CITY OF BOSTON & another vs. LABOR RELATIONS COMMISSION.

GRANT, J. The city of Boston and the county of Suffolk sought review in the Superior Court (G. L. c. 150E, Section 11, as in effect prior to St. 1981, c. 351, Sections 243-245) of a decision of the Labor Relations Commission (commission) by which it (i) determined that the city and county had committed practices prohibited by G. L. c. 150E, Section 10(a)(1) and (5), and (ii) ordered the city and the county (among other things) to pay the attorney's fees and expenses of the union which had represented four different bargaining units of public employees in the investigation, preparation and presentation of the charges which were heard by the commission. A judge of the Superior Court entered three different judgments by which he, in effect, affirmed the decision of the commission in its entirety and purported to award the commission its attorney's fees and expenses in connection with the court proceedings. The city and the county appealed to this court. [Note 1]

1. The prohibited practices consisted of what the commission found were unreasonable delays in the city's and the county's executing four separate collective bargaining agreements which had been negotiated between the parties thereto, typed up and signed by the union, and submitted to the city and county for the signatures contemplated by the agreements. The city and county argue that there was no substantial evidence to support the commission's findings of unreasonable delay. The argument overlooks the testimony of the supervisor of labor relations for the city and the county that the city's corporation counsel "checked all the contracts for an exorbitant amount of time" and that he (the supervisor) "had a very difficult time getting even through to him."

2. The county contends that the commission erred in including within the scope of the proceedings the question of the county's alleged delay in executing a collective bargaining

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agreement with employees in the registry of deeds for Suffolk County [Note 2] which was not even approved by the union or submitted to the county in form for execution until after the union had already filed all four of its complaints. The short answer to this contention is that the county does not claim (nor does it appear) that any prejudice resulted to it from any irregularity that may have occurred in the circumstances. See G. L. c. 30A, Section 14(7)(d); Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 12 Mass. App. Ct. 189, 191-192 (1981), modified in other respects, 386 Mass. 414 (1982).

3. The city and county also complain of the commission's order that they pay the union's attorney's fees and expenses in connection with the latter's investigation, preparation and presentation of the charges heard by the commission. The commission relies on the power to contrive remedies which has been granted to it under the first two sentences of the concluding paragraph of G. L. c. 150E, Section 11, inserted by St. 1973, c. 1078, Section 2, [Note 3] and points to cases decided under Section 10(c) of the National Labor Relations Act (29 U.S.C. Section 160 [c][1976 ed.]) in which various Federal courts have upheld the power of the National Labor Relations Board to assess a union's attorney's fees and expenses to a private employer. See, e.g., Food Store Employees Local 347 v. NLRB, 476 F.2d 546, 550 (D.C. Cir.), cert. denied sub nom. Heck's Inc. v. Food Store Employees Local 347, 414 U.S. 1069 (1973); International Union of Elec., Radio & Mach. Wkrs.

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v. NLRB, 502 F.2d 349, 351-355 (D.C. Cir. 1973), cert. denied, 417 U.S. 921 (1974), and sub nom. Tiidee Prod., Inc. v. NLRB, 421 U.S. 991 (1975); J. P. Stevens & Co. v. NLRB 623 F. 2d 322, 328-329 (4th Cir. 1980), cert. denied, 449 U.S. 1077 (1981). The commission also points to instances in which both our appellate courts have looked to Federal cases interpreting the National Labor Relations Act in the course of construing various of the provisions of G. L. c. 150E, including Section 11 thereof. See, e.g., Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. 847, 851 (1979); Southern Worcester Regional Vocational Sch. Dist. v. Labor Relations Commn., 386 Mass. 414, 424 n.11 (1982); Labor Relations Commn. v. Everett, 7 Mass. App. Ct. 826, 829-831 (1979).

The difficulty with all the commission's contentions is that the Supreme Judicial Court has recently construed the language of G. L. c. 151B, Section 5 (as amended through St. 1969, c. 751, Sections 10-12), [Note 4] which is virtually identical to that of G. L. c. 150E, Section 11, as not authorizing the Massachusetts Commission Against Discrimination (MCAD) to assess to an employer the attorney's fees and expenses incurred by an employee who complains to the MCAD of unlawful discrimination. Bournewood Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 371 Mass. 303, 307-313 (1976). The reasoning appears to have been that if the Legislature had intended to depart from the long standing practice of not allowing attorney's fees except in the traditional and narrowly circumscribed instances which are listed on pages 311-312 of the court's opinion, it would have said so on the face of G. L. c. 151B. Section 5. [Note 5]

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On a parity of reasoning, and in the absence of further guidance from the Supreme Judicial Court, we must conclude that the Labor Relations Commission was not authorized to order the city or the county to pay the union's attorney's fees or other expenses in the circumstances of this case.

4. There was absolutely no warrant for the judge's ordering the city or the county to pay the commission's attorney's fees and expenses in the Superior Court. Bournewood Hosp., Inc. v. Massachusetts Commn. Against Discrimination, 371 Mass. at 311-312.

All three judgments of the Superior Court are reversed; a single new judgment is to be entered which modifies the commission's decision by striking out par. 2(a) of its orders and affirms the decision as so modified; costs of appeal are not to be awarded to any party.

So ordered.