Labor Relations Commission v. Blue Hill Spring Water Co.

• Decision Date: 19 December 1980
• Parties: , 113 L.R.R.M. (BNA) 2267, 92 Lab.Cas. P 55,304 LABOR RELATIONS COMMISSION et al. 1 v. BLUE HILL SPRING WATER COMPANY.
• Court: Appeals Court of Massachusetts

Page 351

414 N.E.2d 351

11 Mass.App.Ct. 50, 113 L.R.R.M. (BNA) 2267,

92 Lab.Cas. P 55,304

LABOR RELATIONS COMMISSION et al. ¹ v. BLUE HILL SPRING WATER COMPANY.

Appeals Court of Massachusetts, Suffolk.

Argued May 17, 1979.

Decided Dec. 19, 1980.

Robert B. McCormack, Hingham, and Garry J. Wooters, Boston, for the Labor Relations Commission.

David E. Watson, Boston, for defendant.

Stephen J. Kehoe, Lynn, for John Clegg and another, intervenors.

Before GOODMAN, PERRETTA and KASS, JJ.

GOODMAN, Justice.

These are appeals from a judgment by a three-judge panel of the Superior Court (G. L. c. 212, § 30) dismissing an action brought under G. L. c. 150A, § 6(e), by the Massachusetts Labor Relations Commission (commission) to enforce its order requiring, among other things, that the defendant company (Blue Hill) offer reinstatement to two employees, John Clegg and John Russell, the intervenors. The commission found that Blue Hill had discharged them on October 31, 1974, for union activity and had thus engaged in unfair labor practices, as defined in G. L. c. 150A, §§ 4(1) and 4(3). Blue Hill filed a motion to dismiss on the ground that the "(p)laintiff's Decision and Order ... is null and void" because it dealt with matters "subject to the exclusive jurisdiction of the National Labor Relations Board" and because Blue Hill was not properly notified of the formal hearing on which the decision and order were based. The defendant also filed an answer to the commission's complaint in this enforcement action, alleging, in addition to the matters in the motion to dismiss, that the decision and order were not supported by substantial evidence. The court dismissed the action on the first ground in Blue Hill's motion to dismiss-that Federal preemption ² precluded enforcement of the commission's order. It therefore did not reach Blue Hill's other contentions. Since we hold that the doctrine of Federal preemption as applied to the circumstances of this case does not vitiate the commission's order, we discuss all three of the defendant's contentions. We reverse the judgment below and order that judgment enter enforcing the commission's order.

1. Federal preemption. On November 4, 1974, the Monday following the discharge of Clegg and Russell on Thursday, October 31, 1974, the Teamsters Union, Local 841, on behalf of which they had been organizing, filed an unfair labor practice charge with the National Labor Relations Board (NLRB). On March 18, 1975, the NLRB issued a complaint alleging, among other things, that Clegg and Russell had been discharged for their union activities in violation of § 8(a)(3) of the National Labor Relations Act. 29 U.S.C. § 158(a)(3) (1970). The NLRB scheduled a hearing on the allegations of the complaint for May 1, 1975. Thereafter, by telegram dated April 29, 1975, the NLRB postponed its hearing indefinitely. Just prior thereto, on April 24, 1975, Clegg and Russell filed charges with the commission, alleging that their discharges on October 31, 1974, were unfair labor practices under G. L. c. 150A, §§ 4(1) and 4(3). On December 19, 1975, the commission issued a complaint alleging that Blue Hill had discharged Clegg and Russell because of their union activities and scheduled a hearing for January 12, 1976. The hearing was held as scheduled; no one from Blue Hill attended the hearing. On January 30, 1976, the NLRB dismissed its complaint. On April 2, 1976, the commission issued the decision and order which it now seeks to enforce.

The court below, in its memorandum refusing to enforce the order, ruled that "preemption remains unless and until the National Labor Relations Board ... declines to exercise its jurisdiction" and that the commission "took significant action while the matter was pending before (the) NLRB." ³ Thus Blue Hill in its brief correctly characterizes "the decision below (as) demonstrat(ing) that the question turn(ed) on the legal impact of the outstanding NLRB complaint." The court and the defendant have regarded as irrelevant the fact that the commission's order was issued after the dismissal of the complaint, which, the parties conceded at oral argument, was the equivalent of a declination of jurisdiction. See 29 U.S.C. § 164(c) (1970); G. L. c. 150A, § 10(b). ⁴ Since the order came after the declination of jurisdiction, Blue Hill is left with the argument-not that the issuance of the order is preempted by the Federal labor statutes-but that it has no basis because, as put in its brief, "all action taken by the (c)ommission while the NLRB complaint was outstanding is a nullity and there is no effective hearing to support its decision."

The issue is a narrow one. It does not involve the question whether a State court should grant relief to a party to a commission proceeding within the primary jurisdiction of the NLRB ⁵ where the party seeks to forestall a determination by the commission. See e. g., Hathaway Bakeries, Inc. v. Labor Relations Commn., 316 Mass. 136, 55 N.E.2d 254 (1944). A request to a court to interfere in the commission's administrative process in order to vindicate the primary jurisdiction of the NLRB may occur at various stages of commission proceedings and raises difficult questions of what, if anything, is required at any particular stage to protect the NLRB's primary jurisdiction-questions which we need not answer in this case. Nor need we attempt to evaluate the administrative accommodation generally made by the commission to the NLRB's preemptive power. Compare the accommodation made by the Connecticut State Labor Relations Board as described by Professor Fleming James, while its chairman. James, State Against Federal Jurisdiction in Labor Relations, 31 Conn.B.J. 5, 9-11 (1957).

Here the Superior Court and we are asked to vindicate a primary jurisdiction which the NLRB's declination has in effect destroyed. It was plain at the time that the Superior Court received this case that the "risk of interference with the unfair labor practice jurisdiction of the Board" (Sears, Roebuck & Co., 436 U.S. at 197, 98 S.Ct. at 1757) had been dissipated. Compare Commonwealth v. Noffke, 376 Mass. ---, --- ^a, 379 N.E.2d 1086 (1978). Whether the NLRB (see NLRB v. Nash-Finch Co., 404 U.S. 138, 145-147, 92 S.Ct. 373, 377-378, 30 L.Ed.2d 328 (1971); NLRB v. Committee of Interns & Residents, 566 F.2d 810, 812-813 (2d Cir. 1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 495 (1978)) or Blue Hill (see Hathaway Bakeries, Inc. v. Labor Relations Commn., 316 Mass. 136, 55 N.E.2d 254 (1944)) might have stopped the State hearing before the declination is beside the point. Neither attempted-and indeed Blue Hill made no attempt even upon receipt of the commission's decision (it was mailed to Blue Hill on April 2, 1976)-to petition for rehearing as permitted by G. L. c. 150A, § 6 (f ), or move for reconsideration as permitted by 402 Code Mass. Regs. 2.03(13) (1978). See Norway Cafe, Inc. v. Alcoholic Beverages Control Commn., 7 Mass.App. ---, --- - --- ^b, 386 N.E.2d 32 (1979).

In the circumstances, we do not shut our eyes to the reality that there was, indeed, a hearing. Thus in Incres S.S. Co. v. International Maritime Wkrs. Union, 10 N.Y.2d 218, 219 N.Y.S.2d 21, 176 N.E.2d 719 (1961), vacated, 372 U.S. 24, 83 S.Ct. 611, 9 L.Ed.2d 557 (1963), the New York Court of Appeals reversed the grant of an injunction against picketing a foreign vessel on the ground that the dispute was "arguably" within the jurisdiction of the NLRB. The United States Supreme Court reversed the New York Court of Appeals on the ground that "although it was arguable that the Board's jurisdiction extended to this dispute at the time of the New York Court of Appeals' decision, our decision in (McCulloch v.) Sociedad Nacional (de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), a case holding that the NLRB did not have jurisdiction over seamen on foreign vessels) clearly negates such jurisdiction now." Incres S.S. Co. v. International Maritime Wkrs. Union, 372 U.S. 24, 27, 83 S.Ct. 611, 613, 9 L.Ed.2d 557 (1963). The case was remanded to the Court of Appeals "for further proceedings consistent with this opinion ...." Id. at 28, 83 S.Ct. at 613-614. Although the opinions of both the United States Supreme Court and the New York Court of Appeals indicated that the hearing on the injunction and the issuance of the order which resulted were preempted at the time they took place, the Court of Appeals reinstated the lower court order; it did not treat the order and the hearing on which it was based as "void." Incres S.S. Co. v. International Maritime Wkrs. Union, 13 N.Y.2d 754, 242 N.Y.S.2d 57, 192 N.E.2d 26 (1963). As this court said in GOES V. FELDMAN, 7 MASS.APP. ---, --- , 391 N.E.2D 943 (1979)^C, answering an analogous argument that a statute could not operate to validate actions taken before its passage because the defect was "jurisdictional":- "(I)t seems dogmatic and formalistic to insist that where jurisdiction is absent at the inception of litigation, it cannot subsequently be conferred because the litigation was a nullity ab initio."

We see no need for so sweeping a prophylactic rule in order to assure the integrity of the NLRB's primary jurisdiction. The impact on Federal labor policy from the mere holding of a commission hearing may be met, where it should be met at all, ⁶ by an action before the hearing to prevent a possible determination by the commission in a matter preempted by the Federal labor laws. Hathaway Bakeries, Inc. v. Labor Relations Commn., 316 Mass. at 143, 55 N.E.2d 254. NLRB v. Nash-Finch Co., 404 U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971). Such a rule would be particularly inappropriate in this case, in which the hearing was held after the NLRB had postponed indefinitely any hearing on its complaint and within two weeks of the commission hearing had declined jurisdiction. Nor do we see any justification for providing relief from the hearing...