School Committee of Newton v. Labor Relations Com'n

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation388 Mass. 557,447 N.E.2d 1201
Parties, 117 L.R.R.M. (BNA) 2836, 10 Ed. Law Rep. 751 SCHOOL COMMITTEE OF NEWTON v. LABOR RELATIONS COMMISSION et al. (and a companion case 1 ).
Decision Date24 March 1983

Richard W. Murphy, Braintree, for School Committee of Newton.

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

Alan J. McDonald, Newton, for Newton School Custodians Ass'n, intervener.

Americo A. Salini, Jr., Medford, for Mass. Teachers Ass'n, amicus curiae, submitted a brief.

Austin Broadhurst, Wendell Robert Carr, Boston, and Charles C. Cutrell, III, Belmont, for Mass. Ass'n of School Committees, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

WILKINS, Justice.

These appeals concern decisions of the Labor Relations Commission (commission) finding that the School Committee of Newton (school committee) violated G.L. c. 150E, § 10(a)(1) and (5), in unilaterally deciding to lay off certain school custodians, members of the intervener Newton School Custodians Association (union), and in ordering the school committee to pay the affected custodians back pay. For our purposes, the appeals relate to a single administrative proceeding before the commission leading to its conclusions that (1) the school committee engaged in a prohibited practice in violation of G.L. c. 150E, § 10(a )(1) and (5), by failing to bargain with the union over the school committee's decision to reduce its force by laying off certain employees, and (2) the school committee must make back pay awards to six of the seven custodians it laid off. 2 We agree with the commission's conclusions and affirm the judgment and decision.

In setting forth the facts underlying the issues argued on appeal, we shall not prolong this opinion by reciting all the evidence before the commission bearing on each issue. Many of the issues are purely questions of law. As to those involving factual determinations, we shall refer to particular evidence warranting the commission's findings, but even in such cases we shall not set forth all the substantial evidence supporting the commission's determinations. We eschew setting forth contrary facts on which the school committee argues that the commission should have relied. Our role does not include second-guessing an administrative agency.

On December 15, 1975, the school committee and the union entered into a collective bargaining agreement for the period from July 1, 1975, through June 30, 1977. During negotiations neither party offered proposals concerning layoffs or a reduction in force, nor did the school committee give the union notice that a reduction in force was planned. In November, 1975, a new school committee had been elected. In February, 1976, a representative of the school committee informed union representatives that a reduction in force was possible. On March 15, 1976, the president of the union wrote to the assistant director of personnel for the school committee, stating his hope that any reduction in force would be accomplished by attrition. He also requested a meeting to discuss the matter. In April, 1976, after some inconclusive general discussion at regular meetings between union representatives and the director of support services, the assistant director of personnel distributed letters to the seven custodians giving notice of termination, effective June 30, 1976. Each such employee was a provisional employee, but senior in length of employment to at least seven provisional employees being retained. Between April 12 and the date of the layoffs, June 30, there was discussion concerning the reduction in force issue between the union and the school committee. We shall subsequently set forth that discussion more fully. The layoffs took effect as planned. 3 Discussions and negotiations between the union and the school committee after June 30 are referred to later in this opinion.

We summarize the school committee's arguments, numbering them to correspond with the numbered sections of this opinion in which they are considered. The school committee argues (1) that it had no duty to bargain with the union over its decision to reduce its janitorial force by layoffs, or over the impact of that decision on the terms and conditions of employment, and, therefore, it did not commit a prohibited practice under G.L. c. 150E, § 10(a )(5). The school committee further argues, as to the Superior Court judgment, that it had no duty to bargain over its decision to reduce its force by layoffs or over the impact of that decision because (2) the layoffs occurred in the midterm of the collective bargaining agreement and changed no existing practice, (3) the union waived its right to bargain over these issues, and (4) the school committee fulfilled any duty to bargain that it had. As to the decision to award back pay, the school committee contends that (5) the commission lacked authority to order retroactive compensation, (6) no back pay order can require payment of lost wages from the date of the layoffs, June 30, 1976, until the dates on which the school committee offered reinstatement to the laid-off custodians, (7) no statute authorizes interest on back pay awards, and (8) the commission committed various errors in computing the amount of the back pay awards.

1. In considering the school committee's duty to bargain, we start with some general observations. Certain matters are not properly the subject of collective bargaining by a school committee. If a school committee may not properly submit a matter to collective bargaining, any agreement that purports to deal directly with such a matter is unenforceable to the extent of the impropriety. It follows logically that, if a matter is not permissibly the subject of a collective bargaining agreement, there is no obligation to bargain on that subject. In this case, all parties agree that the school committee's decision to reduce its janitorial force is a matter within the exclusive prerogative of the school committee, and thus an impermissible subject for collective bargaining.

The parties do disagree about the school committee's obligation (1) to bargain over whether the reduction in force was to be achieved, in whole or in part, by laying off employees, and (2) if the reduction in force was to be achieved by layoffs to bargain over the impact of the layoffs. The school committee contends that it was not required to bargain with the union on either of these points.

Decisions of the appellate courts of the Commonwealth have dealt with the obligation to bargain by considering the enforceability of provisions in existing agreements. In such cases, the issue has been whether the provision in question was an impermissible or improper subject of collective bargaining. These cases have not decided whether a particular subject was one that required collective bargaining. A matter is a proper subject of collective bargaining if it is not an impermissible subject, but the cases dealing with the question of impermissibility have not had to resolve whether a particular subject was a mandatory subject for collective bargaining or only a permissible one. In the case before us, because there was no provision in the collective bargaining agreement regarding reductions in force, the commission's decision involves this court for the first time in deciding whether a subject is not only a proper subject for collective bargaining but is also a subject on which collective bargaining is required.

We now discuss the dispute between the parties in more concrete terms. The school committee's obligation to bargain is set forth in G.L. c. 150E, § 6, inserted by St.1973, c. 1078, § 2, which provides that "[t]he employer and the exclusive representative shall meet at reasonable times ... and shall negotiate in good faith with respect to wages, hours, standards of productivity and performance, and any other terms and conditions of employment, but such obligation shall not compel either party to agree to a proposal or make a concession." The fact that the janitors were provisional employees does not exclude them from the protection of G.L. c. 150E. See G.L. c. 150E, § 1, defining "employee." See also Commissioners of Middlesex County v. American Fed'n of State, County & Mun. Employees, Local 414, 372 Mass. 466, 468, 362 N.E.2d 523 (1977). Certainly, the question of termination of employment by layoff is one of the "terms and conditions of employment." The dispute here involved the very essence of the relationship, the employment itself, and not a peripheral matter. Cf. First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666, 676-680, 101 S.Ct. 2573, 2579-2581, 69 L.Ed.2d 318 (1981); Allied Chem. & Alkali Workers, Local No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 178-179, 92 S.Ct. 383, 397, 30 L.Ed.2d 341 (1971); NLRB v. Massachusetts Nurses Ass'n, 557 F.2d 894, 897 (1st Cir.1977).

The means of achieving a reduction in force, by layoffs or otherwise, and the impact of that decision on the terms and conditions of employment are matters which, as a matter of policy, can be made the subject of collective bargaining. There are some subjects which, as a matter of policy, this court has said cannot be delegated by a school committee or made the subject of collective bargaining. 4 We agree with the parties that the decision to reduce the level of janitorial services is an exclusive school committee prerogative. See School Comm. of Braintree v. Raymond, 369 Mass. 686, 687-689, 343 N.E.2d 145 (1976); School Comm. of Hanover v. Curry, 369 Mass. 683, 684-685, 343 N.E.2d 144 (1976). However, as numerous cases show, the means of implementing such a nondelegable decision may properly be the subject of an enforceable collective bargaining agreement. 5 We thus reject the school committee's argument that bargaining over the decision to reduce the...

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