LABOR RELATIONS COMMISSION & another [Note 1] vs. CHELSEA TEACHERS' UNION, LOCAL 1340 & others; [Note 2] SCHOOL COMMITTEE OF CHELSEA & another, [Note 3] third-party defendants.

WILKINS, J. The defendants appeal from a judgment assessing against the Chelsea Teachers' Union (union) and its members a fine of $5,000 imposed following a finding of civil contempt on a complaint filed by the Labor Relations Commission (commission). We affirm the judgment.

The contempt determination arose out of a strike by Chelsea school teachers which began on Friday, May 10, 1985. The school committee immediately filed a petition with the commission pursuant to G. L. c. 150E, Section 9A (1984 ed.). [Note 4] The commission conducted an investigation on May 11. The school committee and the union agreed that the collective bargaining agreement between them had expired on June 30, 1984, that they had been involved in collective bargaining for a successor agreement, and that for the previous six weeks they had been engaged in mediation. The commission found that the Chelsea school teachers had been engaged in a strike on May 10, ordered the union and the employees it represented to stop the strike, directed the union to inform its members of their obligations and of the commission's order, and ordered the union and the school committee to meet for further mediation sessions.

The strike continued on Monday, May 13, and the commission that day filed a complaint seeking a temporary restraining order directing the union and the Chelsea school teachers to comply with the commission's order. A judge of the Superior Court granted the temporary restraining order. The strike

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nevertheless continued. On May 15, the commission filed a complaint for civil contempt, alleging that the union, its officers, and the employees it represented had failed to return to work as directed. The judge held a hearing on May 16 and found the defendants in civil contempt. He imposed a fine of $40,000, subject to possible remission on showing of a good faith effort to continue the bargaining process. He stayed collection of the fine until further order. The union and the school committee agreed on a collective bargaining agreement on May 20, and the teachers returned to work that day.

On May 23, the union moved to vacate the judgment of contempt and to dismiss the commission's complaints, raising for the first time the claim that the no-strike provision of G. L. c. 150E, Section 9A, on which the temporary restraining order had been based, was "unconstitutionally overbroad." [Note 5] The commission responded that "G. L. c. 150E provides public employees with viable alternatives to strikes in the form of negotiation, mediation and fact-finding" and asserted that the union was making only a facial attack on Section 9A. It is apparent that the judge gave no attention in any memorandum or order to the union's claim that Section 9A was unconstitutional.

In July, the judge remitted all but $5,000 of the fine assessed on May 16. We allowed the union's request for direct appellate review of the judgment imposing the fine.

The union contends that every employee, public as well as private, has a fundamental freedom under the Constitution of the Commonwealth to give or to withhold labor, individually or collectively, and that a statute, such as G. L. c. 150E, Section 9A, which forbids all strikes by public employees is unconstitutional. We have substantial doubts whether the union properly may raise the question of the unconstitutionality of Section 9A for the first time following the adjudication of its contempt of court. To the extent that the constitutionality of the application

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of Section 9A to the union involves questions of fact, the issue should have been raised at a time when the commission and the school committee could present evidence that, as applied, Section 9A was not unconstitutional. To the extent that the union asserts the facial invalidity of Section 9A, the point is also raised belatedly. In any event, the union has not taken advantage of statutory procedures which at least in the circumstances of this case, it was obliged to follow before it properly could challenge the constitutionality of Section 9A's prohibition against strikes by public employees.

The union was not entitled to challenge the prohibition against strikes by public employees until it had exhausted those statutory procedures that were available for the possible resolution of public sector labor disputes. Section 9 of G. L. c. 150E provides various steps which may be taken to resolve a public sector collective bargaining dispute. After a reasonable period of negotiation, either party may petition the board of conciliation and arbitration established under G. L. c. 23C (1984 ed.) for a determination that an impasse exists. The board then investigates and reports within ten days of the receipt of the petition whether an impasse exists and, if one does, that board within five days appoints a mediator, or the parties agree on one. After mediation, lasting no more than twenty days from the mediator's appointment, the mediator must issue to the board a report indicating the results of the efforts. If the impasse continues, either party may petition the board to initiate fact-finding by appointing a fact finder who, within thirty days of appointment, must make findings and recommendations for the resolution of the impasse. If the impasse is not resolved within ten days after the fact finder makes his findings and recommendations, the board must make them public. If the impasse continues, Section 9 in effect throws up its hands and returns the issues in dispute to the parties for further bargaining.

Although it had time to do so, the union did not follow these procedures. Any need for a strike might have been averted. For example, if, as the union asserts, teachers in Chelsea were the lowest paid in the Commonwealth, receiving less than certain school custodians with equivalent length of service, and

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if the school committee and the city were offering no pay increase at all in the 1984-1985 school year, a neutral fact finder would have so found and the information would have been made public. Moral suasion, supported by mediation and fact-finding, might have produced a settlement or, perhaps, an agreement to arbitrate the dispute. If, when collective bargaining does not succeed in producing an agreement, public employees have a constitutional right to strike, in spite of the prohibition of Section 9A (a), the right can be exercised only after the employees have followed the procedures for resolution of the impasse set forth in Section 9 or on a showing that in the circumstances the imposition of those procedures would be unconstitutional. The union did not pursue these statutory procedures (and does not challenge their application here as unconstitutional) and thus we need not reach the issue of the unconstitutionality of the prohibition of Section 9A against strikes by public employees. [Note 6]

This court has not dealt with the constitutional issue. We have, however, said that private employees in this Commonwealth have a constitutional right to strike. [Note 7] There is little

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authority in support of the constitutional right of a public employee to strike, either under the Constitution of the United States or under State Constitutions. [Note 8]

Judgment affirmed.