Director of Division of Emp. Relations of Dept. of Administration and Finance v. Labor Relations Commission

• Decision Date: 26 April 1976
• Citation: 346 N.E.2d 852,370 Mass. 162
• Parties: , 92 L.R.R.M. (BNA) 2753, 80 Lab.Cas. P 54,086 DIRECTOR OF the DIVISION OF EMPLOYEE RELATIONS OF the DEPARTMENT OF ADMINISTRATION AND FINANCE v. LABOR RELATIONS COMMISSION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 852

346 N.E.2d 852

370 Mass. 162, 92 L.R.R.M. (BNA) 2753,

80 Lab.Cas. P 54,086

DIRECTOR OF the DIVISION OF EMPLOYEE RELATIONS OF the

DEPARTMENT OF ADMINISTRATION AND FINANCE

v. LABOR RELATIONS COMMISSION et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1975.

Decided April 26, 1976.

Steven C. Kahn, Boston, for Labor Relations Commission.

Warrent H. Pyle, Boston, for Local 509, Service Employees Intern. Union, AFL-CIO.

Mark Monty Grossman, Special Asst. Atty. Gen. (William R. Blane with him), for the Director of the Div. of Employee Relations of the Dept. of Administration and Finance, Boston.

Before HENNESSEY, C.J., and QUIRICO, KAPLAN and WILKINS, JJ.

KAPLAN, Justice.

Suppose the Labor Relations Commission (Commission) has properly found on complaint of a public employer that a union of public employees instigated an illegal withholding of services by its members. May the Commission, in issuing a cease and desist order against the union, add an order requiring the parties to submit to arbitration an alleged 'hiring freeze' and work assignment by the employer, when arbitration was not applied for under the grievance provision of the collective bargaining agreement, and the Commission has not proceeded with a pending 'prohibited practice' complaint against the employer regarding the hiring freeze? The question is a limited one. A judge of the Superior Court held in the circumstances of the case that the added order was erroneous. We agree that it was not authorized by the statutory provision on which the Commission relied, § 9A of new c. 150E of the General Laws ('Labor Relations: Public Employees,' effective July 1, 1974).

The facts appear in the stipulation of agreed facts on which the judge below acted. On March 15, 1974, the Department of Public Welfare entered into a collective bargaining agreement with Local 509, Service Employees International Union, AFL-CIO (Union), which represented the social workers employed to carry out the department's welfare program. Certain provisions of the contract (simplified) described an employee's normal caseload in an office as 120 cases and set out procedures for dealing with surplus cases. Such cases were to be first assigned on a 'prorata overtime basis' to any employees who volunteered, but if there were insufficient volunterrs or the overtime fund was temporarily depleted, the cases were to be mandatorily assigned to employees up to a maximum of 180 cases. The agreement, which was lengthy and detailed, further contained a 'no strike' clause and a 'grievance procedure' culminating in final and binding arbitration.

In October, 1974, some employees refused, at the urging of the Union, to handle assigned surplus cases. The Union claimed that the surplus had been generated by reductions of staff created by an administrative hiring freeze allegedly in violation of the sense, even if not the text, of the agreement. The Union, however, did not file a grievance under the arbitration provision. Instead, for reasons of its own, the Union on October 23, 1974, filed a 'prohibited practice' charge with the Labor Relations Commission under § 10(a) (5). ² The next day the Director of the Division of Employee Relations of the Department of Administration and Finance--the public employer for present purposes ³--informed the Commission that an illegal strike (more properly, an illegal withholding of services) was in progress in violation of § 9A(a), and demanded that the Commission conduct an investigation and institute appropriate court action under § 9A(b) to enjoin the violation.

The Commission conducted a hearing on the Employer's petition and, on October 30, 1974, entered an order under § 9A(b) requiring the Union to cease and desist from encouraging or sanctioning the withholding of services by the employees. However, the order was subject to two 'provided' clauses: that the disputed assignment of cases and the imposition of the hiring freeze be promptly submitted to binding arbitration pursuant to the agreement, and that the parties participate in good faith in the arbitration procedures--to which was added the 'caution' that frustration of the arbitration by either party might furnish 'a basis for reconsideration hereof.' The parties both sought modification of the order and on November 14 the Commission issued a final revised order, set out in the margin, ⁴ still under authority of § 9A(b) in which (among certain other changes) the 'provided' form was dropped and good-faith arbitration was directly commanded. It is noteworthy that the Commission left hanging and took no steps concerning the prohibited practice charge.

The Commission did not immediately bring an action under § 9A(b) to enforce its order. Instead, the Employer sued the Commission in the Superior Court resting jurisdiction on G.L. c. 30A, § 14, and praying a modification of the order to eliminate the command that the parties submit to binding arbitration. (In fact the Employer has been willing to arbitrate the issue whether social workers could be assigned more than 120 cases, but resisted any arbitration concerning the hiring freeze.) The Commission answered and counterclaimed, naming the Union as an additional defendant to the counterclaim, and prayed enforcement of its entire final order. The Union contested the portion of the order directing it to cease and desist, but argued that the order to arbitrate was proper.

On agreed facts, the judge of the Superior Court sustained the Employer's position. He upheld the cease and desist part of the order, and struck the rest. His decision to delete the order to arbitrate went on two alternative grounds. First, the stricken provisions were not authorized by § 9A(b) on which the Commission had relied; it was not a 'reqirement' which the Commission could 'set' in connection with prohibiting an illegal strike, work stoppage, slowdown, or withholding of services. Second, the basic matter commanded to be arbitrated--the imposition of a hiring freeze--was intrinsically nonarbitrable: resulting from financial stringency, it was a matter of executive and legislative decision, not amenable to review by an arbitrator. See generally Annot., 68 A.L.R.3d 885 (1976).

We took the case on request of the parties under G.L. c. 211A, § 10(A). The Union does not now contest the cease and desist part of the order and so the sole issue on appeal is the propriety of the judge's delection of the arbitration order. In affirming, we rest on the first ground, and do not reach or express any views about the second.

1. Section 9A(a) is an absolute prohibition of strikes and the like by public employees. It states: 'No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by such public employees.'

By subsection (b) of § 9A, the Commission is directed to prevent or correct any violations it finds, after investigation, to exist: 'Whenever a strike occurs or is about to occur, the employer shall petition the commission to make an investigation. If, after investigation, the commission determines that any provision of paragraph (a) of this section has been or is about to be violated, it shall immediately set requirements that must be complied with, including, but not limited to, instituting appropriate proceedings in the superior court for the county wherein such violation has occurred or is about to occur for enforcement of such requirements.'

It is argued that the power in subsection (b) to 'immediately set requirements that must be complied with' includes the authority not only to compel employee compliance with the fundamental prohibitory rule of subsection (a), but also to compel action by both the Employer and the Union to resolve the dispute which appears to have occasioned the employee unrest--including, as in this case, an order for mandatory arbitration for which there is no express basis anywhere in c. 150E. We agree with the trial judge that the natural reading of subsection (b) is otherwise. It is not an independent provision or a global one. It is tied to subsection (a) and confers the specific power on the Commission immediately to set requirements to be complied with by the offending party which will eliminate the violation and which may be enforced in case of further violation by resort to the Superior Court.

If there is unclarity in the text of § 9A(b), ⁵ it is much relieved, we think by an examination of its legislative history. The language about setting requirements can be traced to a bill (1973 House Doc. No. 6194, app. B) drafted by a special commission, with Senator George Mendonca as chairman, created to recommend changes in the statute governing labor relations in the public sector. See Res.1969, c. 97; 1971, c. 24. This bill ⁶ and two others that followed ⁷ departed from the traditional absolute prohibition of strikes by public employees (see Hansen v. Commonwealth, 344 Mass. 214, 181 N.E.2d 843 (1962)) and would have allowed public employees to strike if during contract negotiations an impasse continued after mediation and fact-finding stages. To meet the dangers that might arise in such situations, there was provision that if a strike endangering the public health or safety was 'occurring, or about to occur,' the public employer could petition the Labor Relations Commission to make an investigation, and '(i)f the Commission finds that there is imminent or present danger to the health and safety of the public, the Commission shall set requirements that must be complied with to avoid or remove any such imminent or present danger.' 1973 House Doc. No. 6194, app. B, § 9(c)(4). This seems clearly to mean that the Commission could specify standards that must be met by the public employees, such as maintaining a skeletal force to stay on the job, so that the...