11 Mass. App. Ct. 50 | Mass. App. Ct. | 1980
These are appeals from a judgment by a three-judge panel of the Superior Court (G. L. c. 212, § 30) dismissing an action brought under G. L. c. 150A, § 6(e), by the Massachusetts Labor Relations Commission (commission) to enforce its order requiring, among other things, that the defendant company (Blue Hill) offer reinstatement to two employees, John Clegg and John Russell, the interveners. The commission found that Blue Hill had discharged them on October 31, 1974, for union activity and had thus engaged in unfair labor practices, as defined in G. L. c. 150A, §§ 4(1) and 4(3). Blue Hill filed a motion to dismiss on the ground that the “[pjlaintiff’s Decision and Order ... is null and void” because it dealt with matters “subject to the exclusive jurisdiction of the National Labor Relations Board” and because Blue Hill was not properly notified of the formal hearing on which the decision and order were based. The defendant also filed an answer to the commission’s complaint in this enforcement action, alleging, in addition to the matters in the motion to dismiss, that the decision and order were not supported by substantial evidence. The court dismissed the action on the first ground in Blue Hill’s motion to dismiss — that Federal preemption
1. Federal preemption. On November 4, 1974, the Monday following the discharge of Clegg and Russell on
The court below, in its memorandum refusing to enforce the order, ruled that “preemption remains unless and until the National Labor Relations Board . . . declines to exercise its jurisdiction” and that the commission “took significant action while the matter was pending before [the] NLRB.”
The issue is a narrow one. It does not involve the question whether a State court should grant relief to a party to a
Here the Superior Court and we are asked to vindicate a primary jurisdiction which the NLRB’s declination has in effect destroyed. It was plain at the time that the Superior Court received this case that the “risk of interference with the unfair labor practice jurisdiction of the Board” (Sears, Roebuck & Co., 436 U.S. at 197) had been dissipated. Compare Commonwealth v. Noffke, 376 Mass. 127, 133-134 (1978). Whether the NLRB (see NLRB v. Nash-Finch Co., 404 U.S. 138, 145-147 [1971]; NLRB v. Committee of In
In the circumstances, we do not shut our eyes to the reality that there was, indeed, a hearing. Thus in Incres S.S. Co. v. International Maritime Wkrs. Union, 10 N.Y.2d 218 (1961), vacated, 372 U.S. 24 (1963), the New York Court of Appeals reversed the grant of an injunction against picketing a foreign vessel on the ground that the dispute was “arguably” within the jurisdiction of the NLRB. The United States Supreme Court reversed the New York Court of Appeals on the ground that “although it was arguable that the Board’s jurisdiction extended to this dispute at the time of the New York Court of Appeals’ decision, our decision in [McCulloch v.] Sociedad Nacional [de Marineros de Honduras, 372 U.S. 10 (1963), a case holding that the NLRB did not have jurisdiction over seamen on foreign vessels] clearly negates such jurisdiction now.” Incres S.S. Co. v. International Maritime Wkrs. Union, 372 U.S. 24, 27 (1963). The case was remanded to the Court of Appeals “for further proceedings consistent with this opinion . . . .” Id. at 28. Although the opinions of both the United States Supreme Court and the New York Court of Appeals indicated that the hearing on the injunction and the issuance of the order which resulted were preempted at the time they took place, the Court of Appeals reinstated the lower court order; it did not treat the order and the hearing on which it was based as “void.” Incres S.S. Co. v. International Maritime Wkrs. Union, 13 N.Y.2d 754 (1963). As this court
We see no need for so sweeping a prophylactic rule in order to assure the integrity of the NLRB’s primary jurisdiction. The impact on Federal labor policy from the mere holding of a commission hearing may be met, where it should be met at all,
2. Notice. Blue Hill argues, on the basis of the “Stipulation of Facts” (see n.3),
The provision for notice is found in G. L. c. 150A, § 7(4), inserted by St. 1938, c. 345, § 2, and is set out in the margin.
We see nothing, and Blue Hill points to nothing, in the language of § 7(4) contrary to the procedure for notice used by the commission. Service by certified mail met the requirements in the statute for service by registered mail (G. L. c. 4, § 7, Forty-fourth), and service on the corporation properly named was service on the “person required to be served.” G. L. c. 150A, § 2(1), inserted by St. 1938, c. 345, § 2 (“The term ‘person’ includes . . . corporations . . . .”). See G. L. c. 4, § 7, Twenty-third.
Nor is there any basis for Blue Hill’s argument that the commission must make service on the corporation in accordance with the provision for service in a civil action under G. L. c. 223, § 37 (second par.).
The provisions of G. L. c. 150A, § 7(4), are sufficiently detailed so that the commission, in administering those provisions, was not obliged to go beyond them. Compare Director of the Div. of Water Pollution Control v. Uxbridge, 361 Mass. 589, 591-592 (1972). Nor can we say that the commission exceeded its administrative discretion in not
Nor are we impressed with Blue Hill’s argument that notice of the hearing should have been addressed to a Madeline Whiting rather than to the corporation because she had replied to the original notice of the charge with respect to Clegg under the designation “general manager.”
Blue Hill’s argument that it did not receive notice and, therefore, the commission’s order if enforced would deprive it of due process of law has no basis in fact or in law. The burden to show a constitutional deprivation is, of course, on
Nor does it help Blue Hill if we were to assume that neither Whiting nor any other appropriate officer of the corporation received actual notice. The failure to receive actual notice does not amount to a constitutional deprivation if the method of notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections .... ‘The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.’” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 (1950) (citation omitted). The method of notice used in this case was in compliance with the statute and “may be presumed reasonable.” Save the Bay, Inc. v. Department of Pub. Util., 366 Mass. 667, 677 (1975). As we have indicated above, we are not persuaded that the presumption has been rebutted.
Further, the fairness of the notice procedure used by the commission finds support in the provision of G. L. c. 150A, § 6(f), permitting “a petition for rehearing,” 402 Code Mass. Regs. 2.03(13) (1978), providing for “motions made . . . subsequent to the hearing,” and G. L. c. 150A, § 6(e), providing that either party in an enforcement proceeding may “apply to the court for leave to adduce additional evidence” before the commission. Compare Mass. R. Civ. P. 60(b), 365 Mass. 828-829 (1974); Ellington v. Milne, 14 F.R.D. 241 (E.D. N.C. 1953). Blue Hill, as we have indicated above, has not attempted to use any of these oppor
3. Discriminatory discharges. Clegg
When Clegg returned from his route that day at about 5:15 p.m., Whiting was waiting for him with an envelope. She appeared angry. When Clegg greeted her she replied, “Here’s your paycheck, you are fired.” He asked her, “What’s this for”; she answered, “You know what’s this
Taken together, the circumstances point clearly to discriminatory discharges of the only two employees engaged in organizing the truck drivers since September.
We need not attempt to separate knowledge from motive. A.J. Krajewski Mfg. Co. v. NLRB, 413 F.2d at 676. NLRB v. Long Island Airport Limousine Serv. Corp., 468 F.2d 292, 295 (2d Cir. 1972).
4. Conclusion. The judgment below is vacated. The case is remanded to the Superior Court to enforce the order of the commission.
So ordered.
See generally Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 190-207 (1978).
The Superior Court had before it the record made by the commission (see G. L. c. 150A, § 6[e]) and a “Stipulation of Facts” characterized by the parties as an “agreefment] on the following facts as evidence.” The decision of the Superior Court is based solely on the undisputed sequence of events in the proceedings both before the commission and before the NLRB, giving rise to a pure question of law requiring no further findings of fact to be made or factual conclusions to be reached by the commission. In the circumstances and in the view we take of this case, the commission has no further fact finding role, and we deem it appropriate to decide the legal question posed by the Superior Court’s decision without remand to the commission. Saint Luke’s Hosp. v. Labor Relations Commn., 320
The commission, citing Red Cross Drug Co. v. NLRB, 419 F.2d 1245 (7th Cir. 1969), also points to the provision in G. L. c. 150A, § 6(e), as appearing in St. 1973, c. 1114, § 15, that “no objection that has not been urged before the commission . . . shall be considered by the court, unless the failure or neglect to urge such objections shall be excused because of extraordinary circumstances.” But the record before us does not indicate that this provision was in any way urged before the Superior Court in connection with the specific issue on which that court decided the case, and the “Stipulation of Facts” looks to the contrary.
The parties in this case chose to go behind the bare dismissal, which the “Stipulation of Facts” indicates was grounded on the conclusion by a field attorney of the NLRB “after further review and additional consideration of the financial data . . . that the [bjoard should not exercise jurisdiction over Blue Hill Spring Water Company.” The defendant in its brief points to this evidence for its contention that “the NLRB determined that it did have jurisdiction and then subsequently determined that it should not exercise it” (emphasis omitted). In the absence of a more official statement of the NLRB’s reasons for dismissing the charges (see Hanna Mining Co. v. District 2, Marine Engrs. Beneficial Assn., 382 U.S. 181, 190 [1965]; Pennsylvania Labor Relations Bd. v. Butz, 411 Pa. 360, 369-372 [1963]), we proceed on the basis accepted by the parties that there was'a declination of jurisdiction in this case sufficient to give the commission power to proceed after January 30, 1976. G. L. c. 150A, § 10(h).
The phrase “primary jurisdiction of the NLRB” is explicated in Lodge 76, Intl. Assn. of Machinists v. Wisconsin Employment Relations Commn., 427 U.S. 132, 138-139 (1976) (quoting from Motor Coach Employees v. Lockridge, 403 U.S. 274, 290-291 [1971], and San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 [1959]), in which the United States Supreme Court said: “When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.” See Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. at 199 n.29.
See Almeida Bus Lines, Inc. v. Curran, 209 F.2d 680, 683-684 (1st Cir. 1954). See also East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. at 452; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51 & n.11 (1938); Methodist Hosp. v. New York State Labor Relations Bd., 382 F.Supp. 459, 463 (S.D.N.Y. 1974); Cox, Labor Law Preemption Revisited, 85 Harv. L. Rev. 1337, 1342-1343 (1972).
The predominant concerns expressed where State board action is overturned involve the coercive effects of the order or determination on the Federal scheme. LaCrosse Tel. Corp. v. Wisconsin Employment Relations Bd., 336 U.S. 18, 25-26 (1949)(State certification “freezes into a pattern that which the federal act has left fluid”). NLRB v. Committee of Interns & Residents, 566 F.2d at 816 (State certification might lead to “contradictory duties and obligations”). Pan American World Airways, Inc. v. Division of Labor Law Enforcement, 203 F. Supp. 324, 325 (N.D. Cal. 1962) (“repercussions of the ruling [of a State board in an action covered by the Federal Railway Labor Act] will be national in scope and will have a profound influence” on others’ claims). Cf. General Elec. Co. v. Callahan, 294 F.2d 60, 67 (1st Cir. 1961), appeal dismissed, 369 U.S. 832 (1962).
We do not treat G. L. c. 150A, § 10(h), separately. We agree with Blue Hill, as set out in its brief, that the statute embodies “principles of preemption which the Massachusetts Legislature has specifically adopted.” See Wheaton College v. Labor Relations Commn., 352 Mass. 731, 734 (1967), and American Natl. Red Cross v. Labor Relations Commn., 363 Mass. 525, 527 (1973), both indicating the correlation between the board’s declination of jurisdiction over a labor dispute (29 U.S.C. § 164[c][1] [1976]) and the commission’s consequent power to adjudicate the labor dispute. The legislative history of the model for § 10(b), Conn. Gen. Stat. § 31-101(7), indicates an intent to do no more than extend State power to all cases not federally preempted. See First Report of Connecticut Labor Relations Board, 19 L.R.R.M. 91, 91 (1947).
Both parties regard the “Stipulation of Facts” as a proper basis for decision on the question of notice by this court, as it would have been by the Superior Court had it reached the issue. We agree. School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262, 269 (1976). Cf. G. L. c. 30A, § 14(5) (“[I]n cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken in the court”). Cf. also Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971).
“Complaints, orders and other process and papers of the commission, its member, agent or agency may be served either personally or by
We deem the reference in the stipulation to that address as Blue Hill’s “usual place of business” to be an inadvertence. The defendant has not mentioned the discrepancy and we note that the charge before the commission and the complaint before the NLRB, both incorporated in the stipulation, refer respectively to that address as Blue Hill’s “principal place of business” and “its principal office and place of business.”
That paragraph requires that, where possible, service in a civil action against “a domestic corporation . . . shall be made upon the president, treasurer, clerk, . . . agent or other officer in charge of its business.”
The record is unclear as to how it was addressed.
“If Madeline Whiting [president and general manager,] were to testify she would testify that she did not see the Commission’s Complaint and Notice of Hearing and was not personally aware that the Commission had scheduled a hearing for January 12,1976, until after the decision and order of the Commission dated April 2, 1976.”
The narrative here set out is based primarily on Clegg’s testimony at the hearing. He and Thomas Fitzgerald, secretary-treasurer of Local 841, were the only witnesses before the commission.
Fitzgerald testified that in his experience in sending telegrams, they were received the same day.
Gould, Inc., 216 N.L.R.B. 1031 (1975) (“Respondent chose to discharge four of the six employees in attendance at the union meeting”; § 8[a][3] violation found). Cf. Teamsters Local 633 v. NLRB, 509 F.2d 490, 498 (D.C. Cir. 1974).
NLRB v. Rubin, 424 F.2d 748, 750 (2d Cir. 1970) (Section 8[a][3] violation found from “stunningly obvious” timing of layoffs right after union request for recognition). U.S. Soil Conditioning Co., 235 N.L.R.B. 762, 763, 764 (1978) (discharge came on the same day as the initial circulation of a union petition; § 8[a][3] violation found).
See Gould, Inc., 216 N.L.R.B. at 1031 (discharges on Monday despite employer’s practice of discharging on Friday).
NLRB v. Plant City Steel Corp., 331 F.2d 511, 515 (5th Cir. 1964). Cf. Goodridge v. Director of the Div. of Employment Security, 375 Mass. 434, 437-438 (1978); NLRB v. Joseph Antell, Inc., 358 F.2d 880, 883 (1st Cir. 1966).
Even in criminal cases failure of a party to call a witness whom that party might be expected to call creates an inference that the witness’s testimony would be unfavorable to that party. Commonwealth v. Domanski, 332 Mass. 66, 70-71 (1954). We need not assess the strength we would give to such an inference, but in the circumstances it counts for something.
The only claim of poor performance was as to Clegg in a letter to the commission when Blue Hill was notified of the original charges. The commission mentioned this in its decision, but pointed out that it was not part of the record on which the order could be based (see G. L. c. 150A, § 6[e]) and that there was nothing to corroborate the charges. They gave credence to Clegg’s testimony to the contrary.
Indeed, Whiting need not have been “morally certain” of Clegg’s and Russell’s union activity; it would be sufficient to have a “reasonable suspicion” and a willingness “to take action upon that suspicion.” Teamsters Local 633 v. NLRB, 509 F.2d at 497.
The commission’s motion for attachment is pressed here by the interveners, although neither pressed by the commission nor ruled on below. It was not adequately argued to this court and was not made part of the record appendix; it is not before us.