Summary of Decisions

A. JURISDICTION

(1) Federal Preemption

(2) Parallel Jurisdiction

(3) Primary Jurisdiction

(1) Federal Preemption

Under the doctrine of federal preemption, where there is a grant of power to the federal government in a field that requires a uniform system of regulation and the federal government has exercised that power, the states are barred from entering or regulating the field. Foley, Hoag & Elliot, 2 MLC 1302, 1303 (1976). In the field of labor relations, the National Labor Relations Act, 29 U.S.C. §151, et seq. (NLRA), covers private employers engaged in interstate commerce and, therefore, generally preempts any state labor relations law.

Section 2(2) of the NLRA, excludes, inter alia, states and other "political subdivisions" from coverage. Further, whether an entity is a "political subdivision" depends on federal, not state law. NLRB v. Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600, 77 LRRM 2348 (1971).

Section 14(c)(1) of the NLRA also permits the National Labor Relations Board to decline to assert jurisdiction over any class or category of employers "where, in the opinion of the [NLRB], the effect of such labor dispute on commerce is not sufficiently substantial to warrant the exercise of its jurisdiction." Pursuant to Section 14(c)(2) of the NLRA, where the NLRB has declined to assert jurisdiction pursuant to Section 14(c)(1), the Commission may assert jurisdiction under M.G.L. c.150A. See also, M.G.L. c.150A, §10(b); Operations and Maintenance Service, Inc. Westover Job Corps Center/G.E. v. Labor Relations Commission, 405 Mass 214 (1989). For example, the NLRB has declined to exercise jurisdiction pursuant to Section 14(c)(1) over the horseracing and dog racing industries. See, NLRB Rules and Regulations, Part 103.3. The NLRB has also declined jurisdiction over day care centers with less than $250,000 in gross annual revenues. See, e.g., Salt & Pepper Nursery School & Kindergarten No. 2, 222 NLRB 1295, 91 LRRM 1338 (1976). Accordingly, the Commission has jurisdiction over employers in those industries. See, Greater New Bedford Infant Toddler Center, 13 MLC 1620 (1987). However, the Commission will normally refrain from acting in any matter that is arguably within the jurisdiction of the NLRB until the NLRB has specifically declined to assert jurisdiction.

Whether the NLRB declines jurisdiction on the ground that the employer is a "political subdivision" or declines jurisdiction pursuant to Section 14(c)(1), the Commission will make its own determination about whether an entity is a "public employer" within the meaning of M.G.L. c.150E, §1. See, Franklin Institute of Boston, 12 MLC 1063 (1985)(NLRB's determination that entity was a "political subdivision" within the meaning of the NLRA not dispositive of Commission's consideration whether entity is a "public employer" within the meaning of M.G.L. c.150E, §1). For more information concerning whether a particular entity is a public or private employer, see paragraph B(1), below.

(2) Parallel Jurisdiction

The Commission and the Civil Service Commission have parallel jurisdiction in certain limited areas. The Civil Service Commission cannot act as a substitute for the Commission in cases where civil service employees allege a violation of M.G.L. c.150E. The Supreme Judicial Court has held that, whereas the Civil Service Commission vindicates a private right of a complaining employee, the Commission, although it does not initiate the action, acts as a public prosecutor to test a public right. Town of Dedham v. Labor Relations Commission, 365 Mass. 392 (1974). Therefore, even if the Civil Service Commission had previously found that a public employer had just cause for disciplining an employee, the Commission may examine the facts to determine whether the discipline was imposed in retaliation for the employee's participation in activities protected by M.G.L. c.150E. Board of Selectmen v. Labor Relations Commission, 16 Mass. App. Ct. 972 (1983); See also, Town of Dedham, 21 MLC 1014 (1994)(consent order entered into by employer and Massachusetts Commission Against Discrimination (MCAD) changing employee's seniority date does not deprive Labor Relations Commission of jurisdiction over claim by union that employer failed to bargain in good faith in violation of M.G.L. c.150E over impacts of consent order on members of bargaining unit); Newton School Committee, 8 MLC 1538 (1981)(Commission considers determination by Department of Employment and Training that laid off employees were entitled to receive unemployment compensation, but such evidence does not establish prima facie evidence that employees had mitigated their damages as required by M.G.L. c.150E). For a discussion of the effect that an arbitration proceeding or award may have on a Commission proceeding, see paragraph 11(2), below.

(3) Primary Jurisdiction

The doctrine of primary jurisdiction dictates that a court should normally defer action on a case when the subject matter of the case is within the jurisdiction and expertise of an administrative agency in order to permit the agency to first decide the case. In Leahy v. Local 1526, American Federation of State, County, and Municipal Employees, 399 Mass. 341 (1987), the Supreme Judicial Court held that breach of the duty of fair representation was a prohibited practice and that, consequently, cases raising the duty of fair representation should normally be decided by the Commission in the first instance. See also, Johnston v. School Committee of Watertown, 404 Mass. 23 (1989)(where there are genuine issues of material fact requiring the Commission's expertise, Commission has primary jurisdiction over labor dispute involving union's duty of fair representation); Ash v. Police Commissioner of Boston, 11 Mass. App. Ct. 650 (1981)(plaintiff's action alleging anti-union discrimination dismissed because claim was within the Commission's prohibited practice jurisdiction and plaintiff had not pursued claim before the Commission). For a discussion about a union's duty of fair representation, see paragraph F(2)(a)(2). For a discussion about discrimination or retaliation on the basis of membership on an employee organization or for engaging in other protected activities, see, paragraph F(1)(3). The Court has also held that, because a union's assessment of an agency service fee in excess of the amount legally permitted by M.G.L. c.150E, §12 is a prohibited practice, those claims are within the Commission's primary jurisdiction. School Committee of Greenfield v. Greenfield Education Association, 385 Mass. 70 (1982).