City Manager of Medford v. State Labor Relations Commission

• Decision Date: 08 January 1968
• Citation: 233 N.E.2d 310,353 Mass. 519
• Parties: CITY MANAGER OF MEDFORD v. STATE LABOR RELATIONS COMMISSION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 310

233 N.E.2d 310

353 Mass. 519

CITY MANAGER OF MEDFORD v. STATE LABOR RELATIONS COMMISSION et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 8, 1967.

Decided Jan. 8, 1968.

Mark E. Gallagher, City Sol. (Robert J. Blumsack, Asst. City Sol., with him), for petitioner.

Joseph A. Furnari, Boston, for respondent State Labor Relations Commission.

David Berman, Medford (John F. Zamparelli, Medford, with him), for interveners.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

CUTTER, Justice.

On April 4, 1966, the president of International Association of Firefighters, Local 1032 (the union, see fn. 1), filed with the commission a petition for certification of the union as collective bargaining agent for Medford's firefighters. See G.L. c. 149, §§ 178G--178N (inserted by St.1965, c. 763, § 2; see amendment of § 178G by St. 1966, c. 156), ² regulating collective bargaining by municipal employees. The commission on June 9, 1966, filed a decision. After meager findings of subsidiary facts it stated (1) that a question of representation had arisen; (2) that the appropriate unit consisted 'of all fire fighters employed by the * * * (city) including lieutenants, captains, district chiefs, (and) deputy chiefs, but excluding the (c)hief * * * and * * * all other (city) employees,' and (3) that an election should be held on July 7, 1966, to determine whether a majority of the employees had selected the union as collective bargaining agent.

The city manager, on June 28, 1966, filed this petition for judicial review. He contends that the commission's decision improperly 'lumps together all uniformed employees of the Medford (f)ire (d)epartment as an appropriate (bargaining) unit with the * * * exception of the (c)hief * * * and orders an unnecessary election.' A Superior Court judge overruled a plea to the jurisdiction filed by the interveners. This plea was based primarily on the ground that the commission's decision was not a final order. By final decree, the commission's decision was affirmed. The city manager appealed.

1. We first consider whether this petition is premature. ³ The commission ordered an election by secret ballot 'as part of the investigation authorized by' it.

The statutes permitting collective bargaining by municipal employees (see fn. 2) contain no express provision for judicial review. General Laws c. 30A, § 14 (as amended through St.1957, c. 193, § 1), however, provides for judicial review of 'a final decision of any agency in an adjudicatory proceeding.' The commission and the interveners contend that there has been no 'final decision' by the commission.

Precedents under G.L. c. 150A, § 6(f), as amended through St.1954, c. 681, § 11, are not directly controlling. Nevertheless, there are numerous similarities between c. 150A, the State Labor Relations Law (see c. 150A, § 12) which is applicable to private industry, and the 1965 statute (see fn. 2) concerning municipal employment. Accordingly, precedents under c. 150A are likely to furnish helpful guidance if differences between the two statutes and between public and private employment are appropriately taken into account.

In Jordan March Co. v. Labor Relations Comm., 312 Mass. 597, 602, 45 N.E.2d 925, 927, this court held that 'in ordinary cases' judicial review of certification issues within the commission's jurisdiction could take place only after there had been a commission decision based upon an unfair labor practice. ⁴ At that stage, 'the whole proceeding, including any errors in the certifying of the representatives * * * (becomes) open to court review.' The court in the Jordan Marsh Co. case (p. 602, 45 N.E.2d p. 928) left open the possibility that cases might exist 'where the effect of a mere certification might be so immediately and completely disastrous to the legally protected interests of the employer that the Legislature must be presumed to have intended' to permit other avenues of review.

In cases reviewing action of the National Labor Relations Board, similar principles have been applied. See American Fedn. of Labor v. National Labor Relations Bd., 308 U.S. 401, 412, 60 S.Ct. 300, 84 L.Ed. 347. An order for an election has not been regarded as a final order. Inland Empire Dist. Council v. Millis, 325 U.S. 697, 707, 65 S.Ct. 1316, 89 L.Ed. 1877, reh. den. 326 U.S. 803, 66 S.Ct. 11, 90 L.Ed. 489. See Boire v. Greyhound Corp., 376 U.S. 473, 476--481, 84 S.Ct. 894, 11 L.Ed.2d 849. The Supreme Court of Connecticut has recently reached a similar conclusion under its statute (Conn.Gen.Sts.Ann. (1965) §§ 7--467 to 7--477; see Pub.Act No. 159, 1965) regulating collective bargaining by municipal employees. ⁵ See Windsor v. Windsor Police Dept. Employees Assn. Inc., 154 Conn. 530, 536--539, 227 A.2d 65.

We conclude that the principles stated in the Jordan Marsh Co. case, 312 Mass. 597, 602, 45 N.E.2d 925 (at least in the absence of extraordinary circumstances making certification questions of vital significance, or of questions relating to the commission's jurisdiction), should be applied to postpone judicial review of certification questions until, upon complaint, the commission has issued or denied an order (see c. 149, § 178L) to the municipal employer or to employees to desist from a practice prohibited by the statute. When such an order is issued, the propriety of the commission's decision on certification issues will be open for appropriate judicial scrutiny.

The city manager contends that the commission had no authority to order an election and that, in any event, an election is unnecessary (see White, Rights and Responsibilities in Municipal Collective Bargaining, 22 Arbit.J. 31, 32), because the city in fact recognizes the union as the firefighters' exclusive bargaining agent. Certainly, there appears to be no real objection by the city to recognizing the union as representing all the firefighters except the deputy chiefs and officers (for convenience here called the officer group). The only real dispute appears to be whether the officer group should be included in the bargaining unit. Nevertheless, we cannot say that under c. 149, § 178H(3), the commission was not justified in ordering an election as part of its investigation, to obtain assurance, through an uncoerced, free, secret ballot, that the firefighters really wished to be represented by the union. See, however, the provisions for waiving an election by stipulation in St. 1967, c. 746, amending § 178H.

The petition does not set forth any facts showing (a) that the commission has exceeded its jurisdiction, (b) that there is any extraordinary occasion for varying the usual procedure for review, or (c) that special injury to the public interest or inconvenience to the city or its firefighters will occur if the commission's investigation takes the usual course. Accordingly, it was premature for the Superior Court to exercise jurisdiction to review the commission's action. The petition should have been dismissed.

2. Although the case could be disposed of on what has been said, the parties urge us to express views (see Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220) upon the principal issue in dispute. Some general discussion is appropriate. ⁶

The 1965 statute says little concerning what is an 'appropriate unit' for collective bargaining. Section 178H(4), quoted, supra, fn. 2, leaves it to the commission to 'decide in each case,' whether it 'shall be the municipal employer unit or any other unit,' subject to the explicit exclusion of 'executive officers of any municipal employer' from the definition of 'employee' in § 178G and subject also to provisions in § 178H(4), viz. (1) that 'uniformed employees of the fire department shall be in a separate unit,' and (2) that 'professional employees' (see § 178G) shall not be placed in a unit containing nonprofessional employees without the consent of a majority of the professional employees. The structure and purpose of the statute, however, indicate matters which the commission should take into account. Cf. Newton v. Department of Pub. Util., 339 Mass. 535, 546--547, 160 N.E.2d 108; New York Cent. R.R. v. Department of Pub. Util., 347 Mass. 586, 593, 199 N.E.2d 319.

Because the statute deals with public employees, public interest considerations are of greater importance in determining appropriate units than in cases dealing with private employment. The statute (§ 178M) makes unlawful strikes, slowdowns, and other action which may interrupt essential public services, and places much reliance on 'fact finding' (§ 178J) as a method of 'peaceful resolution of disputes without disruption of public services.' See Krinsky, Public Employment Fact-Finding in Fourteen States, 17 Labor L.J. 532; note, 8 C.B.Ind. & Com.L.Rev. 273, 283--288. The major public interest objectives of the statute are to be given weight by the commission which, of course, may also take into account considerations such as those mentioned in the second Jordan Marsh Co. case, 316 Mass. 748, 750--751, 56 N.E.2d 915.

We think that the commission correctly construed the provision in § 178H (4), that 'uniformed employees of the fire department shall be in a separate unit' as requiring it to exclude one non-uniformed employee from the unit. This provision, however, does not indicate to us that all uniformed firefighters must be in the same unit. We think that the section requires no more than that uniformed employees be kept in one or more units separate from the department's non-uniformed employees, thus enabling the commission to deal flexibly in the public interest with the great variety of situations which may confront it. These may require determining whether in any particular community or department it is wise to include supervisory employees in a unit with the employees whom they supervise. See 1 N.L.R.B.Legis.Hist. of the Labor Management Relations Act, 1947, pp. 302,...