THOMAS KEANE & another vs. CITY AUDITOR OF BOSTON & others. [Note 1]

LIACOS, J. The plaintiffs, court officers of the Superior Court and various Municipal and District Courts in Suffolk County, [Note 2] commenced this action on July 27, 1978, in the Superior Court in Suffolk County. Their complaint, as amended, sought declaratory and injunctive relief against the auditor and collector-treasurer of the city of Boston. Those officials allegedly denied the court officers the benefit of a pay increase approved in the Boston city council's June 14, 1978, order of amendment to schedule B of the classification and compensation plan for the officers and employees of Suffolk County (hereinafter "order"). [Note 3] The plaintiffs prayed inter alia, for declarations that this order was valid; that St. 1977, c. 278, was a nullity; and that St. 1977, c. 278, and St. 1978, c. 478, were unconstitutional, as applied to the plaintiffs. A judge of the Superior Court granted the plaintiffs' request for a preliminary injunction prohibiting the defendants from interfering with the operation of the order. On August 4, 1978, the motion to intervene of Edward F. Hennessey, Chief Justice of the Supreme Judicial Court, was allowed. On August 9, 1978, upon the petition of the Chief Justice, a Justice of the Appeals Court vacated the preliminary injunction and issued an order restraining the defendants from paying the increased compensation for payroll periods commencing on or after August 9. Chief

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Justice Hennessey moved on August 25, 1978, to substitute Arthur M. Mason, Chief Administrative Justice of the Trial Court, as intervener-defendant. On September 11, 1978, after hearing, a judge granted the Chief Justice's motion.

The parties submitted a statement by which the parties agreed to some of the facts in issue on February 9, 1979, and the case was tried on February 28, 1979. The judge filed a memorandum of decision and order for judgment on March 14, 1979. On the same day, the court entered judgment that the Suffolk County order is null and void and St. 1977, c. 278, and St. 1978, c. 478, are constitutional as applied to the plaintiffs. The plaintiffs appealed, and we transferred their appeal here sua sponte. We affirm the judgment.

The parties' statement of agreed facts asserts in part: "10. On September 9, 1963, pursuant to G. L. c. 35, Section 48-56, the Boston City Council adopted Schedules A and B of the Classification and Compensation Plans for the officers and employees of Suffolk County, which Schedules were approved by the then mayor on September 12, 1963, and which Schedules were from time to time thereafter amended. 11. As of June 14, 1978, Court Officers of Suffolk County had no collective bargaining agreement in effect. 12. On June 14, 1978, the City Council voted to amend by order said Schedule B so as to upgrade all Suffolk Court Officers, including plaintiffs, two compensation grades, effective retroactively to June 1, 1978. . . . 13. The Mayor of the City of Boston signed the Order. . . ." In addition, the statement indicates that "8. As of July 1, 1978, the employer of judicial employees was designated by statute to be the Chief Administrative Justice of the Trial Court. 9. The position of Chief Administrative Justice of the Trial Court of Massachusetts was not filled until August 11, 1978."

At trial, the plaintiffs' evidence showed that before July 1, 1978, the city of Boston (Suffolk County) paid the plaintiffs. The Commonwealth did not reimburse the city. On the first pay day after the order of amendment was enacted, the city payroll division refused to accept the plaintiffs' payroll which included the raises at issue. At trial, the plaintiffs

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called Michael F. Flaherty, Chairman on the part of the House of the Joint Legislative Committee on the Judiciary, to testify about the legislative history of St. 1977, c. 278. The judge excluded the testimony as immaterial. The plaintiffs made an offer of proof. Also over the plaintiffs' objection, the judge admitted various documents tending to show a history of collective bargaining between Suffolk County and unions representing its court officers. Other challenged documents tended to show that, after June 14, 1977, the county ceased bargaining and the Chief Justice began bargaining.

We turn now to the plaintiffs' claims of error. The plaintiffs argue that the judge erred in granting Chief Justice Hennessey's motion to intervene. They contend that it was error to declare the order of the city council void and to rule that St. 1977, c. 278, and St. 1978, c. 478, are constitutional as applied to court officers. Finally, the plaintiffs attack the judge's exclusion of the testimony of Representative Michael F. Flaherty and the admission of the documents concerning collective bargaining.

The plaintiffs' attack on the standing of Chief Justice Hennessey is misplaced. The plaintiffs' only argument against intervention is the claim that, on the day he sought to intervene, August 4, 1978, the Chief Justice was not technically the plaintiffs' employer. Statute 1978, c. 478, Section 74, effective July 1, 1978, replaced the Chief Justice, as the plaintiffs' employer, with the Chief Administrative Justice of the Trial Court, but the Chief Administrative Justice was not appointed until August 11. The plaintiffs do not contend that the Chief Administrative Justice, had he been appointed, would have lacked sufficient interest to intervene under Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974). Nor do they contend that any other party adequately represented the State employer's interest. As the employer under the earlier statute, Chief Justice Hennessey was the natural person to represent that interest until the new position was filled. He could not reasonably have waited to intervene until August 11 because of the pressure to contest the preliminary

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injunction promptly. As Chief Justice, he had ample authority to act. See, e.g., G. L. c. 211, Sections 2A, 3; G. L. c. 211B, Section 7. Thus the motion to intervene was properly granted.

The plaintiffs' principal argument is that the Suffolk County order is not inconsistent with St. 1977, c. 278. Before the Legislature enacted St. 1977, c. 278, the county's representative negotiated collective bargaining agreements with court officers. G. L. c. 150E, Section 1, as amended through St. 1976, c. 480, Section 20. Effective June 13, 1977, St. 1977, c. 278, withdrew that power from the county and vested it in the Chief Justice. [Note 4] The statute also moved the court officers from the category of county employees to the category of State judicial employees. Cf. Massachusetts Probation

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Ass'n v. Commissioner of Administration, 370 Mass. 651 (1976). However, St. 1977, c. 278, did not provide for State funding of court officers' salaries. The counties continued making such payments. In fact, even when the comprehensive court reorganization plan was enacted, St. 1978, c. 478, Section 334, effective July 1, 1978, required counties to continue paying for maintenance and operation of the judicial system until the Commonwealth took over full funding. Statute 1978, c. 478, Section 333, set up a timetable for the transition: the counties were to be reimbursed during fiscal 1979; the Commonwealth was to prepare a single State budget and assume full funding responsibilities beginning July 1, 1979. Statute 1978, c. 367, Section 2, item 0315-0001, which contained an appropriation for reimbursing the counties for 1978 costs of court operations, included a proviso: "that the Suffolk county share of court expenditures shall not include the cost of any increase in compensation for existing positions or increase in the number of positions authorized subsequent to January first, nineteen hundred and seventy-eight, with the exception of such increase for which collective bargaining agreements have been signed prior to said January first, and raises which do not exceed the cumulative total of the raises granted state employees over the last three fiscal years."

The plaintiffs press two interpretations of this statutory arrangement. They contend that St. 1977, c. 278, is a nullity because it was intended to be part of a comprehensive court reorganization plan that was not enacted until 1978. St. 1978, c. 478. The delay was allegedly unexpected. The State did not take over funding of court officers' salaries in 1977. It follows, the plaintiffs argue, that the Chief Justice as public employer could not deliver on raises for which he bargained; his status as employer became meaningless when removed from the context of the comprehensive plan.

Second, even if the statute is not a nullity, the plaintiffs contend that the Legislature did not mean to exclude the possibility of unilateral county pay raises, because the Legislature ordered counties to continue paying court officers' salaries. Furthermore, St. 1978, c. 367, Section 2, item 0315-0001,

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shows that the Legislature knew of the raises here in question. Thus, the plaintiffs conclude, the counties could grant unilateral raises for as long as they continued paying the salaries.

The argument that the statute is a nullity runs counter to logic. A construction that would nullify a statute is not to be favored. See Hein-Werner Corp. v. Jackson Indus., Inc., 364 Mass. 523, 527 (1974). Furthermore, when it enacted the court reorganization plan, the Legislature left St. 1977, c. 278, almost wholly intact. St. 1978, c. 478, Section 74. But the most telling indication that the plaintiffs' argument is wrong is G. L. c. 150E, Section 7 (c), inserted by St. 1977, c. 278, Section 4. That section, which is still in effect, provides a specific method of funding any raises that might be negotiated. The section provides: "[The] employer shall submit to the governor, within thirty days after the date on which a collective agreement is executed by the parties, a request for an appropriation necessary to fund such incremental cost items contained therein as are required to be funded in the then current fiscal year." The Governor then decides whether to recommend that the General Court pass the appropriation. If he recommends passage, the General Court considers the request. Thus, the county was to continue paying court officers' basic salaries, but the State was to approve and, if appropriate, to pay any salary increases negotiated by the Chief Justice. In this setting, the Chief Justice's role was hardly a nullity. [Note 5]

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We must next consider whether the county order is consistent with G. L. c. 150E, as amended through St. 1977, c. 278. Determining whether a county ordinance is inconsistent with State law entails an inquiry into legislative purpose. "The legislative intent to preclude local action must be clear. If the Legislature has made no explicit indication of its intention in this respect, a legislative intention to bar local ordinances and by-law purporting to exercise a power or function on the same subject as State legislation may nevertheless be inferred in all the circumstances. Legislation which deals with a subject comprehensively, describing (perhaps among other things) what municipalities can and cannot do, may reasonably be inferred as intended to preclude the exercise of any local power or function on the same subject because otherwise the legislative purpose of that statute would be frustrated." Bloom v. Worcester, 363 Mass. 136, 155 (1973). See Grace v. Brookline, 379 Mass. 43, 53-54 (1979); New England Tel. & Tel. Co. v. Lowell, 369 Mass. 831 (1976); Del Duca v. Town Adm'r of Methuen, 368 Mass. 1, 10-13 (1975).

General Laws c. 150E is a comprehensive scheme regulating public employee collective bargaining. Boston Teachers Local 66 v. School Comm. of Boston, 370 Mass. 455, 472-473 (1976). Furthermore, G. L. c. 150E, Section 7 (d), states in pertinent part: "If a collective bargaining agreement reached by the employer and the exclusive representative contains a conflict between matters which are within the scope of negotiation . . . and . . . the following statutory provisions or rules or regulations made thereunder: . . . (b) sections fifty to fifty-six, inclusive, of chapter thirty five; . . . the terms of the collective bargaining agreement shall prevail." The city council authorized the raise here at issue under the authority of G. L. c. 35,

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Section 56. Thus, if the raise were contrary to the terms of a negotiated agreement, the amendment would be invalid. The comprehensive character of the collective bargaining statutes, combined with the express indication that county personnel policies may not interfere with the end product of the collective bargaining process, create a strong inference that local action affecting any stage of that process is inconsistent with State law.

General Laws c. 150E, Section 7 (c), inserted by St. 1977, c. 278, Section 4, also provides the springboard for an answer to the plaintiffs' second argument. If the Legislature established a specific procedure for securing State funding of salary increase, it seems unreasonable that the Legislature would countenance unilateral county raises. As a party acting outside of the collective bargaining process, a county might disrupt a fragile compromise struck after long negotiations. [Note 6] In the design of G. L. c. 150E, the Legislature contemplated resolution of employment disputes by specific bargaining representatives of generally equal bargaining power and by a specific method: collective bargaining. Therefore, absent contrary legislative direction, we cast a cold eye on rules that would multiply the number of entities involved in the collective bargaining process. See Boston Teachers Local 66 v. School Comm. of Boston, supra at 472-475 (giving absolute veto over collective bargaining appropriations to mayor who was neither "employer" nor "appropriate legislative body" violated G. L. c. 150E); Labor Relations Comm'n v. Natick, 369 Mass. 431, 439 (1976) ("[B]ifurcated negotiations . . . do not present an obvious, desirable format for collective bargaining"). Similar considerations inform the provisions for an exclusive employee

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bargaining representative. See, e.g., G. L. c. 150E, Section 5. Beyond our concern with multiplication of entities, "an employer's unilateral change in conditions of employment under negotiation . . . is a circumvention of the duty to negotiate which frustrates the objectives of [collective bargaining as] much as does a flat refusal." NLRB v. Katz, 369 U.S. 736, 743 (1962). See Southern Worcester County Regional Vocational School Dist. v. Labor Relations Comm'n, 377 Mass. 897, 904 (1979). A unilateral change by the employee violates the collective bargaining rights of the employer; a third-party's unilateral change might violate the collective bargaining rights of the employer, or the employees, or both. Thus, in light of the comprehensive statutory scheme and the nature of collective bargaining, the amendment constituted impermissible interference with State activity. [Note 7]

Our understanding of St. 1977, c. 278, is consistent with St. 1978, c. 367, Section 2, item 0315-0001. That item does not show legislative approval of the county's action. At most, it shows that the Legislature may have been aware of the raises in question. First, the plaintiffs have not shown that the court officers' raises are those mentioned in the proviso; in particular, they have not shown that the court officers' increases do not fall within the exception for "raises which do not exceed the cumulative total of the raises granted state employees over the last three fiscal years." Second, even assuming that the court officers' raises are those for which the Legislature refused to allocate funds, item 0315-0001

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merely demonstrates awareness of the county's action. There is no reason to suppose that in a budget item referring to the order, the Legislature should state that the order is illegal. And the Legislature's refusal to reimburse the county for this salary increase seems to us to signify disapproval of the county action. For these reasons, the item supports our view that the order of amendment is unlawful and void. [Note 8]

The plaintiffs raise various constitutional arguments, but they are stated vaguely, are supported by no authority, are based on a single, conclusory allegation in the complaint, and are otherwise unsubstantiated by the record.

Judgment affirmed.