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July 3, 1978


Middlesex. Civil actions commenced in the Superior Court on January 14, 1977, and March 15, 1977, respectively. The cases were consolidated and were heard by Cratsley, J., a District Court Judge sitting under statutory authority. After review was sought in the Appeals Court, the Supreme Judicial court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.


Arbitration. Labor. Contract, Collective bargaining contract. Municipal Corporations, Collective bargaining.

The opinion of the court was delivered by: Kaplan

Even though a proposal as to "minimum manning" was outside the field of mandatory bargaining between firefighters and a city and was improperly included in the firefighters' offer in a "last and best offer" arbitration and in the arbitration panel's award, there was sufficient evidence in an action to enforce the award under St. 1973, c. 1078, § 4, to warrant findings that separation of the "minimum manning" provision could be accomplished without doing an inJustice and that the valid portion of the award was enforceable. [595-600]

Upon appeal from a judgment enforcing a "last and best offer" award under St. 1973, c. 1078, § 4, this court looked to evidence supporting the award as a whole and would not search for supporting evidence item by item. [600]

Attempting to reach agreement on the terms of a labor contract covering the municipal firefighters for a period commencing July 1, 1975, Local 1714 of the International Association of Firefighters, AFL-CIO (union) and the city of Marlborough went through the steps described in G. L. c. 150E, § 9 (labor relations: public employees; impasse procedure), which eventuated in an "impasse" and the appointment by the Board of Conciliation and Arbitration of a "fact finder" to resolve it. The fact finder pursuant to § 9 made findings and recommendations on April 25, 1976, but the impasse continued. The union then, availing itself of St. 1973, c. 1078, § 4 (legislation applicable to firefighters and police officers), petitioned the board to make an investigation. This led to the appointment of a three-member "arbitration panel" to conduct a "last and best offer" arbitration. *fn2

Under the § 4 procedure the panel held hearings at which it received oral and documentary evidence and heard argument. At the Conclusion of the hearings each party submitted a written statement containing its "last and best offer for each of the issues in dispute." The panel was empowered at this point to remand the dispute to the parties for further collective bargaining, but it did not do so. Instead, after consideration, in which it was charged by the statute with giving weight to ten stated factors, the panel proceeded, as required, to select one of the two offers: it was not authorized by the statute to propose a solution of its own but had to choose between the submissions of the parties. On December 15, 1976, a majority of the panel chose the union's offer. This under the law became the award, "final and binding upon the parties and upon the appropriate legislative body." Although not required by the terms of the statute as it then stood, *fn3 the panel through its chairman wrote an opinion justifying its choice.

The city, dissatisfied with the panel's Disposition, commenced an action in the Superior Court on January 14, 1977, based evidently on the theory that judicial review was available under the State Administrative Procedure Act (G. L. c. 30A, § 14). Later it moved to amend its complaint into the form of a petition for certiorari. Meanwhile the union on March 15, 1977, initiated an enforcement action under a provision of § 4, "Any determination or decision of the arbitration panel if supported by material and substantive [ sic ] evidence on the whole record shall be binding upon the parties and may be enforced at the instance of either party or of the arbitration panel in the superior court in equity." The union moved to consolidate the two actions; the city agreed; and the whole matter was heard by a Judge in the Superior Court on the pleadings and a substantial record. The Judge held that the only proper mode of review was by the action to enforce; accordingly, he denied the city's motion to amend its complaint and dismissed its action. On the merits, the Judge held that a part of the award (corresponding to a part of the union's offer) must be struck as matter of law, but the rest comported with the standard of review as quoted above, and was to be enforced. From the ensuing judgment, entered August 8, 1977, the city appealed. We granted direct appellate review.

1. Among the items in the union's compendious offer were proposals as to "minimum manning" (the number of firefighters on duty on a tour or shift) and the use of call men (reserve civilians working part time). The city had taken the position that these topics were within the managerial prerogative and not properly part of an offer under § 4. On the other hand, the union contended that the matters bore such a relation to safety, working conditions, and so forth -- statutory "factors" -- as to be not only "mandatory" subjects of collective bargaining but also proper elements of a § 4 offer. The fact finder and the panel appeared to agree. However the Judge below thought "last and best offer" arbitration was confined to the field of mandatory bargaining, and the manning topic lay outside. *fn4 We have no occasion to examine the question, as the parties now go on the assumption that the manning item was improperly included in the offer and thus in the award.

So the question arose as to the effect of the partial invalidity of the award. The city thought the entire award must be denied enforcement; but if selective (or partial) enforcement would ever be justifiable it was not so here; and if the union's offer was not enforceable, it followed, according to the argument, that the city's offer must fall into place as the sole acceptable last and best offer and therefore as the award. The union reasoned that severance was reasonable and appropriate here; and it went on to make the more extreme suggestion that in all cases of partial invalidity the party whose offer had been selected by the panel should have the right to decide whether to accept severance or claim vacation of the entire award.

The Judge analyzed the particular situation and concluded that separation could be accomplished, as he said, "without doing an inJustice"; the "valid" part of the award -- the bulk of it -- was supported by the evidence under the standard of § 4, and should be enforced. We agree with the Judge's approach and with the result.

We note that there are plenty of cases of grievance arbitration under labor contracts and of other staple arbitrations where courts have severed portions of awards thought to exceed the arbitrators' powers and have ordered enforcement of the rest. See, e.g., Enterprise Wheel & Car Corp. v. United Steelworkers, 269 F.2d 327 (4th Cir. 1959), rev'd in part on other grounds, 363 U.S. 593 (1960); Swift Indus., Inc. v. Botany Indus., Inc., 325 F. Supp. 577 (W.D. Pa. 1971), aff'd, 466 F.2d 1125 (3d Cir. 1972); Nuest v. Westinghouse Air Brake Co., 313 F. Supp. 1228 (S.D. Ill. 1970). This court has held in grievance arbitrations that reinstatement of the employee, being illegal, should be struck; but the remaining terms of the awards were enforced. School Comm. of Braintree v. Raymond, 369 Mass. 686, 691 (1976). Doherty v. School Comm. of Boston, 363 Mass. 885 (1973). Quite close to the present case is an instance where severance was applied in the review of an "interest" arbitration, the type in which the arbitrator by his award formulates part or all of a labor agreement to come into force between the parties. *fn5 See East Providence v. Local 850, Int'l Ass'n of Firefighters, 117 R.I. 329 (1976). *fn6 See also Ulene v. Murray Millman of Cal., Inc., 175 Cal. App. 2d 655 (1959); Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606 (1954), cert. denied, 348 U.S. 959 (1955).

Perhaps we find an approximation to the basic idea about severance in the observation of the Court in an old case, McCormick v. Gray, 54 U.S. (13 How.) 26, 39 (1851), that, where part of an award could not be enforced because of mistake of the arbitrator, the remainder "allowed to stand should appear to be in no way affected by the departure." We may surmise that the "affectation" that would call for vacation of the entire award could come about because of a functional relationship between the legal and illegal parts such that execution of one without the other would produce an untoward or unworkable result. So also the whole award ...

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