Leahy v. Local 1526, American Federation of State, County, & Municipal Employees , 399 Mass. 341 ( 1987 )

Lynch, J.

(concurring). I concur in the result reached by the court but disagree with the court’s conclusion that claims concerning the duty of fair representation invoke the primary jurisdiction of the Labor Relations Commission (commission).

The opinion acknowledges that to date no decision of this court has established primary jurisdiction in the commission in fair representation cases. Indeed, the court professes to recognize “Federal and State precedent indicating that the courts had concurrent jurisdiction over cases concerning the duty of fair representation.” Ante at 351. Yet the court nonetheless states that primary jurisdiction normally rests in the commission, citing East Chop Tennis Club v. Massachusetts Comm’n Against Discrimination, 364 Mass. 444 (1973).

We have said that the doctrine of primary jurisdiction is particularly applicable “when the issue in litigation involves ‘technical questions of fact uniquely within the expertise and experience of an agency.’ Nader v. Allegheny Airlines, Inc., [426 U.S. 290, 304 (1976)].” Murphy v. Administrator of the Div. of Personnel Admin., 311 Mass. 217, 221 (1979). See generally 5 B.J. Mezines, J.A. Stein & J. Gruff, Administrative Law § 47.02 (1985).

The doctrine is also applied to achieve uniformity and consistency in the application of an agency’s regulations. Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879 (1984). Such is the case where an agency has been given responsibility for the application of uniform rate schedules, for example, where “there exists a danger that the courts will reach inconsistent results on a case by case basis, and the desired uniformity will be jeopardized.” 5 B.J. Mezines, J.A. Stein & J. Gruff, supra, § 47.02, at 47-6. See, e.g., Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907). I believe that neither concern for uniformity nor deference to agency expertise is applicable to duty of fair representation cases. The commission’s role in duty of fair representation cases does not implicate the concerns for uniformity that arise in regulatory or rate setting areas. Neither is “the expert and specialized knowledge of the agencies involved.” United States v. Western Pac. R.R., 352 U.S. 59, 64 (1956). See Far East Conference v. United States, 342 U.S. 570 (1952). Where the plaintiff complains of a breach of the duty of fair representation, I do not view the commission as possessing any particular expertise or exercising administrative discretion. Here we are not faced with the “highly complex, technical, and intricate questions” normally required to confer primary jurisdiction on an agency. A.J. Cella, Administrative Law and Practice § 1724, at 285 (1986).

In sum, I do not agree that the case for primary jurisdiction has been demonstrated particularly to the extent it requires deferral to the expertise of the commission. Instead, I would adopt the position of the Federal courts which have rejected application of the primary jurisdiction doctrine to duty of fair representation claims under the Federal statute. See Vaca v. Sipes, 386 U.S. 171 (1967).