City of Lynn v. Labor Relations Com'n

• Decision Date: 17 July 1997
• Docket Number: L,No. 93-P-810,AFL-CI,93-P-810
• Citation: 43 Mass.App.Ct. 172,681 N.E.2d 1234
• Parties: , 158 L.R.R.M. (BNA) 2822 CITY OF LYNN v. LABOR RELATIONS COMMISSION; International Association of Firefighters,ocal 739, intervener.
• Court: Appeals Court of Massachusetts

Page 1234

681 N.E.2d 1234

43 Mass.App.Ct. 172, 158 L.R.R.M. (BNA) 2822

CITY OF LYNN v. LABOR RELATIONS COMMISSION; International Association of

Firefighters, AFL-CIO, Local 739, intervener.

No. 93-P-810.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 17, 1995.

Decided July 17, 1997.

David F. Grunebaum, Boston, for the City of Lynn.

Tammy Brynie, Boston, for the Labor Relations Commission.

Ruth A. Bourquin, Boston, for Local 739, International Association of Firefighters.

Before ARMSTRONG, KASS and GILLERMAN, JJ.

ARMSTRONG, Justice.

The city of Lynn appeals from a decision of the Labor Relations Commission finding the city chargeable with prohibited practices when its fire chief applied for and thereby caused the superannuation retirement of a firefighter in 1989.

The relevant background began on March 8, 1984, when Lynn firefighter Charles Curley slipped on an oil spot in the firehouse while running to answer a phone. His right knee, twice before injured in accidents (once when he slipped on ice, again when he slid down the firehouse pole and landed hard), was now seriously injured and required surgery in 1984 and again in 1985. He did not return to work after the March, 1984, accident and was placed on injured leave under G.L. c. 41, § 111F. That section provides full pay and benefits for a firefighter injured in the line of duty, plus, under § 100, all medical expenses. See Eyssi v. Lawrence, 416 Mass. 194, 198, 618 N.E.2d 1358 (1993). By the terms of the statute, § 111F status is terminated when the firefighter is retired or is certified by a city-designated physician to be no longer incapacitated.

In April, 1986, told by his physicians that he had reached a medical plateau, Curley applied for accidental disability retirement under G.L. c. 32, § 7, a form of retirement that provides higher benefits than ordinary (superannuation) and disability (nonservice-connected) retirement. General Laws c. 32, § 5 and § 6, respectively. See discussion in MacDonald v. Commissioner of the Metropolitan Dist. Commn., 33 Mass.App.Ct. 455, 459-460, 600 N.E.2d 1020 (1992). Accidental disability retirement requires certification by a medical panel that the employee is permanently and totally disabled and that the disability "is such as might be the natural and proximate result of the accident ... on account of which [accidental disability] retirement is claimed...." G.L. c. 32, § 6(3)(a ), as amended through St.1987, c. 697, § 32. Noone v. Contributory Retirement Appeal Bd., 34 Mass.App.Ct. 756, 761-764, 616 N.E.2d 126 (1993). The panel that examined Curley did not so find; rather, it expressed the view that Curley was overweight and out of shape, and that, while he had degenerative arthritis in his knee, if he underwent a weight reduction program and did exercise to limber up his knee, his acknowledged disability might well prove temporary. On this basis, the Lynn retirement board denied Curley's application, but on May 31, 1988, the Contributory Retirement Appeal Board (CRAB) remanded to the medical panel and the Lynn board for reconsideration and clarification. The medical panel reexamined Curley on September 12, 1988, finding this time (two years later) that Curley was permanently and totally disabled but, based, apparently, ¹ on a view that Curley's accident would not have resulted in permanent disability if he had given rehabilitation a fair try, again refused to certify the possibility that his disability was the result of the accident. The Lynn retirement board, on November 29, 1988, again voted to deny Curley's application, and Curley again appealed to CRAB.

At this point Lynn's fire chief, notified of the denial, told Curley that unless he (Curley) filed an application for superannuation retirement within one week, he (the fire chief) would file an application for Curley's involuntary superannuation retirement, a power given to the chief by G.L. c. 32, § 16(1)(a ). ² See the MacDonald decision, 33 Mass.App.Ct. at 460, 600 N.E.2d 1020. The president of Curley's union (Local 739, International Association of Firefighters) interceded with the chief to try to persuade him to withhold filing for the involuntary superannuation retirement as long as Curley's appeal to CRAB remained unresolved. The parties acknowledge that CRAB appeals were then backlogged and that the resultant delay could have been expected to take, as it was in fact to take, two years or more to process. The fire chief refused, and the Lynn retirement board, acting on the chief's application, retired Curley involuntarily for superannuation on January 10, 1989. From that time until CRAB, reversing the Lynn board, approved Curley's accidental disability retirement, Curley received an ordinary (superannuation) pension. ³

Curley's union filed a charge, and the Labor Relations Commission has found, that the fire chief violated G.L. c. 150E, § 10(a )(1) and (5), by filing the application for Curley's retirement unilaterally, without engaging first in collective bargaining with the union, and without waiting for a final decision by CRAB on Curley's second appeal from the denial of an accidental disability pension. This conclusion was erroneous, the city argues, because the chief's authority to apply for retirement of a firefighter under G.L. c. 32, § 16(1)(a ), is a matter of exclusive managerial prerogative and thus an impermissible subject of collective bargaining.

Recognition in the public sector of areas of management prerogative reserved from the collective bargaining process began with School Comm. of Hanover v. Curry, 369 Mass. 683, 684-685, 343 N.E.2d 144 (1976), School Comm. of Braintree v. Raymond, 369 Mass. 686, 690, 343 N.E.2d 145 (1976), and Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass. 522, 525-527, 377 N.E.2d 940 (1978), and has been applied in numerous cases, including, most recently, Massachusetts Coalition of Police, Local 165, AFL-CIO v. Northborough, 416 Mass. 252, 254-257, 620 N.E.2d 765 (1993), Higher Educ. Coordinating Council v. Massachusetts Teachers' Assn., 423 Mass. 23, 27-31, 666 N.E.2d 479 (1996), School Comm. of Natick v. Education Assn. of Natick, 423 Mass. 34, 40-41, 666 N.E.2d 486 (1996), and Boston v. Boston Police Patrolmen's Assn., Inc., 41 Mass.App.Ct. 269, 271-272, 669 N.E.2d 466 (1996). The Labor Relations Commission rejected the city's contention that the fire chief's authority under § 16(1)(a ) was a matter of exclusive managerial prerogative and was therefore exempt from collective bargaining.

It was agreed that the collective bargaining agreement here was silent on the subject of retirements and specified no procedural formalities that the fire chief ignored. The commission concluded, however, that the involuntary superannuation retirement of Curley had an impact on his compensation, a subject within the scope of G.L. c. 150E, § 6, and was thus a mandatory subject of collective bargaining. Moreover, reasoned the commission, no chief had ever previously filed an involuntary superannuation retirement application for a firefighter who had his own voluntary application pending for accidental disability retirement; thus, the chief had unilaterally changed an existing practice that bore on a mandatory subject of bargaining, in violation of G.L. c. 150E, § 10(a )(1) and (5). See School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651, 653, 481 N.E.2d 484 (1985); Lee v. Labor Relations Commn., 21 Mass.App.Ct. 166, 167-169, 485 N.E.2d 971 (1985). Compare, on facts, Pattison v. Labor Relations Commn., 30 Mass.App.Ct. 9, 11, 23, 565 N.E.2d 801 (1991). The city appealed.

For the purpose of decision we assume, without deciding, that an involuntary retirement involves terms and conditions of employment within the meaning of G.L. c. 150E, § 6. Compare School Comm. of Braintree v. Raymond, 369 Mass. at 690, 343 N.E.2d 145 ("the abolition of an employee's position, his transfer to a lesser position, and reduction of his salary involved his 'wages, hours and other conditions of employment' within the meaning of G.L. c. 149, § 178I," the predecessor to § 6); School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557, 563, 447 N.E.2d 1201 (1983) ("the question of termination of employment by layoff is one of the 'terms and conditions of employment' ... [, involving] the very essence of the relationship, the employment itself, and not a peripheral matter"). Without more, it does not follow that the city was required to bargain collectively with the union before its fire chief could apply for the retirement of Curley. "[The] mere characterization of a feature of a collective bargain or an arbitration award as 'compensation,' or 'terms or conditions of employment' or some other subject conventionally or by law within the scope of either process, will not save the provision if in substance it defeats a declared legislative purpose." Watertown Firefighters, Local 1347, I.A.F.F., AFL-CIO v. Watertown, 376 Mass. 706, 714, 383 N.E.2d 494 (1978). Indeed, it taxes the mind to think of some point of difference that might arise between a public manager and the employees in his or her unit that could not be said to bear a relation to terms and conditions of employment.

It has been said that "[a]ny attempt to define with precision and certainty the subjects about which bargaining is mandated by [c.] 150E is doomed to failure." Greenbaum, The Scope of Mandatory Bargaining Under Massachusetts Public Sector Labor Relations Law, 72 Mass. L.Rev. 102 (1987). While uncertainties are inevitable in an area where the lines have been drawn "on a case by case basis," Burlington v. Labor Relations Commn., 390 Mass. 157, 164, 454 N.E.2d 465 (1983), the framework for analysis has emerged with workable clarity over time.

The reported decisions seem to cluster broadly into three categories, depending on the type of authorizing statute or other law under which the public manager...