As the majority found, the U.S. Supreme Court held that “[t]o force workers to financially compel workers to: assist their representatives with collective agreements, which affect their First Amendment interests of the Constitution,” Abood v. Detroit Bd. of Education, 431 U.S. 209, 222, 97 pp.C. 1782, 1792-93, 52 L.Ed.2d 261 (1977), and the Engagement of Non-Unionized Employees, Ellis v. Railway Clerks, 466 U.S. 435, 455, 104 p.Ct. 1883, 1896, 80 L.Ed.2d 428 (1984). Given the constitutional right to collect agency fees and the lack of explicit legal authority, we will not guess “what Parliament might have intended to do,” Dionne v. City of Manchester, 134 N.H. 225, 227, 589 A.2d 1016, 1017 (1991) (citation omitted), or “add words which the legislature has not considered appropriate”, Cheever, 141 N.H. at 592, 688 A.2d at 567.
Instead, we believe it is a “legislative assessment and not the provision by judicial fiat”, Am. Employers Ins. Co., 102 N.H. at 536, 163 A.2d at 569 (Kenison, C.J., by way of derogation) and interpret the legislature`s silence on this subject as an implied authorization of agency fees, cf. Lakin v. Daniel Marr & Son Co., 126 N.H. 730, 732-33, 495 A.2d 1299, 1301 (1985) (refusal to implicitly authorize the indemnification agent to recover interest on pledges, if the legislator is silent on the matter). “The tasks of negotiating and managing a collective agreement and representing workers` interests in the settlement of disputes and the handling of cases of maladministration are permanent and difficult. [and] often involves a lot of time and money. Id. at 221, 97 p.Ct. at 1792. We believe that if collective bargaining is mandatory, it would be patently unfair to allow those who decide not to join a union to obtain the benefits of a negotiated KNA without allowing a public employer and an exclusive representative to negotiate to collect agency fees.
At Mills, we found that an agency store contract cannot coexist with the right-to-work provision in former RSA 98-C:2. Mills, 115 N.H. to 479, 344 A.2d to 11. In particular, we relied on the “join and assist” language of RSA 98-C:2 to conclude that Parliament intended to ban agency stores because the mandatory fees did require non-unionized employees to “support” unions. See id. However, we did not rely on the “encouragement” language of RSA 98-C:2 similar to the current RSA 273-A:5, I(c)- to support the conclusion that agency fees are prohibited by law. See id. As we have not interpreted RSA 98-C:2`s prohibition against “encouragements” to union membership to exclude agency fees at Mills, we do not interpret the similar prohibition in RSA 273-A:5, I(c) as excluding agency fees. In addition, the PELRB has decided that agency fees are not prohibited by RSA 273-A:5, I(c) as an “encouraging” union affiliation. See Abbott v.
State of New Hampshire &., No. 84-22 (PELRB, March 9, 1984). Accordingly, we are determined by the fact that RSA 273-A:5, I(c) does not prohibit agency fees, provided that such fees are commensurate with the proportional share of non-unionized workers in the costs of collective bargaining, contract management, and complaint adjustment. . . .