Town of Burlington v. Labor Relations Com'n

• Decision Date: 16 September 1983
• Citation: 454 N.E.2d 465,390 Mass. 157
• Parties: , 117 L.R.R.M. (BNA) 2922 TOWN OF BURLINGTON v. LABOR RELATIONS COMMISSION et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 465

454 N.E.2d 465

390 Mass. 157, 117 L.R.R.M. (BNA) 2922

TOWN OF BURLINGTON v. LABOR RELATIONS COMMISSION et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 3, 1983.

Decided Sept. 16, 1983.

Elizabeth A. Lane, Boston, for plaintiff.

Amy L. Davidson, Boston, for defendant.

Robert J. Canavan, Boston, for intervener.

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

LYNCH, Justice.

The plaintiff (town) appeals from a judgment of the Superior Court dismissing its complaint and affirming in all respects the order of the Labor Relations Commission (commission), with regard to the town's assignment of prosecutorial duties in criminal proceedings customarily brought before the Fourth District Court of Eastern Middlesex at Woburn. We reverse the judgment.

The facts giving rise to the commission's order are set forth in Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 412 N.E.2d 331 (1980), and require minimal recitation here. For a number of years, Burlington police officers prosecuted various criminal cases in the Fourth District Court of Eastern Middlesex. In February, 1979, the presiding judge of that court wrote to the chief of the town's police department advising that the town's criminal case load was too great for the one police officer who had been assigned since December, 1978, as a prosecutor in those cases, with the result that an excessive number of complaints were being dismissed. He suggested the use of two full-time police prosecutors and improved preparation of cases by the police department. The judge sent a copy of this letter to the town's board of selectmen. The following month an additional police officer was assigned to assist with the prosecution of cases in the District Court. At this time, the selectmen decided to cease using police prosecutors and to assign prosecutorial duties to the town counsel. Although collective bargaining with the local chapter of the International Brotherhood of Police Officers (union) was underway for a new contract at that time, the selectmen did not introduce the topic for negotiation. The police prosecutors, who were officials and members of the bargaining unit, heard rumors of such a change before the contract was signed in May. ² On June 6, 1979, a town meeting voted to amend the town's by-law, enabling the selectmen to implement their plan. ³ The two police prosecutors were subsequently relieved of those duties and were reassigned to other duties. It is not disputed that each officer suffered a loss in pay by being removed from the specialist pay rating provided in their collective bargaining agreement with the town. ⁴

In July, 1979, the union filed an unfair labor practices charge with the commission and requested the selectmen to negotiate on the issue of reassigning prosecutorial duties previously performed by members of the bargaining unit. The selectmen did not respond, and on August 29 the commission issued a complaint alleging that the town had engaged in prohibited practices within the meaning of G.L. c. 150E, § 10 (a)(1) and (5). ⁵ By a hearing officer's decision of January 24, 1980, the town was ordered to cease and desist from assigning the duties of the police prosecutor to town counsel without first bargaining to resolution or impasse with the union. In addition, the town was ordered to reinstitute the past practice of assigning prosecutorial duties to the union's bargaining unit, and to reimburse the two affected officers for the additional compensation they would have received but for the reassignment of those duties. ⁶ On August 11, 1980, the commission affirmed the decision of the hearing officer.

Pursuant to G.L. c. 30A, § 14, the town appealed the commission's decision to the Superior Court, alleging that certain of the commission's findings were unsupported by substantial evidence and that certain of its rulings were erroneous in law. The union moved to intervene, and both defendants filed a counterclaim alleging the town's noncompliance with the commission's decision. Both the town and the commission moved for summary judgment. On March 23, 1981, a judge of the Superior Court entered a judgment, pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), dismissing the complaint and affirming the commission's decision in its entirety. Upon the town's appeal to the Appeals Court, we transferred the case here on our own motion.

In so far as is relevant here, the commission based its opinion and order on its previous decisions holding that, where the employer intends to continue to use services in its operation, and where those services have been performed by members of the bargaining unit, a decision to contract outside the unit for the performance of the same services is a mandatory subject of bargaining under G.L. c. 150E, § 6, ⁷ absent a compelling, nondiscriminatory reason excusing the obligation to bargain. See City of Boston, 6 M.L.C. 1117 (1979); City of Boston, 4 M.L.C. 1202 (1977); Town of Andover, 4 M.L.C. 1086 (1977); Town of Danvers, 3 M.L.C. 1560 (1977). Cf. Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). The commission rejected the town's argument that its decision to assign prosecutorial duties to the office of the town counsel was a managerial prerogative. The judge of the Superior Court also rejected this argument, as well as the town's advancement of considerations of public policy and the restricted scope of collective bargaining in the public sector. Cf. School Comm. of Boston v. Boston Teachers Union, Local 66, 378 Mass. 65, 70-71, 389 N.E.2d 970 (1979). The scope of review of the commission's decision, both in the Superior Court and in this court, is defined by G.L. c. 30A, § 14. Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903, 389 N.E.2d 389 (1979). Under § 14, we may only disturb the decision for one of the causes set forth in subsection (7) (a)-(g). In this case, with due deference to the commission's expertise, we conclude that the commission committed an error of law. G.L. c. 30A, § 14(7)(c).

The Legislature has imposed upon district attorneys the duty to appear for the Commonwealth in all criminal and civil cases in the Superior Court within their respective districts in which the Commonwealth is a party or has an interest. G.L. c. 12, § 27. The Legislature also requires the district attorneys to appear in all cases tried in jury sessions of the District Courts. G.L. c. 218, § 27A (g), as appearing in St.1978, c. 478, § 189. The duty of a district attorney to appear in the Superior Court or in a District Court jury session is superseded only by the authority of the Attorney General who is the Commonwealth's chief law officer. Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 720, 412 N.E.2d 331 (1980), and authorities cited. In addition, it has long been established that district attorneys may appear for the Commonwealth, in their discretion, in other criminal cases in the District Courts. Id. at 719-720, 412 N.E.2d 331. Commonwealth v. Buck, 285 Mass. 41, 43, 188 N.E. 613 (1933).

By G.L. c. 278, § 15, the Legislature has enabled city solicitors, town counsel, or other persons appointed to represent a city or town in prosecutions in District Courts, under the municipality's by-laws, orders, rules, or regulations, to "enter a nolle prosequi or do anything relative to such prosecution which may be done by the district attorney." Burlington, supra 381 Mass. at 721 n. 11, 412 N.E.2d 331. See also Mass.R.Crim.P. 2(b) (12) & (13), 378 Mass. 844 (1979).

A sizable gap not bridged by the grants of statutory authority is the prosecution of criminal matters in District Courts in which the district attorney does not appear by obligation or discretion, and in which the city solicitor or town counsel does not appear in connection with a prosecution under a municipality's ordinance or by-law. By tradition, such cases have been prosecuted by members of the municipality's police or law departments. See K.B. Smith, Criminal Practice and Procedure § 850 (1970) ("In District Courts, throughout the Commonwealth, there are prosecutors, whose function is to represent the Commonwealth in criminal cases. The prosecutor may be a member of a city or town law department and he usually represents the Commonwealth only in regard to crimes committed in his city or town. Unlike the Attorney General or the District Attorney, he does not have to be a lawyer; in fact, the prosecutor is often a police officer.") Where such prosecutions are undertaken by police officers, those officers have been designated by the municipality acting through its police department, with the tacit consent of the district attorney. See Burlington v. District Attorney for the N. Dist., supra at 720 & n. 9, 412 N.E.2d 331.

The Legislature has committed to selectmen the task of representing the town in collective bargaining with police officers. Labor Relations Comm'n v. Natick, 369 Mass. 431, 438, 339 N.E.2d 900 (1976). The power of the selectmen, under G.L. c. 150E, to bind the town to a collective bargaining agreement cannot, however, be invoked by the union to override the decision of the district attorney to enter any or all criminal cases in the District Court. Cf. Burlington, supra. Nor can that power be exercised by the town to secure to the bargaining unit or to any other municipal department the function of prosecution of criminal matters, as that function is vested in the district attorney. ⁸ To the extent that the town's power to provide for the prosecutorial function is lacking or delimited by another authority, this case is distinguishable from those cases, relied upon by the commission, involving prohibited unilateral actions by employers to contract out existing services within their control.

Our holding that the ability of the town to bargain in this area is...