Court Ruling — C.D. Cal, 2025 #10748086

School Committee of Boston vs. Labor Relations Commission; Boston Public School Buildings Custodians’ Association, intervener. No. 94-P-1931. Suffolk. February 15, 1996. April 24, 1996. Present: Armstrong, Gillerman, & Ireland, JJ. Administrative Law, Judicial review. Labor Relations Commission. Labor, Unfair labor practice, Discharge for union activity. School and School Committee, Custodian, Termination of employment. Substantial evidence, including circumstantial evidence, supported the conclusion of the Labor Relations Commission that a union had made out a prima facie case that an employer had violated G. L. c. 150E, § 10 (a) (1) and (3), by laying off certain provisional and temporary employees in order to interfere with the employees’ right to vote in an election to determine whether they would be added to the bargaining unit. [330-332] On appeal from a decision of the Labor Relations Commission, the employer did not demonstrate that the commission was incorrect as matter of law in concluding that the employer failed to meet its burden of producing some evidence that its motive for laying off certain employees was nondiscriminatory. [332-336] Appeal from a decision of the Labor Relations Commission. Malcolm S. Medley, Special Assistant Corporation Counsel, for School Committee of Boston. John B. Cochran for Labor Relations Commission. Matthew E. Dwyer & John P. Sheridan, for Boston Public School Buildings Custodians’ Association, submitted a brief. The Labor Relations Commission is the appellee on appeal. However, the Boston Public School Buildings Custodians’ Association was the charging party before the commission; they appear in these appellate proceedings as an intervener, and they have filed a brief in support of the decision of the commission. Gillerman, J. On June 25, 1992, the school committee of the city of Boston (school committee) notified thirty-nine provisional and temporary custodians (custodians) that they were being laid off effective June 30, 1992. The Boston Public School Building Custodians’ Association (union) filed charges with the Labor Relations Commission (commission) that the school committee had violated G. L. c. 150E, § 10(a)(1), (3) and (5), by laying off the custodians in order to interfere with their right to vote in a scheduled add-on election which was to be ordered on July 3, 1992. After an investigation, the commission issued a complaint alleging that the school committee had violated § 10(a)(1) and (3). Thereafter, a hearing officer conducted evidentiary hearings and issued her recommended findings of fact. Subsequently, on the basis of the evidence at the hearings and the hearing officer’s recommended findings, the commission made its findings of fact and issued its opinion that the school committee had violated § 10(a)(1) and (3) “by laying off the thirty-nine temporary and provisional custodians in retaliation for engaging in concerted, protected activity . . . .” The school committee appealed the decision of the commission to this court. We review the commission’s findings of fact in accordance with the standards set out in the State Administrative Procedure Act. See G. L. 150A, § 6(e), (f), incorporating G. L. c. 30A. We must affirm the commission’s findings unless they are unsupported by substantial evidence. G. L. c. 30A, § 14(7). “Substantial evidence” is evidence that “a reasonable mind might accept as adequate to support a conclusion.” G. L. c. 30A, § 1(6), inserted by St. 1954, c. 681, § 1. See Trustees of Forbes Library v. Labor Relations Commn., 384 Mass. 559, 568 (1981). However, we are “free to examine the legal standards employed by the commission.” Ibid. We conclude that there was substantial evidence in the record to support the commission’s findings and that the commission employed the appropriate legal standards; thus, we affirm. The commission identified the elements that the union, in the first instance, must establish in order to make its required prima facie showing that the school committee unlawfully discriminated against the custodians, namely: (1) that the custodians were engaged in protected concerted activities; (2) that the school committee knew of these activities; (3) that the school committee took adverse action against the custodians; and (4) that the adverse action was motivated by the school committee’s desire to penalize or discourage the protected activity. If the union does make out its prima facie case including the employer’s unlawful motive, the school committee then has the responsibility to come forward with “a lawful reason for its decision and [to] produce supporting facts indicating that this reason was actually a motive in the decision.” Trustees of Forbes Library, supra at 566. The “supporting facts” must include “ ‘credible evidence . . . [which] show[s] that the reason or reasons advanced were the real reasons.’ ” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass 437, 442 (1995), quoting from Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976). If the reason given “has no reasonable support in the evidence or is wholly disbelieved (and hence is transparently a pretext), the employee should prevail.” Wheelock College, supra at 138. See Blare, supra at 442 (“If the defendant fails to meet its burden, . . . then the presumption created by the preponderance of evidence supporting a prima facie case entitles plaintiff to judgment”). If the school committee satisfies its responsibility, the union must then persuade the commission that the discharge would not have occurred but for the committee’s motive to interfere with the right of the custodians to vote in the forthcoming add-on election. The burden of persuasion before the commission always remains with the union (or employee). Trustees of Forbes Library, supra at 566. However, as the party challenging the commission’s decision on appeal, the school committee “has the burden of showing that the commission’s action was invalid.” Quincy City Hosp. v. Labor Relations Commn., 400 Mass. 745, 749 (1987). 1. The union’s prima facie case. The school committee first argues that the union failed to make out a prima facie case of unlawful discrimination. The first three elements of the union’s prima facie case are not in dispute: the employees were engaged in a protected activity — the attempt to participate in an election regarding a bargaining unit; the school committee knew of that activity; and the school committee, by terminating the custodians, obviously took action adverse to the interests of the custodians. See note 5, supra. From these undisputed facts, and from the additional facts described below, the commission drew the inference of the school committee’s unlawful discrimination. In August, 1991, the parties were unable to agree on the scope of the bargaining unit for custodians and the impending add-on election. On August 21, 1991, the union filed a charge of a prohibited practice with the commission, alleging that the school committee had refused to apply the provisions of the collective bargaining agreement to the custodians, and had refused to recognize the union as their bargaining agent. The commission responded that it would investigate the charges, but not until March 13, 1992. Meanwhile, between January and April, 1992, the union and the school committee met about six times to discuss the impact of a required reduction of $345,000 in the custodial budget for fiscal 1992. After the union rejected a proposal to lay off all the custodians for the remainder of the 1992 fiscal year, the parties signed a comprehensive settlement agreement dated April 23, 1992, regarding a custodial budget reduction of $345,000. In brief, the parties agreed that the reduction would be achieved by requiring all the custodians (permanent, temporary, and provisional) to accept two days furlough (no work-no pay). On March 30, 1992, while these discussions were on-going, the union filed a representation petition to “add-on” the provisional and temporary custodians to the existing custodial bargaining unit. The union then withdrew its previously filed prohibited practices charge on April 15, 1992. On May 13, 1992, the school committee and the union met to discuss the representation petition. While the school committee agreed that the thirty-nine custodians would be eligible to vote in the add-on election, they would not agree that later hired temporary custodians should be included in the bargaining unit. The meeting ended without any agreement and, on May 29, 1992, the hearing officer, as we have previously stated, notified the parties in writing that on July 3, 1992, she would order an add-on election. See note 3, supra. Regarding the period immediately prior to the discharge notice, the commission found that, “[a]t no time, from May 13, 1992, [when the parties last met and were unable to reach an agreement] until June 25, 1992 [when the school committee notified the custodians of the termination of their employment] did the school committee or its representative raise the possibility that the thirty-nine custodians who were the subject of the up-coming hearing and add-on election would be laid-off,” and that this was so even though the school committee was then working on the 1992 budget deficit, anticipating only level funding for fiscal year 1993. A representative of the school committee who attended the May 13 meeting explained that while he knew that consideration was being given to possible layoffs of custodians for fiscal year 1993 as part of the effort to meet the anticipated level funding for fiscal year 1993, he said nothing because he did not have any definite information about those plans. While the foregoing evidence demonstrated that the decision to discharge the custodians must have occurred sometime between May 13 and June 25, the commission found, there was “no evidence that any intervening event triggered the school committee’s action.” In that context, the fact that the termination notice of Juné 25 was only a few days before the add-on election was to be ordered (July 3), was an especially telling event, and the commission was justified in concluding, on the first phase of the case, that there was sufficient circumstantial evidence of the antiunion animus to sustain the union’s prima facie case and thereby warrant a presumption of unlawful discrimination. 2. The response of the school committee. The commission then considered the school committee’s proffered reason for the layoffs. The school committee asserted that the discharge of the custodians was motivated by budgetary decisions — a proffer of a facially lawful reason. It was the responsibility of the school committee then to “produce supporting facts indicating that . . . [the proffered] reason was actually a motive in the decision.” Trustees of Forbes Library, supra at 566. As noted above, the “supporting facts” must include “credible evidence” that the proffered reason was the real reason. Wheelock College, 371 Mass. at 138. Having in mind that the school committee has the burden in this court of showing that the commission’s decision was invalid, we look first to the school committee’s recitation of its evidence of “supporting facts” offered in substantiation of the proffered reason for the layoff. The school committee’s evidence showed that beginning in February, 1992, the school committee and the superintendent began the budgetary process for the 1993 fiscal year which would begin July 1, 1992. In fiscal year 1992, the school department had exceeded its budget by $16 million, requiring an additional appropriation, the two-day furlough plan, and other reductions in expenditures. The target fiscal year 1993 budget received from city administration was the same as that originally received for the 1992 fiscal year, $378.5 million, and the directive to the school committee was that the fiscal year 1993 budget should be consistent with that level of appropriations. As part of the effort to achieve that result, the school committee, in February, 1992, first projected a cut in custodial staff of sixty-two positions for fiscal year 1993; in April, the projected cut rose to eighty-five, and then to eighty-seven in June, 1992. In July, 1992, the projected cut fell to sixty-six. As noted earlier, the layoff notices for the thirty-nine custodians were sent June 25, 1992. No other custodians were laid off, nor was there any evidence that there were budget reductions in any other of the areas of custodial administration. From these facts, the school committee argues that “simple math” required the school committee to reduce its spending, and “[wjhile a reduction of up to eighty-seven custodians was projected, the school committee massaged the budget such that only provisional and temporary custodians were laid off.” In short, the school committee argues that it had sustained its stage two burden before the commission. The commission’s opinion acknowledged that the evidence just described established that the school committee faced a declining budget for custodial operations. The difficulty, the commission said, was the failure of the school committee to introduce evidence on “certain critical issues. . . [including] the identity of the decision-maker, the date or time frame in which the decision was made, the rationale for laying off only the custodians scheduled to vote in the upcoming elections when the . . . [draft budgets] documented the necessity of reductions in staff in other positions, and an explanation for the silence at the May 13th meeting concerning even the possibility of laying off any custodians, including all of the voters under consideration. Nor did the committee produce evidence demonstrating that layoffs or budget reductions occurred in other areas of the school system ... at the same time as the custodial layoffs.” (Emphasis in original.) From these observations the commission concluded that while such evidence from the school committee could have established a nexus between the prevailing economic conditions and the layoffs, the failure to present such evidence left the school committee only with the argument that the commission “should infer a causal relationship between the fiscal constraints and the layoff from the fact that the two events occurred in the same time period,” leaving the commission, in turn, with the speculation that the layoffs merely “happened to coincide with the exact scope of the bargaining unit at issue.” On that basis, the commission concluded that the school committee had failed to produce evidence rebutting the presumption of discrimination created by the union’s prima facie case. The school committee argues that by analyzing the evidence as it did, the commission misapplied the procedure mandated by Trustees of Forbes Library, supra at 566, namely, that the commission effectively, and erroneously, switched the burden of persuasion from the union to the school committee. It is most assuredly true that the school committee’s burden at stage two was limited to articulating nondiscriminatory layoffs. Nevertheless, “ ‘articulating’ a reason in cases of this kind requires the employer to produce not only evidence of the reason for its action but also underlying facts in support of that reason.” Wheelock College, 371 Mass. at 136. Part of that burden on the employer is to “produce supporting facts indicating that this reason was actually a motive in the decision.” Trustees of Forbes Library, 384 Mass. at 566. The commission decided that this is precisely where the school committee’s proof failed: it presented no direct evidence of the particular decision-making process — who the decision-maker was, and why or when the decision-maker made the layoff decision. See note 12, supra. Rather, the school committee depended entirely upon the argument that the commission should infer from circumstantial evidence that budgetary considerations were the motivation for the decision. Whether or not an inference — in this case, a decisive inference — is to be drawn depends on the connection between two facts “in light of common experience.” Liacos, Massachusetts Evidence § 5.8.6, at 243 (6th ed. 1994). Here the commission declined to draw the inference sought by the school committee. In substance the commission concluded that the school committee’s suggested reason of budgetary considerations, unaccompanied by evidence that it was in fact a reason for the decision, failed to satisfy the school committee’s burden at stage two of the established analysis. The commission concluded, in other words, that the school committee’s suggestions that the layoffs were the result of budgetary considerations, and that it was innocefttly coincidental that the layoffs affected only those custodians about to participate in a representation election, and occurred, without warning or discussion (contrary to recent practice) immediately before the election, was simply inadequate to rebut the union’s prima facie case. That is not a switching of the burden of persuasion, as the school committee argues; it is an experienced calculation of whether the school committee carried its stage two burden of producing credible evidence in support of its position. We must, in a case significantly devoid of direct evidence of the primary facts involved in this controversy, defer to the judgment of the commission because it is “presumably equipped or informed by experience to deal with a specialized field of knowledge, [and its] findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.” School Comm. of E. Brookfield v. Labor Relations Commn., 16 Mass. App. Ct. 46, 52 (1983), quoting from Universal Camera Corp., v. National Labor Relations Bd., 340 U.S. 474, 488 (1951). See also Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991) (“We generally accord considerable deference to the commission’s disposition of a charge”). We conclude, therefore, that the commission is not shown to have been incorrect as matter of law in concluding that the school committee failed to meet its burden of producing some evidence that its motivation for the layoffs was budgetary. The commission’s decision is affirmed. So ordered. Provisional and temporary custodians are not hired or appointed from a civil service list. The civil service law does draw distinctions between the two categories, but those differences have no relevance to this case. The purpose of the “add-on election” was to determine whether the temporary and provisional custodians wanted to be added to the custodial bargaining unit. The hearing officer to whom the charges had been assigned had notified the parties on May 29, 1992, that the add-on election would be ordered on July 3, 1992, unless the school committee presented evidence to the hearing officer that the custodians ought not to be added on to the existing bargaining unit. It does not appear from the record that such evidence was presented to the hearing officer by June 25, 1992, the date the custodians were notified of their discharge. Section 10(a)(1) makes it a “prohibited practice” in public employee labor relations to interfere, restrain, or coerce any employee in the exercise of any right guaranteed under G. L. c. 150E. Section 10(a)(3) makes it a “prohibited practice” to discriminate in regard to any term or condition of employment in order to encourage or discourage membership in any employee organization. The elements of a prima facie case in an unfair labor practices case ordinarily include evidence that (1) the employee generally had a good work record; (2) that the employee had engaged in protected activities; and (3) that these activities were visible to the employer. See Trustees of Forbes Library, supra at 565 n.4. The fourth element referred to in the commission’s opini

Willie Bynes, Jr., & another vs. School Committee of Boston & others. Suffolk. October 8, 1991. November 21, 1991. Present: Liacos, C.J.. Wilkins. Nolan. Lynch. & Greaney. JJ. School and School Committee, Transportation of students. Criminal Offender Record Information. Anti-Discrimination Law, Employee, Termination of employment. Statute, Construction. General Laws c. 15IB, § 4 (9), prohibiting employers from requesting certain criminal record information from employees and potential employees does not prohibit employers from requesting such information from other sources. [266-269] A school committee that requested Criminal Offender Record Information (CORI) from the Criminal History Systems Board did not violate G. L. c. 6, § 172, when it received and used certain CORI that was not requested or authorized by the school committee’s certification under the statute. [270-271] Civil action commenced in the Superior Court Department on January 21, 1987. The case was heard by Barbara J. Rouse, J. The Supreme Judicial Court granted a request for direct appellate review. Harold L. Lichten for the plaintiffs. Stephanie S. Lovell, Special Assistant Corporation Counsel, for School Committee of Boston & another. E. Susan Garsh for National School Bus Service, Inc. Joan S. Dyott. National School Bus Service, Inc., and the superintendent of the Boston public schools. Nolan, J. The plaintiffs, Willie Bynes, Jr., and Joan Dyott, commenced this action against the defendants who terminated their employment as school bus drivers in the city of Boston because of their criminal records. They are appealing from a judgment of the Superior Court which determined, inter alia, that the defendants had not violated G. L. c. 151B, § 4 (9) (1990 ed.), and G. L. c. 6, § 172 (1990 ed.), in discharging the plaintiffs. This court granted the plaintiffs’ application for direct appellate review. We affirm the judgment. The school committee of Boston (school committee) provides bus transportation for approximately 25,000 Boston public school students through vendor contracts with private companies. Pursuant to such a contract, ARA Transportation, Inc. (ARA), provided school bus services from 1978 through the end of the 1984-1985 school year. In September of 1985, National School Bus Service, Inc. (National), succeeded ARA and undertook the transportation of the students through a vendor contract with the school committee. As part of the school committee’s contract with both ARA and National, it had “the right to reject... at any time prior to or during employment, any person deemed ... to be unfit for such employment.” In early 1985, as a result of the concerns of certain members of the school committee about the past criminal records of school bus drivers, school department staff requested the Criminal History Systems Board (board) to conduct background investigations on all Boston public school bus drivers pursuant to the Criminal Offenders Record Information (CORI) Act, G. L. c. 6, §§ 167-172 (1990 ed.). In accordance with the provisions of G. L. c. 6, § 172 (c), the board certified the school committee for access to criminal record information pertaining to convictions of individuals seeking employment or employed as school bus drivers. The board, consistent with its responsibility under G. L. c. 6, §§ 168, 171, reviews criminal records before releasing them to determine that only relevant information is released. Pursuant to the committee’s certification, school department staff requested CORI on the bus drivers by stating: “I request that you furnish me with CORI on each of the drivers.” Bynes and Dyott had been school bus drivers since 1978 and 1977, respectively, until their dismissals in 1985. The board sent the school committee information which indicated that Bynes had a 1972 conviction for assault by means of a dangerous weapon and a 1983 charge for assault and battery by means of a dangerous weapon. The 1983 charge was dismissed in 1984 after Bynes paid court costs and restitution to the victim, his wife. The information that the board sent to the school committee also indicated that Dyott was arrested and convicted in 1975 for possession of a controlled substance, marihuana, with intent to distribute, for which she received a suspended sentence and was placed on probation. On or about May 24, 1985, pursuant to the contract between the school committee and ARA, the school committee directed ARA to discharge twelve bus drivers, including Bynes. On June 20, 1985, the school committee promulgated a mandatory disqualification regulation, which was incorporated into the contract between the school committee and National, as well as the collective bargaining agreement between National and the bus drivers’ union. The regulation provided, in relevant part, that an individual would not be eligible for employment as a school bus driver if he or she either had been convicted at any time of possession with intent to distribute a controlled substance or had been convicted of a violent felony within the past five years. As a result of this policy, on August 23, 1985, the school committee instructed National not to hire certain drivers, including Bynes and Dyott, and National complied with the school committee’s instructions. Although the plaintiffs’ lawsuit initially contained four counts, their appeal concerns only their claims under G. L. c. 151B, § 4 (9), and c. 6, § 172, as to which judgment entered for the defendants. 1. G. L. c. 151B, § 4 (9) claim. The plaintiffs argue that the Superior Court judge misinterpreted G. L. c. 15IB, § 4 (9), by failing to give it its plain meaning and also by failing to construe § 4 (9) in light of G. L. c. 6, § 172. The plain- tiffs first contend that § 4 (9) bans all requests by an employer. for the prohibited information from any source. The plaintiffs assert, therefore, that both dismissals violated § 4 (9), because the requested CORI on Bynes included an arrest without a conviction, and the information on Dyott included a misdemeanor conviction more than five years prior to the request. Additionally, the plaintiffs argue that, in order to read c. 15IB, § 4 (9), and c. 6, § 172, harmoniously, an employer should be limited in seeking CORI to that which the employer can seek under § 4 (9). We disagree with the plaintiffs’ interpretation of § 4 (9) for a variety of reasons. The plain language of the statute rebuts the plaintiffs’ contention. “It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.” Massachusetts Community College Council v. Labor Relations Comm’n, 402 Mass. 352, 354 (1988), quoting James J. Welch & Co. v. Deputy Comm’r of Capital Planning & Operations, 387 Mass. 662, 667 (1982). If we were to read the phrase in § 4 (9) (“to request any information”) as broadly as the plaintiffs read that phrase, to apply to any request from any source, we would render the subsequent phrase “to use any form of application or application blank which requests such information” superfluous." Surely the plaintiffs’ interpretation of “request any information” would include such requests on application forms. It is another elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous. Globe Newspaper Co. v. Commissioner of Revenue, 410 Mass. 188, 192 (1991). International Org. of Masters, Mates & Pilots v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth., 392 Mass. 811, 813 (1984). The Legislature’s intent was merely to protect employees from such requests from their employers and not to proscribe employers from seeking such information elsewhere. The legislative history of § 4 (9) supports this interpretation. See Quincy City Hosp. v. Rate Setting Comm’n, 406 Mass. 431, 443 (1990) (“Statutes are to be interpreted not based solely on simple, strict meaning of words, but in connection with their development and history, and with the history of the times and prior legislation”). As originally enacted, G. L. c. 151B, § 4 (9), inserted by St. 1969, c. 314, and as amended by St. 1972, c. 428, prohibited discrimination against employees or applicants who failed to furnish certain criminal history information, and it also placed restrictions on application forms. The relevant change in the 1974 revision of § 4 (9) prohibited requests for this information and the maintenance of records including this information. St. 1974, c. 531. The Superior Court judge’s reading of § 4 (9), as amended, that it is limited to an employer’s request for information from an employee or prospective employee, is consistent with the original purpose of the statute, which was to protect employees from discrimination for their failure to provide their employers with restricted criminal history information. Nothing indicates that the Legislature intended that the limited provisions of the 1974 version of § 4 (9) would have the broad reach envisioned by the plaintiffs. The plaintiffs’ interpretation of § 4 (9) would turn that limited prohibition against an employer’s request to an employee or prospective employee into a general prohibition against an employer’s use of such information. If that were the Legislature’s intent, surely the Legislature might have utilized the broader anti-discrimination language already utilized in G. L. c. 151B, § 4 (1) (1990 ed.), concerning employment discrimination, or even might have just amended § 4 (1) to include the protections envisioned by the plaintiffs'. The Massachusetts Commission Against Discrimination (commission), the agency responsible for enforcing c. 151B, has also construed the protection afforded by § 4 (9) to be “quite narrow in scope” and “directed primarily at the preemployment inquiry, particularly the application form.” McGowan v. Stoneham Police Dep’t, 6 M.D.L.R. 1639, 1648 (1984), quoting LeBoeuf v. Lodding Eng’g, 2 M.D.L.R. 1381, 1383 (1980). The commission’s interpretation of its governing statute is entitled to substantial deference. Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 204 (1981). In McGowan, the commission specifically upheld a hearing commissioner’s determination that the use of an individual’s arrest record, not directly obtained from that individual, in making employment decisions does not violate § 4 (9). McGowan, supra at 1647. The commission also stated that an interpretation of § 4 (9) which would prohibit the mere use of arrest records by employers “is against the weight of the authority on this point.” Id. Having determined that G. L. c. 151B, § 4 (9), only affects an employer’s ability to request certain criminal record information from employees and potential employees, we have no need to consider the relationship between § 4 (9) and the CORI statute. Therefore, we need not determine whether the school committee is an employer of the school bus drivers for § 4 (9) purposes. 2. The CORI claim. The next claim raised by the plaintiffs is that the defendants violated the CORI statute by requesting, obtaining, and then utilizing CORI in the dismissal of the plaintiffs. The relevant portion of G. L. c. 6, § 172, is set out in the margin. Because the board limited the school committee’s CORI access to criminal charges that resulted in convictions, and because the school committee received and used information concerning Bynes’s 1983 assault charge, allegedly in violation of the school committee’s certification, the plaintiffs contend that the defendants violated § 172. Bynes initially claims that the school committee’s request for and receipt of CORI was illegal because its request was too broad and not limited to its restricted authorization. It is the board, however, and not the recipient, which “has the duty to assure the accuracy and completeness of CORI, as well as to prevent its unauthorized disclosure.” Police Comm’r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 648 (1978). There is no language within the CORI statute which would lead us to the conclusion that the school committee, or any other certified individual or agency, shares this responsibility with the board. Bynes also asserts that the school committee violated G. L. c. 6, § 172, by using CORI that exceeded its certification, even if it was without fault in receiving unauthorized CORI. Bynes appears to read the clause “in violation of the provisions of this statute” in § 172, as modifying the antecedent clause “that receives or obtains criminal offender information.” In other words, Bynes finds a form of strict liability within the statute whereby the school committee can be liable for the use of unauthorized CORI, even if it is blameless, merely if its receipt of the information is in violation of § 172. We recognize “the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation.” Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231 (1982), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 133 (1949). Because the statute delegates to the board the responsibility for preventing unauthorized disclosures of CORI, any interpretation of the statute that would require individuals or agencies who have been certified by the board for access to information to undertake their own investigations of the lawfulness of their receipt of information from the board would be inconsistent with the dominant purpose of the statute. We believe that the better reading of the statute, a reading more consistent with the Legislature’s intent, is that the clause “in violation of the provisions of this statute” refers to “[a]ny individual or agency” at the beginning of the sentence. Under this reading, the plaintiff must prove that the individual or agency is in violation of the statute and at fault. Assuming, without deciding, that the school committee received unauthorized CORI on Bynes, he asserts no facts which would create any inference that the school committee violated the statute or was at fault in its CORI request. The simple statement — “I request that you furnish me with CORI on each of the drivers” — where the board bears the responsibility for unauthorized disclosures, hardly constitutes fault on the part of the school committee. In addition, each letter from the board to the school committee that contained CORI on the bus drivers included the statement that it was “[pjursuant to the certification issued by the Criminal History Systems Board on March 2, 1982.” For the-foregoing reasons, the judgment of the Superior Court is affirmed. So ordered. While the school committee based its initial termination of Bynes on both the 1972 conviction and the 1983 charge, the later decision not to rehire Bynes, resulting from the mandatory disqualification regulation, relied only on the 1983 charge. General Laws c. 151B, § 4 (9), states, in relevant part, that it is an unlawful practice “[f]or an employer ... in connection with an application for employment... or discharge of any person ... to request any information, to make or keep a record of such information, to use any form of application or application blank which requests such information, or to exclude, limit or otherwise discriminate against any person by reason of his or her failure to furnish such information through a written application or oral inquiry or otherwise regarding: (i) an arrest ... in which no conviction resulted ... or (iii) any conviction of a misdemeanor where the date of such conviction . . . occurred five or more years prior to the date of such application for employment or such request for information .... “No person shall be held under any provision of any law to be guilty of perjury or of otherwise giving a false statement by reason of his failure to recite or acknowledge such information as he has a right to withhold by this subsection.” Contrary to the plaintiffs’ contention, McGowan does not support their interpretation of § 4 (9). Without expressing our opinion on the merits of the commission’s decision, we note that the commission merely determined that it was inappropriate for a police department to use its ability to obtain criminal offender information under G. L. c. 6, § 172 (a), to effectuate its role as an employer. McGowan, supra at 1651. That is not the issue in this case. General Laws c. 6, § 172, states in relevant part: “Any individual or agency, public or private, that receives or obtains criminal offender record information, in violation of the provisions of this statute, whether directly or through any intermediary, shall not collect, store, disseminate, or use such criminal offender record information in any manner or for any purpose.” Because the school committee was certified to receive the information that it received concerning Dyott, this claim applies only to Bynes.

Mary Jane Drinkwater vs. School Committee of Boston. Suffolk. December 4, 1989. February 26, 1990. Present: Liacos, C.J., Abrams, Nolan, O’Connor, & Greaney, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Prima facie case, Burden of proof, Employee, Race. School and School Committee, Appointment of personnel. Constitutional Law, Equal protection of laws. An affirmative action plan governing the hiring of administrative personnel by the school committee of Boston, which had been incorporated in a Federal court-ordered desegregation plan, did not violate G. L. c. 15IB by discriminating against nonmembers of minorities on the basis of their race, inasmuch as all candidates for employment were required to possess certain minimum qualifications, the hiring of nonminority applicants was not barred, and the requirement for affirmative action efforts was to continue in effect only until black employees comprised twenty-five percent of the school system’s administrative staff. [759-760] In an action by an unsuccessful nonminority candidate for a position as a staff attorney in the office of the general counsel of the Boston school committee, alleging that the school committee had violated G. L. c. 151B, § 4, by discriminating against her on the basis of her race, allowance of the school committee’s motion for summary judgment was error, where a genuine issue of material fact was presented with regard to the qualifications of the minority candidate who filled the staff attorney position under the school committee’s affirmative action plan, which provided for a racial preference when it was faced with “eligible, qualified black candidates.” [760-763] Civil action commenced in the Superior Court Department on May 20, 1986. The case was heard by John L. Murphy, Jr., J., on a motion for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Nance Lyons {Mary Jane Drinkwater with her) for the plaintiff. John S. Stadler, Special Assistant Corporation Counsel, for the defendant. Nolan, J. The plaintiff, Mary Jane Drinkwater, commenced this action in 1986 alleging that the school committee of Boston (school committee) discriminated against her on the basis of her race and then declined to hire her in retaliation for her complaints of discrimination. The Superior Court allowed the school committee’s motion for summary judgment and Drinkwater appeals from that ruling. We transferred the case to this court on our own motion. We reverse and remand the case to the Superior Court for further proceedings not inconsistent with this opinion. A party moving for summary judgment “must affirmatively show that there is no real issue of fact.” Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert, denied, 459 U.S. 970 (1982), quoting Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). “The inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.” In our view the school committee has not met its burden of showing that the material facts are undisputed. This case has its origins in the decision of the United States District Court in Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass.), aff'd sub nom. Morgan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974), cert, denied, 421 U.S. 963 (1975). In that case, the court determined that school committee authorities had engaged in purposeful racial discrimination. Morgan v. Hennigan, supra at 480. As part of a comprehensive remedy, the District Court ordered the desegregation of the administrative staff of the Boston public schools. The order incorporated an affirmative action plan submitted by the school committee in order to achieve compliance with the order. In June of 1984, the school committee announced that it was accepting applications for two positions in the office of its general counsel. The positions were listed as “Staff Attornev I” and “Staff Attorney II.” Drinkwater applied for both positions; she was hired for neither. Drinkwater, who is white, filed a racial discrimination complaint with the school committee’s office of equal opportunity (OEO), alleging that a minority candidate was chosen for one of the positions solely on the basis of race. Due to an unrelated problem, the school committee was forced to repost the two positions. Drinkwater reapplied for both; she received neither. Drinkwater contends that the school committee’s actions violated G. L. c. 15IB, § 4 (1988 ed.), by discriminating against her on the basis of her race and, with regard to her reapplication, in retaliating against her for filing a complaint with the OEO. In cases under c. 15IB, a complainant must show a prima facie case of discrimination, which then shifts the burden of production to the respondent to show a lawful reason for its action. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 137-138 (1976). In arguing that summary judgment was appropriate, the school committee contends that there is no dispute as to the lawful reason for its action: it was under the obligation, pursuant to a Federal court order, to desegregate. At the outset we reject any notion that Drinkwater is bound by a judgment of a Federal court in a case to which she was not a party. See Hansberry v. Lee, 311 U.S. 32, 40 (1940). See also Martin v. Wilks, 109 S. Ct. 2180 (1989) (white fire fighters alleging reverse discrimination not bound by consent decrees between city and black fire fighters). The real question is whether, and to what extent, an employer can rely on a court-ordered affirmative action program as a justification for a hiring decision involving race when sued under c. 15IB. A subsidiary but important question is whether the school committee properly applied the affirmative action program that it adopted. In Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 189-190 (1984), we stated that “[cjertainly a voluntary program for determining layoffs containing an affirmative action component overriding a seniority component, in whole or in part, would not violate State law . . . .” Thus, we have recognized that c. 15IB, although neutral in its terms, does not categorically prohibit the implementation of an affirmative action program. Indeed, we prefer to interpret c. 15IB in harmony with other statutes which appear to call for affirmative action programs. See G. L. c. 23A, § 44 (1988 ed.); G. L. c. 35, § 53A (1988 ed.). Having determined that c. 151B does not place a per s'e prohibition on affirmative action plans, we turn to the question whether the plan in this case is compatible with G. L. c. 151B. In determining whether particular race-conscious remedies violate the equal protection guarantee of the Fourteenth Amendment to the United States Constitution, the United States Supreme Court looks to the “necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” United States v. Paradise, 480 U.S. 149, 171 (1987) (plurality opinion). In the instant case the affirmative action plan is incorporated in a court-ordered desegregation plan. There can be no doubt of the necessity for race-conscious relief. The school committee’s plan requires the school system to “engage in affirmative efforts to recruit and retain minority applicants for employment until . . . Blacks constitute ... 25 % of the non-academic workforces.” The court order itself also requires affirmative efforts with regard to hiring blacks until blacks constitute 25% of the school system’s administrators. It is undisputed that blacks made up only 23.76% of the school system’s administrative staff at the time Drinkwater applied for the positions of Staff Attorney I and Staff Attorney II. The court order and the plan itself both required the school committee affirmatively to recruit blacks for attorney positions. Drinkwater’s main argument appears to center on the contention that the school committee’s plan unnecessarily trammels the interests of nonminority applicants. Under this plan race is not the only factor in the hiring process, since all the candidates must meet certain minimum qualifications. The plan does not create a bar to the hiring of white employees and, in fact, a white person was hired to fill one of the two positions. Moreover, the affirmative requirement that the school committee consider minority status is not permanent. Rather, that requirement will only last until blacks make up 25% of the administrative staff of the Boston public school system. We think the plan is both limited and flexibile rather than a rigid rule which unnecessarily trammels the rights of nonminorities. Even when an employer acts pursuant to an affirmative action plan, however, that employer may violate c. 15IB. When a plan is misapplied, the employer’s action may constitute illegal “reverse” discrimination. Drinkwater argues that the school committee misapplied the plan in this case. Drinkwater argues that the plan does not, or should not, apply to the office of the school committee’s general counsel. Drinkwater claims that there is a factual dispute as to whether the school committee attorneys are actually assistant corporation counsel of the city of Boston (to whom the court order does not apply). She relies on statements that the school committee’s general counsel, Mr. Michael Betcher, made in a deposition to the effect that school committee attorneys are “technically” special assistant corporation counsel. Betcher also stated, however, that the label of “special assistant” was indicative of the fact that the corporation counsel retained some jurisdiction over the school committee attorneys in matters of litigation. Other than with regard to the understanding concerning litigation, there was no separate written agreement between the corporation counsel and the school committee’s general counsel. Moreover, the school committee submitted evidence which showed that the attorneys in the general counsel’s office were hired and employed by the school committee. The attorney positions within the general counsel’s office were, organizationally, within the school department. Positions in the general counsel’s office were included in the annual reports on desegregation which the school committee submitted to the Federal court. These undisputed facts are enough to bring the staff attorneys within the ambit of the “nonacademic” workforce of the Boston public school department, to which both the plan and the court order apply. The fact that the staff attorneys may also be special assistant corporation counsel or that the corporation counsel may have some say in the hiring decisions is irrelevant. Drinkwater contends that the goal of having 25 % minorities should not apply because blacks do not make up 25 % of the relevant labor market (attorneys). The goal of having 25 % minority administrators applies, however, to all the administrative positions in the Boston public schools as a whole. As long as the total percentage of black administrators is less than 25%, the school committee must, in all its hiring efforts, affirmatively act to hire members of minorities. Although both the court order and the plan require that minorities be spread out in all the administrative departments, neither requires that each department actually have 25 % minority personnel. We see nothing wrong with a plan that looks to the administrative positions in the school system as a whole rather than pigeonholing each type of position in the system. Thus, the plan itself is valid. Even though the plan was properly applicable to the staff attorney positions, we agree with Drinkwater that there is a factual issue regarding the qualifications of the minority candidate who filed the Staff Attorney I position. The successful applicant’s qualifications are material because the Federal court order in this case did not require the blind appointment of members of minorities to administrative positions. Rather, it provided for a racial preference when the school committee was faced with “eligible, qualified black candidates.” The affirmative action plan explicitly stated that the goals it announced were not “rigid or inflexible quotas.” The plan only required the school committee to rely “in part” on the race of a candidate when it was “reasonably necessary” to do so. Thus, race is only a factor to be considered as between otherwise qualified applicants. The qualifications listed in the job posting including “[pjroficiency in education law, administrative law and civil litigation; knowledge of state and federal special education laws and regulations; analytic and writing skills; administrative ability; human relations skills.” Drinkwater asserts that the successful applicant had to meet all the qualifications. The school committee’s position, supported by deposition testimony, was that the qualifications were not intended to require experience in each of the areas listed, as long as an applicant was “substantially in compliance with the requirement that she exhibit some expertise in that area.” The reason offered by the school committee for its willingness to accept applicants without all of the qualifications listed was that it was prepared to consider applicants with “0 years” experience. In its answer to the complaint, the school committee averred that “the minority individual selected showed very strong potential, but had no significant special education experience.” Other facts tended to show that the successful applicant did have some experience in administrative law and civil litigation. Because the successful applicant met some, but not all, of the qualifications listed, there is a genuine issue whether the school committee complied with its affirmative action plan, which we have already determined is facially valid. See Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970). In support of her claim of retaliation, Drinkwater presented evidence which showed that the school committee’s general counsel was “angry that Ms. Drinkwater was accusing me of a violation of state and federal discrimination laws.” If Drinkwater should have received the Staff Attorney I position, even under the affirmative action plan as she argues, and the general counsel declined to recommend her when she reapplied because she had filed a complaint to that effect, then there may indeed have been illegal retaliation. The school committee, of course, contends that there was no retaliation. In any event, however, there is a genuine issue of material fact, as already noted. Therefore, it was error to allow the school committee’s motion for summary judgment. The judgment is reversed and the case is remanded to the Superior Court. So ordered. We do not reach the question whether affirmative action programs are permissible under the State Constitution’s Equal Rights Amendment (ERA). Art. 1 of the Massachusetts Declaration of Rights, as amended by art. 106 of the Amendments. See Attorney Gen. v. Massachusetts Interscholastic Athletic Ass’n, Inc., 378 Mass. 342, 357 (1979) (any justification for classification proscribed by ERA, even under affirmative action, should be weighed very carefully). Drinkwater relies primarily on Federal cases arising under Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment in her argument that the “reverse discrimination” in this case is illegal. Because her complaint only challenges the defendants’ actions under G. L. c. 15IB, § 4, we construe her argument as urging us to adopt standards under c. 151B similar to those utilized under Federal law. For the purposes of this case we assume, without deciding, that these standards apply under c. 151B. Drinkwater asks this court to take judicial notice of this fact. It is undisputed that the successful applicant failed the July, 1984, bar examination, and that one of the qualifications listed in the job posting was “current membership in Massachusetts and federal bars, or admission to bar membership by January, 1985.” This, however, creates no issue concerning the qualification of the successful applicant at the time she was hired, which is the time that we must consider in evaluating whether the school committee misapplied its facially valid affirmative action plan. As applied to 1984 law school graduates such as the successful applicant, then, we construe that requirement to be a condition subsequent to the employment, the nonoccurrence of which might subject the employee to discharge.