employee must bring a claim against the union for breach of its duty of fair representation. Katir v. Columbia University, 15 F.3d 23, 24-25 (2d Cir. 1994); see also Aloisi, 321 F.3d at 558. In the present case, the plaintiff has made no such claim; rather, in return for a purported assignment of the union's right to seek judicial review of the arbitrator's decision, he has agreed in writing to surrender his right to bring a claim against the union for breach of the duty of fair representation. The plaintiff argues that the Union's assignment of its rights under RSA 542:8 is subject to no statutory or contractual prohibition. In support of his argument, he cites Restatement (Second) of Contracts

Download 2005-564, STEPHEN A. DILLMAN v. TOWN OF HOOKSETT.pdf

New Hampshire Law