53 Mass. App. Ct. 410 | Mass. App. Ct. | 2001
In the spring of 1990, the city of Somerville, which had a collective bargaining agreement with the Somerville Municipal Employees Association as the exclusive collective bargaining representative for a unit of the city’s supervisory employees, ceased applying the terms of that agreement to the positions of city clerk and assistant city clerk. These positions had been explicitly included in collective bargaining agreements since 1958. The duties of the city clerk have not changed since that time.
The union filed a charge of prohibited practices with the Labor Relations Commission, and the commission found that the city’s action violated § 10(a)(1) and (5) of G. L. c. 150E,
The city contends that the city clerk and assistant city clerk are not entitled to collective bargaining rights under G. L. c. 150E because the statute’s coverage is limited to employees of the executive and judicial branches of government, and the positions of city clerk and assistant city clerk are in the legislative branch.
To ascertain what branch of government is the employer with respect to a particular position, factors to consider include (1) the method of hiring; (2) the basis of compensation; (3) the power of dismissal; (4) the power of control. See 1 Rothstein, Craver, Schroeder, & Shoben, Employment Law § 1.28, at 120 (2d ed. 1999). See also Massachusetts Probation Assn. v. Commissioner of Admn., 370 Mass. 651, 657-663 (1976), in which the court enumerated the following factors to show that probation officers were judicial employees: (1) members of the judiciary had the power to appoint, demote and remove, establish work standards and make rules concerning supervision and duties of probation officers; (2) compensation was established by the Legislature, but duties were closely allied with the judicial work of the court; and (3) in practice as well as by statute, day-to-day and ultimate control over probation officers was vested in the judiciary.
The powers and duties of the city clerk are prescribed both by the city’s charter and ordinances and by statutes of general application. The duties enumerated by the City of Somerville Code consist primarily of legislative support functions: the city clerk is clerk of the board of aldermen; has charge of their journals, records, and documents; attends and opens their meetings; keeps a journal of their votes and proceedings; and, with the approval of the board of aldermen, appoints or removes the
Responsibilities the clerk is given by the General Laws include legislative support functions (see, e.g., G. L. c. 43, § 18 [3]) and also duties that are not, on their face, legislative. Among the city clerk’s numerous statutorily prescribed duties are: issuing licenses
Because the duties prescribed by ordinance and statute include both legislative and non-legislative functions, these cannot alone determine whether the Somerville city clerk is a legislative employee. We turn, therefore, to consider the entity vested with authority to exercise control over the position.
The power to hire and fire the city clerk is vested in the legislative branch. The city clerk is elected for a three-year term by the board of aldermen, G. L. c. 43, § 18, and may be given permanent tenure pursuant to c. 41, § 19B. A permanently tenured city clerk may be removed for cause by the appointing authority. See G. L. c. 41, § 19D. A city clerk serving for a three-year term, like Somerville’s, may be removed from office as well — he is to “serve until the qualification of his successor unless sooner removed . . . .” G. L. c. 41, § 12.
The record lacks detailed evidence concerning the role of the board of aldermen in regulating the day-to-day activities of the city clerk. In a letter denying the grievance filed in the case, the board stated that it exercised day-to-day control over the position, and that assertion has not been controverted. Such control is probably implicit as a practical matter in the facts that the clerk holds his office only for a relatively short term, and that the power of reappointment as well as a power to remove remain in the board of aldermen.
In addition, title 4, § 21, of the City of Somerville Code enumerates the executive branch officers and employees subject to hiring by the mayor — a list that does not include the city clerk; and the provisions of the collective bargaining agreement concerning the posting of and appointment to vacant positions subject to the collective bargaining agreement are at variance with the statutory provision for appointment of the clerk by the board of aldermen.
The city clerk’s appreciable legislative support duties, taken together with the board of aldermen’s power to elect and to
Decision of commission reversed.
General Laws c. 150E, § 10(a)(1) and (5), provides, in pertinent part, that it is a prohibited practice for a public employer to: “(1) [i]nterfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter;” or to “(5) [r]efuse to bargain collectively in good faith with the exclusive representative . . . .”
Section 1 of c. 150E defines an employee covered by the statute as “any person in the executive or judicial branch of a government unit employed by a public employer.” See Massachusetts Probation Assn. v. Commissioner of Admn., 370 Mass. 651, 663 (1976) (c. 150E covers only executive employees); and St. 1977, c. 278, § 1, which amended c. 150E to extend coverage to judicial employees.
The remainder of this opinion will refer only to the city clerk, but will apply to the assistant city clerk as well. Both positions are in the same branch of government. The assistant city clerk works under the direction or in the absence of the city clerk, and the two have identical powers and duties. The city clerk, with the approval of the board of aldermen, appoints and removes the assistant city clerk under the City of Somerville Code § 2-105. General Laws c. 41, § 18, permits a city, by ordinance, to establish the office of assistant city clerk and prescribe the manner of appointment.
See G. L. c. 207, §§ 19-37 (marriage); c. 131, § 12 (hunting and fishing). See also c. 140, § 202 (licenses regarding, among other things, junk, old metals, second hand articles, pawnbrokers, bowling alleys, pool halls, roller skating rinks, carousels, picnic groves).
General Laws c. 41, § 12, applies to cities, of which Somerville is one, that accepted St. 1901, c. 332.
The general rule that the power to remove is incident to the power to appoint does not apply where, as here, tenure is fixed by law for a definite period. See Adie v. Mayor of Holyoke, 303 Mass. 295, 301 (1939). The Adie