DIRECTOR OF THE DIVISION OF EMPLOYEE RELATIONS OF THE DEPARTMENT OF ADMINISTRATION AND FINANCE vs. LABOR RELATIONS COMMISSION & another. [Note 1]

KAPLAN, J. Suppose the Labor Relations Commission (Commission) has properly found on complaint of a public employer that a union of public employees instigated an

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illegal withholding of services by its members. May the Commission, in issuing a cease and desist order against the union, add an order requiring the parties to submit to arbitration an alleged "hiring freeze" and work assignment by the employer, when arbitration was not applied for under the grievance provision of the collective bargaining agreement, and the Commission has not proceeded with a pending "prohibited practice" complaint against the employer regarding the hiring freeze? The question is a limited one. A judge of the Superior Court held in the circumstances of the case that the added order was erroneous. We agree that it was not authorized by the statutory provision on which the Commission relied, Section 9A of new c. 150E of the General Laws ("Labor Relations: Public Employees," effective July 1, 1974).

The facts appear in the stipulation of agreed facts on which the judge below acted. On March 15, 1974, the Department of Public Welfare entered into a collective bargaining agreement with Local 509, Service Employees International Union, AFL-CIO (Union), which represented the social workers employed to carry out the department's welfare program. Certain provisions of the contract (simplified) described an employee's normal caseload in an office as 120 cases and set out procedures for dealing with surplus cases. Such cases were to be first assigned on a "pro-rata overtime basis" to any employees who volunteered, but if there were insufficient volunteers or the overtime fund was temporarily depleted, the cases were to be mandatorily assigned to employees up to a maximum of 180 cases. The agreement, which was lengthy and detailed, further contained a "no strike" clause and a "grievance procedure" culminating in final and binding arbitration.

In October, 1974, some employees refused, at the urging of the Union, to handle assigned surplus cases. The Union claimed that the surplus had been generated by reductions of staff created by an administrative hiring freeze allegedly in violation of the sense, even if not the text, of the agreement. The Union, however, did not file a grievance under the arbitration provision. Instead, for reasons of its own,

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the Union on October 23, 1974, filed a "prohibited practice" charge with the Labor Relations Commission under Section 10 (a) (5). [Note 2] The next day the Director of the Division of Employee Relations of the Department of Administration and Finance -- the public employer for present purposes [Note 3] -- informed the Commission that an illegal strike (more properly, an illegal withholding of services) was in progress in violation of Section 9A (a), and demanded that the Commission conduct an investigation and institute appropriate court action under Section 9A (b) to enjoin the violation.

The Commission conducted a hearing on the Employer's petition and, on October 30, 1974, entered an order under Section 9A (b) requiring the Union to cease and desist from encouraging or sanctioning the withholding of services by the employees. However, the order was subject to two "provided" clauses: that the disputed assignment of cases and the imposition of the hiring freeze be promptly submitted to binding arbitration pursuant to the agreement, and that the parties participate in good faith in the arbitration procedures -- to which was added the "caution" that frustration of the arbitration by either party might furnish "a basis for reconsideration hereof." The parties both sought modification of the order and on November 14 the Commission issued a final revised order, set out in the margin, [Note 4] still

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under authority of Section 9A (b), in which (among certain other changes) the "provided" form was dropped and good-faith arbitration was directly commanded. It is noteworthy that the Commission left hanging and took no steps concerning the prohibited practice charge.

The Commission did not immediately bring an action under Section 9A (b) to enforce its order. Instead, the Employer sued the Commission in the Superior Court resting jurisdiction on G. L. c. 30A, Section 14, and praying a modification of the order to eliminate the command that the parties submit to binding arbitration. (In fact the Employer has been willing to arbitrate the issue whether social workers could be assigned more than 120 cases, but resisted any arbitration concerning the hiring freeze.) The Commission answered and counterclaimed, naming the Union as an additional defendant to the counterclaim, and prayed enforcement of its entire final order. The Union contested the

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portion of the order directing it to cease and desist, but argued that the order to arbitrate was proper.

On agreed facts, the judge of the Superior Court sustained the Employer's position. He upheld the cease and desist part of the order, and struck the rest. His decision to delete the order to arbitrate went on two alternative grounds. First, the stricken provisions were not authorized by Section 9A (b) on which the Commission had relied; it was not a "requirement" which the Commission could "set" in connection with prohibiting an illegal strike, work stoppage, slowdown, or withholding of services. Second, the basic matter commanded to be arbitrated -- the imposition of a hiring freeze -- was intrinsically nonarbitrable: resulting from financial stringency, it was a matter of executive and legislative decision, not amenable to review by an arbitrator. See generally Annot., 68 A.L.R.3d 885 (1976).

We took the case on request of the parties under G. L. c. 211A, Section 10 (A). The Union does not now contest the cease and desist part of the order and so the sole issue on appeal is the propriety of the judge's deletion of the arbitration order. In affirming, we rest on the first ground, and do not reach or express any views about the second.

1. Section 9A (a) is an absolute prohibition of strikes and the like by public employees. It states: "No public employee or employee organization shall engage in a strike, and no public employee or employee organization shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by such public employees."

By subsection (b) of Section 9A, the Commission is directed to prevent or correct any violations it finds, after investigation, to exist: "Whenever a strike occurs or is about to occur, the employer shall petition the commission to make an investigation. If, after investigation, the commission determines that any provision of paragraph 9a) of this section has been or is about to be violated, it shall immediately set requirements that must be complied with, including, but not limited to, instituting appropriate proceedings in the superior court for the county wherein such violation

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has occurred or is about to occur for enforcement of such requirements."

It is argued that the power in subsection (b) to "immediately set requirements that must be complied with" includes the authority not only to compel employee compliance with the fundamental prohibitory rule of subsection (a), but also to compel action by both the Employer and the Union to resolve the dispute which appears to have occasioned the employee unrest -- including, as in this case, an order for mandatory arbitration for which there is no express basis anywhere in c. 150E. We agree with the trial judge that the natural reading of subsection (b) is otherwise. It is not an independent provision or a global one. It is tied to subsection (a) and confers the specific power on the Commission immediately to set requirements to be complied with by the offending party which will eliminate the violation and which may be enforced in case of further violation by resort to the Superior Court.

If there is unclarity in the text of Section 9A (b), [Note 5] it is much relieved, we think, by an examination of its legislative history. The language about setting requirements can be traced to a bill (1973 House Doc. No. 6194, app. B) drafted by a special commission, with Senator George Mendonca as chairman, created to recommend changes in the statute governing labor relations in the public sector. See Res. 1969, c. 97; 1971, c. 24. This bill [Note 6] and two others that followed [Note 7] departed from the traditional absolute prohibition

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of strikes by public employees (see Hansen v. Commonwealth, 344 Mass. 214 [1962]) and would have allowed public employees to strike if during contract negotiations an impasse continued after mediation and fact-finding stages. To meet the dangers that might arise in such situations, there was provision that if a strike endangering the public health or safety was "occurring, or about to occur," the public employer could petition the Labor Relations Commission to make an investigation, and "[i]f the Commission finds that there is imminent or present danger to the health and safety of the public, the Commission shall set requirements that must be complied with to avoid or remove any such imminent or present danger." 1973 House Doc. No. 6194, app. B, Section 9 (c) (4). This seems clearly to mean that the Commission could specify standards that must be met by the public employees, such as maintaining a skeletal force to stay on the job, so that the services vital to health and safety would continue. That the "requirements" to be "set" did not envisage orders directed to the employer was indicated by a further provision, Section 9 (c) (6), which would entitle the Commission to institute proceedings in the Superior Court to compel the employees or the employee organization to abide by the section, but which made no mention of enforcement proceedings against the employer. [Note 8]

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The intended limited scope of the "set requirements" provision is again illustrated by the fact that in another provision of the bill there was explicit authorization for the Commission to order arbitration to prevent or end a strike that endangered public safety. [Note 9] Section 9 (d).

The final bills [Note 10] and the law as enacted continued to include language directing the employer to petition the Commission in case of a strike and ordering the Commission to investigate and if necessary "to set requirements that must be complied with." But because there was now a prohibition of all work stoppage, there was no need for the rest of the original language that looked to maintaining vital services. Folded into the provision was the authority for the Commission

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to institute "appropriate proceedings in the superior court . . . for enforcement of such requirements." The changes mentioned leave the evident meaning of "set requirements" unchanged, which is, in short, that the Commission might require performance of the workload by public employees who had been found in violation (that is, might create a basis for punishment by the court of concerted activities preventing the attainment of the workload). For example, the Commission might initially order the Union to cease and desist from encouraging or condoning a slowdown. If the slowdown continued, the Commission could set a specified minimum amount of labor in a work period, with performance below that level figuring as a continuance of the slowdown. The same holds for a "withholding of services," and if the cease and desist order in the present case did not itself imply a level of 180 cases, that or another requirement shown to be appropriate could have been set. [Note 11]

2. The Commission and the Union suggest that the Commission's role in dealing with strikes will be seriously diminished if it cannot attempt to resolve the underlying dispute. The suggestion has conspicuously little persuasive force in the present case because the Union had presented the heart of the dispute (as the Union saw it) to the Commission in the form of a charge of "prohibited practice" under Section 10, but instead of availing itself of the opportunity, the Commission chose to disengage itself from the problem and to try to pass it to an arbitrator. [Note 12] More generally, however, there is an underestimation of the value of Section 9A (b) which looks to the intervention in a strike situation of an

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impartial agency with specialized experience. It can be hoped that a byproduct effect of this intervention will often be a reconciliation of the parties and an end to the difficulty. Even where resort by the Commission to a court becomes necessary, the fact that it is an independent body that seeks the order, instead of the employer as before the enactment of c. 150E (see, e.g., School Comm. of Boston v. Reilly, 362 Mass. 334 [1972]; Hansen v. Commonwealth, 344 Mass. 214 [1962]; City of Medford, Mass. L.R.C. No. MUPL-29, 3 CCH Lab. L. Rep., State Laws par. 49,999A.50 [March 6, 1973]), is likely to make the result more acceptable to the employees.

It is argued, further, that the Legislature "unequivocally indicated its preference for arbitration . . . as the desired method for resolving disputes" and hence Section 9A (b) should be interpreted to permit the Commission to compel arbitration. The Commission's modification of its original order, which had conditioned the cease and desist provision on arbitration, was perhaps a recognition that there are some limits to the use of arbitration even on the expansive view of Section 9A (b) that the Commission espouses. The fact is that c. 150E expresses no unrestrained preference for arbitration in the public employment situations. Although Section 8 (which deals with grievance procedures) seems to regard binding arbitration as a preferred mechanism for resolution of grievances, the Commission may order arbitration only at the request of one of the parties. Moreover, the section does not authorize the Commission to supersede a multistage grievance procedure that is provided by agreement and that culminates in binding arbitration, such as existed in the present case. See Town of Danvers, Mass. L.R.C. No. MUP-2068 at 3, 3 CCH Lab. L. Rep., State Laws par. 49,999C.64 (December 20, 1974). Under Section 9 (which deals with contract negotiation), in cases of probable impasse of union and employer in negotiating a collective agreement, either party may petition the Board of Conciliation and Arbitration to investigate and determine whether an impasse exists, and the Board may then provide a mediation and fact-finding service to bring the parties together. But arbitration to

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resolve an impasse must have been "voluntarily agreed to by the parties." Section 9. Despite the illegality of a strike or slowdown by public employees, it is quite conceivable that a union may use such a tactic as a means of putting pressure on the public employer during contract negotiations. An interpretation of Section 9A (b) which would allow the Commission to compel arbitration in such a case in ending the strike would appear to be inconsistent with the legislative judgment reflected in Section 9 that arbitration, if employed, should be voluntary. As we said in another case involving the Commission, we are to read the statute "so as to constitute a harmonious whole." Dedham v. Labor Relations Comm'n, 365 Mass. 392, 402 (1974), quoting from Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 (1957).

3. The Union argues that Boys Mkts. Inc. v. Local 770, Retail Clerks, 398 U.S. 235 (1970), a "private sector" case, teaches the proper relationship between injunctive relief to end a strike and an order to arbitrate. In Boys Mkts. the Court overruled its decision in Sinclair Ref. Co. v. Atkinson, 370 U.S. 195 (1962), which held that the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. Section 104 (1970), forbade a Federal court to enjoin a strike in breach of a no-strike provision of a collective bargaining agreement. The Boys Mkts. Court noted that Sinclair impaired the policy favoring arbitration of grievances and bred disuniformity and friction between the Federal and State forums because injunctive relief might be available in State courts. The Court held that an injunction might go against a strike in violation of a collective bargaining agreement that provided for arbitration of the dispute, but only if the employer was ordered to arbitrate. 398 U.S. at 254. See generally Axelrod, The application of the Boys Markets Decision in the Federal Courts, 16 B.C. Ind. & Com. L. Rev. 893 (1975); Dawson, The Scope of the Boys Markets Rule, 28 Okla. L. Rev. 794 (1975). In arguing for a similar connection under Section 9A (b) between a cease and desist order and an arbitration order, the Union is not only met with the conflicting interpretation of Section 9A (b) developed above,

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but appears to overlook basic differences between labor relations in the private and public sectors. Whereas the strike has been a protected weapon of private-sector employees since the 1930's, public employees have not had similar artillery (see Annot., 37 A.L.R.3d 1147 [1971]) -- a distinction rationalized and justified on many grounds. See, e.g., Bernstein, Alternatives to the Strike in Public Labor Relations, 85 Harv. L. Rev. 459, 462, 464-466 (1971); Wellington & Winter, Structuring Collective Bargaining in Public Employment, 79 Yale L.J. 805, 807-808 (1970); Wellington & Winter, The Limits of Collective Bargaining in Public Employment, 78 Yale L.J. 1107, 1123-1125 (1969). Thus, although in the private sector a union's contractual waiver of its statutory right to strike may be presumptively tied to the employer's acceptance of binding arbitration for resolution of contractual disputes (see Boys Mkts., supra at 247-248; Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 455 [1957]), no similar linkage exists in public sector cases. [Note 13] The Union's reliance on private sector precedent seems, therefore, to be misplaced, and the Commission does not join in the Union's contentions in this regard.

Although holding that the Commission exceeded Section 9A (b) in commanding arbitration, we note that arbitration could have come about on the demand of the Union under the grievance provision of the collective bargaining agreement at any time during the interval of unease over the alleged hiring freeze; such a demand is, indeed, specifically enforceable under G. L. c. 150C. [Note 14] It might also have come

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about following due consideration by the Commission of the prohibited practice charge under Sections 10-11, for it appears to be open to the Commission in a proper case to retain jurisdiction of the charge but to defer action on it pending resort to arbitration. See Cohasset School Comm., Mass. L.R.C. Case No. MUP-419, 3 CCH Lab. L. Rep., State Laws par. 49,999B.04 (June 19, 1973); cf. Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). [Note 15]

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Chapter 150E is a new and experimental statute. Section 9A is experimental like the rest. Nothing in this opinion vouches for its ultimate wisdom. If experience shows that there is a real need for enlargement of the Commission's authority under Section 9A, the remedy is to be sought in another place.

Judgment affirmed.