12 Mass. App. Ct. 184 | Mass. App. Ct. | 1981
In October, 1976, the American Federation of State, County and Municipal Employees, AFL-CIO (the union), petitioned the Labor Relations Commission (commission) for certification as the exclusive bargaining agent for the traffic supervisors in Burlington.
There is no dispute between the parties that this cutback in hours hard on the heels of union activity constituted a prohibited practice for a public employer under G. L. c. 150E, § 10(a)(1) and (3). See National Labor Relations Bd. v. Exchange Parts Co., 375 U.S. 405, 409 (1964); Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. 847, 850 (1979); Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 904-905 (1979); School Comm. of Stoughton v. Labor Relations Commn., 4 Mass. App. Ct. 262, 269-270 (1976). Indeed, as soon as he was consulted, Burlington’s town counsel recommended that the selectmen rescind their order, and they did so. In the course of his inquiry into the matter, however, town counsel discovered that the town meeting had in 1974 adopted a bylaw relating to part-time employees which appeared to limit them to compensation for time actually spent on the job. Awakened to the existence of the 1974 by-law, the selectmen were pleased to don the mantle of statutory duty in order to do what they wanted to do all along: cut the hours for which traffic supervisors would be paid. The commission was not persuaded that the selectmen’s action was anything other than retaliatory, so found, and ordered among other things that the traffic supervisors be paid prospectively and retroactively on the basis of the old formula. From that order the town appealed pursuant to G. L. c. 30A, § 14. No material subsidiary facts were in dispute, and upon cross motions for summary judgment, a Superior Court judge affirmed the decision of the commission.
What motive underlies enforcement of a statute, therefore, takes on relevance in unfair labor practice cases because it provides the key to whether the conduct complained of was in the ordinary course or provoked by anti-union animus. See National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937); Massachusetts Bd. of Regional Community Colleges v. Labor Relations Commn., 377 Mass. at 851; National Labor Relations Bd. v. Gotham Indus., Inc., 406 F.2d 1306, 1309 (1st Cir. 1969). See generally Christensen & Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968). The timing of the town’s action as to the traffic supervisors’ pay was substantial evidence from which the commission’s hearing officer could and did draw an inference of retaliatory motivation. See Southern Worcester Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. at 904; Labor Relations Commn. v. Blue Hill Spring Water Co., 11 Mass. App. Ct. 50, 62-63 (1980). In such circumstances, we defer to the commission’s fact-finding role. Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 132-133 (1976). Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 224 (1978). The only evidence of proper independent purpose offered by the town to rebut the union’s prima facie case on the issue of improper motive is that the selectmen prudently followed the advice of counsel. But that advice was solicited and received only after the selectmen had engaged in their first act of reprisal; it was too late for them then to ex
Judgment affirmed.
Traffic supervisors direct traffic at school crossings during the times of day when children are on the way to, or back from, school.
As to factual issues, our standard of review is the “substantial evidence test.” See Labor Relations Commn. v. Everett, 7 Mass. App. Ct. 826, 827-829 (1979). In applying that test we consider the “experience, technical competence, and specialized knowledge of the agency.” Selectmen of Marion v. Labor Relations Commn., 7 Mass. App. Ct. 360, 361 (1979). See also as to the scope of review, Labor Relations Commn. v. University Hosp., Inc., 359 Mass. 516, 521 (1971); School Comm. of Boston v. Board of Educ., 363 Mass. 125, 128-129 (1973); Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 903 (1979).
See Commonwealth v. King, 374 Mass. 5, 20 (1977); Vorenberg, Decent Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1521 n. 1 (1981).
The inconsistency of the Burlington by-law with a forty-two week payment basis for traffic supervisors does not strike us as self-evident, but since the case was briefed and argued on the basis that the by-law mandated the pay cut, we have considered the case on that assumption.
We do not intimate that the town is to be unreasonably or forever foreclosed from applying its by-law, at least after the labor dispute has subsided.