SOUTHERN WORCESTER COUNTY REGIONAL VOCATIONAL SCHOOL DISTRICT vs. LABOR RELATIONS COMMISSION.

GRANT, J. The school year 1972-1973 was the first year of operation of the regional vocational school run by the Southern Worcester Regional Vocational School District (district). The last collective bargaining agreement between the district and the union which represents the school's teachers expired on August 31, 1974. On August 13 a tentative agreement was reached by negotiators for a new contract for the school year 1974-1975. That agreement was overwhelmingly rejected by the teachers on September 6. Further negotiations broke off abruptly on September 16. In November both the union and the district filed charges of prohibited labor practices with the Labor Relations Commission (commission). The relations between the parties following September 16 and the ultimate disposition of their respective complaints are set out in Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897 (1979) (the earlier case).

During the period March 31 through July 24, 1975, eight teachers [Note 1] (some of them officers of the union) filed complaints with the commission in which they severally alleged (in effect) that by reason of one or more votes taken by the school committee (committee) on March 3, April 7 and July 7, 1975, they had not been reappointed for the school year 1975-1976 and that the relevant votes constituted reprisals against the teachers for their having engaged in

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protected union activities, contrary to various of the provisions of G. L. c. 150E, Section 10(a). [Note 2] Following some sort of investigation, the commission issued a consolidated complaint which (as subsequently amended) alleged that the committee had voted not to reappoint each of the eight teachers "[by] reason of his participation and engagement in lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection, including picketing and related activities." [Note 3] The district was charged with violations of G. L. c. 150E, Section 10(a) (1) through (4).

Following some procedural skirmishes, hearings on the complaint were commenced on September 4, 1975, and ultimately concluded on December 16, 1977. [Note 4] On December 28, 1978, the commission rendered a decision in which it found that the district had engaged in certain prohibited practices and ordered relief as to each of the eight teachers. The district took the decision to the Superior Court under G. L. c. 30A, Section 14; the commission counterclaimed for enforcement of its orders. The court denied a motion to intervene filed by the teachers and by the union, which had prosecuted the case before the commission. After a perfunctory review of the record before the commission, the court entered a judgment which affirmed the decision and ordered the district to comply with its provisions. The district appealed.

1. The district complains of a number of procedural irregularities.

(a) It argues with considerable force that the provisions of G. L. c. 150E, Section 11, contemplate that proceedings such

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as the present be heard and determined by the commission on complaints filed by employees and that it was error for the commission to issue its own complaint and determine the truth of its own allegations. If the question were one of first impression, we might be inclined to agree. The difficulty with the contention is that in Dedham v. Labor Relations Commn., 365 Mass. 392, 399, 405 (1974), the Supreme Judicial Court read the provisions of the third paragraph of G. L. c. 149, Section 178L (as in effect prior to St. 1973, c. 1078, Sections 1, 2 and 7), which were substantially similar to those now found in G. L. c. 150E, Section 11, to authorize the commission to issue and proceed on its own complaint and in its own name. That practice was followed in Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. 847, 848 (1979), and in the earlier case, 377 Mass. at 898. We have expressed the view that that practice does not violate due process. School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262, 272-273 (1976). As the district does not complain that the practice employed here resulted in any prejudice to it, we do not pursue the question. [Note 5]

(b) The district urges that it was error for the commission to deny its motion to sever the various charges and to proceed on them seriatim. The argument makes light of the factual background of strained labor negotiations and subsequent union activism which was material to the question of the motives of the committee and the school's superintendent-director (superintendent) and which was common to all the charges. It was not until quite late in the proceedings that counsel for the district made any effort (and then in only two instances) to limit the application of evidence to a particular charge. The commission, in its decision,

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followed a pattern of marshalling most of the evidence material to each charge and resolving each individually. The district points to no prejudice flowing from the procedure which was followed, and we are not persuaded that the commission abused its discretion in the premises.

(c) The commission had issued its decision in the earlier case more than a year prior to the conclusion of the hearings in the present case. Without prior notice to anyone (see G. L. c. 30A, Section 11 [4] and [5]) the commission repeated verbatim in its decision in this case the bulk of its findings of fact in the earlier case concerning the breakdown in the labor negotiations and subsequent union activism. The commission purported to act on principles of collateral estoppel. We find it unnecessary to decide whether there was error. The facts found in the earlier case assumed significance only as they served to illuminate the atmosphere which prevailed between certain teachers and the union on the one hand and certain members of the committee and the superintendent on other and thus to lay the basis for an inference that the actions of the committee and the superintendent had been motivated by antiunion bias. A careful review of the evidence in the present case discloses that the critical findings from the earlier case were supported by the evidence in the present case. In particular, the evidence in this case was sufficient to warrant findings of all the facts discussed in the court's opinion in the earlier case. Again, we are not persuaded of prejudice.

2. There are two basic obstacles which stand in the way of affirming the commission's present decision. The first is that Stephen and Maryann Yurek have failed to sustain their respective burdens of proving that a majority of the members of the committee were motivated by antiunion bias when they voted not to employ either for another year. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 226, 232 (1978). The following is a summary of the evidence relevant to this problem.

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Stephen Yurek, who was the president of the union, was in his second year at the school. Maryann, his wife, [Note 6] was in her third year and up for tenure under G. L. c. 71, Section 41. [Note 7] Shortly prior to March 3, 1975, the superintendent, one Gorman, recommended to the committee that Stephen be appointed for a third year and that Maryann be appointed for a fourth year. At its meeting on March 3 the committee voted unanimously to appoint Stephen for the third year. One of the members of the committee who had been the chairman of its negotiating team (Lenky) succeeded in having the question of Maryann's candidacy postponed to a subsequent meeting of the committee. That meeting took place on April 7, 1975, eight days prior to the April 15 deadline for giving Maryann written notice under Section 41 if she were not to be given tenure.

At that meeting one of the members (Abbey) moved the appointment of Maryann for a fourth year; the motion was defeated by a vote of six to five against. [Note 8] The six who voted against were Bachand (the chairman), Champeau, DeAngelis, Lenky, Vendetti and Ziemski. There was evidence from which (we shall assume for purposes of this opinion) the commission could properly have found that the votes of Bachand, Vendetti and Ziemski were motivated by general antiunion bias that might have rubbed off on Maryann. [Note 9]

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There was no substantial evidence from which it could have been found that Champeau, Lenky or DeAngelis entertained any antiunion bias. [Note 10] For all that appears, two of them (Champeau and DeAngelis) could have been rabid union enthusiasts. [Note 11]

At a meeting of the committee on April 23, Abbey expressed the sentiment that the vote as to Maryann had been motivated by "her or her husband's involvement with the [union]." There was no evidence that any of the other members of the committee expressed agreement with that sentiment. See and compare School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. at 263-264, 266-267. On July 7, 1975, the committee voted to terminate Stephen [Note 12] and to grant tenure to Maryann. [Note 13] The record

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does not disclose how any member voted on either question. Indeed, it is matter of conjecture whether any of Bachand, Vendetti and Ziemski were even present at the meeting.

It follows from the foregoing analysis that both Yureks failed to present a prima facie case of unlawful discrimination (see Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 135-136 [1976]; Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 851) because neither adduced sufficient evidence to warrant an inference of unlawful discrimination on the part of a majority of the members of the committee. See again Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at 226, 232. The consequence is that so much of the decision as grants relief to the Yureks must now be set aside. [Note 14]

3. Each of the other six teachers [Note 15] was in his third year at the school and thus up for tenure. Gorman recommended against the reappointment of all six, and the committee so voted at its meeting of March 3, 1975. The commission, in its decision, indiscriminately analyzed and made findings as to the motives of both the committee and Gorman in the circumstances. It is that phenomenon which gives rise to the basic obstacle in the way of affirming the balance of the present decision. The commission obviously failed to apprehend the import of the second sentence of the second paragraph of G. L. c. 71, Section 38, as appearing in St. 1974,

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c. 342. [Note 16] Because of that statute, and because Gorman had recommended against the reappointment of all six, the committee was powerless to reappoint any of the six, and its votes of March 3 were nothing more than empty formalities. See Farrington v. School Comm. of Cambridge, 382 Mass. 324, 325 & n. 1, 327 (Braucher, J., dissenting) (1981). See also Bonar v. Boston, 369 Mass. 579, 582-584 (1976), which was decided with reference to the virtually identical provisions of St. 1965, c. 208, Section 1. The commission should have focused its inquiry exclusively on Gorman's motives for not recommending each of the six. It did not, and there is no way of knowing what ultimate conclusions it would have reached if it had done what it was supposed to do. Accordingly, the case must be remanded to the commission for further consideration on the present record.

We trust the commission will not be too quick to draw adverse inference from the timing of Gorman's recommendations [Note 17] or from the fact that he did not give any of the six advance notice of his intentions. Few of the teachers had tenure under G. L. c. 71. Section 42B, and, because the school was in its third year of operation, a large proportion of the faculty were up for tenure and would automatically acquire that status under G. L. c. 71, Section 41, unless properly notified to the contrary by April 15, 1975. The statute imposed no obligation on Gorman to give any earlier notice of his intentions. [Note 18] We trust the commission also understands that any future decision it may render will be subject to judicial scrutiny under the "substantial evidence" test, under which a court is obliged to consider all the evidence which detracts

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from the weight of whatever evidence the commission relies on to support its conclusions. [Note 19] Cohen v. Board of Registration in Pharmacy, 350 Mass. 246, 253 (1966). New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 465-466 (1981). Finally, we trust the commission understands what we said in International Bhd. of Police Officers v. Labor Relations Commn., 11 Mass. App. Ct. 269, 274 (1981).

4. The district, following an exhaustive analysis of the evidence, has concluded that the commission overlooked the third step for determining motive which was delineated in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. at 136. We need not pass on the correctness of that conclusion at this juncture. At two places in its present decision, one in the portion where the commission instructed itself as to the applicable law and the other near the conclusion, the commission indicated that it was employing the "dominant purpose" analysis of motive, which is nothing more than another name for the "but for" analysis. If the commission makes it clear in any further decision that it has employed the "dominant purpose" analysis, it need not expressly articulate the third step of the Wheelock College analysis. See Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. at 227 n.8; Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 851; International Bhd. of Police Officers v. Labor Relations Commn., 11 Mass. App. Ct. at 270 n.2.

5. The interesting question which has been argued is whether the commission can grant tenure to the six teachers who were not reappointed for a fourth year. The question has been skirted on prior occasions. See Massachusetts Bd.

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of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 852; International Bhd. of Police Officers v. Labor Relations Commn., 11 Mass. App. Ct. at 271 n. 3.

General Laws c. 150E, Section 10(a), provides: "It shall be a prohibited practice for a public employer or its designated representative to . . . (3) [d]iscriminate in regard to hiring, tenure, or any term or condition of employment to . . . discourage membership in any employee organization. . ." (emphasis supplied). The fourth paragraph of Section 11 of the same chapter reads in relevant part: "If, upon all the testimony, the commission determines that a prohibited practice has been committed, it shall . . . issue and cause to be served on the party committing the prohibited practice an order requiring it or him to cease and desist from such prohibited practice, and shall take . . . affirmative action . . . . It shall order the reinstatement with or without back pay of an employee discharged or discriminated against . . . ." The concluding clause of Section 8 of the chapter provides that a collective bargaining agreement between a teacher's union and a public employer may contain a provision to the effect that questions involving the dismissal of teachers tenured under G. L. c. 71, Section 41, are (if the individual teachers so elect) to be determined by a grievance procedure which includes arbitration rather than in accordance with the procedures provided in G. L. c. 71, Sections 42 and 43A. See Sullivan v. Belmont, 7 Mass. App. Ct. 214, 217-219, further appellate review denied, 377 Mass. 921 (1979).

We regard the summarized provision of Section 8 as persuasive evidence that the Legislature had the problems of teachers' tenure in mind when it provided in Section 11 that the commission is to order "reinstatement" of a teacher who has been subjected to a prohibited practice. It has been held that the provisions of Section 11 are remedial in nature. Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 850. In School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. at 270, we placed a broad construction on the word "reinstatement" as

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it was employed in the immediate predecessor of Section 11. A reinstatement, if it is to be truly effective, must place a teacher in the same position he would have enjoyed but for unlawful discrimination. After careful consideration of all the arguments advanced by the parties, we conclude that if the commission, on further consideration, orders the reinstatement of any of the six teachers still in issue, the district and the committee must treat them as tenured, subject to the rights of all concerned under G. L. c. 71, Sections 42 and 43A. [Note 20]

The judgment is reversed, and the case is to be remanded to the commission for further proceedings consistent with this opinion; the Superior Court may retain jurisdiction over the case; costs of appeal are not to be awarded to either party.

So ordered.