The city of Lynn appeals from a decision of the Labor Relations Commission finding the city chargeable with prohibited practices when its fire chief applied for and thereby caused the superannuation retirement of a firefighter in 1989.
The relevant background began on March 8, 1984, when
In April, 1986, told by his physicians that he had reached a medical plateau, Curley applied for accidental disability retirement under G. L. c. 32, § 7, a form of retirement that provides higher benefits than ordinary (superannuation) and disability (nonservice-connected) retirement. General Laws c. 32, § 5 and § 6, respectively. See discussion in MacDonald v. Commissioner of the Metropolitan Dist. Commn.,
At this point Lynn’s fire chief, notified of the denial, told Curley that unless he (Curley) filed an application for superannuation retirement within one week, he (the fire chief) would file an application for Curley’s involuntary superannuation retirement, a power given to the chief by G. L. c. 32, § 16(l)(a).
Curley’s union filed a charge, and the Labor Relations Commission has found, that the fire chief violated G. L. c. 150E, § 10(a)(1) and (5), by filing the application for Curley’s retirement unilaterally, without engaging first in collective bargaining with the union, and without waiting for a final decision by CRAB on Curley’s second appeal from the denial of an accidental disability pension. This conclusion was erroneous, the city argues, because the chiefs authority to apply for retirement of a firefighter under G. L. c. 32, § 16(l)(a), is a matter of exclusive managerial prerogative and thus an impermissible subject for collective bargaining.
Recognition in the public sector of areas of management prerogative reserved from the collective bargaining process began with School Comm. of Hanover v. Curry,
It was agreed that the collective bargaining agreement here was silent on the subject of retirements and specified no
For the purpose of decision we assume, without deciding, that an involuntary retirement involves terms and conditions of employment within the meaning of G. L. c. 150E, § 6. Compare School Comm. of Braintree v. Raymond, 369 Mass, at 690 (“the abolition of an employee’s position, his transfer to a lesser position, and reduction of his.salary involved his ‘wages, hours and other conditions of employment’ within the meaning of G. L. c. 149, § 1781,” the predecessor to § 6); School Comm. of Newton v. Labor Relations Commn.,
The reported decisions seem to cluster broadly into three categories, depending on the type of authorizing statute or other law under which the public manager purports to act. We differentiate three categories: (1) specific authorizing laws and regulations that are listed in G. L. c. 150E, § 1(d), including all “municipal personnel ordinance[s], by-law[s], rule[s] or regulation[s]”; (2) general authorizing statutes; and (3) specific authorizing statutes not included in § 1(d).
1. The most straightforward, or predictable, category is that in which the public sector employer acts under the authority of a statute, by-law, or regulation listed in § 1(d). Here, the employer’s freedom of action is always subject to collective bargaining in relation to the mandatory subjects listed in § 6, including wages and terms and conditions of employment. Labor Relations Commn. v. Natick,
2. Where the public sector employer is operating under the authority of statutes that define in broad, general terms the employer’s management powers, the scope of exclusive management powers has been worked out “on a case by case basis,” School Comm. of Burlington v. Labor Relations Commn., 390 Mass, at 164, with results not always easy to reconcile. Against the general, long-recognized principle that a discretionary power committed to a public officer by statute may not be delegated to another (see Brown v. Newburyport,
Thus, in the broad category of cases, comprising the majority of our reported appellate decisions — where the public employer is operating under the authority of general management powers — the inquiry has been directed towards defining the boundary between subjects that by statute, by tradition, or by common sense must be reserved to the sole discretion of the public employer so as to preserve the intended role of the governmental agency and its accountability in the political process. Several rules of analysis have been recognized; the most important, having its origin in School Comm. of Boston v. Boston Teachers Union, Local 66,
A second principle that has been applied in this category of cases is that, while an underlying decision may be reserved to the exclusive prerogative of the public employer under the public policy test, the public employer may be required to arbitrate with respect to ancillary matters, such as procedures that the employer has agreed to follow prior to mating the decision
A third principle that has sometimes been applied in this category is that, even where the decision in question lies within the exclusive managerial prerogative of the governmental employer, a collective bargaining agreement may provide for, and an arbitrator may order, compensation to employees affected by the decision.
3. The last category of cases comprises those — relatively few in number — in which the governmental employer acts not under a statute or law Usted in § 1(d) or under general management powers but instead under the authority of a statute or law authorizing the employer to perform a specific, narrow function or, alternatively, acts with reference to a statute specific in purpose that would be undermined if the employer’s freedom of action were compromised by the collective bargaining process or by arbitration. Within this range of cases, the operative rule seems to be that set out in Watertown Firefighters, Local 1347 v. Watertown, 376 Mass, at 714, quoted above: that the characterization of the subject matter as “compensation” or “terms or conditions of employment” will not require submis
The recent decision of School Comm. of Natick v. Education Assn. of Natick,
In the range of cases where the governmental employer acts pursuant to broad, general management powers, the danger is presented, as pointed out in School Comm. of Newton v. Labor Relations Commn., 388 Mass, at 564-566, that to recognize the statutory authority as exclusive would substantially undermine the purpose of G. L. c. 150E, § 6, to provide for meaningful collective bargaining as a general rule with respect to compensation and other terms and conditions of employment. That danger simply is not present when the governmental employer acts pursuant to a specific, narrow statutory mandate.
In this case Lynn’s fire chief was acting pursuant to just such a specific, narrow statutory mandate. General Laws c. 32, § 16(1)(«) — a statute not listed in c. 150E, § 7(d) — gives to any department head “who is of the opinion that any member employed therein should be retired for superannuation, ordinary disability or accidental disability” the authority to file with the retirement board an application for the employee’s retirement together with a summary of the reasons for his opinion. The employee is given a right to a hearing before the local retirement board, and ultimately to CRAB. See note 2, supra. This subject is controlled in detail by the retirement statutes, under which the action of the chief did nothing to prejudice Curley’s own pending application for accidental disability retirement. See State Retirement Bd. v. Contributory Retirement Appeal Bd.,
The Labor Relations Commission conceded in its decision that the action of the chief violated no provision of the collective bargaining agreement. Its analysis turned on two propositions: that retirement would have an impact on Curley’s compensation, and thus was a mandatory subject of collective bargaining, and that the fire chief had departed from past practice. As to the “impact” conclusion, we are, for the reasons stated above, in doubt as to the relevance of the impact decisions in the range of cases where the employer’s authority derives from a specific, narrow statute vesting discretion as to a particular decision in specified public officers. Apart from that, two distinctions must be taken. First, the loss of compensation would not result directly from the fire chief’s filing of the application for the involuntary retirement but, rather, from the decision of the retirement board and CRAB that retirement was called for in the circumstances. See Jones v. Wayland,
As to the finding that the fire chief departed from past practice, the finding is, in our view, not supported by the evidence before the commission. The evidence showed that the fire chief had on several occasions filed involuntary applications for accidental disability retirement and that, in two instances, he had been persuaded to refrain from filing applications for superannuation retirement in order that the firefighter involved might file his own voluntary application for accidental disability retirement. Here, however, Curley’s own application for accidental disability retirement had been pending for several years, had just been rejected a second time by the Lynn retirement board, and was expected to be two more years in process before
For these reasons we think the commission was in error in concluding that the fire chief’s authority to act under G. L. c. 32, § 16(1)(«), was subject to mandatory collective bargaining. There was, in effect, nothing to bargain about except whether the chief should exercise the authority conferred in him by the statute. To conclude that that may be the subject of bargaining is, in effect, to negate the purpose of the statute in entrusting the discretion to the fire chief. The fire chief’s authority under § 16(l)(a) to file an involuntary retirement application is a matter of exclusive managerial prerogative. Compare Sullivan v. Belmont,
The decision of the commission is therefore reversed.
So ordered.
Notes
The medical panel’s report has not been included in the record, and the administrative law magistrate’s recommended (to CRAB) decision, which discusses it at length, has been included only in part in the record. The omissions are not material to the appeal.
Section 16(l)(a), as amended through St. 1982, c. 630, § 21, in pertinent part, states: “Any head of a department who is of the opinion that any member employed therein should be retired for superannuation, ordinary disability or accidental disability, in accordance with the provisions of section five, six, or seven, as the case may be, may file with the [local retirement] board on a prescribed form a written application for such retirement. Such application shall include a fair summary of the facts upon which such opinion is premised.” Other provisions of § 16 give the member (i.e., the employee) a right to a hearing before the local retirement board, subject to review by a court of a board decision approving the retirement. The test, assuming the employee meets the length-of-service criteria for a superannuation pension, is whether the retirement is “justified.” See § 16(2), (3){a). In Curley’s case, there was no realistic chance of establishing that the retirement was unjustified because of Curley’s extended absence from work, then almost five years.
Curley’s accidental disability pension related back to January 10, 1989, the date Curley was retired for superannuation, and we assume that he has been paid the difference between his accidental disability pension and the superannuation pension he had been receiving prior to the CRAB decision. Thus, his financial loss as a result of the chief’s decision was the difference for that period between a fireman’s full pay (under § 11 IF) and what he has now been paid under his accidental disability pension. The record indicates that the difference in Curley’s case was between seventy-two percent of full pay under accidental disability retirement and full pay under § 11 IF. Ordinary (i.e., superannuation) retirement, according to the evidence, paid Curley sixty-five percent of full pay.
Few reported cases seem to turn on a determination that the disputed action of a public employer did not involve a term or condition of employment. Cf., however, West Bridgewater Police Assn. v. Labor Relations Commn.,
See Boston Teachers Union, Local 66 v. School Comm. of Boston,
Berkshire Hills Regional Sch. Dist. Comm. v. Berkshire Hills Educ. Assn., 375 Mass, at 523. School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass, at 656. School Comm. of Peabody v. International Union of Elec., Radio, & Mach. Wrkrs., Local 294,
School Comm. of Danvers v. Tyman,
School Comm. of Hanover v. Curry, 369 Mass, at 684-685; School Comm. of Braintree v. Raymond, 369 Mass, at 690 (also holding, however, that if the collective bargaining agreement provides for compensation to the affected teacher, such a provision may be enforced by an arbitrator); Higher Educ. Coordinating Council v. Massachusetts Teachers’ Assn., 423 Mass, at 32.
School Comm. of Newton v. Labor Relations Commn., 388 Mass, at 563. School Comm. of Lynnfield v. Trachtman,
Boston v. Boston Police Patrolmen’s Assn.,
In the “procedures” category are those cases in which a school committee has agreed to follow certain procedures in evaluating a teacher’s qualification
The leading case is School Comm. of Newton v. Labor Relations Commn., 388 Mass, at 563-567, in which a decision by a school committee to reduce the size of its janitorial staff was held to be within the school committee’s exclusive prerogative, but subsidiary questions, such as whether to achieve the reduction by attrition, shorter hours, or layoffs, and, if the latter, whether the layoffs were to be determined by seniority, by merit, or by some other method, were held to be mandatory subjects of bargaining. In the same category is Burlington v. Labor Relations Commn., 390 Mass, at 165-166. See also Boston Teachers Union, Local 66 v. School Comm. of Boston, 386 Mass, at 213; School Comm. of Holbrook v. Holbrook Educ. Assn., 395 Mass, at 655; Boston v. Boston Police Patrolmen’s Assn., 403 Mass, at 685.
See School Comm. of Braintree v. Raymond, 369 Mass, at 691; School Comm. of Lynnfield v. Trachtman,
In any event, because category 3 cases are not subject to collective bargaining, past practice would appear to be immaterial.