Labor Relations Commission v. Fall River Educators' Ass'n

• Decision Date: 05 February 1981
• Citation: 382 Mass. 465,416 N.E.2d 1340
• Parties: LABOR RELATIONS COMMISSION v. FALL RIVER EDUCATORS' ASSOCIATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1340

416 N.E.2d 1340

382 Mass. 465

LABOR RELATIONS COMMISSION v. FALL RIVER EDUCATORS' ASSOCIATION.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Oct. 8, 1980.

Decided Feb. 5, 1981.

Brian A. Riley, Boston, for defendant.

Stuart A. Kaufman, Boston, for plaintiff.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The Fall River Educators' Association (Association) appeals from a judgment that ordered the Association to pay $260,000 to the general fund of the Commonwealth, following an adjudication that the Association had been in contempt of an order of the Superior Court during thirteen days of a strike by Fall River public school teachers in September and October of 1978.

We agree with the determination that the Association was in contempt of an order of the Superior Court and that, when contempt of court has been found, a coercive, prospective order may properly be entered directing the payment to the Commonwealth of a fine for each day of future contempt of that court order. We conclude, however, that there should be further consideration of the amount of the fine in accordance with certain principles stated in this opinion.

A strike by the school teachers in Fall River commenced on September 11, 1978. Earlier, on September 6, 1978, anticipating that a strike was about to occur, the Fall River school committee petitioned the Labor Relations Commission (Commission) to make an investigation pursuant to G. L. c. 150E, § 9A(b ). A hearing on the petition was scheduled, by agreement, to commence on September 11. As a result of that hearing, the Commission concluded on September 14 that the Association and its members were engaged in a strike in violation of G. L. c. 150E, § 9A(a ). ¹ The Commission ordered the teachers to refrain from engaging in any strike and ordered the Association through its officers and negotiating team to stop encouraging the strike and to take various affirmative steps to disavow the strike publicly. The strike, however, continued.

On September 15, the Commission filed a complaint in the Superior Court seeking enforcement of its order. The Fall River school committee was permitted to intervene. The judge entered a temporary restraining order against the Association substantially along the lines requested by the Commission. ² But the strike continued, and the Association failed to comply with the judge's order. On September 18, the Commission filed a petition for contempt. On September 20, a hearing was held, and on that day the judge found the Association to be in civil contempt of court by reason of its failure to comply with certain portions of the temporary restraining order. ³ The judge ordered the entry of a preliminary injunction substantially in the form of the temporary restraining order. He further ordered that the Association pay to the clerk of court a fine of $20,000 a day, commencing on the next day, September 21. Although the order did not say so explicitly, the parties correctly construe the direction to pay the daily fine as conditioned on the strike continuing.

The strike ended on October 4, 1978, when an agreement was entered into between the Association and the school committee. In that agreement, the school committee waived any claim for damages arising from the "alleged work stoppage," agreed not to seek collection of any damages out of any fines imposed in the Commission's action, and agreed to withdraw from that action. On October 10, the judge dissolved the preliminary injunction and ordered that a fine of $260,000 was payable pursuant to his order of September 20, representing $20,000 for each day of the violation of the preliminary injunction (September 21 through October 3).

On January 11, 1979, after hearing argument on the parties' cross-motions, the judge granted summary judgment for the Commission. Subsequently, the case was heard on the Association's motion to reduce or revoke the fines and on the Commission's motions for entry of judgment and for taxation of costs and counsel fees. In ruling on these motions, the judge filed an extensive and carefully considered memorandum of decision. He dealt with the Association's various challenges to the lawfulness of the Commission's order and with the Association's claim that the payment of a fine to the Commonwealth is not lawful in the circumstances. ⁴ He ordered entry of judgment for the Commission in the amount of $260,000 but declined to allow interest on the amount awarded. The Commission has not appealed from the determination not to allow interest.

1. We consider first the Association's challenges to the Commission's order of September 14. None of them is meritorious. ⁵ a. The Commission's investigation under G. L. c. 150E, § 9A(b ), was not an adjudicatory proceeding as defined in G. L. c. 30A, § 1(1), and thus the various requirements of the State Administrative Procedure Act for adjudicatory hearings did not apply to the Commission's investigatory hearing. An adjudicatory proceeding is one in which a statutory or constitutional direction dictates an agency hearing. See Reid v. Acting Comm'r of Dep't of Community Affairs, 362 Mass. 136, 144, 284 N.E.2d 245 (1972). There is no statutory requirement for a hearing in the course of an investigation under § 9A(b ). The fact that the Commission has the authority, under G. L. c. 150E, § 9A(b ), to "set requirements that must be complied with" does not make the agency proceeding an adjudicatory one. Department of Pub. Health v. Cumberland Cattle Co., 361 Mass. 817, 828-829, 282 N.E.2d 895 (1972). Nor is there any constitutional right to an agency hearing where an agency is simply conducting an investigation that may result in the agency's commencing a judicial proceeding.

b. The Association raises for the first time on appeal a claim that it was improper for the Commission to conduct the § 9A(b ) investigation through one of its members designated as a hearing officer. Even if we were to overlook the late raising of this argument, it has no valid basis. By G. L. c. 23, § 9Q, inserted by St. 1938, c. 345, § 1, the Commission is authorized to "prosecute any inquiry necessary to its functions in any part of the commonwealth" through one or more of its members or an agent or agency. Any member who participates in such an inquiry is not disqualified from participation in the Commission's decision in the case. Id. The fact that it is expressly provided that a member or agent of the Commission may conduct adjudicatory hearings under G. L. c. 150E (see §§ 4 and 11), does nothing to undercut the Commission's right to conduct a § 9A(b ) investigation through a hearing officer. It would be anomalous for the Commission to be authorized to conduct an adjudicatory hearing through a hearing officer and not be able to conduct an investigation through such an officer. ⁶

c. The evidence before the hearing officer amply warranted the conclusion that the Association encouraged and was engaged in a strike. The Association concedes that the teachers were engaged in a strike. It argues, however, that the evidence does not warrant the conclusion that the Association was involved.

The evidence at the investigatory hearing showed that almost all the city's teachers had failed to report on each day of the strike. On September 11, 1978, approximately fifteen people in a staff of 950 reported for work. Only about ten reported on September 12, and five reported on September 13. The officers and negotiating committee members of the Association failed to report to work and had no recorded excuse for not appearing. The secretary of the Association was shown in a photograph of a picket line at one of the schools. One photograph showed a sign, held by an apparent picket, which read "FREA on Strike." Another sign said "Support your F.R.E.A." A reasonable inference that the Association was involved in encouraging the strike was warranted, if not compelled, from this evidence.

The refusal of the Association's officers, called as witnesses by the school committee, to testify before the hearing officer, because of the possibility of later criminal or civil proceedings against them, warranted the drawing of an inference adverse to the Association. In a civil action, a reasonable inference adverse to a party may be drawn from the refusal of that party to testify on the grounds of self-incrimination. See Kaye v. Newhall, 356 Mass. 300, 305-306, 249 N.E.2d 583 (1969); McCooe v. Dighton, Somerset, & Swansea St. Ry., 173 Mass. 117, 119, 53 N.E. 133 (1899); Andrews v. Frye, 104 Mass. 234 (1870); Baxter v. Palmigiano, 425 U.S. 308, 316-320, 96 S.Ct. 1551, 1557-59, 47 L.Ed.2d 810 (1976); 8 J. Wigmore, Evidence § 2272(1)(e) (McNaughton rev. 1961); W. B. Leach & P. J. Liacos, Massachusetts Evidence 160 (4th ed. 1967). The fact that the inference is drawn against one who, in a civil case, is opposing the finding of a contested question of fact, rather than one seeking to prove it, makes no difference, especially in this case where the actions of the Association were peculiarly within the knowledge of its officers. See Baxter v. Palmigiano, supra at 318, 96 S.Ct. at 1558; Mahne v. Mahne, 66 N.J. 53, 60-62, 328 A.2d 225 (1974); Molloy v. Molloy, 46 Wis.2d 682, 686-688, 176 N.W.2d 292 (1970); Kaminsky, Preventing Unfair Use of the Privilege Against Self-Incrimination in Private Civil Litigation: A Critical Analysis, 39 Brooklyn L.Rev. 121, 148-149 (1972). Indeed, a reasonable rule might put the burden on the Association to come forward with evidence that it was not encouraging the strike, once, as in this case, the nearly unanimous participation of the Association's members in the strike was established. The refusal of the Association's officers to testify when called, on a subject peculiarly within their knowledge and responsibility, reasonably warranted an inference, in this civil action, adverse to the Association itself. E. H....