Springfield Housing Authority v. Labor Relations Com'n, AFL-CI

• Citation: 454 N.E.2d 507,16 Mass.App.Ct. 653
• Decision Date: 27 September 1983
• Docket Number: AFL-CI,I
• Parties: SPRINGFIELD HOUSING AUTHORITY v. LABOR RELATIONS COMMISSION; American Federation of State, County and Municipal Employees, Council 93,ntervener.
• Court: Appeals Court of Massachusetts

Page 507

454 N.E.2d 507

16 Mass.App.Ct. 653

SPRINGFIELD HOUSING AUTHORITY v. LABOR RELATIONS COMMISSION; American Federation of State,

County and Municipal Employees, Council 93,

AFL-CIO, Intervener.

Appeals Court of Massachusetts Suffolk.

Argued April 12, 1983.

Decided Sept. 27, 1983.

Mary Z. Stuart, Granby, for employer.

Amy L. Davidson, Boston, for Labor Relations Com'n.

Augustus J. Camelio and Joseph R. Lettiere, Boston, for intervener, submitted a brief.

Before GRANT, KAPLAN and WARNER, JJ.

KAPLAN, Justice.

On March 4, 1982, the intervener, American Federation of State, County and Municipal Employees, Council 93, AFL-CIO (Union), filed charges with the Massachusetts Labor Relations Commission (Commission), appellee, charging that the Springfield Housing Authority (Authority), appellant, had refused to execute two labor agreements that it had fully negotiated with the Union, in violation of § 10(a )(5) of G.L. c. 150E, ¹ inserted by St.1973, c. 1078, § 2, the public employees labor relations act, which condemns, as a "prohibited practice," the refusal of a public employer to bargain collectively in good faith with the exclusive representative of its employees. After investigation, the Commission issued its complaints against the Authority; a formal hearing followed on April 30, 1982; and on June 15, 1982, the Commission rendered a decision in favor of the Union, ordering the Authority to execute the contracts in question and to cease and desist from failing to bargain in good faith. The Authority appeals direct to this court under G.L. c. 150E, § 11. Our review of the Commission's action is guided by the State Administrative Procedure Act, G.L. c. 30A, § 14, and the questions are legal, as the facts, which we now recount briefly, were embodied in a stipulation of the parties.

The Authority, as the public employer, ² had bargained at some length with the Union regarding the terms and conditions of employment of a unit of maintenance supervisors and a unit of maintenance workers. On August 28, 1981, and September 2, 1981, the parties reached agreements covering the respective units which were set out in documents complete except for signatures. The Union formally ratified the agreements; the Authority also ratified them formally, but with the condition that they be first approved by the Department of Community Affairs, a division of the Executive Office of Communities and Development (EOCD), the office having supervisory functions with respect to local housing authorities. The Union had not agreed to this condition.

In seeking to impose the condition, the Authority was relying on a provision of "Regulations to Housing Authorities Governing Collective Bargaining," issued by EOCD, stating in part that "[c]ollective bargaining agreements of a local housing authority ... affecting any employees of the [a]uthority employed in any project covered by a financial assistance contract with, or otherwise receiving loans, grants or financial aid or assistance from, the Commonwealth are subject to prior approval of the Department of Community Affairs ..." 760 Code Mass.Regs. 28.00 (preamble 1978). ³ When the Authority submitted the agreements for such "prior approval," they were turned down for stated reasons of undue cost. Thereupon the Authority declined to execute the agreements, although indicating that it would be willing to bargain further with regard to the terms that were considered unacceptable by the Authority's hierarchical superior.

The effect of the Commission's decision, upholding the Union's claim, was that the "prior approval" condition cannot apply unless the Union in the course of negotiation agrees to or acquiesces in it. The issue of the correctness of this view is framed by G.L. c. 121B (housing and urban renewal), § 29 (housing programs) (as amended through St.1978, c. 393, § 34), reproduced in part in the margin. ⁴ Section 29 has the following general provision: "The department shall from time to time make, amend and repeal rules and regulations prescribing standards and stating principles governing the planning, construction, maintenance and operation of clearance and housing projects by housing authorities." This delegated rule making power is stated broadly and is to be read with a becoming liberality. See School Committee of Wellesley v. Labor Relations Commn., 376 Mass. 112, 116, 379 N.E.2d 1077 (1978). Section 29, however, goes on to state that housing authorities "shall" bargain collectively with labor organizations, and, "notwithstanding any provision of law to the contrary" (which would include, we interpolate, the rulemaking provision above quoted, so far as conceived to be to the contrary), "the provisions of [§§ 4, 10 and 11] of [G.L. c. 150E] shall apply to said authorities and their employees." The question then arises whether any part of § 10 deprives a public employer of a right unilaterally to condition an agreement, fully negotiated, upon the approval of a third party. In the Commission's view, subsection (a )(5) of § 10, inserted by St.1973, c. 1078, § 2, does so in the form: "(a ) It shall be a prohibited practice for a public employer or its designated representative to: ... (5) Refuse to bargain collectively in good faith with the exclusive representative as required in [§ 6]." ⁵

The duty "to bargain collectively in good faith" has been delineated in decisions around the country over a period of a half century, and there is no doubt that a refusal of a party to fructify a labor agreement, otherwise fully bargained, by executing it, amounts to a breach of the duty. H.J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 (1941), so held under Federal statute, the recusant party being a private employer. The Court said (at 525-526, 61 S.Ct. at 325-326):

"... It is true that the National Labor Relations Act, while requiring the employer to bargain collectively, does not compel him to enter into an agreement. But it does not follow, as petitioner argues, that, having reached an agreement, he can refuse to sign it, because he has never agreed to sign one. He may never have agreed to bargain but the statute requires him to do so. To that extent his freedom is restricted in order to secure the legislative objective of collective bargaining as the means of curtailing labor disputes affecting interstate commerce. The freedom of the employer to refuse to make an agreement relates to its terms in matters of substance and not, once it is reached, to its expression in a signed contract, the absence of which, as experience has shown, tends to frustrate the end sought by the requirement for collective bargaining. A business man who entered into negotiations with another for an agreement having numerous provisions, with the reservation that he would not reduce it to writing or sign it, could hardly be thought to have bargained in good faith. This is even more so in the case of an employer who, by his refusal to honor, with his signature, the agreement which he has made with a labor organization, discredits the organization, impairs the bargaining process and tends to frustrate the aim of the statute to secure industrial peace through collective bargaining."

See also N.L.R.B. v. Strong, 393 U.S. 357, 361, 89 S.Ct. 541, 544, 21 L.Ed.2d 546 (1969); N.L.R.B. v. Ralph Printing and Lithographing Co., 433 F.2d 1058, 1061 (8th Cir.1970), cert. denied, 401 U.S. 925, 91 S.Ct. 883, 27 L.Ed.2d 829 (1971); N.L.R.B. v. Warrensburg Board and Paper Corp., 340 F.2d 920, 923 (2d Cir.1965). State statutes with the good faith bargaining requirement are interpreted similarly. See Hamer v. Nashawena Mills, Inc., 315 Mass. 160, 164, 52 N.E.2d 22 (1943) (citing the Heinz Co. case). Is there reason for a contrary interpretation where the duty is cast by statute on a public, rather than a private employer? The Authority offers no such reason; and we agree with the judge in New York Public Employment Relations Bd. v. Martin, 78 Misc.2d 1072, 1077, 359 N.Y.S.2d 80 (Sup.Ct.1974), that "the rule of Heinz Co. ... is equally applicable in both the public and private sector." ⁶

In accord, our Commission has found the policy of the Heinz Co. case to be embodied in G.L. c. 150E, § 10(a )(5). Thus a public employer may not go to the end in negotiating the terms of a labor contract, and then confront a union with a condition of extrinsic approval which could frustrate any bargain or set off a second round of negotiations, after all mutual concessions had been ostensibly made in the first round. See City of Quincy, 5 M.L.C. 1639 (Hearing Officer, 1979), mod., Commn., August 31, 1979. ⁷ That which is prohibited to the public employer is equally prohibited to the union under § 10(b )(2) (see note 5). Belmont Sch. Comm., 4 M.L.C. 1189 (Hearing Officer, 1977), aff'd, id. at 1707 (Commn.1978). It would not be lawful for one of the parties to attempt to enter negotiations with a declaration that it would decline to agree to any contract unless it contained a term making its binding effect contingent upon third-party approval. ⁸ On the other hand, the parties could lawfully agree as part of the negotiations that the contract between them should contain such a term. An arrangement to that effect was indeed found to exist in Fall River Housing Authy., 7 M.L.C. 2078 (Hearing Officer, 1981), with the result that there could be no binding contract until the condition specified in the included term was in fact satisfied.

When § 10(a )(5) is read in the sense developed above, the Authority is seen to be in breach of that provision, unless somehow excused by the EOCD regulation about "prior approval." The regulation does not excuse. Even if the introductory "notwithstanding" clause of G.L. c. 121B, § 29, were disregarded, § 10(a )(5), as a specific directive regarding collective bargaining would, we think, serve to qualify or limit the general rule making power granted by § 29. See Boston, Worcester &...