Local 1111, Intern. Ass'n of Fire Fighters, AFL-CIO v. Labor Relations Com'n

• Decision Date: 27 July 1982
• Docket Number: AFL-CIO
• Parties: LOCAL 1111, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,v. LABOR RELATIONS COMMISSION et al. 1 (and a companion case). 2
• Court: Appeals Court of Massachusetts

Page 1079

437 N.E.2d 1079

14 Mass.App.Ct. 236

LOCAL 1111, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO v. LABOR RELATIONS COMMISSION et al. ¹ (and a companion case). ²

Appeals Court of Massachusetts Hampden and Berkshire.

Argued April 20, 1982.

Decided July 27, 1982.

Bart J. Gordon, Springfield, for plaintiff.

Diane M. Drapeau, Boston, for Labor Relations Com'n.

Lawrence R. Ehrhard, Springfield, for Westfield Fire Dept. Sup'rs Ass'n.

Before PERRETTA, DREBEN and KASS, JJ.

KASS, Justice.

Each of these companion cases raises the same question: whether the Labor Relations Commission may under G.L. c. 150E, § 3, as amended by St.1974, c. 526, carve out a bargaining unit of deputy fire chiefs.

Local 1111 had been the exclusive bargaining representative for all uniformed employees in the Westfield Fire Department below the rank of fire commissioner (there were three commissioners) and fire chief. By petition dated July 9, 1979, the Westfield Fire Department Supervisors Association (WFDSA) sought to replace the incumbent union so far as deputy chiefs, captains, the superintendent of fire alarms and superintendent of maintenance were concerned. The commission found facts as to the nature of the duties of these employees and determined that because they possess significant supervisory authority, the deputy chiefs ought to be in a separate bargaining unit; the other officers would remain in the bargaining unit represented by Local 1111.

In the Pittsfield case, Local 2647 petitioned to become the exclusive representative of two existing bargaining units, one consisting of privates, lieutenants, captains, deputy chiefs and the master mechanic, and another unit of fire alarm operators and signal maintainers. A day after Local 2647 filed with the commission, the Pittsfield Deputy Fire Chiefs Association also filed a petition asking for certification as the exclusive representative of a bargaining unit consisting of deputy chiefs. The commission determined that a bargaining unit of deputy chiefs would be appropriate.

Each of these certification decisions by the commission was appealed under G.L. c. 30A, § 14, and the cases were consolidated in the Superior Court, where the judge treated motions by the defendants to dismiss as motions for summary judgment (Mass.R.Civ.P. 56, 365 Mass. 824 [1974] ) and ordered judgment for the defendants, i.e., he determined that the commission acted within its statutory authority and in accordance with the facts in designating a bargaining unit of deputy chiefs in each dispute.

1. Prematurity of judicial proceedings. In the Superior Court the defendants argued that judicial review did not lie from a certification decision of the commission, because such a decision is not a final order of the commission. In this regard they are correct. The motion judge appears to have recognized as much in his memorandum and order, but took the precaution of answering the substantive question as well.

While it might seem that a certification order which chooses one union to the exclusion of the other is a final order as to the excluded union (compare Borman v. Borman, 378 Mass. 775, 779-780, 393 N.E.2d 847 [1979], on the subject of what is a final order), there is established case law to the contrary. The principle that a certification decision is not reviewable, because not a final order, was first enunciated in Jordan Marsh Co. v. Labor Relations Commn., 312 Mass. 597, 601-602, 45 N.E.2d 925 (1942). After the decision in that case, Jordan Marsh Co. refused to bargain with the union representing the bargaining unit which the commission had designated. When the commission thereupon issued a prohibited practices order, which subsumed the certification decision, that order was final and reviewable. See Jordan Marsh Co. v. Labor Relations Commn., 316 Mass. 748, 749, 56 N.E.2d 915 (1944).

In City Manager of Medford v. Labor Relations Commn., 353 Mass. 519, 523-524, 233 N.E.2d 310 (1968), the principle of postponing judicial review until the commission has issued or denied an order was applied in the case of public employees. The Medford opinion foresaw possible exceptions to the usual rule in cases where: (a) the commission had exceeded its jurisdiction; (b) there was an extraordinary occasion for varying the usual procedure for review; or (c) there was a risk of special injury to the public interest or inconvenience to the city or its firefighters if the commission's investigation were to take the usual course. Id. at 524, 233 N.E.2d 310.

It was the employer who asked for review in the Jordan Marsh Co. and Medford cases. Subsequently, the principle was extended in cases of certification where the commission made a choice between one union and another and the excluded union sought review. Worcester Indus. Technical Inst. Instructors Assn., Inc. v. Labor Relations Commn., 357 Mass. 118, 120-121, 256 N.E.2d 287 (1970). See also Harrison v. Labor Relations Commn., 363 Mass. 548, 551-553, 296 N.E.2d 196 (1973), and Sullivan v. Labor Relations Commn., 5 Mass.App. 532, 535, 364 N.E.2d 1099 (1977).

The plaintiff unions, which are pressing for a comprehensive bargaining unit, suggest that the commission has misconstrued G.L. c. 150E, § 3, and has, therefore, exceeded its jurisdiction, thus bringing into play one of the occasions for immediate review anticipated in Medford. Certification of bargaining units of firefighters, however, is expressly within the commission's competence and the manner in which it interprets a nuance of the statute does not subtract from its authority to deal with the certification question. Contrast St. Luke's Hosp. v. Labor Relations Commn., 320 Mass. 467, 469-474, 70 N.E.2d 10 (1946), in which the court determined that the commission had no jurisdiction to consider labor disputes involving a charitable organization and, thus, treated a certification decision as reviewable. See also Wheaton College v. Labor Relations Commn., 352 Mass. 731, 734-738, 227...