7 Mass. App. Ct. 826 | Mass. App. Ct. | 1979
The Labor Relations Commission (commission), in a decision dated May 5,1976, found that the city of Everett (city) through its mayor had failed to bargain in good faith with representatives of Local 1656, International Association of Firefighters, AFL-CIO, the city’s firefighters’ union, by unilaterally altering the firefighters’ night patrol duties. By this action pursuant to G. L. c. 150E, § 11, the commission seeks to enforce its order, set forth in a supplemental decision dated October 25, 1976, that the city cease and desist from prohibited practices and pay each affected firefighter ten percent of his regular hourly wage for each hour spent on night floor patrol performing desk duty. The Superior Court granted judgment for the commission on the pleadings, and we affirm.
The city’s contention that the commission’s order was not supported by substantial evidence is foreclosed by the city’s failure to file an appeal under G. L. c. 30A, § 14, from either the commission’s original or supplemental decisions. Under § 11 of G. L. c. 150E ("Labor Relations: Public Employees”), as amended by St. 1974, c. 589, § 3, the commission is authorized to "institute appropriate proceedings in the superior court ... for enforcement of its order ....” There is no provision in c. 150E, § 11, for review of the commission’s orders by an aggrieved party. The city argues that an enforcement proceeding under
Under G. L. c. 150E, § 11, the commission, once it determines that a prohibited practice under c. 150E, § 10, has been committed, is authorized to issue a cease and desist order to the offending party "and shall take such further affirmative action as will comply with the provisions of this section ....” We construe the language "further affirmative action”
Since the unilateral change instituted by the employer in the hours during which firefighters were required to perform floor patrol was found by the commission to constitute a refusal to bargain collectively in good faith and hence an unfair labor practice under c. 150E, § 10(a)(5), the commission had the power under c. 150E, § 11, to order the employer to make whole those employees who were required to perform additional duties while the mayor’s order was in effect. As the Federal courts have held, any employer guilty of a refusal to bargain by unilaterally changing working conditions may be ordered to make the affected employees whole for the losses caused by the unilateral changes. NLRB v. Frontier Homes Corp., 371 F.2d 974, 981 (8th Cir. 1967). Overnite Transp. Co. v. NLRB, 372 F.2d 765, 770 (4th Cir.), cert. denied, 389
So ordered.
We note that G. L. c. 149, §§ 178F and 178L (both repealed by St. 1973, c. 1078, § 1), the predecessor statutes to G. L. c. 150E, § 11, contained no provision for review by a party aggrieved by an order of the commission. Review in such cases was permitted under G. L. c. 30A, § 14. See, e.g., School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262, 265-266 (1976) (after further appellate review was allowed by the Supreme Judicial Court, 370 Mass. 867 [1976], the appeal was voluntarily dismissed by agreement of the parties). Compare G. L. c. 150A, § 6(f), which provides for review of an order of the commission by an aggrieved party who files an appeal within thirty days after receipt of notice of the order.
The city did not at any time prior to the commencement of the commission’s action for enforcement file an appeal. The commission
In Labor Relations Commn. v. Selectmen of Dracut, 374 Mass. 619, 624 (1978), the court construed similar language in G. L. c. 149, § 178L, in which no provision for judicial enforcement of commission orders was made, to mean resort to the equitable powers of the Supreme Judicial Court and the Superior Court. Since G. L. c. 150E, § 11, was amended by St. 1974, c. 589, § 3, to include an express provision for judicial enforcement of the commission’s orders, we think the phrase "further affirmative action” provides relief broader in scope than that permitted through equitable powers.
This court has held, in a case arising under c. 149, § 178L, that the term "reinstatement” is to be construed broadly. "[Ojne may be 'reinstated’ to a former status and awarded back pay even though he has not been discharged.” School Comm. of Stoughton v. Labor Relations Commn., supra at 270.
While it is the ordinary practice of the NLRB not to consider the amount of back pay until its general remedial order has been enforced by the court on its merits, NLRB v. Nickey Chevrolet Sales, Inc., supra at 106), we see no reason for this court to refrain from treating the original and supplemental orders of the commission in one proceeding. The city raises no argument concerning the amount of the monetary award ordered by the commission to be made to the employees, challenging only the commission’s authority to make the award.