Karchmar v. City of Worcester

• Decision Date: 18 September 1973
• Citation: 364 Mass. 124,301 N.E.2d 570
• Parties: , 84 L.R.R.M. (BNA) 2410, 72 Lab.Cas. P 53,162 Steven D. KARCHMAR et al. v. CITY OF WORCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 570

301 N.E.2d 570

364 Mass. 124, 84 L.R.R.M. (BNA) 2410,

72 Lab.Cas. P 53,162

Steven D. KARCHMAR et al. v. CITY OF WORCESTER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 6, 1973.

Decided Sept. 18, 1973.

Warren H. Pyle, Boston, for plaintiffs.

Charles A. Abdella, Asst. City Solicitor, for the City of Worcester and others.

James J. Cody, Jr., Boston, for the Labor Relations Commission, and Augustus J. Camelio, Boston, for The American Federation of State, County and Municipal Employees, amici curiae, submitted briefs.

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

QUIRICO, Justice.

The plaintiffs, by this bill in equity under G.L. c. 231A, and the defendants, by their answer thereto, seek declaratory relief in a controversy arising out of a collective bargaining agreement relating to municipal employees. G.L. c. 149, §§ 178G--178N, as amended through St.1970, c. 463, § 1. The case is before us for decision on the bill and answer, having been reserved and reported by a single justice of this court without decision.

The named plaintiffs are three individuals who hold the offices of executive secretary, president, and treasurer, respectively, of the United Municipal Employees, Local 495, Service Employees International Union, AFL-CIO. Local 495 is a voluntary, unincorporated employee organization as defined by G.L. c. 149, § 178G. It has about 800 members 'all of whom are too numerous to join individually . . . but who have a common interest with the . . . (named plaintiffs) and who are fairly and adequately represented by the named . . . (plaintiffs).' The plaintiffs will be referred to herein collectively as Local 495.

The defendants are the city of Worcester, its city manager and its city treasurer, herein collectively referred to as the city.

At all times material to this case Local 495 has been the exclusive bargaining agent for five different collective bargaining units, each covering a different group of the employees of the city. There are about 1,600 employees in the five units combined, and all but 103 of them are protected by civil service status under G.L. c. 31. On and prior to December 27, 1971, the city and Local 495 had entered into three collective bargaining agreements which together covered the five bargaining units for a term to expire on July 7, 1973. Each of the contracts contained the following language (agency service fee provision): 'Effective the ninetieth day following the beginning of employment or the sixtieth day following formal execution of this agreement, whichever is later, each employee of the bargaining unit who is not a member of the Union in good standing shall be required, as a condition of employment, to pay a monthly agency service fee during the life of this agreement to the Union in an amount equal to the monthly dues; provided however, that such fee shall not exceed $6.00 per month.'

The basic controversy between the parties is whether the agency service fee provision has any application to those employees of the five bargaining units who enjoy civil service status. Local 495 contends that it applies to all employees of the bargaining units who do not belong to the union, regardless of whether they are included in civil service. The city contends that it applies only to those relatively few employees of the bargaining units who are not included in civil service. For the reasons discussed below, we hold that the position of Local 495 is the correct one.

The statutory labor relations law applicable to municipal employees in the Commonwealth is contained primarily in G.L. c. 149, § 178G through 178N, inserted by St.1965, c. 763, § 2, and it was amended in a manner affecting this case by St.1970, c. 463, § 1. Section 178H states in part that '(e)mployees shall have, and be protected in the exercise of, the right to self-organization, to form, join or assist any employee organization, to bargain collectively through representatives of their own choosing on questions of wages, hours and other conditions of employment and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.'

Section 178G, as originally enacted in 1965, defined the word 'employee' as used in §§ 178H through 178N to mean 'any employee of a municipal employer, whether or not in the classified service of the municipal employer, except elected officials, board and commission members, (police), and the executive officers of any municipal employer' (emphasis supplied). The definition continues the same except for the deletion therefrom of the word 'police' by St.1966, c. 156. The words 'classified service' are not further defined in §§ 178H through 178N. However, the word 'classified' is commonly used with reference to municipal civil service employees, particularly in G.L. c. 31, relating to civil service. The words 'classified civil service,' 'classification,' 'classes,' 'classified,' or 'classified public service,' appear in the following sections of c. 31: 1, 2A, 3, 4, 15, 15B, 22, 23, 33, 34, 38, 46H, and 49A. Section 1 thereof defines the words 'civil service' to mean 'classified civil service provided for by this chapter and the rules made thereunder.' When enacting §§ 178G through 178N in 1965, the Legislature could easily have expressly excluded civil service employees from the definition of 'employees,' if it had so intended. It did not do so, but instead expressly negatived any such intention by its precise choice of words. We therefore conclude that in originally enacting §§ 178G through 178N the Legislature intended the word 'employees' to include civil service employees.

Section 178H provides that the 'employee organization recognized by a municipal employer or designated as the representative of the majority of the employees in an appropriate unit,' which in this case means Local 495 as to each of the units involved, 'shall be the exclusive bargaining agent for all employees of such unit, and shall act, negotiate agreements and bargain collectively for all employees in the unit, and shall be responsible for representing the interests of all such employees without discrimination and without regard to employee organization membership.' Here again the Legislature used very clear language which permits no exception or exclusion of civil service employees from the operation and effect of this section. Local 495 is therefore the exclusive bargaining agent for all employees of each of the five units, whether members of the union or not, and whether in the civil service or not. Hamer v. Nashawena Mills, Inc., 315 Mass. 160, 164--165, 52 N.E.2d 22. Moen v. Director of the Div. of Employment Security, 324 Mass. 246, 249--250, 85 N.E.2d 779.

As originally enacted, § 178L prohibited municipal employers from committing five types of acts commonly referred to as constituting unfair labor practices. By St.1970, c. 463, § 1, the Legislature added at the end of the description of the five prohibited acts the following provision: '(6) nothing in this chapter shall prevent a municipal employer, which has duly accepted . . . (G.L. c. 180, § 17G), from requiring, as a condition of employment, during the life of a collective bargaining agreement so providing, the payment . . . of an agency service fee to the . . . exclusive bargaining agent for the unit in which such employee is employed; provided, however, that such agency service fee shall not be imposed unless the collective bargaining agreement requiring its payment as a condition of employment has been formally executed, pursuant to a vote of a majority of all employees in such bargaining unit present and voting. Such agency service fee shall be proportionately commensurate with the cost of collective bargaining and contract administration.

General Laws c. 180, § 17G, inserted by St.1970, c. 463, § 2, provides in part as follows: 'Deductions on payroll schedules may be made from the salary of any . . . municipal employee of any amount which such employee may specify in writing . . . for the payment of agency service fees to the employee organization which . . . (is) the exclusive bargaining agent for the appropriate unit in which such employee is employed. . . . Any such authorization may be withdrawn by the employee by giving . . . notice in writing of such withdrawal to the . . . (designated municipal officer), and by filing a copy thereof with the treasurer of the employee organization.'

On September 29, 1970, the city accepted G.L. c. 180, § 17G, by the unanimous vote of its city council. Thereafter the city and Local 495 negotiated the three collective bargaining agreements covering all employees of the five bargaining units and containing the now disputed agency service fee provisions. The agreements were 'formally executed, pursuant to a vote of a majority of all employees in (each) such bargaining unit present and voting.' G.L. c. 149, § 178L, as amended. No question is raised about the legality of the negotiations, the votes of the employees authorizing the execution of the contracts, or the formal execution of the contracts.

Despite the 1970 statutory amendments (St.1970, c. 463, §§ 1 and 2) expressly authorizing municipalities to enter into collective bargaining agreements containing provisions for the payment of agency service fees as a condition of employment and authorizing payroll deductions for payments of such fees on written request of employees, and despite the fact that the city and Local 495 have entered into three otherwise admittedly valid agreements containing agency service fee provisions, the city now contends that such provisions apply only to the 103 noncivil service employees out of the total of about 1,600 employees in the five units. Neither the collective bargaining agreements nor the applicable statutes contain any express language excluding civil service employees from the operation and...