SCHOOL COMMITTEE OF STOUGHTON vs. LABOR RELATIONS COMMISSION & others. [Note 1]

HALE, C.J. This is an appeal from a judgment of the Superior Court which, pursuant to G. L. c. 30A, Section 14, set aside a decision and order of the Labor Relations Commission (commission).

At a January 18, 1971, meeting, a number of teacher aides employed in the Stoughton school system voted to organize under the name of the Stoughton Teacher Aides, Clerical Aides and Library Aides Association (association). Officers were elected, and a committee was appointed to negotiate a collective bargaining agreement. Shortly thereafter representatives of the association met with Stoughton school superintendent Joseph A. Gibbons, who suggested that the association present its proposals to the school committee.

At the May 18, 1971, meeting of the school committee the association asked to be recognized as the exclusive collective bargaining representative of the teacher aides and attempted to submit bargaining proposals. The school committee took the request for recognition under advisement, but it refused to consider any proposal until the question of recognition was resolved.

On July 20, 1971, the association met with the school committee. There is evidence that Dr. Recupero, chairman of the school committee, told the association that "[r]ecognition is yours if that's what you wish; but we do not

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wish to enter into professional negotiations." [Note 2] At the meeting there was no formal vote taken concerning recognition, no request for proof of majority status, and none of the members of the school committee commented on Dr. Recupero's statement. The committee then received the proposals which they had refused to consider on May 18, and went on to discuss them with the representatives of the association.

After the representatives of the association had left the meeting, the school committee voted to revise the teacher aide program by doubling the number of aides employed and halving the working hours of each aide. The aides, who had been working six hours a day, were thereby cut back to three hours a day. All aides then employed were offered positions in the revised program. However, some aides did not accept as they were interested only in full-time employment. The school committee contends that the program was revised in order to achieve greater community participation. However, there was evidence that the revision was undertaken on a mistaken belief by the school committee that the aides would be ineligible for collective bargaining if they worked less than twenty hours per week.

The association first learned of the revision of the program at a meeting the next day with Superintendent Gibbons. The evidence is in dispute as to whether he told them that "the School Committee [had] voted to withdraw recognition and to revise the whole aide program."

Based on the foregoing, the association filed a petition for certification and a complaint charging unfair labor practices with the commission on August 13, 1971. On or about September 3, 1971, the commission sought to enjoin the commencement of the revised aide program; a Superior Court judge denied the request. On September 30, 1971, the commission issued a complaint alleging that the school committee had committed unfair labor practices

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prohibited by G. L. c. 149, Section 178L, subsections one through five, by revising the aide program and refusing to bargain in good faith with the association. Formal hearings were held at which all parties had the opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence.

On July 10, 1972, the commission issued its decision and order, finding that the school committee had committed unfair labor practices as alleged. The commission found that the association had been recognized on May 18, 1971, and that recognition had been unilaterally withdrawn by the school committee. [Note 3] It found that the revision of the program tended to jeopardize the association's majority status, interfered with the formation and existence of a labor organization, and was intended to discourage continued employment.

The commission then ordered that the school committee cease and desist from withdrawing recognition of the association and from refusing to bargain in good faith. The school committee was also ordered (1) to restore the working hours of teacher aides to the number of hours worked prior to September 1, 1971; (2) to offer employment to teacher aides who had resigned because of the revision of the program; and (3) to make the aides whole for any loss of pay caused by the revision of the program.

On the petition for review brought pursuant to G. L. c. 30A, Section 14, the judge ruled that the commission's finding that recognition had been granted to the association was unsupported by substantial evidence and that "[a]bsent such recognition, the findings with respect to unfair labor practices cannot stand." The judge then ordered that the decision of the commission be set aside. From that order the commission and the intervenors appeal. The parties have treated this order as a judgment (G. L. c. 231, Section 113, as amended by St. 1973, c. 1114, Section 202), and we have accepted it as such.

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A proceeding under G. L. c. 30A, Section 14, as amended through St. 1973, c. 1114, Section 3, brings before this court the evidence and the record before the commission and only permits review of the questions whether the commission's decision involves an error of law or is unsupported by substantial evidence. Selectmen of Truro v. Outdoor Advertising Bd. 346 Mass. 754 , 758 (1964).

1. In the present case the judge ruled that there was no substantial evidence of recognition. Under the public employee collective bargaining law, G. L. c. 149, Sections 178D, 178F-178N, [Note 4] employee organizations could obtain recognition through an election supervised by the commission, by petitioning the commission for certification, or through voluntary recognition by the employer. The association did not petition for certification, nor was an election held. Consequently, if recognition was obtained, it must be found to have been granted voluntarily by the school committee.

The commission found that recognition was extended to the association on May 18, 1971. However, the testimony of all witnesses (including that of the association's president) indicates that on May 18 the school committee did no more than take the request for recognition under advisement. Nor was there any evidence that the association had, by that time, presented any proof that it represented a majority of the teacher aides.

The commission now argues that recognition was accorded the association at the July 20, 1971, meeting. This argument is based primarily on the alleged statement of Dr. Recupero that "[r]ecognition is yours if that's what you wish; but we do not wish to enter into professional negotiations." We agree with the court below that this statement, although made in the presence of the other school committee members, did not amount to recognition. While recognition may be conferred orally by one with the

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authority to do so (see e.g. NLRB v. Broad St. Hosp. & Medical Center, 452 F. 2d 302, 305 [3d Cir. 1971]), there is no showing that Dr. Recupero had any authority to bind the school committee.

Dr. Recupero's statement, without some action having been taken by the committee as a body, could not confer recognition upon the association. [Note 5] See New England Box Co. v. C & R Constr. Co. 313 Mass. 696 , 701-702 (1943); Sheahan v. School Comm. of Worcester, 359 Mass. 702 , 708-709 (1971); 4 McQuillin, Municipal Corporations, Section 13.07, p. 482 (3d ed. 1968). All parties agree that no formal vote was taken at the July 20 meeting, and the minutes of the meeting do not mention recognition or determination of majority status. It should also be noted that formal votes had been taken on occasions when other labor organizations had been recognized by the school committee. We do not accept the commission's contention that the other members of the committee ratified Dr. Recupero's statement by their silence. We conclude that the judge was correct in ruling that the commission's finding that recognition was granted to the association was unsupported by substantial evidence.

2. The commission found that the school committee had violated subsections one through five of G. L. c. 149, Section 178L. [Note 6] However, the court below ruled that those findings

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could not stand in the absence of recognition. Of the five subsections specified by the commission, only (4) and (5) make reference to recognition. However, we need not concern ourselves with subsections (4) and (5), as recognition is not a condition precedent to the finding of a violation of at least one of the remaining subsections of Section 178L relied upon by the commission. [Note 7]

In particular, Section 178L (1) prohibits interference with employees' rights to organize and elect representatives as guaranteed by Section 178H. [Note 8] The right of self-organization exists for all employees, not just for those who belong to "recognized" groups. [Note 9] Common sense tells us that it is possible for an employer to violate Section 178L (1), even though there is presently no recognized employee organization. Otherwise an employer could fire at will any employee who attempted to form or participate in an employee organization. This would render the right of self-organization meaningless. We are of the opinion that by ruling that recognition was necessary to support the commission's findings of unfair labor practices, the judge committed an error of law. [Note 10]

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Because the judge disposed of the case on the issue of recognition, he did not review the commission's findings of unfair labor practices. However, we need not return this case to the Superior Court because we have the entire record before us and are in as good a position as the Superior Court to determine the validity of the commission's findings in this area. Based upon our examination of the entire record in this case, we conclude that the commission's findings that the revision of the aide program constituted an unfair labor practice were supported by substantial evidence.

3. The school committee next contends that the commission's order exceeded its remedial authority. General Laws c. 149, Section 178L, paragraph four, provided in part that the commission "shall order the reinstatement with or without back pay of an employee discharged or discriminated against in violation of the first paragraph of this section." The committee argues that there may be no award of back pay if there has been no discharge. Since none of the aides was discharged, the committee maintains that the award of back pay was improper.

Under section 10 (c) of the National Labor Relations Act, 29 U.S.C. 160 (c) (which contains language very similar to G. L. c. 149, Section 178L), the NLRB and the Federal courts have ordered back pay under circumstances similar to those in the instant case. See Central Mach. & Tool Co. Inc. 172 NLRB 1593 (1968), enforced 429 F. 2d 1127 (10th Cir. 1970), cert. den. 401 U.S. 909 (1971); Victory Plating Works, Inc. 140 NLRB 389 (1962), enforced 325 F. 2d 92 (9th Cir. 1963); D'Arcy Co. Inc. 115 NLRB 1320 (1956). In Copps Corp. & Retail Clerks Union Local No. 640, 181 NLRB 294 (1970), enforced as modified, 458 F. 2d 1227 (7th Cir. 1972), the hours of various clerks were reduced to twenty-four hours a week, forcing them to quit and find other jobs. The NLRB found that such reduction

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was in reprisal for union activities and that the employees had been constructively discharged. Reinstatement and back pay were ordered. In the present case there was evidence which tended to show that some members of the association (including its president) had been forced to resign because of the reduction of hours caused by the revision of the program. The commission found that the revision "was intended to discourage continued employment and obviously made the work economically unattractive." We consider that to be the equivalent of a finding of constructive discharge, and we conclude that the evidence supports such a finding. By ordering reinstatement and back pay for those aides constructively discharged, the commission did not exceed its remedial authority.

Although G. L. c. 149, Section 178L, spoke in terms of reinstatement, one need not be discharged (or constructively discharged) in order to be awarded back pay. We construe the term "reinstatement" broadly. We think that one may be "reinstated" to a former status and awarded back pay even though he has not been discharged. [Note 11] See Alaska Glass & Millwork, Inc. 167 NLRB 785, 792 (1967), where the NLRB ordered back pay for an employee whose hours were unlawfully reduced (but who was not discharged and did not quit). That award was made even though section 10(c) of the National Labor Relations Act contains the word "reinstatement."

Were we to construe "reinstatement" narrowly so as to limit the back pay award, it would be unfair to those aides who remained on the job despite the unlawful reduction of hours. Additionally, G. L. c. 149, Section 178L, gave the commission the power to order back pay to employees "discharged or discriminated against." To conclude that discharge is a prerequisite to an order for back pay would be to render the words "discriminated against" surplusage,

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and words in a statute should not be deemed superfluous. Milton v. Metropolitan Dist. Commn. 342 Mass. 222 , 225 (1961). Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Authy. 352 Mass. 617 , 618 (1967). Commonwealth v. Gove, 366 Mass. 351 , 355 (1974). Therefore, the commission was within its authority when it ordered that the aides be made whole. [Note 12]

4. Finally, we turn to various procedural problems raised by the school committee. The committee contends that it was denied a fair hearing because the commission rendered a decision without a majority of the commission members having heard the evidence. Most of the hearing was conducted with only one commissioner present. [Note 13] General Laws c. 30A, Section 11(7), requires only that a majority of the commission have "heard" or "read" the evidence. Since the commission's decision stated that a majority of the commission had "heard and/or read the testimony

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and entire record," the school committee's contention is without merit.

The school committee argues that it was not afforded a full and fair hearing on the complaint issued by the commission because the commission had initially sought an injunction blocking the revised teacher aide program from being implemented. This argument fails to appreciate the nature of the injunctive relief sought. By seeking an injunction the commission did not prejudge the case but rather sought only to preserve the status quo pending the resolution of the case on the merits. See Danielson v. Local 275, Laborers Intl. Union of No. America, 479 F. 2d 1033, 1037 (2d Cir. 1973); Seeler v. Trading Port, Inc. 517 F. 2d 33, 36-38 (2d Cir. 1975), interpreting sections 10(j) and 10(l) of the National Labor Relations Act, 29 U. S. C. Section 160(j), (l). The refusal by the Superior Court to issue the injunction did not prevent the commission from proceeding on the merits of the case before it. See National Labor Relations Bd. v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 682-683 (1951).

The school committee implicitly contends that it was denied due process of law because the commission acted as both prosecutor and judge. It is well settled that the combination of investigative and judicial functions within the same agency does not violate due process. Pangburn v. CAB, 311 F. 2d 349, 356 (1st Cir. 1962). See 2 Davis, Administrative Law, Section 13.02 (1958 & 1970 Supp.). Compare Moran v. School Comm. of Littleton, 317 Mass. 591 , 593 (1945), and Mayor of Everett v. Superior Court, 324 Mass. 144 , 150-151 (1949), where some combination of functions has been upheld based on necessity. Although a point does exist at which the combining of prosecutorial and adjudicative functions may constitute a deprivation of due process (see e.g. Amos Treat & Co. v. SEC, 306 F. 2d 260 [D.C. Cir. 1962]), that point has not been reached in the instant case. No one who was involved in a prosecutorial capacity participated in the decision of the commission. Furthermore, the mere issuance of the complaint by the commission does not indicate a prejudgment

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of the merits of the case. See FTC v. Cinderella Career & Finishing Schools, Inc. 404 F. 2d 1308, 1315 (D.C. Cir. 1968).

It was not error to deny the motion for a bill of particulars since the complaint supplied the school committee with sufficient information adequately to prepare its case. The school committee further contends that the commission committed prejudicial error in failing to notify the committee formally of its rights of judicial review pursuant to G. L. c. 30A, Section 11 (8). In light of the school committee's timely filing of a petition for review, the irregularity did not prejudice any rights of the school committee.

The judgment of the Superior Court is reversed. The case is remanded to the Superior Court for entry of a new judgment setting aside the order of the commission in so far as it compels the school committee to cease and desist from withdrawing recognition of and refusing to bargain in good faith with the association, [Note 14] and affirming the balance of that order.

So ordered.