The opinion
Goodman, J.
(dissenting). General Laws c. 149, § 178H, declares that “[e]mployees shall have, and be protected in the exercise of, the right... to bargain collectively ... on questions of wages, hours and other conditions of employment....” The provision is parallel to G. L. c. 150A, § 3, 1 guaranteeing the right to collective bargaining to employees in the private sector and implementing *492 the policy in G. L. c. 150A, § 1 (third unnumbered paragraph). 2 This suggests a similar flexibility in negotiating wage patterns in the public sector and an intent to stabilize labor relations by contract — at least for a period up to three years, the maximum duration of a collective bargaining agreement with municipal employees permitted by G. L. c. 149, § 1781. See Kerrigan v. Boston, 361 Mass. 24, 27-28 (1972), interpreting § 1781 in the light of the National Labor Relations Act ( 49 Stat. 449 , as amended, 29 U. S. C. §§ 151 et seq.) and the State Labor Relations Law (G. L. c. 150A, §§ 1 et seq.). 3 Section 1781 provides that “the municipal employer shall be represented by the chief executive officer ... or his designated representative” and that the parties if they reach an agreement “shall execute a written contract incorporating any agreement reached.” The Legislature was, of course, aware of the complex body of law governing municipal wages and contracts and municipal finance generally and accordingly provided that “[i]n the event that any part or provision of any such agreement is in conflict with any law, ordinance, or by-law, such law, ordinance, or by-law shall prevail” but only “so long as such conflict remains.” Section 1781 also provides that “Li]f funds are necessary to implement such written agreement, a request for the necessary appropriation shall be submitted to the legislative body Land further] [i]f such request is rejected, the matter shall be returned to the parties for further bargaining.”
*493 The majority opinion accepts the contention of the city of Taunton that, by reason of G. L. c. 44, § 33A, an ordinance cannot validly implement a two-year collective bargaining agreement which provides for increases in wages in both years — at least as to the increase for the financial year following the passage of the ordinance. The specific proviso relied on is “ [N]o ordinance providing for an increase in the salaries or wages of municipal officers or employees shall be enacted . . . unless it is to be operative for more than three months during the financial year in which it is passed” (see emphasized part of fn. 4 of the majority opinion, hereafter referred to as the three-month provision).
The majority holds that the wage increases for 1972 were invalid because they were not “operative” during 1971, the financial year in which the ordinances providing for them were passed. With all respect, it seems to me that this provision, as a matter of grammatical construction, reads to require that the ordinance rather than the increase must be “operative” for more than three months during the financial year in which it is passed, and that the ordinances passed in August and September, 1971, to implement the policemen and firemen contracts were operative as the increases for that year. Thus it cannot be said of these ordinances, as of the city council’s increase in Brucato v. Lawrence, 338 Mass. 612, 618 (1959), that it had “no effect by way of expenditure in that year” 4 (emphasis supplied). The 1971 ordinances funded by supplemental appropriations for that year are consistent with the three-month provision of § 33A “to make each council take immediate responsibility in the year of council action for some of the fiscal and tax burden of any salary increases voted by it” (emphasis supplied). Brucato v. Lawrence, supra. Similarly in Hackett v. Worcester, 346 Mass. 634,637 (1964), it was contended that the proviso in § 33A (see majority *494 opinion, fn. 4) that “ordinances may be enacted . . . during the months of November and December [in a non-election year] providing for an increase in the salaries and wages ... to become effective as of January first of the next ensuing year” (emphasis supplied) prohibited increases which went into effect by stages during the ensuing year. The Supreme Judicial Court held that “the ordinance as a whole” became effective on January 1, although none of the step increases began on that date.
This construction of the three-month provision harmonizes the municipal finance law with the collective bargaining provisions of G. L. c. 149, § 1781, which permits three-year contracts. On the construction adopted by the majority, municipalities in which wage scales are established by ordinance are barred from presently negotiating binding increases which are not to take effect until the second or third year of a contract period. Either the parties must negotiate wages every year or attempt somehow to arrive at a flat increase for two or three years which would average out so that neither party would be disadvantaged. This would be a gamble which responsible negotiators might well be reluctant to take. Wages are ordinarily the major element in the negotiation of a labor contract and the hope for such stability in this volatile area 5 as might result from collective bargaining agreements for two or three years could well be frustrated. 6
Indeed, the interpretation accepted by the majority would appear to make the three-month provision inconsistent with the provisions in G. L. c. 41, § 108A, permitting a “city by ordinance” to establish a salary plan to “provide *495 for the attainment of.. . maximum salaries by periodical step-rate increases based on length of service.” The three-month provision in G. L. c. 44, § 33A, has been in effect since 1947 (St. 1947, c. 298, § 1) and has been reconsidered from time to time. 8 I have found nothing to indicate that § 33A has ever been thought to affect G. L. c. 41, § 108A, which was also originally enacted in 1947 (St. 1947, c. 540, § 2) and permitted a city as part of a salary plan “to establish minimum and maximum salaries.”9 There would seem to be no real distinction between an ordinance providing for increases in subsequent years in accordance with a pattern set by a salary plan under G. L. c. 41, § 108A, and an ordinance providing for increases for subsequent years in accordance with a pattern set by an executed collective bargaining agreement made pursuant to G. L. c. 149, § 1781. It would be anomalous to permit less flexibility in collective bargaining agreements than in salary plans.
The conclusion of this dissent is also supported by the contract provisions relating to municipalities. These provisions would seem to be at least as relevant to the establishment of wages pursuant to G. L. c. 149, § 1781, since that provision contemplates the bilateral negotiation of collective bargaining contracts rather than the unilateral action implicit in the establishment of wages by ordinance. The municipal contract provisions also permit contracts extending over a period of years. See, e.g., G. L. c. 40, § 4 (unnumbered paragraphs lst-4th, 7th-9th, 11th, 14th-21st). And this has not been thought to be inconsistent with G. L. c. 44, § 31 (“No department. . . shall incur a liability in excess of the appropriation made for the use of such department”). “There is no requirement under such a contract that the whole expense, for all the years in which *496 service is to be provided..., be appropriated at the inception of the contract.” Salisbury Water Supply Co. v. Salisbury, 341 Mass. 42, 49 (1960), and cases cited. See Callahan v. Woburn, 306 Mass. 265 (1940); Norton Teachers Assn. v. Norton, 361 Mass. 150, 155 (1972). See also Lynn Redevelopment Authy. v. Lynn, 360 Mass. 503, 506 (1971). Cf. Ellis v. Board of Selectmen of Barnstable, 361 Mass. 794, 800 (1972).
The majority interpretation appears to be based primarily on the fear that ordinances may be enacted to provide token increases in the year of passage and substantial increases in following years. “We are not faced with that issue in this case, because there is no suggestion that the . . . [ordinances are] not bona fide.” Belfer v. Building Commr. of Boston, 363 Mass. 439, 444 (1973). This is not a case where “a collective bargaining agreement is used as a method of evading a well-defined statutory policy.” Kerri-gan v. Boston, 361 Mass. 24, 31, fn. 3 (1972). “While this court sits,” I am confident that it can deal adequately with any such evasion. I would further observe that we are here interpreting not a criminal statute in which we are concerned with aberrant conduct, evasive in its essence (see Model Penal Code Proposed Official Draft, § 1.02 [1962]) but with a civil statute, part of an integrated whole, designed to guide the ordinary management of municipal affairs by officials presumably acting in good faith. A preoccupation with marginal conduct in this context distorts the entire statutory scheme.
The majority does not reach the defendants’ contention that the 1972 increases were also invalid because there was no supplemental appropriation made for them. This contention is based on the provision that “[n]o . . . increase in rate [shall be] made by ordinance [or] vote . . . during the« financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation” (the supplemental appropriation provision). The answer to this contention is found in Doherty v. Woburn, 345 Mass. 523, 526-527 (1963), in which the Supreme Judicial Court had before it *497 an ordinance passed December 30, 1958 (a non-election year; see majority opinion, fn. 4, following the part emphasized) increasing salaries in 1959. The court held that the ordinance was valid because “[t]he increased salaries provided by each ordinance [including the one passed on December 30,1958] were to be paid from appropriations of the 1959 financial year and action on each ordinance was completed prior to the submission of the 1959 budget. There was no occasion for any supplemental appropriation. See Brucato v. Lawrence, 338 Mass. 612, 617 .” See also Rock v. Pittsfield, 316 Mass. 348, 349 (1944), in which the court said of substantially the same provision: 9 “After the submission of the annual budget, increases in salaries are forbidden unless provision therefor is made by means of a supplemental budget. G. L. (Ter. Ed.) c. 44, § 33A. ... But we know of no statute that restricts the power of the city council of Pittsfield to enact an ordinance in one year making an increase in salary to take effect at the beginning of the succeeding year.” See James v. Mayor of New Bedford, 319 Mass. 74, 77 (1946); Clements v. Treasurer of Cambridge, 324 Mass. 73, 74 (1949). See also Fitchburg Teachers Assn. v. School Comm. of Fitchburg, 360 Mass. 105, 108 (1971).
In the policemen’s case the city of Taunton makes the additional argument (with which the majority also need not deal) based on the fact that the supplemental appropriation was made on September 18, 1971, subsequent to the passage of the ordinance on August 24, 1971. (In the firemen’s case the supplemental appropriation, also passed on September 18, 1971, preceded the ordinance incorporating the increases and passed on September 22, 1971.) The city of Taunton argues that the ordinance was in violation of the supplemental appropriation provision of G. L. c. 44, § 33A, as to the 1971 increases as well as to the *498 1972 increases and therefore totally inoperative in 1971. However, that provision, unlike the three-month provision, requires a supplemental appropriation to effect the increase, not to validate the ordinance. Since that provision does not prohibit wage increases passed by ordinance from being effectuated by appropriations made the following year, I see no reason why it should prohibit wage increases from being effectuated by appropriations made subsequently in the same year. See Rock v. Pittsfield, 316 Mass. 348, 349 (1945); James v. Mayor of New Bedford, 319 Mass. 74, 77 (1946); Clements v. Treasurer of Cambridge, 324 Mass. 73, 74 (1949). See also Fitchburg Teachers Assn. v. School Comm. of Fitchburg, 360 Mass. 105, 108 (1971). The adoption of the ordinance “did not constitute ‘expenditure of public money’ or the incurring of ‘liability’ ” (Doherty v. Woburn, 345 Mass. 523, 527-528 [1963]) until the supplemental appropriation was made. Since a “supplemental appropriation was passed by the city council to meet the salary increase” (cf. Foley v. Lawrence, 336 Mass. 60, 62 [1957]) on September 18, 1971, the ordinance effecting the policemen’s increase, like the one effecting the firemen’s increase, was operative for at least three months during that year.
Thus I submit that the collective bargaining agreements were not in conflict with any law, and that the conflict with the ordinances setting lower salaries in effect prior to the 1971 ordinances prevailed only “so long as such conflict remain[ed]” (G. L. c. 149, § 1781), i.e., until the repeal of the earlier ordinances which was accomplished by the 1971 ordinances. As the Supreme Judicial Court said in Rock v. Pittsfield, 316 Mass. 348, 350-351 (1944), “We think that the ordinance was valid, and that the salary increase took effect on January 1 [1972].... It then became the duty of the mayor to provide in the budget for payment of the salaries as increased by the ordinance. G. L. (Ter. Ed.) c. 44, § 33A. . . . 10 The duty to provide for the increased *499 salaries arises upon general principles, and not exclusively upon the terms of § 33A.” See Doherty v. Woburn, 345 Mass. 523, 528 (1963); Barnard v. Lynn, 295 Mass. 144, 147 (1936); Rhyne, Municipal Law, § 8-18.
I would order a decree entered declaring that the collective bargaining agreements and the ordinances are both valid; that the 1972 wage schedules provided in the collective bargaining agreements and ordinances are binding on the city of Taunton; and that the policemen and firemen covered by those agreements and ordinances are owed compensation based on such wage schedules with interest. Doherty v. Woburn, supra, at 528.
“Employees .. . shall have the right... to bargain collectively through representatives of their own choosing....”
The stated purposes of this provision are “... [toj remov[el certain recognized sources of industrial strife and unrest,... [to| encouragje] practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours or other working conditions, and... [toj restor[e| equality of bargaining power between employers and employees.”
For a view emphasizing the differences between private and public sector collective bargaining, see Wellington and Winter, The Limits of Collective Bargaining in Public Employment, .78 Yale L. J. 1107, and Wellington and Winter, Structuring Collective Bargaining In Public Employment, 79 Yale L. J. 805. See also 1971 House Doc. No. 5235, Second Interim Report of the Special Legislative Study Commission on Collective Bargaining, p. 14; Rehmus, Constraints on Local Governments In Public Employee Bargaining, 67 Mich. L. Rev. 919 .
Also in both Clements v. Treasurer of Cambridge, 324 Mass. 73,74 (1949), and Booker v. Woburn, 325 Mass. 334 -336 (1950), the.increases had no effect during the years in which the ordinances were respectively passed. There was therefore no need in those cases to distinguish between the operation of the ordinance and the operation of the increase.
See 1971 House Doc. No. 5235, Second Interim Report of the Special Legislative Study Commission on Collective Bargaining, at page 9: “When 200,000 different workers break State anti-strike laws in 251 concerted actions in one year (1968), there can remain little doubt that the problem is here and now.”
It has been suggested that “[tjhe difficulties [of coordinating the budget-making process with collective bargaining] can be minimized by . . . negotiating collective bargaining contracts for longer terms than are currently settled upon.” Rehmus, Constraints on Local Governments In Public Employee Bargaining, 67 Mich. L. Rev. 919 ,925.
The more explicit present language was enacted by St. 1948, c. 351, which rewrote the section.
The provision considered by the court read: “The budget shall include sums sufficient to pay the salaries of officials fixed by law or by ordinance, but no new position shall be created or increase in rate made during the financial year subsequent to the submission of the annual budget, unless provision therefor is made by means of a supplemental budget.” The difference between the phrase “is made” and the present phrase “has been made” (see St. 1943, c. 62) is stylistic and immaterial, particularly in view of the cases cited in this connection.
Section 33A requires that “[tjhe annual budget shall include sums sufficient to pay the salaries of officers and employees fixed by law or by ordinance” (see first sentence of fn. 4 of the majority opinion).