School Committee of Stoughton v. Labor Relations Commission

• Decision Date: 28 April 1976
• Citation: 4 Mass.App.Ct. 262,346 N.E.2d 129
• Parties: , 92 L.R.R.M. (BNA) 3197, 80 Lab.Cas. P 54,011 SCHOOL COMMITTEE OF STOUGHTON v. LABOR RELATIONS COMMISSION et al. 1
• Court: Appeals Court of Massachusetts

Page 129

346 N.E.2d 129

4 Mass.App.Ct. 262, 92 L.R.R.M. (BNA) 3197,

80 Lab.Cas. P 54,011

SCHOOL COMMITTEE OF STOUGHTON

v. LABOR RELATIONS COMMISSION et al. ¹

Appeals Court of Massachusetts, Norfolk.

Argued Jan. 14, 1976.

Decided April 28, 1976.

Joellen D'E. Bogdasavian (Steven C. Kahn, Boston, with her), for the Labor Relations Commission.

Richard W. Murphy (Arthur P. Murphy, Braintree, with him), for the School Committee of Stoughton.

Before HALE, C. J., and KEVILLE and ARMSTRONG, JJ.

HALE, Chief Justice.

This is an appeal from a judgment of the Superior Court which, pursuant to G.L. c. 30A, § 14, set aside a decision and order of the Labor Relations Commission (commission).

At a January 18, 1971, meeting, a number of teacher aides employed in the Stoughton school system voted to organize under the name of the Stoughton Teachers Aides, Clerical Aides and Library Aides Association (association). Officers were elected, and a committee was appointed to negotiate a collective bargaining agreement. Shortly thereafter representatives of the association met with Stoughton school superintendent Joseph A. Gibbons, who suggested that the association present its proposals to the school committee.

At the May 18, 1971, meeting of the school committee the association asked to be recognized as the exclusive collective bargaining representative of the teacher aides and attempted to submit bargaining proposals. The school committee took the request for recognition under advisement, but it refused to consider any proposal until the question of recognition was resolved.

On July 20, 1971, the association met with the school committee. There is evidence that Dr. Recupero, chairman of the school committee, told the association that '(r)ecognition is yours if that's what you wish; but we do not wish to enter into professional negotiations.' ² At the meeting there was no formal vote taken concerning recognition, no request for proof of majority status, and none of the members of the school committee commented on Dr. Recupero's statement. The committee then received the proposals which they had refused to consider on May 18, and went on to discuss them with the representatives of the association.

After the representatives of the association had left the meeting, the school committee voted to revise the teacher aide program by doubling the number of aides employed and having the working hours of each aide. The aides, who had been working six hours a day, were thereby cut back to three hours a day. All aides then employed were offered positions in the revised program. However, some aides did not accept as they were interested only in full-time employment. The school committee contends that the program was revised in order to achieve greater community participation. However, there was evidence that the revision was undertaken on a mistaken belief by the school committee that the aides would be ineligible for collective bargaining if they worked less than twenty hours per week.

The association first learned of the revision of the program at a meeting the next day with Superintendent Gibbons. The evidence is in dispute as to whether he told them that 'the School Committee (had) voted to withdraw recognition and to revise the whole aide program.'

Based on the foregoing, the association filed a petition for certification and a complaint charging unfair labor practices with the commission on August 13, 1971. On or about September 3, 1971, the commission sought to enjoin the commencement of the revised aide program; a Superior Court judge denied the request. On September 30, 1971, the commission issued a complaint alleging that the school committee had committed unfair labor practices prohibited by G.L. c. 149, § 178L, subsections one through five, by revising the aide program and refusing to bargain in good faith with the association. Formal hearings were held at which all parties had the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

On July 10, 1972, the commission issued its decision and order, finding that the school committee had committed unfair labor practices as alleged. The commission found that the association had been recognized on May 18, 1971, and that recognition had been unilaterally withdrawn by the school committee. ³ It found that the revision of the program tended to jeopardize the association's majority status, interfered with the formation and existence of a labor organization, and was intended to discourage continued employment.

The commission then ordered that the school committee cease and desist from withdrawing recognition of the association and from refusing to bargain in good faith. The school committee was also ordered (1) to restore the working hours of teacher aides to the number of hours worked prior to September 1, 1971; (2) to offer employment to teacher aides who had resigned because of the revision of the program; and (3) to make the aides whole for any loss of pay caused by the revision of the program.

On the petition for review brought pursuant to G.L. c. 30A, § 14, the judge ruled that the commission's finding that recognition had been granted to the association was unsupported by substantial evidence and that '(a)bsent such recognition, the findings with respect to unfair labor practices cannot stand.' The judge then ordered that the decision of the commission be set aside. From that order the commission and the intervenors appeal. The parties have treated this order as a judgment (G.L. c. 231, § 113, as amended by St.1973, c. 1114, § 202), and we have accepted it as such.

A proceeding under G.L. c. 30A, § 14, as amended through St.1973, c. 1114, § 3, brings before this court the evidence and the record before the commission and only permits review of the questions whether the commission's decision involves an error of law or is unsupported by substantial evidence. Selectmen of Truro v. Outdoor Advertising Bd., 346 Mass. 754, 758, 196 N.E.2d 218 (1964).

1. In the present case the judge ruled that there was no substantial evidence of recognition. Under the public employee collective bargaining law, G.L. c. 149, §§ 178D, 178F-178N ⁴, employee organizations could obtain recognition through an election supervised by the commission, by petitioning the commission for certification, or through voluntary recognition by the employer. The association did not petition for certification, nor was an election held. Consequently, if recognition was obtained it must be found to have been granted voluntarily by the school committee.

The commission found that recognition was extended to the association on May 18, 1971. However, the testimony of all witnesses (including that of the association's president) indicates that on May 18th the school committee did no more than take the request for recognition under advisement. Nor was there any evidence that the association had, by that time, presented any proof that it represented a majority of the teacher aides.

The commission now argues that recognition was accorded the association at the July 20, 1971, meeting. This argument is based primarily on the alleged statement of Dr. Recupero that '(r)ecognition is yours if that's what you wish; but we do not wish to enter into professional negotiations.' We agree with the court below that this statement, although made in the presence of the other school committee members, did not amount to recognition. While recognition may be conferred orally by one with the authority to do so (see e g., N.L.R.B. v. Broad Street Hospital and Medical Center,452 F.2d 302, 305 (3d Cir. 1971)), there is not showing that Dr. Recupero had any authority to bind the school committee.

Dr. Recupero's statement, without some action having been taken by the committee as a body, could not confer recognition upon the association. ⁵ See New England Box Co. v. C & R Constr. Co. 313 Mass. 696, 701-702, 49 N.E.2d 121 (1943); Sheahan v. School Comm. of Worcester, 359 Mass. 702, 708-709, 270 N.E.2d 912 (1971); 4 McQuillin, Municipal Corporations, § 13.07, p. 482 (3d ed. 1968). All parties agree that no formal vote was taken at the July 20th meeting, and the minutes of the meeting do not mention recognition or determination of majority status. It should also be noted that formal votes had been taken on occasions when other labor organizations had been recognized by the school committee. We do not accept the commission's contention that the other members of the committee ratified Dr. Recupero's statement by their silence. We conclude that the judge was correct in ruling that the commission's finding that recognition was granted to the association was unsupported by substantial evidence.

2. The commission found that the school committee had violated subsections one through five of G.L. 149, § 178L. ⁶ However, the court below ruled that those findings could not stand in the absence of recognition. Of the five subsections specified by the commission, only (4) and (5) make reference to recognition. However, we need not concern ourselves with §§ (4) and (5), as recognition is not a condition precedent to the finding of a violation of at least one of the remaining subsections of § 178L relied upon by the commission. ⁷

In particular, § 178L(1), prohibits interference with employees' rights to organize and elect representatives as guaranteed by § 178H. ⁸ The right of self-organization exists for all employees, not just for those who belong to 'recognized' groups. ⁹ Common sense tells us that it is possible for an employer to violate § 178L(1), even though there is presently no recognized employee organization. Otherwise an employer could fire at will any employee who attempted to form or participate in an employee organization. This would render the right of self-organization meaningless. We are of the opinion that by ruling that recognition was necessary to support the commission's findings...