City of Boston v. Labor Relations Comm'n, 110199

• Decision Date: 01 November 1999
• Docket Number: No. 97-P-1232,97-P-1232
• Citation: 48 Mass. App. Ct. 169,718 N.E.2d 875
• Parties: (Mass.App.Ct. 1999) CITY OF BOSTON v. LABOR RELATIONS COMMISSION & another. <A HREF="#fr1-1" name="fn1-1">1
• Court: Appeals Court of Massachusetts

718 N.E.2d 875 (Mass.App.Ct. 1999)

CITY OF BOSTON v. LABOR RELATIONS COMMISSION & another.¹

No. 97-P-1232

MASSACHUSETTS COURT OF APPEALS

Argued December 10, 1998.

November 1, 1999

Appeal from a decision of the Labor Relations Commission.

Suffolk County

Laurence, Lenk, & Beck, JJ.

Labor Relations Commission. Public Employment, Police, Collective bargaining. Labor, Police,

Collective bargaining. Police, Collective bargaining, Compensation. Waiver. Contract,

Collective bargaining contract.

John Foskett for the plaintiff.

John B. Cochran for the defendant.

Alan J. McDonald & Anne C. Ritterspach, for the intervener, submitted a brief.

BECK, J.

For at least thirteen years, the city of Boston (city) paid a differential of twenty-seven dollars per

week to the five police captains who served as commanders of special units, even though there

was nothing in the collective bargaining contract between the city and the union requiring such

differential. In October, 1993, the city unilaterally stopped making the payments. The union

challenged the city's action before the Labor Relations Commission (commission). The

commission found that the city had committed an unfair labor practice and ordered, among other

things, that the city bargain in good faith with the union over the decision. The city appeals,

arguing that the union waived its right to bargain this issue.

Factual background. There are fifteen captains in the Boston Police Department. They are

represented by the Boston Police Superior Officers Federation (union). Ten serve as district

commanders who work days. The five other captains who are not district commanders serve as

commanders of the following specialized units: hackney, paid detail, police academy, central

attendance, and technical services. The collective bargaining agreement (agreement) governing

the actions at issue in this case consists of the 1979 collective bargaining agreement between the

parties as amended by subsequent memoranda of agreement.

Article XVII of the collective bargaining contract is captioned "Compensation." It provides for

differential payments by rank, including captains (section 1); officers serving as detectives

(section 2); certain special assignments (section 3); and night shift assignments (section 7).

Detectives assigned to a special assignment receive only the detective differential (section 5). On

the other hand, section 6 provides that the differential for special assignments in section 3 "are in

addition to any assignments otherwise specified in the 1965 Plan." (There is no other mention of

the 1965 plan in the record before us.) Some, but not all, of the special units headed by the five

captains who are not district commanders are among the special assignments listed in section 3.

Section 8 of article XVII provides that each of the "[c]aptains working days who serve as District

Commanders shall . . . receive an additional differential of twenty seven ($27.00) dollars per

week." It is undisputed that there is no comparable provision for the five captains who serve as

commanders of the special units. It is also undisputed that at least from 1980 to 1993, captains

commanding the special units also received the twenty-seven dollars per week differential even

though section 3 provides other differentials for members of some of the special units. The

parties stipulated that the management of the police department knew or should have known that

such payments were being made.

Article VII of the collective bargaining contract, entitled "Stability of Agreement," provides as

follows:

"Section 1. No agreement, understanding, alteration or variation of the agreements, terms or

provisions herein contained shall bind the parties hereto unless made and executed in writing by

the parties hereto.

"Section 2. The failure of the [city] or the [union] to insist, in any one or more incidents, upon

performance of any of the terms or conditions of this Agreement shall not be considered as a

waiver or relinquishment of the right of the [city] or of the [union] to future performance of any

such term or condition, and the obligation of the [union] and the [city] to such future

performance shall continue in full force and effect." Apparently as a result of an independent

audit of the entire department in the summer of 1993, the city discovered what it termed an

"error" in the payment of the differential to the special unit commanders. Acting on this

discovery, the city unilaterally discontinued the practice as of the paychecks dated October 6,

1993.

Prior proceedings. Following the union's attempts to determine which captains were involved in

the alleged mistake, the union filed a charge of prohibited practice with the commission on

November 24, 1993. On March 16, 1994, after considering written submissions of the parties, the

commission issued a complaint of prohibited practice. G. L. c. 150E, § 11.

The parties submitted the charge to an administrative law judge (ALJ) on stipulated facts and

briefs. The city argued that by accepting articles XVII and VII of the agreement, the union had

waived its right to bargain over the city's action, and that the express terms of the contract

precluded consideration of "past practice." The ALJ rejected the argument that the "Stability of

Agreement" provisions "negate the concept of 'past practices'" and concluded that the city had

not carried its heavy burden of showing waiver. The city appealed to the commission, which

considered the record before the ALJ along with supplementary statements from the parties. The

commission affirmed the decision of the ALJ, again rejecting the city's arguments that articles

XVII and VII constituted waivers of the right to bargain the impact of discontinuing the

payments.

Issues on appeal. On appeal to this court, the city argues that "the commission's decision is not

supported by substantial evidence because the city presented clear and unmistakable proof that

the union contractually waived its right to bargain the issue of compensation to captains in

charge of special units." The city claims that the express provision of a differential for the district

commanders serving days is an implicit waiver of a differential for the five other captains. It also

argues that the union waived the right to bargain over the termination of the differential for

special unit captains because article XVII covers the entire subject of compensation to bargaining

unit members and there is no provision in the article for such payment. Finally, the city argues in

rather conclusory terms that "[t]he commission's decision is erroneous because the commission

failed to give effect to article VII of the agreement which states that any verbal agreements or

practices that conflict with the written terms of the agreement shall not be binding." The union

argues that the city was obliged to provide notice and an opportunity to bargain the impact of its

action and that neither article XVII nor article VII meets the standard for finding a waiver of that

right. The commission focuses its argument on article VII, which it refers to as a "zipper clause,"

and argues that its decision is supported by substantial evidence because the "zipper clause" does

not constitute a waiver of the union's right to bargain.

Governing legal principles. 1. Standard of review. A commission decision must be based on

substantial evidence, "such evidence as a reasonable mind might accept as adequate to support a

conclusion." G. L. c. 30A, § 1(6). See School Comm. of Boston v. Labor Relations

Commn., 40 Mass. App. Ct. 327, 328-239 (1996). In determining whether a decision has such

support, we "give due weight to the experience, technical competence, and specialized

knowledge of the agency, as well as the discretionary authority conferred upon it." G. L. c. 30A,

§ 14. Commonwealth v. Labor Relations Commn., 404 Mass. 124, 127 (1989). See School

Comm. of E. Brookfield v. Labor Relations Commn., 16 Mass. App. Ct. 46, 52 (1983); School

Comm. of Boston v. Labor Relations Commn., 40 Mass. App. Ct. at 336. Moreover, we cannot

substitute our judgment for that of the commission, even "on the basis of evidence in the record

that might have warranted a contrary conclusion." School Comm. of Newton v. Labor Relations

Commn., 388 Mass. 557, 573 (1983).

2. Mandatory subject of bargaining. It is well established that a differential affects salary and is

therefore a mandatory subject of bargaining. G. L. c. 150E, § 6. Commonwealth v. Labor

Relations Commn., 404 Mass. at 125. Moreover, "a unilateral change in past practice, if it bears

on terms and conditions of employment, violates the duty under §§ 6 and 10(a)(5)

[of G. L. c. 150E] to bargain such changes collectively with the employee's representative." Lynn

v. Labor Relations Commn., 43 Mass. App. Ct. 172, 177 (1997), citing Lee v. Labor Relations

Commn., 21 Mass. App. Ct. 166, 167 (1985).

3. Past practice. As the Supreme Court established long ago, a collective bargaining agreement is

not necessarily limited to the terms of the written document. "There are too many people, too

many problems, too many unforeseeable contingencies to make the words of the contract the

exclusive source of rights and duties." United Steelworkers of America v. Warrior & Gulf Nav.

Co., 363 U.S. 574, 579 (1960), quoting from Cox, Reflections Upon Labor Arbitration, 72 Harv.

L. Rev. 1482, 1498-1499 (1959). "Gaps may be left to be filled in by reference to the practices of

the particular industry and of the various shops covered by the agreement." Id. at 580. See Cape

Cod Gas Co. v. United Steelworkers of America, Local 13507, 3 Mass. App. Ct. 258, 263 (1975)

(typical technique for construing labor contract includes previous practices under predecessor

bargaining agreements); Peabody v. Peabody Police Benevolent Assn., 34 Mass. App. Ct. 113,

116 (1993)...