Harrison v. Labor Relations Commission

• Decision Date: 07 May 1973
• Parties: , 83 L.R.R.M. (BNA) 3063, 71 Lab.Cas. P 53,056 John R. HARRISON et al. 1 v. LABOR RELATIONS COMMISSION. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 196

296 N.E.2d 196

363 Mass. 548, 83 L.R.R.M. (BNA) 3063,

71 Lab.Cas. P 53,056

John R. HARRISON et al. ¹ v. LABOR RELATIONS COMMISSION. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 7, 1973.

Decided May 7, 1973.

Michael C. Gilman, Asst. Corp. Counsel for the City of Boston, intervener.

Robert E. Doane, Boston (Daniel P. Collins, Cambridge, with him), for the Fire Chiefs' Association of Boston.

Alan Katz, Boston, for Labor Relations Commission.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

The intervener city of Boston (the city) appeals from a final decree of the Superior Court dismissing a bill for judicial review of a decision of the Labor Relations Commission (the commission) in an adjudicatory proceeding, and from an earlier interlocutory decree so far as it determines that deputy chiefs and district chiefs in the fire department of the city are not 'executive officers' within the meaning of G.L. c. 149, § 178G. We summarize the proceedings.

On July 31, 1968, the Fire Chiefs' Association of Boston (the association) by a petition asked the commission, pursuant to G.L. c. 149, §§ 178G--178N, inserted by St. 1965, c. 763, § 2, the municipal collective bargaining law, to certify it as the collective bargaining representative of assistant chiefs, deputy chiefs, and district chiefs of the fire department of the city. The commission ruled that assistant chiefs are executive officers and that the bargaining unit sought was inappropriate as matter of law, and dismissed the petition. Thereafter, on November 26, 1968, the association filed a new petition seeking certification as representative of a unit including only the deputy chiefs and district chiefs. The commission found that the unit was not apropriate and dismissed the second petition.

On the bill for judicial review under G.L. c. 30A, § 14, the judge ruled that the commission had not set forth findings which justified its conclusion, and that the rights of the parties might have been prejudiced by arbitrary and capricious action, and remanded the case to the commission for further proceedings. The commission then filed, on July 2, 1970, a supplementary decision containing elaborate findings and an opinion concluding that the Boston deputy chiefs and district chiefs are 'executive officers' exempted from coverage by G.L. c. 149, § 178G. ³ On further judicial review under G.L. c. 30A, § 14, the judge found that the supplementary decision of the commission was unsupported by substantial evidence, and that the Boston deputy chiefs and district chiefs are supervisory officers but not 'executive officers.' His interlocutory decree remanded the case again to the commission. The city appealed. On November 30, 1971, the commission filed a second supplementary decision, carrying out the interlocutory decree and concluding that the deputy chiefs and district chiefs constituted an appropriate bargaining unit and directing that an election be held. The judge then entered, on February 8, 1972, a final decree dismissing the bill for judicial review, and the city appealed.

1. In City Manager of Medford v. State Labor Relations Commn., 353 Mass. 519, 524, 233 N.E.2d 310, 314, we held that in the absence of allegations '(a) that the commission has exceeded its jurisdiction, (b) that there is any extraordianry 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 . . . it was premature for the Superior Court to exercise jurisdiction to review the commission's action.' There the commission had decided that the appropriate unit consisted of the firefighters of the city, including deputy chiefs but excluding the chief, and had ordered an election. We held, in effect, that there had been no 'final decision' within G.L. c. 30A, § 14 (as amended by St.1957, c. 193, § 1; see now St.1968, c. 637, § 1), when the municipal employer sought review. See Jordan Marsh Co. v. Labor Relations Commn., 312 Mass. 597, 602, 45 N.E.2d 925. We have applied the same rule when an employee organization sought judicial review of a similar decision. Worcester Industrial Technical Inst. Instructors Assn. Inc. v. Labor Relations Commn., 357 Mass. 118, 120--121, 256 N.E.2d 287. Ordinarily, judicial review must be postponed until the commission has issued or denied an order to desist from a practice prohibited by the statute. See, e.g., Jordan Marsh Co. v. Labor Relations Commn., 316 Mass. 748, 56 N.E.2d 915; LABOR RELATIONS COMMN. V. UNIVERSITY HOSP., INC., MASS., 269 N.E.2D 682^A.

Such postponement of judicial review is not necessary in cases where the commission acts outside its jurisdiction. Saint Luke's Hosp. v. Labor Relations Commn., 320 Mass. 467, 469--474, 70 N.E.2d 10. Massachusetts Bay Transp. Authy. v. Labor Relations Commn., 356 Mass. 563, 564, 254 N.E.2d 404. In the Medford case, supra, 353 Mass. at 524--527, 233 N.E.2d 310 we thought it appropriate to express our views on the principal issue in dispute even though judicial review was premature. In the present case neither party has argued the question whether judicial review is premature. The first supplementary decision of the commission denied the deputy chiefs and district chiefs any rights as employees under the statute, and the judge apparently regarded that action as ripe for review. Compare Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 3 L.Ed.2d 210, with Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11 L.Ed.2d 849. In view of our opinion on the merits, and in view of the failure of the parties to argue the point, we pursue no further the question whether review is premature.

2. The association contends that, after the second supplementary decision of the commission, counsel for the city assented to election arrangements, and that this action constituted a waiver of the city's right to appeal. The documents on which this contention depends were not printed in the record but were submitted separately without consent or authorization; they are not properly before us and cannot be considered. In any event, consent by the city to election arrangements would show at most a prudent adjustment to the situation created by the interlocutory decree and the second supplementary decision. See BELL V. NORTH READING, MASS., 295 N.E.2D 894.^B There is no indication that the city acquiesces in that situation. Compare KERRIGAN V. BOSTON, MASS., 278 N.E.2D 387^C.

3. The principles...