Number 16 January 28, 1972

Number 16 January 28, 1972 Honorable Richard E. McLaughlin Secretary of Public Safety Executive Office of Public Safety 100 Nashua Street Boston, Massachusetts 021 14 Dear Mr. Secretary: You have requested an opinion "whether the police officers in the Uniformed Branch of the State Police are authorized to form a collective P.D. 12 79 bargaining unit within the meaning of Chapter 149 of the General Laws (Collective Bargaining Statute)." In an opinion rendered by my pred- ecessor on December 5, 1968, this same question was answered in the affirmative. Since the materials enclosed with your request indicate that there remains some controversy as to this question, I have reexamined the question and have determined that the answer remains in the affir- mative. The Uniformed Branch of the State Police is not specifically excluded from engaging in collective bargaining by the terms of G. L. c. 149, § 178F. The difficulty arises out of a possible interpretation of G. L. c. 149, § 178D, which provides that state and local employees "have the right to form and join vocational or labor organizations . . ., " a right which is substantially less than, and a condition precedent to, the right to bargain collectively. That section contains the following cryptic sen- tence: 'This section shall not be applicable to police officers in the uniformed branch of the division of state police." The ultimate question is whether the above-quoted language repeals by implication St. 1950, c. 120, which specifically recognized the right of the state police to organize, or whether it merely defers to that statutory provision as the one applicable to the organizational rights of the state police. After careful consideration of the disparate elements of this con- troversy, I have concluded that the latter alternative is the correct one. The former alternative is not sufficiently evident from the language of § 148D or from the legislative intent as ascertained by reference to other statutory provisions. As originally enacted by St. 1958, c. 460, section 148D provided: "This section shall not be applicable to police officers in the employ of the commonwealth or any political subdivision thereof." On its face, this language did not preclude police officers from engag- ing in organizational activity since the basis for the inapplicability is un- determined. It could mean repeal of St. 1950, c. 120 which conferred upon state police officers the right to engage in organizational activity. However, since repeal by implication is not a favored doctrine, Brown v. Lowell, 8 Met. 172, Commonwealth v. Bloomberg, 302 Mass. 349, Homer v. Fall River, 326 Mass. 673, the alternative interpretation that the language merely defers to the specific provisions dealing with the state police in St. 1950, c. 129 is the more reasonable. Other considerations militate towards this conclusion. The basis for different treatment of policemen and other public employees is that the crucial police function of maintaining public order warrants continual presence on the job. See, Burton and Krider, The Role and Conse- quences of Strikes by Public Employees, 79 Yale L.J. 418, 432-437 (1970). The Legislature has, however, confronted this problem directly by forbidding strikes by public employees, c. 149, § 178F(10), rather 80 P.D. 12 than circuitously by precluding police officers from organizing. In this regard, it should also be noted that in the context of collective bargain- ing of municipal employees, police officers were explicitly excluded from the definition of "employee" in c. 149, § 178G, as enacted by St. 1965, c. 763, § 2. (This exception was deleted by St. 1966, c. 156.) In my opinion, the action of the Legislature in enacting St. 1969, c. 171, which amended G. L. c. 149, § 178D so that the latter applied to all public em- ployees except officers of the uniformed branch of the State Police, was merely recognition that there were no other statutory provisions govern- ing the organizational rights of local police generally. (Boston police had been granted the right to organize by St. 1949, c. 325.) In short, the or- ganizational rights of the police officers of the uniformed branch are un- affected by the provisions of G. L. c. 149, § 178D. The previous opinion rendered by my predecessor on this subject fully and adequately explored the question whether members of the State Police are "employees" as defined by G. L. c. 149, § 178F(1) and concluded that they do come within that definition. Therefore, it is my opinion that the police officers in the Uniformed Branch of the State Police are authorized to form a collective bargaining unit within the meaning of Chapter 149. Very truly yours, ROBERT H. QUINN Attorney General