384 Mass. 466 (1981), Massachusetts Council of Const. Emp., Inc. v. Mayor of Boston

Citation384 Mass. 466, 425 N.E.2d 346
Case DateAugust 28, 1981
CourtSupreme Judicial Court of Massachusetts

Page 466

384 Mass. 466 (1981)

425 N.E.2d 346




Supreme Judicial Court of Massachusetts, Suffolk.

August 28, 1981

Argued May 6, 1981.

[425 N.E.2d 347] Paul J. Kingston, Boston, for plaintiffs.

Gerard J. Clark, Boston, for the Mayor of Boston and others.

E. Michael Sloman, Asst. Atty. Gen. (Carl Valvo, Asst. Atty. Gen. with him) for Massachusetts Dept. of Labor & Industries.

Kurt M. Pressman, Cambridge, for Boston Jobs Coalition, Inc., intervener.

Wayne S. Henderson, Boston, for New England Legal Foundation, amicus curiae, submitted a brief.


Page 467

LYNCH, Justice.

Before us is a challenge to a portion of G.L. c. 149, § 26, 3 and to an executive order 4 of the mayor of the city of Boston, as well as to a regulation of the Boston Redevelopment [425 N.E.2d 348]

Page 468

Authority (BRA). 5 The contested section of the statute mandates that private contractors on State-funded construction projects give preference to residents of the Commonwealth in hiring for certain positions. 6 Disputed in the mayoral order is the requirement that private contractors fill fifty per cent of the positions on city-funded 7 construction projects with Boston residents. 8 Originally the action came before a single justice of this court on a complaint for injunctive and declaratory relief. The single justice

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reserved and reported ten questions to the full court. 9

[425 N.E.2d 349] A number of issues are raised. Both the statute and the executive order are challenged in their entirety as an interference

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in labor negotiations in violation of the National Labor Relations Act (NLRA), and thereby in conflict with the supremacy clause of the United States Constitution, art. VI, cl. 2. Both are also said to be invalid because of the Federal constitutional protections contained in the privileges and immunities (art. IV, § 2, cl. 1), due process, contract, and commerce clauses. Analogous provisions in the Constitution of the Commonwealth are also invoked by the plaintiffs, chiefly arts. 1, 10, and 12. The executive order alone is claimed to be an improper exercise of power under the "home rule" provisions of art. 2, as amended by art. 89, of the Amendments to the Massachusetts Constitution, and as beyond the inherent power of the mayor under the city charter. So too the actions of the BRA are claimed to exceed the authority granted by G.L. c. 121A. Finally both G.L. c. 149, § 26, and the executive order are challenged in part as they apply to Federal funds. The plaintiffs contend that the Federal statutory and regulatory frameworks for the distribution of these funds forbid the imposition of residency provisions.

We must first consider those statutory arguments which would invalidate the challenged provisions. It is only if the statute and order survive this scrutiny that we need consider constitutional issues. Compare School Comm. of Springfield v. Board of Educ., 366 Mass. 315, 338, 319 N.E.2d 427 (1974) (Quirico, J., concurring), cert. denied, 421 U.S. 947, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975), with id. 366 Mass. at 339-350, 319 N.E.2d 427 (Tauro, C. J., addendum). In the questions before us, only affirmative answers to the questions concerning preemption under the NLRA (questions 3 and 6) would fully resolve the plaintiffs' claims without reaching a constitutional issue. Since we find for the defendants on that issue, we turn to the privileges and immunities clause of art. IV, § 2, 10 and the commerce clause 11 of the United States Constitution,

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which dictate a decision in the plaintiffs' favor. 12 Finally, we decline to answer question 8, which concerns the residents preference instituted by the BRA, both because we believe the agency may wish to reconsider its regulation in light of this opinion and because the issue has not been adequately argued before this court. [425 N.E.2d 350]I. THE CHARACTER OF THE RESIDENTS PREFERENCES.

General Laws c. 149, § 26, provides an absolute preference for residents 13 of the Commonwealth in the positions described. There seems little dispute that a qualified resident of the Commonwealth, if available, must be hired for any job covered by § 26. Although the statute also contains a local preference, the Massachusetts Department of Labor and Industries has chosen not to enforce that provision because of concerns about its constitutionality. 14 The order of the mayor is somewhat broader in its application to all "worker hours on a craft-by-craft basis," but rather than imposing an absolute preference it mandates that fifty per cent of those hours must be contributed by workers who are residents of the city.

To the extent that all workers are hired anew by contractors for every project, these provisions may have little impact on the structure of the industry or its functioning in interstate commerce. In differing degrees many subcontractors do hire for each project. Frequently, however, a contractor will have a regular work crew, particularly in certain specialized fields. If some members of a crew are

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not residents of the Commonwealth or of the city, it will be necessary that they be replaced or, alternatively, their employer may opt out of bidding on these projects. The defendants acknowledge that both results do occur.

The goals of both G.L. c. 149, § 26, and the executive order are to lessen unemployment in the Commonwealth or in the city and to ensure that the expenditure of local funds results in maximum benefits to the locality where the monies are raised. As an additional reason for the mayor's order the city describes a desire to ensure adequate representation of city residents in construction union jobs and a lessening of racial tensions. 15


    The plaintiffs suggest that the policy of the National Labor Relations Act (29 U.S.C. §§ 151 et seq. (1976)) preempts the residents preference contained in both the statute and executive order. In effect G.L. c. 149, § 26, and the order are claimed to be invalid as attempts to override or control substantive terms in agreements between unions and contractors. Neither the Commonwealth nor any of its subdivisions may act in a manner that frustrates Federal labor policy. States are forbidden to penalize practices which Congress and the National Labor Relations Board (NLRB) deem to be legitimate economic weapons. Lodge 76, Int'l Ass'n of Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976) (State may not penalize union refusal to work overtime when such refusal was allowed under the NLRA); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (State may not penalize picketing arguably protected under the NLRA even though the NLRB declines jurisdiction), nor may State law be used to dictate the outcome in an area of mandatory bargaining, Local 24,

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    Int'l Brotherhood of Teamsters v. Oliver, 358 U.S. 283, 79 S.Ct. 297, 3 L.Ed.2d 312 (1959) (State antitrust laws may not be used to invalidate an agreement meant to protect negotiated wage scale).

    Here, however, it is difficult to imagine how the Commonwealth or the city is intruding into the negotiating process between [425 N.E.2d 351] contractors and unions. In essence, the plaintiffs argue that the Commonwealth may do nothing that influences any possible condition of a labor contract. This is far too broad a reading of preemption under the NLRA. See Amalgamated Transit Union, Div. 819 v. Byrne, 568 F.2d 1025 (3d Cir. 1977) (en banc) (State did not violate NLRA by threatening to withdraw subsidies to private transportation companies which included unlimited cost of living increase provisions in their collective bargaining agreements). Additionally, in this particular instance, it is curious to contend that the negotiating process has been skewed in favor of either party when both unions and contractors are before this court opposing the residents preference. We therefore answer both parts of questions 3 and 6 in the negative.


    The privileges and immunities and commerce clauses act together to provide a free flow of individuals and business activities among the States. The former "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy," Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948), while the latter serves as an embodiment of the assumption implicit in the Constitution that "the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935) (Cardozo, J.).

    Thus, while States are not prevented from favoring their citizens in certain circumstances, Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980) (State may favor its own citizens in selling cement from State-owned plant during shortage); Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (States may charge nonresidents substantially higher fees for recreational hunting licenses), there are definite limitations

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    on the methods that may be used, Philadelphia v. New Jersey, 437 U.S. 617, 627, 98 S.Ct. 2531, 2537, 57 L.Ed.2d 475 (1978), and cases cited.


    Determining whether G.L. c. 149, § 26, violates the privileges and immunities clause requires a two-step analysis. First, is the right at stake "fundamental"? See Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 387, 98 S.Ct. 1852, 1862, 56 L.Ed.2d 354 (1978). Compare Ostrager v. State Bd....

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