COLLECTIVE BARGAINING REFORM ASSOCIATION vs. LABOR RELATIONS COMMISSION & another. [Note 1]

GREANEY, J. A judge in the Superior Court dismissed a complaint for judicial review filed, pursuant to G. L. c. 30A, § 14, by the plaintiff, the Collective Bargaining Reform Association (COBRA), a labor organization. The complaint challenged a decision of the Labor Relations Commission (commission) dismissing COBRA's petition to sever a group of public employees from an existing bargaining unit and to allow COBRA to become that group's exclusive bargaining representative. The commission dismissed the petition after a hearing and without ordering a representation election. The judge in turn dismissed COBRA's complaint in the Superior Court on the ground that commission decisions made on certification proceedings are not subject to immediate judicial review. On appeal, COBRA claims that the commission's dismissal of its petition constitutes a "final decision of an agency in an adjudicatory proceeding," entitling it to judicial review pursuant to G. L. c. 30A, § 14. We granted COBRA's application for direct appellate review and now affirm the judgment of the Superior Court dismissing its complaint.

We briefly summarize the facts and procedural posture of this appeal. In 1967, the city of Boston (city) recognized the Service Employees International Union, Local 285, AFL-CIO (SEIU) as the exclusive collective bargaining representative for a wide range of nonprofessional employees, including a group now known as communication equipment operators (operators). The operators are employed by the city as part of its police department's bureau of field services and are assigned to work at police headquarters. Their primary duty is to serve as call takers on the city's enhanced 911 emergency telephone system, which is staffed by the operators twenty-four hours a day, seven days a week. The operators register each incoming call into a sophisticated computer-aided dispatch system and assign to each call one of approximately 200 possible codes based on information provided by the caller. The assigned code triggers a level of response from various agencies, such as police, fire, or emergency medical services, and entering the wrong code into

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the system may lead to an inadequate or delayed response to the emergency situation.

In 1994, following the installation of the present computer-aided dispatch system and an enhanced 911 system, the operators approached SEIU regarding the possibility of a position upgrade to reflect what they believed to be their unique training, responsibilities, and working conditions. SEIU was unsuccessful in achieving the requested position upgrade, despite repeated meetings with city officials and the filing of a compensation grade appeal with the city's office of labor relations.

Due to the city's failure to grant the operators a position upgrade, as well as to general concerns about the effectiveness of SEIU negotiators on behalf of the operators in the matter, on January 21, 1997, COBRA filed a petition with the commission, pursuant to G. L. c. 150E, § 4, on behalf of a substantial number of operators. By its petition, COBRA sought to sever the operators from the bargaining unit represented by SEIU, for the purpose of holding a separate representation election. [Note 2] SEIU was allowed to intervene in the proceedings before the commission. Both SEIU and the city (a party to the proceedings as the operators' public employer) opposed severance of the operators from the SEIU bargaining unit.

Negotiations taking place between the city and SEIU on a new contract for city workers then came to a temporary halt. On February 25, 1997, SEIU filed a prohibited practice charge with the commission alleging that the city had refused to continue negotiations with SEIU during the pendency of COBRA's petition. During the following months, SEIU staff and bargaining unit members circulated a series of petitions, letters, and published statements to individuals associated with the petition. These materials urged COBRA either to withdraw its petition or to allow negotiations to continue between SEIU and

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the city on a new contract. [Note 3] COBRA did not withdraw its petition, and on August 15, 1997, SEIU withdrew its prohibited practice charge against the city. The withdrawal apparently was based on the city's commitment to resume bargaining with respect to SEIU, excluding the operators.

The commission investigated COBRA's petition and issued a notice of hearing to the parties, pursuant to G. L. c. 150E, § 4. This statute provides that when "a substantial number of the employees in a bargaining unit wish to be represented by the petitioner[] or . . . alleg[e] that the exclusive representative therefor no longer represents a majority of the employees therein, [the commission] shall investigate, and if it has reasonable cause to believe that a substantial question of representation exists, shall provide for an appropriate hearing upon due notice." If the commission, after the hearing, had determined that there was a "controversy concerning the representation" of the operators, it would then have been required, pursuant to § 4, to "direct an election by secret ballot or . . . use any other suitable method to determine whether, or by which employee organization" the operators desired to be represented, and to "certify any employee organization which received a majority of the votes in such election as the exclusive representative" of the operators. Following a lengthy hearing, however, the commission dismissed the petition without directing an election.

As explained in a fifty-seven page decision, the commission's consideration of COBRA's petition followed the two-part test, set forth in City of Beverly, 1 M.L.C. 1108 (1974), for evaluating the merits of petitions seeking severance from an existing bargaining unit. The commission determined that the operators had satisfied the first prong of the test, because they had demonstrated that they were a "functionally distinct appropriate

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unit with some special interests sufficiently distinct from other bargaining unit members." However, with respect to the second prong of the test, the commission concluded that the operators had failed to establish that their distinct interests "have caused or are likely to cause serious conflicts or divisions within the bargaining unit."

COBRA filed a complaint for judicial review, pursuant to G. L. c. 30A, § 14, and, thereafter, a motion for judgment on the pleadings. The judge denied COBRA's motion and ordered its complaint dismissed, relying on prior decisions of this court and the Appeals Court that hold that, absent extraordinary circumstances, decisions rendered in representation proceedings before the commission are not final adjudications open to immediate judicial review. See Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, 357 Mass. 118, 120-121 (1970); City Manager of Medford v. Labor Relations Comm'n, 353 Mass. 519, 523-524 (1968); Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, 14 Mass. App. Ct. 236, 238 (1982); Sullivan v. Labor Relations Comm'n, 5 Mass. App. Ct. 532, 535 (1977). [Note 4]

1. COBRA claims that the commission's dismissal of its petition falls within the ambit of G. L. c. 30A, § 14, which provides that, unless expressly precluded by law, "any person . . . aggrieved by a final decision of any agency in an adjudicatory proceeding . . . shall be entitled to a judicial review thereof." This claim is premised on COBRA's contention that because the commission dismissed its petition without holding an election, COBRA is left with no available avenue of recourse in which to challenge the commission's decision, and thus, the commission's dismissal of its petition was a "final decision in an adjudicatory proceeding" subject to plenary judicial review. We disagree.

This court steadfastly has denied the availability of judicial review of certification questions in the absence of an unfair labor dispute. The principle that a certification decision is not

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reviewable until the commission has issued or denied an order was first enunciated in Jordan Marsh Co. v. Labor Relations Comm'n, 312 Mass. 597, 601-602 (1942). In City Manager of Medford v. Labor Relations Comm'n, supra at 523, this court applied the principle in the case of public employees, but foresaw possible, very limited exceptions to the general rule: "We conclude that the principles stated in the Jordan Marsh Co. case . . . (at least in the absence of extraordinary circumstances making certification questions of vital significance, or of questions relating to the commission's jurisdiction), should be applied to postpone judicial review of certification questions until, upon complaint, the commission has issued or denied an order . . . to desist from a practice prohibited by [the collective bargaining statute for public employees, currently found at G. L. c. 150E, § 10]." In a subsequent case, where the commission had made a choice between two unions, and the excluded union sought review, Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, supra, this court found that no extraordinary circumstances existed to justify varying the general rule. See id. at 120. See also Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, supra at 238; Sullivan v. Labor Relations Comm'n, supra at 535. Our case law is clear: "In ordinary cases judicial review of certification issues may take place only after there has been a commission decision based upon an unfair labor practice." Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, supra at 120.

As a preliminary matter, we question whether hearings held by the commission on the subject of representation petitions constitute "adjudicatory proceedings" within the meaning of G. L. c. 30A, § 14. General Laws c. 30A, § 1, defines an "[a]djudicatory proceeding" as one "in which the legal rights, duties or privileges of specifically named persons are required by . . . any provision of the General Laws to be determined after opportunity for an agency hearing." It is true that the commission was required to hold a hearing, once its preliminary investigation of COBRA's petition revealed "reasonable cause to believe that a substantial question of representation exist[ed]." G. L.

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c. 150E, § 4. [Note 5] To qualify as an "adjudicatory proceeding," however, the hearing must determine the "legal rights, duties or privileges" of "specifically named persons." Here, the commission's hearing implicated the rights of operators (those who supported COBRA's petition and those who wished to remain within the bargaining unit represented by SEIU), as public employees, "to form, join, or assist any employee organization for the purpose of bargaining collectively through representatives of their own choosing . . . free from interference, restraint, or coercion." G. L. c. 150E, § 2. [Note 6] The commission's hearing, however, was not a forum for the determination of these rights. The commission's authority was limited to deciding whether there was a "controversy concerning the representation of employees," [Note 7] and, if it so determined, directing an election and certifying the employee organization selected by the majority of employees in the unit. G. L. c. 150E, § 4. [Note 8] The commission's role was essentially that of an investigatory fact finder. See Jordan Marsh Co. v. Labor Relations Comm'n, supra at 599.

Even if we were to assume that the commission's hearings fairly could be characterized as "adjudicatory proceedings," they did not result in a final order entitling COBRA to immediate judicial review. As this court stated in the Jordan Marsh decision, the certification "procedure does not end in any order requiring anybody to do anything and . . . there is no provision

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for a court review." Id. at 600. Cf. G. L. c. 150E, § 11 (authorizing commission to issue final orders on determination, after hearing, that prohibited practice was committed and providing for judicial review of those orders). Although the Jordan Marsh case was decided before the 1954 enactment of the Administrative Procedure Act (St. 1954, c. 681, § 1), in subsequent cases decided under G. L. c. 30A, § 14, courts have continued to deny judicial review of certification decisions in the absence of a prohibited practice order, regardless whether review was sought by a municipal employer, see City Manager of Medford v. Labor Relations Comm'n, supra at 523, or by an employee organization, see Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, supra at 120. See also Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, supra at 238; Sullivan v. Labor Relations Comm'n, supra at 535.

That the commission dismissed COBRA's petition without directing that an election be held does not render COBRA's situation more "final" than that of employee organizations in prior cases denying judicial review. In Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, supra, the union had petitioned the commission to establish separate bargaining units of professional teachers within the same school department. See id. at 119. The commission determined that there was no reason to justify the smaller units; dismissed the petition; and directed an election in which all the teachers might choose one exclusive representative, or none at all. Id. at 119, 120. In Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, supra, one union had been the exclusive bargaining representative for all uniformed employees in the municipal fire department below the rank of fire commissioner and fire chief; a second union sought to be certified as the exclusive representative of two existing bargaining units within that fire department. By virtue of the commission's determinations that a separate bargaining unit of deputy fire chiefs was appropriate, each union lost its attempt to be certified as the exclusive representative of deputy fire chiefs. See id. at 237. In both the above cases, however, it was not the election process, but the absence of a prohibited practices order that was critical to the

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holdings that the unions were not entitled to review of the commission's decision. See Worcester Indus. Tech. Inst. Instructors Ass'n Inc. v. Labor Relations Comm'n, supra at 120-121; Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, supra at 238. [Note 9]

The reasoning set forth to this point comports with well-settled Federal law that certification decisions of the National Labor Relations Board (board) are not subject to judicial review. See, e.g., Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (no review of certification proceedings even when "erroneous assessment of the particular facts before the [b]oard has led it to a conclusion which does not comport with the law"); American Fed'n of Labor v. NLRB, 308 U.S. 401, 403-404, 409-411 (1940) (no review of certification of single exclusive bargaining representative for disparate groups of longshore workers; review limited to orders prohibiting unfair labor practices); Goethe House N.Y., German Cultural Ctr. v. NLRB, 869 F.2d 75, 80 (2d Cir.), cert. denied, 493 U.S. 810 (1989) (no review of decision to hold representative election for non-German employees of German nonprofit organization); United Food & Commercial Workers, Local 400 v. NLRB, 694 F.2d 276, 278 (D.C. Cir. 1982) (no review of board's refusal to set aside results of procedurally flawed election; "[b]oard representation proceedings are nonadversarial actions and do not result in the issuance of judicially reviewable final orders"); Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) v. NLRB, 599 F.2d 816, 819 (7th Cir. 1979) (no review of dismissal of union's petition for certification unless board acted contrary to specific statutory directive). Indeed, the United States Court of Appeals for the District of Columbia Circuit, in Physicians Nat'l House Staff Ass'n v. Fanning, 642 F.2d 492 (D.C. Cir. 1980), cert. denied, 450 U.S. 917 (1981), refused to review the dismissal of a union's certification petition, on facts similar to this case, in the absence of a showing of a violation of a clear statutory mandate. See id. at 495 ("Board orders in representation

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proceedings [are] unreviewable unless they become the subject of unfair labor practice orders . . ."). The court specifically noted that the absence of an alternative means of redress is irrelevant to the availability of judicial review. See id. at 499. Although there are differences between the general formulation of G. L. c. 150E and the Federal Labor Relations Act, this is not an area where any compelling reason exists to differentiate our law from the Federal analogue. [Note 10]

The policy directive contained in G. L. c. 150E, § 3, is unequivocal -- to provide for "stable and continuing labor relations." The commission raises the specter that allowing judicial review of certification decisions would cause "tensions and instability in existing bargaining relationships, leaving unions uncertain about which employees they must represent for purposes of collective bargaining, leaving employers uncertain about which employees working conditions they must bargain about, and leaving employees uncertain about their status." COBRA dismisses these fears as "chimerical" and suggests that no delays or uncertainty would occur were COBRA, or a similarly situated union, permitted to challenge the commission's refusal to order an election, when the commission has, in effect, "washed its hands of [the] matter." We take no side in this particular debate. We generally agree, however, with the cautionary words of Justice Brennan of the United States Supreme Court, in his separate opinion in Leedom v. Kyne, 358

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U.S. 184, 191 (1958), that permitting immediate judicial review of a certification proceeding in the absence of extraordinary circumstances would allow "[b]oth union and management . . . to use the tactic of litigation to delay the initiation of collective bargaining when it suits their purposes." Id. at 196 (Brennan, J., dissenting). Such a delay, perhaps, could also lead to a situation where "collective bargaining was prevented, the basic purpose of [G. L. c. 150E] was frustrated, and the result was serious hardship to both the employer and employees." Id. (Brennan, J., dissenting). [Note 11] These concerns enforce the notion that courts should not become involved in certification proceedings prospectively, but rather should examine them retrospectively, if necessary, in light of events following the denial of certification, according to the remedy next discussed.

While understandably disappointed in the commission's dismissal of its petition, COBRA may not now use the courts to compel the commission to hold an election, or otherwise interfere with SEIU's present status as the operators' exclusive representative. Based on SEIU's representation of the operators to date, the commission declined to infer that serious conflicts within the bargaining unit were likely to occur in the future. If this finding was incorrect, a labor dispute will likely unfold. For example, the operators might conclude that SEIU has not satisfied its duty of fair representation required by G. L. c. 150E, § 5, and file a claim of prohibited practice on that basis. See Switzer v. Labor Relations Comm'n, 36 Mass. App. Ct. 565, 567 (1994). As summarized by the Appeals Court, and noted below, [Note 12] the duty of fair representation is quite broad. If such a claim (or other claim) is filed, the commission could review its

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determination that severance of the operators was not warranted, and thus the appropriateness of the commission's action in dismissing COBRA's petition would be indirectly reviewed. [Note 13] Thereafter, judicial review of the certification decision of the commission would be appropriate in connection with review of the decision by the commission on the prohibited practice claim. Under G. L. c. 150E, § 11, even an order by the commission dismissing a prohibited practice complaint without a hearing is a "final order" subject to judicial review. See Boston Police Superior Officers Fed'n v. Labor Relations Comm'n, 410 Mass. 890 (1991); Alexander v. Labor Relations Comm'n, 404 Mass. 1005, cert. denied, 493 U.S. 955 (1989). Further, if no labor dispute develops, COBRA need not abandon its efforts on behalf of the operators but may file another petition for severance and representation with the commission at an appropriate time in the future. See 456 Code Mass. Regs. 2.04 (1993).

2. We reject COBRA's assertions that this case presents extraordinary circumstances, as suggested in City Manager of Medford v. Labor Relations Comm'n, 353 Mass. 519, 524 (1968), which might require immediate review because (1) COBRA has no other recourse by which to challenge the commission's dismissal of its petition; (2) the commission lacked authority under G. L. c. 150E, § 3, to refuse to order a representation election, once it had determined that the operators were an appropriate bargaining unit under the first part of the Beverly test, City of Beverly, 1 M.L.C. 1108 (1974); and (3) the commission's decision was arbitrary and capricious. What has been said above on the matter of finality disposes of

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COBRA's first assertion. As for the second, certification issues are "expressly within the commission's competence and the manner in which it interprets a nuance of the statute does not subtract from its authority to deal with the certification question." Local 1111, Int'l Ass'n of Fire Fighters v. Labor Relations Comm'n, 14 Mass. App. Ct. 236, 239 (1982). See Boston Police Patrolmen's Ass'n, Inc. v. Labor Relations Comm'n, 16 Mass. App. Ct. 953, 955 (1983). Finally, there is no support in the record for COBRA's assertion that the commission's order of dismissal, issued after eight days of hearings and explained in a fifty-seven page decision, was arbitrary or capricious.

Judgment affirmed.