Number 12 February 10, 1981

Number 12 February 10, 1981 John T. Dunlop, Chairman Morris A. Horowitz, Vice-Chairman Joint Labor-Management Committee 130 Bowdoin Street - Room 408 Boston, MA 02108 Gentlemen: You have requested my opinion concerning the effect of Section 10 of Question 2,^ which was approved by the voters on November 4, 1980, upon the powers of the Joint Labor-Management Committee (hereafter, "the Committee"). Specifically, you ask whether the Committee may use binding arbitration subsequent to December 4, 1980, as a means to resolve disputes in cases where the Committee has exercised jurisdiction prior to that date, but where the case has not been resolved as of that date. For the reasons set forth below, I conclude that while the Committee may use arbitration as a method to resolve a dispute over the negotiation of the terms of a collective bargaining agreement involving municipal fire fighters or police officers, it may not bind the legislative body of the affected municipality to honor the resulting agreement. I base this conclusion upon the fact that unlike Section 4, Section 4A of Chapter 1078 of the Acts of 1973, from which the authority of the Committee derives, nowhere expressly states that arbitration awards shall be binding upon the legislative body of the municipality, nor may such authority be inferred from the statute. Section 4 of Chapter 1078 of the Acts of 1973 established a procedure for the resolution of labor disputes between a municipality and the collective bargaining unit of its policemen or firefighters. Under that section, the Board of Conciliation and Arbitration must first determine that an impasse exists in negotiations over the terms of a collective bargaining agreement.^ The statute then provides for the submission of such a dispute to a panel of three arbitrators, which, after hearing, selects one of two written statements submitted by the respective parties and containing that party's last and best offer for each of the issues in dispute. The statute expressly provides that "the selection [by a majority of the panel] shall be final and binding upon the parties and upon the appropriate legislative body." St. 1973, c. 1078, §4. This "last best offer, final and binding arbitration" was designed to balance the collective bargaining rights of public employees against the public health and safety in police and fire protection. Arlington v. Board of Conciliation & Arbitration, 370 Mass. 769,780(1976). St. 1977, c. 730, entitled "An Act Establishing a Joint Labor-Management Committee to Oversee Municipal Police and Firefighter Collective Bargaining 'Question 2. popularly known as "Proposition 2'/5" and recorded as St. 1980, c. 580, became effective December 4, 1980. Section 10 thereof provides: Section 4 of Chapter 1078 of the Acts of 1973, as most recently amended by Chapter 154 of the Acts of 1979, is hereby repealed. See n. 3 accompanying test, infra. ^Such arbitration, involving the formation of a contract between the parties, is known as "interest arbitration". See School Committee of Boston v. Boston Teachers Union. 372 Mass. 605, 606, n.4. P.D. 12 ,29 and Arbitration Proceedings," amended St. 1973, c. 1078, by inserting therein Section 4A. As subsequently amended by St. 1979, c. 154, Section 4A grants the Committee "oversight responsibility for all collective bargaining negotia- tions involving municipal police officers and firefighters" and. at its discretion, exclusive jurisdiction over any dispute involving the negotiation of the terms of a collective bargaining agreement. Section 4A provides: The committee shall forthwith review the petition [of either party or both parties for the exercise of jurisdiction and for the determination of the existence of an impasse] and shall make a determination within thirty days whether to exercise jurisdiction over the dispute .... [IfJ the committee declines to exercise jurisdiction over the dispute or fails to act within thirty days of receipt of the petition on jurisdiction, the petition shall be automatically referred to the board of arbitration and conciliation ... for disposition in accordance with the provisions of [G.L. c. 150E, §9] Said board shall not accept any petition from a party to a municipal police and fire negotiation under [G.L. c. 150E, §9] if the petition has not been first reviewed in accordance with the provisions of this section by the committee .... The committee after consultation with the board of arbitration and conciliation may remove at any time from the jurisdiction of the board any dispute in which the board has exercised jurisdiction, and the board shall then take no further action in such dispute. The committee may, at any time, remand to the board any dispute which the committee has exercised jurisdiction. . . . St. 1979, c. 154, §1. Thus the Committee has been granted the authority to determine which disputes may be submitted to "last best offer, final binding arbitration" by the Board of Arbitration and Conciliation and which disputes are to be resolved pursuant to its own authority granted by Section 4A. Section 4A also provides that the Committee, after determining that a genuine impasse exists and that the process of collective bargaining has been exhausted, shall "determine the form of arbitration, conventional arbitration, issue by issue, last best offer, or such other form as the committee deems appropriate" and "determine the procedures to be followed in the arbitration proceedings." Section 4A goes on to provide: Except as provided herein, arbitration proceedings in matters over which the committee assumes jurisdiction, shall be conducted in accordance with the standards, provisions and limitations ot . . . section four .... St. 1979, c. 154. SI. Your question arises because Section 4 has now been repealed by the passage of Question 2. As I stated in my summary to the voters, the ettect of passage of Question 2 is, in part, to "repeal the law which provides for compulsory binding arbitration when labor negotiations concerning police and tire personnel 130 P.D. 12 come to an impasse." Some confusion has arisen from the fact that although the original initiative petition called for the repeal of Section 4A, the first ten signers of that petition subsequently submitted a "perfecting amendment" clarifying their intent to repeal Section 4. See Mass. Const. Amend. Art. 48, Init., Pt. 5, §2. I certified that their amendment was perfecting in nature and did not materially change the substance of Proposition IVi, relying in part on Bowe V. Secretary of the Commonwealth, 320 Mass. 230 (1946).^ In my view, therefore, when Question 2 was ultimately submitted to the voters, it called for the repeal of Section 4, but not for the repeal of Section 4A. In my opinion. Sections 4 and 4A are entirely different, albeit somewhat related, provisions of law, and the latter statute was not repealed by the passage of Question 2, either by the express terms of that statute or by implication. See Colt V. Fradkin, 361 Mass. 447, 449-50 (1972); Kardas v. Selectmen of Dedham, Mass. App. Adv. Sh. (1979) 1596, 1600 . The questions remain, however, whether and how the remedies available to the Committee have been affected by the repeal of Section 4. The answer to your question requires a construction of Section 4A in light of St. 1973, c. 1078, as amended, the statute governing labor relations in the public sector, of which Sections 4 and 4A have been a part. That statute must be read "so as to constitute a harmonious whole." Director of Division of Employee Relations v. Labor Relations Commission, 370 Mass. 162, 172 (1976). Moreover, in determining the remedies available to the Committee, Section 4A cannot be viewed in isolation, but must be construed in relation to other portions of the law governing public sector labor relations, the context in which it was enacted, and its present language. See Pereira v. New England LNGCo.,Inc., 364 Mass. 109, 115(1973). St. 1973, c. 1078, §2, added chapter 150E to the General Laws. Section 9 of chapter 150E provides for voluntary interest arbitration when an impasse exists in the negotiation of a collective bargaining agreement for public employees and that impasse remains unresolved after mediation and fact-finding proceedings. That section provides in relevant part: Any arbitration award in a proceeding voluntarily agreed to by the parties to resolve an impasse shall be binding on the parties and on the appropriate legislative body and made effective and enforce- able pursuant to the provisions of chapter one hundred and fifty C, provided that said arbitration proceeding has been authorized by the appropriate legislative body or in the case of school employees, by the appropriate school committee. See School Committee of Boston v. Boston Teachers Union, 372 Mass. 605, 607(1977). ^The validity of my certification of that perfecting amendment has been challenged by a number of individuals in litigation pending in the Superior Court for Suffolk County. See International Brotherhood of Police Officers, et al., v. Secretary of the Commonwealth, et al.. Civil Action No. 45440 (Sup. Ct. Dept., Suffolk Cty., filed Nov. 26, 1980). In theory, one could argue that the allegedly improper certification resulted only in the repeal of Section 4A, or contend that both Sections 4 and 4A have been repealed, or even assert that neither section was effectively rescinded. Furthermore, one might argue that the purported violation tainted all of Question 2, so that Proposition 2'/; in its entirety must fall. It is unnecessary for me to determine in this opinion what the impact of an erroneous certification would be, not only because the issue is in litigation, but also because 1 believe that the certification was proper. P.D. 12 J3J In enacting St. 1973, c. 1078, the legislature clearly made interest arbitration involving firefighters and police officers subject to different procedures under Section 4 and expressly made the arbitration award "final and binding" upon both the parties and the appropriate legislative body. Section 4 was experimen- tal and highly controversial. See, e.g., "Final Offer Arbitration in Massachu- setts," 12 N.E. Law Rev. 693 (1977). Its constitutionality was challenged, although upheld in Town of Arlington v. Board of Conciliation and Arbitration, 370 Mass. 769 (1976). Despite the pressures of competing interest groups,* the statute, which was originally due to expire on June 30, 1977, was reenacte'd that year with amendments, and its life extended by the legislature for two additional years. St. 1977, c. 347, §§2, 3. It is in this context that the legislature enacted Section 4A. St. 1977, c. 730, §1. As originally enacted. Section 4A, as the amended Section 4, was to expire on June 30, 1979. St. 1977, c. 730, §2. See also St. 1977, c. 347, §3. In 1979, seven petitions were introduced in the House and Senate, some to repeal, some to amend, and some to affirm final and binding interest arbitration for police officers and firefighters. Once again, however. Section 4 was extended to June 30, 1983. St. 1979, c. 154, §2. Section 4A was reenacted, with amendments, and with no provision for its expiration. St. 1979. c. 154, §1. It is noteworthy that nowhere in Section 4A, as enacted both in 1977 and 1979, did the legislature provide that arbitration awards under that section are to be binding upon the legislative body of the municipality.^ This is the case notwithstanding that the legislature has expressly indicated both in Section 4 and G.L. c. 150E, §9,® the circumstances under which interest arbitration shall be "final and binding" upon the appropriate legislative body. In light of the legislative history of Section 4A, I must conclude that this omission was intentional. In reaching that conclusion, I am also guided by the fact that "there is a general policy favoring voluntary arbitration in the labor field"' and "an understandable attitude of wariness about arbitration forced on a party." School Committee of Boston v. Boston Teachers Union, supra. 372 Mass. at 612-13. Moreover, as the Supreme Judicial Court has noted elsewhere, the experimental nature of Section 4 reflected "the Legislature's caution and hesitation in prescribing arbitration as the uniform method for the resolution of labor *In 1977, sixteen bills were introduced in the House and Senate on the subject of binding "*'^':'°"_ f^"^';"? /I^ ^^^^^^^ views of the public on the issue. State employees, for example wanted the nght to bmd.ng '^«"' o". hu *f M««.hu«u^ Federation of Teachers proposed to prohibit .t. The Massachusetts League of Cues and Towns P;"P?«^f '''•''^™'™ '^ not be binding, while firefiVhters and policemen wanted to extend ,l beyond f/''P'"^''°" 'l?^J" '^ '7iX'''^'^7^'^^^^^ force recommended extending its expiration date for an additional two y^^^^assachuscUi E^p^nt of Uhorand '^"'^. Interim Report of the Governor's Tai Force on Chapter I50E and Impasse Procedures. Pub. No. 9I02-I4-35-8.7(hCR. .. 9 (Sep* 20, 1976). 5as orieinallv enacted Section 4A provided that •[cjxcept as provided herein, arbitrauon proceedings in nuiim over »1ikA (he cl^nSire^'i'ss^SrisdS'n shXbe conduced 'iJ acc'ordanje with the s.andarfs a^d P^-.sions o^s^ion 4 !>.. U^gu^ was included withiti the 1979 re-enactment, with two modifications, h *f '"^"f^^^. J, "'* ,P'^^?*^,„ ', ' ' * -determine the procedures to be followed in the arbitration proceeding and <he *o^* ,,fnia^ 1^ ^m^ .> read "standards provisions and limitations of said secuon four. G.vmg *'^ language ts ^» " »^ °^^'^„,;;' ._ V. CUef of Police of Nekton. ilA Mass. 450, 452 (1978), I '°"'^^^^^\^f^^'^^.t^'Za^^^^ u<nK.m,nt only the manner in which arbitration proceedings are to be conducted f'^doos not refer to the ^^'^°^»">' a«r trpol i as L result of these proceedings. This reading of the statute -"^^ '^""'^.^'^"l? f°' ™;';f,^rc Secuon 4 impliedly repealed the ^rtions of Section 4A which incorporated the lormer sututc b> rclcrtnce «See also G.L. c, 150E, §8, providing for binding grievance arbitration. 'For a discussion of policy implicaUons favoring non-mandatory arbitration in the public sector, sec D Bok ^ J Dunlop, Ubc and the American Community at 338 (1970). 132 P.D. 12 disputes." Director of Division of Employee Relations v. Labor Relations Commission, 370 Mass. 162, 169, n. 9 (1976). This "caution and hesitation" speaks against an enlargement of the terms of Section 4A to make arbitration awards binding on the legislative body of the affected municipality. See also Datatrol, Inc. v. State Purchasing Agent, Mass. Adv. Sh. (1980) 299, 320; Worcester v. Quinn, 304 Mass. 276, 280 (1939). I am thus of the opinion that to the extent that Section 4A grants the authority to refer disputes to the Board of Conciliation and Arbitration, the Committee may, of course, no longer refer disputes for purposes of mandatory "last best offer, final and binding arbitration" by the Board. Any such disputes referred to the Board are subject to voluntary "final and binding" arbitration in accordance with G.L. c. 150E, §9. Furthermore, even as to those cases pending on December 4, 1980, and over which it has exercised jurisdiction, the Committee is without authority in resolving those cases to utilize arbitration which is binding upon the legislative body of a city or town. The passage of Question 2 has, therefore, left the Committee with the continuing authority to arbitrate disputes between the bargaining agents for municipal police or firefighters and the executive officials of those municipalities, but has eliminated the binding effect of Committee awards on municipal legislative bodies. Very truly yours, FRANCIS X. BELLOTTI Attorney General