Worcester Industrial Technical Institute Instructors Ass'n v. Labor Relations Commission

*119 Reardon, J. This case comes before this court upon appeal from a final decree of a judge of the Superior Court dismissing a petition for judicial review of certain determinations by the appellee Labor Relations Commission (Commission) under G. L. c. 149, §§ 178G-178N. The petition was brought under G. L. c. 30A, § 14, by the appellant Worcester Industrial Technical Institute Instructors Association Incorporated to challenge a “Decision” and direction of election by the Commission. The appellant also appealed from an interlocutory decree sustaining the Commission’s demurrer to the petition. The proceedings held before the Commissi on disclose the following. On May 2, 1967, the Worcester Vocational Teachers Association, which is an appellee here, filed a petition with the Commission under G. L. c. 149, §§ 178G-178N, seeking certification as the collective bargaining representative of certain day schoolteachers employed at three Worcester vocational schools by the Worcester Vocational School Department and numbering approximately 120. This association contended that the 120 teachers at the three schools constituted an appropriate collective bargaining unit. The appellant, as an intervener in the proceedings before the Commission, proposed that a second and separate unit of sixteen teachers, limited solely to teachers at one of the schools, be carved out of the 120. A third and separate unit of nineteen teachers was similarly proposed for teachers of academic subjects in another school. These proposals were based on the argument that the teachers represented by the interveners were “professional employee[s]” within the meaning of G. L. c. 149, § 178G, and should therefore be entitled to separation under G. L. c. 149, § 178H (4), 1 from those of the 120 teachers who were not professional employees. *120 At the conclusion of the hearing the Commission found as a fact that the teaching personnel of the Worcester Vocational School Department are professional employees and also employees certified by the Commonwealth of Massachusetts. It also found that they have a mutuality of interests in the teaching and instruction of students and in the use of the same facilities and are subject to the same overall supervision and attendance at common faculty meetings. The Commission concluded there was “no compelling reason for separating these employees into two small units, one of sixteen employees, and the other of nineteen employees,” and that the appropriate bargaining unit should comprise all of the professional day schoolteachers with certain relevant exclusions. It directed an election in which a ballot might offer a choice to a majority of the employees between the appellant, the appellee association, and a second intervening group, or no organization at all. General Laws c. 30A, § 14, provides for judicial review of a “final decision of any agency in an adjudicatory proceeding.” A commission decision and order for an election has been held not to be a final decision in an adjudicatory proceeding subject to judicial review. City Manager of Medford v. State Labor Relations Commn. 353 Mass. 519, 522-523, and cases cited. See Jordan Marsh Co. v. Labor Relations Commn. 312 Mass. 597, 602. In ordinary cases judicial review of certification issues may take place only after there has been a commission decision based upon an unfair labor practice. Then the entire proceeding, including certification, is open to judicial review. City Manager of Medford v. State Labor Relations Commn., supra, at p. 522-523. Extraordinary circumstances making certification questions of vital significance may permit other avenues of review. City Manager of Medford v. State Labor Relations Commn., supra, at p. 522. There appear to be no extraordinary circumstances in the instant case. The parties must first exhaust their other available remedies before they resort to judicial review. Under G. L. c. 149, § 178L, the municipal employer is prohibited from “(1) interfering with, restraining or *121 coercing employees in the exercise of the rights guaranteed in” § 178H. One of these rights is that “no unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit.” G. L. c. 149, § 178H (4). If the Commission’s decision has resulted in a prohibited practice there are courses open to the appellant before the Commission following which, and after denial of complaint, judicial review might properly take place. See City Manager of Medford v. State Labor Relations Commn., supra, at p. 523. However, the present petition of the appellant is premature and the order must be Interlocutory and final decrees affirmed. Footnotes [1] “The commission shall decide in each case whether the appropriate unit for purposes of collective bargaining shall be the municipal employer unit or any other unit thereof; provided, uniformed employees of the fire department shall be in a separate unit; and provided, further, that no unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit.”