COUNTY OF SUFFOLK & another vs. LABOR RELATIONS COMMISSION.

GRANT, J. On July 18, 1980, this court vacated a preliminary injunction which had been entered in the Superior Court by which the city of Boston and various of its officers had been ordered to pay teachers and others in the Boston school system monies which were apparently owed them under the terms of their collective bargaining agreements

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but which had not been appropriated by the city council. School Comm. of Boston v. Mayor of Boston, 10 Mass. App. Ct. 840 (1980). We did so in view of what we considered a likelihood that we would conclude on the merits of the case that the injunction ran afoul of the provisions of St. 1909, c. 486, Section 16, as in effect prior to St. 1982, c. 190, Section 17. [Note 1] On October 27, 1981, a judge of the Superior Court, acting on the authority of Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 464-465, 467 (1976), vacated the award of an arbitrator which in terms ordered the county of Suffolk to pay the employees of the registry of deeds for Suffolk County (see G. L. c. 36, Section 38) certain monies which were apparently owed them under the terms of their collective bargaining agreement with the county but which had not been appropriated by the Boston city council. [Note 2]

Three weeks later, on November 17, 1981, the Labor Relations Commission (commission), purporting to act under G. L. c. 150E, Section 11, ordered the county to pay the registry employees the same monies as those covered by the arbitrator's

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award, together with other amounts which will be identified later in this opinion. The commission issued its order (i) in the absence of any appropriation from which the ordered payments could be made, (ii) without any prior order that the mayor of Boston request such an appropriation from the city council, as required by G. L. c. 150E, Section 7(b), and (iii) despite the county's request that the commission defer to the action of the Superior Court. The county sought review in this court. G. L. c. 150E, Section 11, as amended through St. 1981, c.351, Sections 243-245. G. L. c. 211A, Section 5, as amended by St. 1981, c. 351, Section 248.

The basic facts are not in dispute. The collective bargaining agreement with the registry employees was negotiated during the fall of 1980 and was to cover the two-year period commencing July 1, 1980. The agreement called for pay raises which were to be retroactive to July 1, 1980, for further pay raises which were to take effect on July 1, 1981, and for a one-time bonus of $500 for each covered employee. The mayor did not sign the agreement until April 1, 1981, when called to task by the commission. See Boston v. Labor Relations Commn., ante 122, 123 (1983). Although it was known that there were not sufficient monies in any of the relevant appropriations from which to pay any of the cost items called for by the agreement, the mayor ignored his duty under G. L. c. 150E, Section 7(b), as amended through St. 1980, c. 329. Section 125, to submit a request to the city council for an appropriation necessary to fund those items. [Note 3] The promised pay raises were reflected in the pay checks issued

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during the four-week period commencing May 26, 1981. The city auditor refused to approve the payroll which was made up for the last week of June, 1981, on the ground that there was insufficient money left in any relevant appropriation from which the payroll could be met. There were no unencumbered funds in any of the registry accounts from which to defray either the $500 bonuses or the pay raises which were apparently owed for the period between July 1, 1980, and May 26, 1981. [Note 4]

The union which represented the registry employees complained to the commission, which, after an investigation, issued its own complaint against the county, charging it with violations of G. L. c. 150E, Section 10(a)(1) and (5). At the hearing on that complaint, counsel for the union asked that the mayor be ordered to comply with the mandate of G. L. c. 150E, Section 7(b), by submitting to the city council a request for an appropriation sufficient to fund the cost items of the collective bargaining agreement, and for an order expediting the distribution of the proceeds of the anticipated appropriation. Not surprisingly, the commission found the county guilty as charged. Acting sua sponte, the commission ordered the payment of the amounts apparently owed the employees under the agreement, despite the absence of an appropriation to which those amounts could be charged, and without any prior order that the mayor request such an appropriation. The commission also ordered the payment of the union's attorney's fees and expenses in connection with the investigation, preparation and presentation of the charges before the commission.

1. There is a preliminary question which need not detain us. We were advised at the argument, and the parties subsequently stipulated in writing, that on October 4, 1982, the employees in question received their pay for the last week of

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June, 1981, the unpaid portions of their retroactive pay raises for the fiscal year 1981, and their $500 bonuses. We have not been advised of the source of any of those payments, nor do we know whether the employees have received the pay raises for fiscal 1982 which were called for by the agreement or whether the union has been reimbursed for the attorney's fees and expenses ordered by the commission. It is obvious from the recitations in the opening portion of this opinion that there is a recurring question as to whether a court, an arbitrator or an administrative agency can order the payment of amounts which are called for under collective bargaining agreements but which have not been funded by appropriations. That question has been argued fully, and we think it appropriate to express our views. See and compare Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943); New England Merchs. Natl. Bank v. Spillane, 14 Mass. App. Ct. 685, 687-688 (1982), and cases cited.

2. The commission seeks to justify its order for the payment of unfunded amounts under 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. [Note 5] We think the commission has overlooked several of the basic provisions of the legislation it is charged with administering. We observe first that the provisions of St. 1909, c. 486, Section 16 (supra, note 1), are not among those listed in G. L. c. 150E, Section 7(d), as most recently amended by St. 1980,

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c. 354, Section 17A, which must yield to inconsistent provisions of a collective bargaining agreement. [Note 6] On the face of the matter, the commission, by ordering specific performance of the collective bargaining agreement involved in this case, would appear to have mandated the perpetration of criminal offences by public officials. See Board of Educ. v. Boston, 386 Mass. 103, 111 (1982).

More fundamental, perhaps, is the commission's effort to elide the provisions of G. L. c. 150E, Section 7(b), which are set out in n.3 hereof. That subsection is explicit that a public employer is to submit to the "appropriate legislative body . . . a request for an appropriation necessary to fund the cost items contained . . . in" a collective bargaining agreement and that the "cost items" are to be returned to the parties for further bargaining "[i]f the appropriate legislative body duly rejects the request for an appropriation necessary to fund the cost items." "Cost items" are defined in G. L. c. 150E, Section 1, inserted by St. 1973, c. 1078, Section 2, as "the provisions of a collective bargaining agreement which require an appropriation by a legislative body." That same section defines a "[l]egislative body" in terms of the public "body which has the power of appropriation with respect to an employer as defined in this chapter."

When the defined terms are considered and read in conjunction with the words "appropriation necessary to fund," which are used not once but twice, the inescapable conclusion is that no "cost item" which is called for by a collective bargaining agreement between a "public employer" and an "[e]mployee organization," as also defined in Section 1, can assume any monetary significance unless or until there is a legislatively established appropriation from which the item

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can be paid. We think it clear that the only remedy available in a case such as the present, in which the mayor (for whatever reason) has failed utterly to perform his duty under Section 7(b), is an order compelling him to submit to the city council a request for an appropriation which, when taken in conjunction with any unencumbered funds then available, will be sufficient to fund the cost items called for during the first year of a collective bargaining agreement. See Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 470-471, 473-474 (1976); Boston Teachers Local 66 v. Boston, 382 Mass. 553, 560, 562-563, 565, 567 (1981); Boston Teachers Local 66 v. School Comm. of Boston, 386 Mass. 197, 203-204, 210 (1982).

It follows that the commission exceeded its authority (G. L. c. 30A, Section 14[7][b] when it ordered the payment of the cost items in the absence of any relevant appropriation. [Note 7]

3. For the reasons set out in Boston v. Labor Relations Commn., supra at 124-126, the commission also exceeded its authority when it ordered the payment of the union's attorney's fees and expenses.

So much of the commission's decision as is considered in parts 2 and 3 of this opinion is vacated, and the case is remanded to the commission for further proceedings not inconsistent with this opinion; costs of appeal are not to be awarded to any party. [Note 8]

So ordered.