7 Mass. App. Ct. 853

February 1, 1979

This case is before this court on the plaintiff's (city) appeal pursuant to G. L. c. 30A, Section 15, from the judgment entered in the Superior Court affirming a decision and order of the Labor Relations Commission (commission) that the city committed an unfair labor practice in that it failed to bargain in good faith with the Worcester Vocational Teachers Association (WVTA) and dismissing the action. There was no error. G. L. c. 30A, Section 14(7). The underlying events which precipitated the commission action now challenged were as follows. WVTA filed a petition with the commission to amend its certification to include a librarian position, which had been created subsequent to that certification. There was another bargaining unit, Service Employees International Union Local 495, also certified prior to the creation of the librarian position, to which that position could have been accreted. Pursuant to a regulation promulgated under its statutory authority, the commission, after notice, hearing, and consideration of the two relevant and potentially competing bargaining unit certifications, decided and ordered that "the position of Librarian in the Worcester Vocational School Department be accreted to [WVTA]." These accretion proceedings were made a part of the record of the unfair labor practice proceedings now under review. The city defended against the charge that it failed to bargain in good faith by attacking that accretion decision of the commission. In circumstances such as the present our "inquiry is limited to a determination whether within the record which was before the Commission and which it has sent to the court for review there is `such evidence as a reasonable mind might accept as adequate to support' the Commission's conclusion." Labor Relations Commn. v. University Hosp. Inc., 359 Mass. 516 , 521 (1971). See St. Elizabeth's Hosp. v. Labor Relations Commn., 2 Mass. App. Ct. 782 , 783 (1975). Upon a careful review of the entire record, it is clear that the commission decision was supported by substantial evidence. See G. L. c. 30A, Section 1(6).

Judgment affirmed.

Home JOHN MCLOUGHLIN & others vs. STEVEN A. DISARRO & another.

7 Mass. App. Ct. 853

February 5, 1979

This case is before us on the plaintiffs' appeal from so much of an amended judgment of the Superior Court as fails to award counsel fees as required by G. L. c. 93A, Section 9(4). Counsel requested such fees in the complaint, but the trial judge found (Mass.R.Civ.P.

Page 854

52[a], 365 Mass. 816 [1974]) that there was no evidence introduced at the trial on this point and awarded damages, interest, and costs to the plaintiffs but made no provision for counsel fees. Although this finding is not erroneous, because no such evidence was in fact offered, the judgment must be modified in light of Heller v. Silverbranch Constr. Corp., 376 Mass. 621 , 631 (1978). There the court upheld an award of counsel fees under Section 9(4) "notwithstanding the absence of evidence concerning time spent and the attorney's usual charge." The portions of the record before us do not afford a basis for determining the amount of counsel fees, but an evidentiary hearing is not necessary; the determination can be based upon the judge's own observations of the relevant factors on this issue gained during the course of the trial. Heller v. Silverbranch Constr. Corp., 376 Mass. at 629-630. The case is remanded to the Superior Court for findings consistent with this opinion and for modification of the judgment to include an award of counsel fees to the plaintiffs.

So ordered.