LOCAL 2071, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS vs. TOWN OF BELLINGHAM & others. [Note 1]

KAFKER, J. The town of Bellingham (town) appeals from a judgment of the Superior Court requiring the town to implement a scheduling change for fire fighters represented by the International Association of Firefighters (union). The scheduling change was awarded by the Joint Labor-Management Committee ("JLMC" or "committee"), which was established by emergency legislation to "provide an impasse procedure conducive to the peaceful resolution of collective bargaining disputes involving municipal police officers and firefighters." St. 1977, c. 730, § 1, adding § 4A to St. 1973, c. 1078 (hereinafter "act" or "§ 4A"). See Massachusetts Teachers Assn. v. Secretary of the Commonwealth, 384 Mass. 209 , 238 n.25 (1981) (JLMC "dominant force in resolving police and firefighter labor deadlocks by means of binding arbitration").

At issue is whether the union's proposal for twenty-four hour shifts is beyond the scope of interest arbitration authorized by the act. We conclude that the twenty-four hour shifts at issue are within the scope of arbitration under the act: shift schedules structure the hours of employment and therefore constitute a mandatory subject of bargaining under G. L. c. 150E, § 6. Moreover, as the twenty-four hour shifts proposed here do not determine who can be assigned to particular shifts or particular duties on shifts, they do not come within the act's exclusion of "assignments" from the scope of arbitration. Finally, as the record before us establishes that twenty-four hour shifts are common in comparable fire departments, and the JLMC has consistently allowed the issue of twenty-four hour shifts to be arbitrated, it was reasonable for the JLMC to conclude that the decision to move to twenty-four hour shifts was not a public safety policy decision that must remain within management's sole prerogative.

Background. The town provides fire fighting services twenty-four hours per day, seven days per week to protect the citizens of its community. This means that at all times there is a shift of fire fighters on duty to provide all necessary services. Article X

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of the agreement between the town and the union, as in effect prior to the decision of the JLMC in this case, provided as follows:

"Section 5. Working hours for firefighters on the platoon system schedule will average forty-two . . . hours per week, with two . . . ten[-]hour day shift tours and two . . . fourteen[-]hour night shift tours per eight[-]day cycle. Such tours shall be worked consecutively."

Thus, pursuant to article X of the agreement, a fire fighter worked the following schedule:

Day 1: ten-hour day shift (8:00 A.M. to 6:00 P.M.)

Day 2: ten-hour day shift (8:00 A.M. to 6:00 P.M.)

Day 3: fourteen-hour night shift (6:00 P.M. to 8:00 A.M.)

Day 4: fourteen-hour night shift (6:00 P.M. to 8:00 A.M.)

Days 5-8: four days off

In order to provide coverage twenty-four hours per day, seven days per week, the town had fire fighters working the schedule discussed above on a rotating basis. When someone was sick or on vacation or otherwise absent, a fire fighter would commonly volunteer to work extra shifts, thereby remaining on duty twenty-four straight hours.

In collective bargaining with the town, the union proposed a change to twenty-four hour shifts. The twenty-four hour shift proposal provided for a schedule as follows:

Day 1: ten-hour day shift

fourteen-hour night shift (thus a twenty-four hour shift)

Days 2-3: two days off

Day 4: ten-hour day shift

fourteen-hour night shift (another twenty-four hour shift)

Days 5-8: four days off

This change apparently would not affect the average number of

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scheduled hours worked per eight-day cycle, nor mandate who would be assigned to which shift or to what duty on each shift.

The town consistently opposed the shift change and argued that the decision was a management prerogative. The parties were unable to reach an agreement, and the union petitioned the JLMC to exercise jurisdiction. The town objected, contending that twenty-four hour shifts were beyond the jurisdiction of the JLMC. The JLMC rejected that argument, asserted jurisdiction, and ordered the issue of twenty-four hour shifts, along with other unresolved disputes no longer at issue, to binding arbitration.

The arbitration panel, which consisted of one management representative, one labor representative, and one neutral, unanimously agreed to impose the twenty-four hour shifts discussed above. The panel did so after allowing the parties a "full opportunity to present evidence and make arguments." As set out in the union's supplemental appendix, the information before the arbitration panel included testimony taken from a number of town officials, including the town manager and the fire chief, as well as various union officials. [Note 3] The union also presented to the panel the decisions of seventeen other JLMC arbitration panels addressing, and in almost all cases awarding, twenty-four hour shifts. These decisions considered testimony from fire chiefs and union officials recounting their experiences with or concerns about twenty-four hour shifts, surveys of a number of communities in Massachusetts and the United States that had adopted twenty-four hour shifts, various studies, and arbitrators' analyses of the effect of twenty-four hour shifts on fire fighter fatigue, sick time, morale, and training. The union also submitted an affidavit from Professor John Dunlop, who had served as the chairman of the JLMC since 1977. His affidavit included a list of thirteen cases in which a JLMC arbitrator had ordered the imposition of a twenty-four hour shift schedule for municipal fire fighters.

The panel acknowledged the town's argument that the panel did not have the authority to award twenty-four hour shifts, but concluded that "pursuant to General Laws Chapter 150E provisions, wages, hours, [and] working conditions . . . are mandatory

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topics of bargaining." Applying the statutory language, the panel concluded that "[w]ork shifts structure and define hours of work and are an implicit component of hours of work. . . . Consequently, it is the panel's opinion that it has the authority to issue an award of the twenty-four . . . hour shift as just another structure of the hours of work."

The panel went on to find that eleven of twelve comparable communities had implemented twenty-four hour fire fighting shifts. It also rejected the town's "primary contention" that "a twenty-four . . . hour shift would present a significant public safety risk due to Firefighter[] fatigue" because "as in all Firefighter shifts, there is 'down-time' during which Firefighters are not physically taxed. Such 'down-time' can be and is typically utilized by Firefighters to replenish their physical stamina. Moreover, Town Firefighters currently work a twenty-four . . . hour shift on a periodic basis with no identified problems." [Note 4]

The panel also identified benefits to the twenty-four hour shift. It concluded that "the evidence supports a finding that sick leave utilization . . . should decrease . . . over time as there are half as many opportunities for sick leave utilization in a twenty-four . . . hour shift." The panel further found that "overtime costs should decrease as it is less likely that Firefighters will be held over at the end of their shifts, coinciding with busy run times[,] as is the current practice."

The arbitration panel also provided for a mediation and arbitration process in the event that either party later sought to terminate the twenty-four hour shift schedule. The process would begin with mediation, but if that were unsuccessful, an expedited arbitration would be ordered. The award further provided that, once in arbitration, "[t]he arbitrator shall terminate the twenty-four . . . hour schedule for the next fiscal year if he finds that maintaining the twenty-four . . . hour schedule is not in the best interests of the Town of Bellingham." Lastly, the award provided that, in making that determination, the arbitrator is to consider the financial costs and operational

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impacts of twenty-four hour shifts and their effect on fire fighter morale and training.

The town appealed the JLMC decision to the Superior Court, which resulted in an order of dismissal and further appeal to this court. See Bellingham v. Local 2071, Intl. Assn. of Firefighters, 64 Mass. App. Ct. 446 (2005) (Bellingham I). Before our decision issued in Bellingham I, the union filed a complaint in the Superior Court, seeking enforcement of the arbitration panel's award. Upon the union's complaint, a permanent injunction issued enforcing the panel's award; the judgment also declared that the shift assignment issue was arbitrable and that there was support in the record for the panel's decision. The town appeals, and all issues are now before us for resolution, as both parties have requested that this court bring finality to this protracted dispute. [Note 5]

Discussion. The JLMC consists of fifteen members representing both labor and management interests. The committee is empowered to order police and fire fighter collective bargaining disputes to binding arbitration to avoid job actions in these critical public safety functions. There are limits, however, to the committee's powers.

"[T]he scope of arbitration in police matters shall be limited to wages, hours, and conditions of employment and shall not include the following matters of inherent managerial policy: the right to appoint, promote, assign, and transfer employees; and . . . the scope of arbitration in firefighter matters shall not include the right to appoint and promote employees. Assignments shall not be within the scope of arbitration; provided, however, that the subject matters of initial station assignment upon appointment or promotion shall be within the scope of arbitration. . . . Notwithstanding any other provisions of this act to the contrary, no municipal employer shall be required to negotiate over subjects of minimum manning of shift coverage, with an employee organization representing municipal police officers and firefighters. Nothing in this section shall be construed to include within the scope of

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arbitration any matters not otherwise subject to collective bargaining under the provisions of [G. L. c. 150E]."

St. 1973, c. 1078, § 4A(3)(a), as amended through St. 1987, c. 589, § 1.

General Laws c. 150E, § 6, inserted by St. 1973, c. 1078, § 2, provides in pertinent part:

"The employer and the exclusive representative . . . shall negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment . . . ."

The first issue to be decided is whether the reference in G. L. c. 150E, § 6, to "wages, hours, . . . and any other terms and conditions of employment" includes shift hours. As the arbitration panel correctly concluded, shifts structure hours of employment and fit neatly within the plain meaning of "hours" in G. L. c. 150E, § 6. See Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Authy., 392 Mass. 407 , 415 (1984), quoting from G. L. c. 4, § 6 ("unless a statutory term is 'technical,' 'words and phrases shall be construed according to the[ir] common and approved usage' "). Although the particular shift proposal may be excluded from bargaining for other reasons, the hours of shifts are ordinarily a mandatory subject of bargaining and therefore within the scope of the arbitration provision. See, e.g., Labor Relations Commn. v. Natick, 369 Mass. 431 , 436 (1976) ("tours[,] . . . shifts of duty, [and] work schedules" are proper subjects of bargaining); Boston & Boston Police Superior Officers Fedn., 10 M.L.C. 1189, 1193 (1983) ("The general topic of hours of work, including the hours of work each day and organization of such hours into shifts or tours of duty, is a mandatory subject of bargaining"). See also Fire Fighters Union, Local 1186, Intl. Assn. of Fire Fighters, AFL-CIO v. Vallejo, 12 Cal. 3d 608, 617 (1974) (schedule of hours of fire fighters on twenty-four hour shifts "clearly negotiable and arbitrable"); Teaneck v. Teaneck Firemen's Mut. Benevolent Assn. Local No. 42, 353 N.J. Super. 289, 305 (2002), aff'd, 177 N.J. 560 (2003) (proposed twenty-four hour shift subject to interest arbitration). See generally Chief Justice for

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Admn. & Mgmt. of the Trial Ct. v. Office & Professional Employees Intl. Union, Local 6, AFL-CIO, 441 Mass. 620 , 630 (2004), quoting from School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753 , 761-762 (2003) (emphasizing Commonwealth's "strong public policy favoring collective bargaining").

Statute 1973, c. 1078, § 4A, also expressly excludes certain matters from arbitration. In regard to shifts, the act expressly excludes only "minimum manning" provisions. It does not, in contrast, exclude shift hours. The act also excludes fire fighter assignments. [Note 6] The town contends that the exclusion of assignments encompasses shifts. The arbitration panel concluded otherwise, and we agree. [Note 7] The shift proposal here does not determine who is assigned to which shift. Rather, it is limited to the hours of the shift. It also does not determine who is assigned to do what on the shift. See Massachusetts Bay Transp. Authy. v. Local 589, Amalgamated Transit Union, 406 Mass. 36 , 40 (1989), quoting from Webster's Third New Int'l

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Dictionary 132 (1961) ("[t]o 'assign' ordinarily means 'to appoint to a post or duty' "). Nothing in the shift proposal before us appears to limit the fire chief's ability to make sure that the right people are in the right positions on the right shift. Contrast Taunton v. Taunton Branch of the Mass. Police Assn., 10 Mass. App. Ct. 237 , 243-244 (1980) (provisions depriving police chief of authority over "number, qualifications and identity of officers" on shifts not properly subject to arbitration). [Note 8]

The last exclusion in § 4A is the most difficult to delineate: "Nothing in this section shall be construed to include within the scope of arbitration any matters not otherwise subject to collective bargaining under the provisions of [G. L. c. 150E]." As the Supreme Judicial Court has explained, "from [the] expansively defined category of mandatory bargaining subjects, we have exempted certain types of managerial decisions that must, as a matter of policy, be reserved to the public employer's discretion." Worcester v. Labor Relations Commn., 438 Mass. 177 , 180 (2002) (Worcester). A union cannot, for example, determine the level of government services. See, e.g., School Comm. of Newton v. Labor Relations Commn., 388 Mass. 557 , 563 (1983). In the instant case, however, the town had previously established coverage twenty-four hours per day, seven days per week. The union was not therefore demanding that the employer provide additional fire fighting services or personnel. Rather, the union sought to negotiate how the existing employees would divide up the coverage that the employer had chosen to provide.

The town, without elaboration or reference to any evidence in the record, contends that the quality of the fire fighter services will be affected by the move to twenty-four hour shifts. Essentially, the town appears to be arguing that fire fighters will become tired as they work a twenty-four hour shift and therefore will be less effective in performing their critical public safety duties. As a result, the town argues, the decision to establish

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twenty-four hour shifts "must be reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process." Worcester, 438 Mass. at 181, quoting from Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172 , 178 (1997).

The arbitration panel addressed the substance of this concern. It relied on submissions by the union that established that eleven of twelve comparable communities have implemented twenty-four hour shifts, testimony that Bellingham fire fighters currently work a twenty-four hour shift "on a periodic basis with no identified problems," and its own understanding that on "all Firefighter shifts, there is 'down-time' during which Firefighters are not physically taxed [,] . . . [which] is typically utilized by Firefighters to replenish their physical stamina." [Note 9] In the record before the panel, there was also information indicating that twenty-four hour shifts are common throughout the United States, and that other arbitrators addressing twenty-four hour shifts have not been persuaded that concerns about fire fighter fatigue arising from such shifts were well founded. [Note 10]

The town contends nonetheless that as matter of law, the decision to allow twenty-four hour shifts must remain a management prerogative for the town to fulfil its public safety responsibilities. It relies on the Supreme Judicial Court's decision in Worcester, 438 Mass. at 183 ("A public employer need not defend the wisdom of a policy choice that it has made in order to have that choice recognized as a core managerial prerogative. It is the fact that the public employer's choice is one of policy, not the merits of the choice the employer makes, that renders the choice an inappropriate subject of mandatory bargaining").

Unlike the instant case, Worcester involved a core governmental

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function -- establishing the priorities of law enforcement, see id. at 182 -- "far removed" from the wage and hour issues at the core of collective bargaining. See Greenbaum, The Scope of Mandatory Bargaining Under Massachusetts Public Sector Labor Relations Law, 72 Mass. L. Rev. 102, 108 (1987) (in deciding whether an issue is a mandatory subject of bargaining or a policy decision reserved to the government employer, Labor Relations Commission [commission] considers "the impact of the issue on terms and conditions of employment; . . . whether it involves a core governmental decision; and . . . whether it is far removed from terms and conditions of employment"). Here, in contrast, we are addressing an issue at the core of collective bargaining: work hours. The only public policy concern articulated by the town -- fire fighter fatigue -- was also found to be without basis due to the downtime on "all" fire fighter shifts, which allows fire fighters to "replenish their physical stamina."

In identifying management prerogatives outside the scope of bargaining, the Supreme Judicial Court has generally emphasized that the negotiating requirement must "unduly impinge on a public employer's freedom to perform its public functions." Worcester, 438 Mass. at 180, quoting from Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. 429 , 437 (1984). It has also stated that "the ingredient of public policy" must be "comparatively heavy." School Comm. of Boston v. Boston Teachers Union, Local 66, Am. Fedn. of Teachers (AFL-CIO), 378 Mass. 65 , 71 (1979). Additionally, "[t]he list of factors so fundamental to the effective operation of an enterprise as to be exempt from mandatory bargaining requirements will of necessity vary with the nature of the employer." Worcester, 438 Mass. at 181, quoting from Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., supra at 439-440.

With this guidance, and the benefit of the various arbitration panels' analyses of the practical realities of twenty-four hour shifts included in the record, we are ultimately persuaded that the proposal is arbitrable. To reserve to the sole discretion of management a core subject of collective bargaining (shift hours) on public safety policy grounds requires a clearer showing that public safety is being affected by the scheduling proposal.

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In reaching this conclusion, we recognize that "the question whether the [JLMC] acted in excess of the authority conferred on [it] . . . is always open for judicial review." Higher Educ. Coordinating Council/Roxbury Community College v. Massachusetts Teachers' Assn./Mass. Community College Council, 423 Mass. 23 , 27 (1996), quoting from School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass. 651 , 654 (1985). Nonetheless, some deference is owed to the JLMC's consistent interpretation of its own statute on the question whether twenty-four hour shifts are within "the scope of arbitration" pursuant to § 4A. See Massachusetts Org. of State Engrs. & Scientists v. Labor Relations Commn., 389 Mass. 920 , 924 (1983) ("ordinary precepts of statutory construction instruct us to accord deference to an administrative interpretation of a statute"); Board of Educ. v. School Comm. of Quincy, 415 Mass. 240 , 243 (1993) ("reasonable and consistent interpretations of statutes, by agencies charged with their implementation, are entitled to deference"). The fifteen-member JLMC, see St. 2002, c. 300, § 14, reflects both labor and management perspectives and consists of people with experience and expertise in police and fire fighter matters. Compare Worcester, 438 Mass. at 180 (we "must accord deference to the commission's specialized knowledge and expertise, and to its interpretation of the applicable statutory provisions"). The members of the JLMC are well-prepared to address the question of what constitutes a mandatory subject of bargaining and the practical consequences of a twenty-four hour shift, including fire fighter fatigue. On thirteen prior occasions, after the JLMC ordered arbitration on twenty-four hour shifts, the arbitration panels, after substantial consideration of the merits, awarded twenty-four hour shifts at least on a trial basis. [Note 11]

Conclusion. The decision by the arbitration panel here reasonably applied the language of § 4A conferring jurisdiction, concluding that shifts structure hours, and that hours are a mandatory subject of bargaining. The panel also rejected the fire fighter fatigue argument. The panel's decision was consistent with the approach and analysis of other arbitration

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panels considering the issue. The collective decision-making of the JLMC and its designated arbitration panels contains, in our view, a far more careful and informed consideration of the issue than the dissent acknowledges. [Note 12] Finally, the approach adopted by the JLMC has accomplished an important statutory purpose: to prevent turbulent, unsettled collective bargaining relations on difficult issues from potentially interfering with the provision of critical public safety services. For these reasons, we affirm the judgment. [Note 13]

So ordered.

MILLS, J. (dissenting, with whom Laurence, J., joins). I would hold that the record does not contain sufficient facts [Note Mills-1], [Note Mills-2] or reasoned analysis to resolve the question whether the proposed

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scheduling change is a mandatory item for collective bargaining

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under G. L. c. 150E, a jurisdictional requirement for the Joint Labor-Management Committee ("JLMC" or "committee") arbitration panel's award of the scheduling change. While vacation of the Superior Court judgment enforcing the award would be appropriate on this record, in deference to the committee I would remand to permit further factual and legal analysis to support the committee's exercise of jurisdiction, without suggesting that such an attempt would be successful.

Background. In negotiations with the town of Bellingham (town) for a successor collective bargaining agreement, [Note Mills-3] the International Association of Firefighters (union) specified several items for bargaining. [Note Mills-4] These included the scheduling issue, which the town rejected, asserting that the matter was not mandatory for bargaining under G. L. c. 150E. The JLMC assumed impasse jurisdiction pursuant to St. 1973, c. 1078, § 4A, as amended through St. 1987, c. 589, § 1 (hereinafter the "act" or "§ 4A"), and implicitly rejected the town's jurisdictional objection [Note Mills-5] by submitting all items to binding arbitration before

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a three-member panel. [Note Mills-6] The panel acknowledged the town's jurisdictional argument, but concluded that

"pursuant to [G. L. c.] 150E . . . , hours . . . are [a] mandatory topic[] of bargaining . . . . Work shifts structure and define hours of work and are an implicit component of hours of work. Employees are typically scheduled to work a specific number of hours within a delineated period of time such as a day, a week, or a month. However, the hours worked in such a period of time are organized into units typically referred to as shifts. Consequently, it is the panel's opinion that it has the authority to issue an award of the twenty-four . . . hour shift as just another structure of the hours of work" (emphasis added).

In its decision, the arbitration panel noted that eleven of twelve "universe communities" [Note Mills-7] have implemented the so-called twenty-four hour shift, [Note Mills-8] and that evidence supports a finding that sick leave and overtime pay would decrease as a consequence of the scheduling change. The panel noted, and rejected, the town's concern that the change would present a public safety risk due to fire fighters' fatigue, reasoning that "in all Firefighter shifts, there is 'down-time' during which Firefighters are not physically taxed [and that] [s]uch 'down-time'

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can be and is typically utilized by Firefighters to replenish their physical stamina." Finally, the panel noted that the town's fire fighters currently work twenty-four continuous hours on a periodic basis with no identified problems.

The union commenced this equity action in Superior Court seeking injunctive relief to enforce the arbitration panel's award. [Note Mills-9] The town reasserted its jurisdictional argument. After a judge granted preliminary relief, the town filed a "Motion to Be Heard and for a Ruling on the Arbitrability Issue or the Validity of the Twenty Four Hours Provision of the Arbitration Award in Question." A different Superior Court judge denied the motion to be heard but then, treating it as a motion for summary judgment, ruled that the scheduling issue is arbitrable, which is, of course, the equivalent of making a positive ruling as to the committee's jurisdiction. [Note Mills-10]

In my view, a positive decision was not appropriate at this stage of the proceedings. Because the town raised a nonfrivolous objection to the jurisdiction of the committee, it became incumbent upon the committee, in this case, (1) to receive evidence purporting to prove or disprove its jurisdiction and (2) to weigh this evidence in a transparent manner and then issue a documented decision allowing for review in the courts. [Note Mills-11] The union makes some suggestion that the committee may have

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heard such evidence, but the record contains no description of it, and in any event, it appears that the committee only impliedly disposed of the town's objection, without explanation. See note 17, infra. [Note Mills-12]

Discussion. This case turns on whether the scheduling issue is, as urged by the union and the committee, mandatory for bargaining, as the simple arrangement of hours in a day, or, as urged by the town, a matter of management prerogative not mandatory for bargaining under G. L. c. 150E and, hence, explicitly exempted from the committee's jurisdiction under the act.

(a) The committee's impasse jurisdiction. Statute 1977,

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c. 730, § 1, created the committee by adding § 4A to St. 1973, c. 1078. The act has since been amended, the last material change, for present purposes, having been made by St. 1987, c. 589, § 1. "Section 4A established [the committee] with responsibility for collective bargaining negotiations involving municipal police officers and firefighters. That committee may order disputes to be submitted to binding arbitration 'in accordance with the standards, provisions and limitations' of § 4 [now § 4A] of St. 1973, c. 1078" (emphasis added). Massachusetts Teachers Assn. v. Secretary of the Commonwealth, 384 Mass. 209 , 236 (1981). See Taunton v. Taunton Branch of the Mass. Police Assn., 10 Mass. App. Ct. 237 , 241 (1980).

Pursuant to this oversight authority, which both overlays and partially supersedes G. L. c. 150E, the committee may assume jurisdiction, which shall be exclusive when assumed, if "there is an apparent exhaustion of the processes of collective bargaining which constitutes a potential threat to public welfare." § 4A(3)(a). The act provides that decisions "resulting from the mechanism or procedures determined by the committee if supported by material and substantive evidence on the whole record shall be . . . binding." Ibid. There are, however, two exceptions to the committee's jurisdiction: (1) "[a]ssignments shall not be within the scope of arbitration"; and (2) "[n]othing in [§ 4A] shall be construed to include within the scope of arbitration any matters not otherwise subject to collective bargaining under the provisions of [G. L. c. 150E]" (the "c. 150E exemption"). Ibid. These are jurisdictional conditions, and the committee "has only the powers and duties expressly or impliedly conferred on it by statute." Matter of Elec. Mut. Liab. Ins. Co. (No. 1), 426 Mass. 362 , 366 (1998), citing Morey v. Martha's Vineyard Commn., 409 Mass. 813 , 818 (1991). See Globe Newspaper Co. v. Beacon Hill Architectural Commn., 421 Mass. 570 , 586 (1996).

(b) The G. L. c. 150E exemption. "Pursuant to G. L. c. 150E, § 6, public employers must 'negotiate in good faith with respect to wages, hours, standards or productivity and performance, and any other terms and conditions of employment.' " Worcester v. Labor Relations Commn., 438 Mass. 177 , 180 (2002) (Worcester). From that expansive language, the Supreme Judicial Court has

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exempted certain types of managerial decisions that must, as a matter of policy, be reserved to the public employer's discretion. [Note Mills-13] "[I]n instances where a negotiation requirement would unduly impinge on a public employer's freedom to perform its public functions, G. L. c. 150E, § 6, does not mandate bargaining over a decision directly affecting the employment relationship." Worcester, supra at 180, quoting from Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. 429 , 437 (1984). "[T]he inquiry has been directed towards defining the boundary between subjects that by statute, by tradition, or by common sense must be reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process." Worcester, 438 Mass. at 181, quoting from Lynn v. Labor Relations Commn., 43 Mass. App. Ct. 172 , 178 (1997). "[T]he crucial factor in determining whether a given issue is a mandatory subject of bargaining is whether resolution of the issue at the bargaining table is deemed to conflict with perceived requirements of public policy." Worcester, 438 Mass. at 181, quoting from Greenbaum, The Scope of Mandatory Bargaining Under Massachusetts Public

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Sector Labor Relations Law, 72 Mass. L. Rev. 102, 103 (1987), and "[a]ny attempt to define with precision and certainty the subjects about which bargaining is mandated by [G. L. c.] 150E is doomed to failure." Lynn v. Labor Relations Commn., 43 Mass. App. Ct. at 177, quoting from Greenbaum, supra at 102.

The Worcester decision cites to cases in which Massachusetts courts have considered whether collective bargaining is mandatory for a given issue or merely permitted, in which case the matter would remain strictly within the penumbra of management rights. Worcester, 438 Mass. at 180-181, 185. "The list of factors so fundamental to the effective operation of an enterprise as to be exempt from mandatory bargaining requirements will of necessity vary with the nature of the employer," id. at 181, quoting from Local 346, Intl. Bhd. of Police Officers v. Labor Relations Commn., 391 Mass. at 438, "and the inquiry as to whether a particular decision falls within that sphere of core managerial prerogatives must therefore be made on a case-by-case basis." Worcester, 438 Mass. at 181.

These appellate decisions provide principles that guide, but do not direct, the analysis and result in this case. The decisions instruct that the town is responsible for deploying public resources, personnel, and equipment, in part for the purpose of protecting citizens and property against the dangers of fire. The town is also charged with ensuring that managerial oversight is exercised so that these ends can be accomplished effectively, efficiently, and within budget. The town must remain accountable to the public, while negotiating fairly on matters that do not conflict with requirements of public policy. The decision whether an issue is within management prerogative must be made on a case-by-case basis. [Note Mills-14]

Both the town and the union also rely upon decisions of the Massachusetts Labor Relations Commission (LRC), the agency

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most familiar with, and entrusted to administer, G. L. c. 150E. The twenty-four hour scheduling issue (so-called) has not been addressed by the LRC, and in my view, its decisions do not direct a result. The LRC decisions suggest that core management decisions that only marginally impact terms and conditions of employment are not subject to mandatory bargaining, see Board of Trustees/Univ. of Mass. & Intl. Union, United Auto., Aerospace & Agricultural Implement Wkrs. of America, 20 M.L.C. 1453, 1467 (1994), citing Town of Danvers & Local 2038, IAFF, 3 M.L.C. 1559 (1977); Town of Dracut & Dracut Fire Fighters, Local 2586, IAFF, 23 M.L.C. 113, 114 (1996) (Dracut), while issues that have a direct and significant impact on employees' safety, are subject to mandatory bargaining. See Town of Shrewsbury & Local 426, Intl. Bhd. of Police Officers, 14 M.L.C. 1309, 1311 (1987) (Shrewsbury); Town of Halifax & IAFF, Local 3159, 20 M.L.C. 1320, 1323 (1993) (Halifax); Dracut, supra. The particular safety concern may appear simple, such as the request to wear a seatbelt, Shrewsbury, supra, or more complex, such as the number of fire fighters assigned to a particular responding vehicle. See Halifax, 20 M.L.C. at 1324; Dracut, 23 M.L.C. at 114. The LRC has noted that "[d]etermining what constitutes a mandatory subject [for bargaining] in fire department staffing and response cases proves particularly vexatious," Halifax, supra at 1323, and has traditionally balanced the union's interest in bargaining safety and workload issues with the employer's interest in making managerial decisions about the level of service to provide. Ibid. [Note Mills-15]

(c) The absence of jurisdictional facts. The town's consistent resistance to arbitration of the scheduling issue and its objection

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to the assumption of jurisdiction by the committee were not fact-based but instead presented as self-evident propositions of law. The town's brief to this court makes extensive citation to decisions of the LRC and appellate courts, but engages in almost no discernible factual analysis. The arbitration panel, as we have noted above, recited factors unrelated to the jurisdictional issue, concluding that "[e]mployees are typically scheduled to work a specific number of hours within a delineated period of time such as a day, a week, or a month," and that how these hours are arrived at is "just another structure of the hours of work" (emphasis added).

The union, again characterizing the scheduling issue as one strictly of hours within a day, does nothing more than nakedly assert that hours are an explicit subject for mandatory bargaining, and that the twenty-four hour shift "simply rearranges the work hours" (emphasis added). The union criticizes the town's cited authority as inapplicable, and itself cites to several decisions of the LRC, three decisions of the Superior Court, and awards by the committee of the twenty-four hour shift schedule "on at least 13 occasions without successful appeal by a municipality." In its brief, the union asserts that the panel took extensive documentary and testimonial evidence from witnesses. There is no such evidence in the record, however, and its absence precludes reasonable analysis and decision on the jurisdictional issue. [Note Mills-16]

In its brief on appeal, the JLMC, on the question of jurisdiction,

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argues that (a) we should "give appropriate deference to the [c]ommittee's interpretation of its own organic statute"; (b) the committee "has consistently, on more than a dozen occasions over a fourteen year period, interpreted Section 4A to permit awards that include 24-hour shift provisions"; (c) three Superior Court judges have upheld the committee's authority in this regard; and (d) "a 'work shift' merely defines the number of hours an employee is to work in a given, relatively short (typically 24 hours or less) period of time" (emphasis added). The committee, like the town and the union, gives no attention to any facts specific to the jurisdictional dispute in this particular case.

The judge was of the view that the essential facts were not in dispute. However, facts essential to an appropriate analysis of arbitrability had not been developed. Massachusetts appellate decisions, which clearly require a more fact-based inquiry and analysis in cases such as this, were virtually ignored. Our appellate courts have not considered G. L. c. 150E issues simple. There is no reasoned, analytical application of fact to relevant law with respect to the question of arbitrability to be found in any award of the committee, decision of the LRC, or document in this record.

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Hence, the jurisdiction of the committee, challenged by the town, has not yet been proved or disproved. Whether the committee's jurisdiction extends to the scheduling issue is a question too important to be resolved by default or assumptions, which, as suggested by the lack of an explicit ruling from the committee on the arbitrability question, may have happened in this case.

(d) Deference to the agency. The union and the committee argue the rule of deference to an administrative agency (here, the JLMC with regard to its implicit determination that its enabling statute permits the award in this case). They also focus on previous decisions of the committee's arbitration panels in which the so-called twenty-four hour shift [Note Mills-17] has been a component of the total award, and they argue that the awards should be accepted by this court as establishing that the shift issue is a mandatory subject for bargaining under c. 150E.

While the rule of deference to an agency is fundamental, see Massachusetts Org. of State Engrs. & Scientists v. Labor Relations Commn., 389 Mass. 920 , 924 (1983); Board of Educ. v. School Comm. of Quincy, 415 Mass. 240 , 243-244 (1993), I reject the committee's citation to its own decisions as helpful authority. In all but two of those decisions the jurisdictional issue was never mentioned, let alone analyzed. [Note Mills-18]

Medford Fire Fighters Union, Local 1032, IAFF & City of

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Medford, JLMC No. 01-03F (2001), is the first case in which an employer's objection to arbitrability is evidenced. The arbitration panel consulted with the JLMC and was instructed to proceed. The city refused to present evidence. The arbitration panel neither analyzed nor reported on the arbitrability issue, but simply recited that fourteen of eighteen comparable communities utilize the twenty-four hour shift, that there was no evidence of any problems, and that there was value in efficiency and lower costs to the employer. [Note Mills-19] The award contains no citation to LRC decisions or argument as to why the shift issue is mandatory for bargaining under G. L. c. 150E.

In the second case, Town of Lakeville & IAFF, Local 3188, JLMC No. 05- 04F (2005), the union presented evidence on the twenty-four hour scheduling issue to the arbitration panel. The town refused to arbitrate the issue, asserted that the panel did not have jurisdiction, and argued the panel's lack of jurisdiction in its brief without addressing the merits of the proposal. The arbitration panel followed the JLMC's ruling that the twenty-

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four hour shift schedule was properly before the panel and did not consider the town's arguments to the contrary, presented in both its brief and at the hearing. As in the present dispute, neither of these cases contains the fact-driven analysis required by Massachusetts case law.

In summary, the committee decisions and awards on the shift issue are not authority, persuasive or otherwise, that the shift issue is within the scope of mandatory bargaining pursuant to G. L. c. 150E. Moreover, I note that none of the committee's opinions or awards provides sufficient analysis or argument on the arbitrability issue. Instead, arbitrability is essentially accepted as a "given," without any explanation, justification, or citation to LRC or other authority. [Note Mills-20] "It is ultimately, of course, the function of the courts to hold agencies only to the exercise of powers expressly or impliedly conferred upon the agencies by statute and to prevent the usurpation of powers not expressly or impliedly granted to the agencies by statute." Cella, Administrative Law and Practice § 93, at 214 n.4 (1986). See Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976) ("this principle is one of deference, not abdication, and courts will not hesitate to overrule agency interpretations of rules when those interpretations are arbitrary, unreasonable or inconsistent with the plain terms of the rule itself"); Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890 , 892 (1991) (no deference when agency commits error of law); Scaccia v. State Ethics Commn., 431 Mass. 351 , 354 (2000) ("While the commission's considerable expertise regarding the . . . statute is entitled to some deference, interpretation of the statute is ultimately a question of law reserved for our determination").

In addition to framing the scheduling issue merely in terms of hours in a day, the simplistic approaches of the union and the committee treat the effective teaming of fire fighters, assigned together on a particular shift and then also assigned to a particular piece of fire fighting apparatus, as one would treat the

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allocation of fungible commodities. Both parties fail to acknowledge that every trained, professional employee -- particularly in the field of municipal safety -- possesses idiosyncratic characteristics that directly affect job performance and therefore are highly relevant to the effective teaming of workers. In addition to one's ability to function cooperatively with specific colleagues, the necessary considerations include the extent of each worker's training, experience, health, physical strength, stamina, and emotional stability. The union and the committee appear to view individual fire fighters as interchangeable and their assignment to particular shifts as an arbitrary and indiscriminate process rather than as an essential executive responsibility.

The union and the committee may, upon a complete analysis, prove correct. This is not, however, a foregone conclusion. If work assignments are consolidated and extended from distinct ten- and fourteen-hour shifts into single shifts lasting twenty-four hours and rigidly arranged within an eight-day work week, and if the work month is thereby reduced from sixteen days to eight days, then the ability of the executive to make discerning and informed assignments, with reasonable flexibility, may be substantially impaired. [Note Mills-21] A determination whether the scheduling change interferes with the conscientious assignment of individual workers to shifts and teams and thereby invades management prerogative, for example, requires more analysis then this abbreviated record allows. I respectfully dissent. [Note Mills-22]