Summary
In Aurora Firefighters', we followed Greeley Police Union, which we concluded was dispositive of whether the city of Aurora's submission to binding arbitration constitutes an unlawful delegation of legislative power.
Summary of this case from Regional Transportation Dist. v. Dept. of LaborOpinion
No. 27227
Decided August 2, 1977.
Declaratory judgment action by city pertaining to fire fighters association's request for arbitration of certain issues involved in collective bargaining negotiations. The district court entered judgment in favor of city and fire fighters association appealed.
Affirmed in Part, Reversed in Part.
1. LABOR RELATIONS — Collective Bargaining — State and Local — City — Legislate. Collective bargaining is a matter of both statewide and local concern, consequently, a city may legislate on such matters in the absence of conflicting statutory provisions.
2. MUNICIPAL CORPORATIONS — City Charter — Collective Bargaining — Right — Fire Department — Constitutional. Provision of city charter amendment granting right to members of fire department to bargain collectively was not unconstitutional.
3. ARBITRATION — Labor Issues — Submission — City Charter Amendment — Unconstitutional Delegation. Provision of city charter amendment granting right to members of fire department to have unresolved labor issues submitted to binding arbitration was an unconstitutional delegation of authority.
4. LABOR RELATIONS — Collective Bargaining — Charter Amendment — Valid — Arbitration — Unconstitutional — Severable. Provisions of city charter amendment granting rights to members of fire department to bargain collectively and to have unresolved issues submitted to binding arbitration were severable, hence, provision granting right to bargain collectively was valid, even though provision granting right to have unresolved issues submitted to binding arbitration was unconstitutional and should accordingly be excised.
5. MUNICIPAL CORPORATIONS — Challenge — Charter Provision — Procedural Defects — Timely — Jurisdiction. Contention of appellants — that city's challenge to charter provision was not timely commenced under section 31-2-118, C.R.S. 1973 of the Municipal Home Rule Act of 1971 — is without merit, since the 45-day provision, which relates to contesting the adoption of a charter, charter amendment, or repeal, refers to the contest of a charter amendment which allegedly had been adopted with procedural defects; and courts are not thereby ousted of jurisdiction to subsequently determine constitutionality of substance of amendment.
6. APPEAL AND ERROR — Issues — Lack of Attention — Trial Court — Review — Declined. Where matter was not called to the attention of, nor considered by, the trial court, and no mention of these issues was made until a supplemental brief on appeal was filed, held, under such circumstances, reviewing court declines to consider these issues.
Appeal from the District Court of Adams County, Honorable Clifford J. Gobble, Judge.
Leland M. Coulter, Richard Kaufman, Louise L. Edmonds, for petitioner-appellee.
Douglas R. Phillips, for respondents-appellants, Aurora Firefighters' Protective Association.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy, Edward G. Donovan, Solicitor General, Deborah L. Bianco, Assistant, for respondent-appellant, The State of Colorado.
Geer Goodwin, for amicus curiae, Denver Firefighters Local 858.
Walter C. Brauer III, Mark N. Simons, Thomas B. Buescher, for amici curiae, Colorado Professional Fire Fighters, Denver Police Protective Association and Colorado Labor Council, AFL-CIO.
There is here involved Article XIV of the Charter of the city of Aurora, a Home Rule city. Article XIV was adopted by a majority vote of the qualified electors of the city on November 5, 1974.
The question of constitutionality of Article XIV was before us in Aurora v. Dilley, 186 Colo. 222, 526 P.2d 657, announced on September 23, 1974. We there held that any decision as to constitutionality at that time was premature, and that these issues should have disposition only after the matters were submitted to the electorate and the amendment adopted.
It grants to the members of the Aurora Fire Department the rights to bargain collectively and to have unresolved issues submitted to arbitration. Most of the arguments presented to the trial court and here have been resolved by Greeley Police Union v. City Council of Greeley, 191 Colo. 419, 553 P.2d 790, which was announced on August 23, 1976, after all but supplemental briefs had been filed here. As in Greeley Police Union, we affirm in part and reverse in part.
After the charter amendment was adopted, the city administration and the appellant Aurora Fire Fighters' Protective Association entered into an agreement concerning wages, hours, working conditions and other incidents of employment of the members of the fire department for the year 1975. Early in 1975 the city and the respondent Association began negotiations as to the 1976 agreement and reached an impasse on the issues of wages and of modification of the educational incentive pay plan. The Association sought to proceed to arbitration. The city was unwilling to join them and brought the declaratory judgment action which became the subject of this appeal.
The district court ruled:
1. As a matter of statewide concern, binding arbitration is beyond the scope of Aurora's legislative power under Colo. Const. Art. XX, Sec. 6.
2. Labor relations are of statewide concern and, therefore, Article XIV is unconstitutional.
3. Submission by the city to arbitration constitutes an unlawful delegation of power.
4. The provisions of Article XIV are inseparable and, arbitration being void, the entire amendment is void.
I.
[1-4] Greeley Police Union v. City Council of Greeley, supra, is dispositive as to each of these rulings. It was there held:
A. Collective bargaining is a matter of both statewide and local concern. A city may legislate on such matters in the absence of conflicting statutory provisions. There is no state legislation concerning rights of public employees to engage in collective bargaining.
B. The charter amendment is not unconstitutional in providing for collective bargaining.
C. The provisions of the amendment providing for binding arbitration constitute an unconstitutional delegation of authority.
D. The provisions of the amendment are severable and the amendment is valid with the provisions for binding arbitration being excised therefrom.
We follow the ruling in Greeley Police Union and affirm in part and reverse in part here as was done there.
II.
[5] The appellants contend that the city's challenge to the charter provision was not timely commenced, and rely upon section 31-2-118, C.R.S. 1973 (The Municipal Home Rule Act of 1971), which provides:
"No proceeding contesting the adoption of a charter, charter amendment, or repeal thereof shall be brought unless commenced within forty-five days after the election adopting the measure."
We agree with the city's argument that this 45-day provision refers to the contest of a charter amendment which allegedly had been adopted with procedural defects; and that the courts are not thereby ousted of jurisdiction to subsequently determine the constitutionality of the substance of an amendment.
III.
[6] Following the decision in Greeley Police Union, the city filed a supplemental brief arguing that Article XIV is invalid for improperly establishing a one-man bargaining unit and for improperly including supervisory personnel in a bargaining unit along with rank and file personnel. While there were allegations to this effect in the city's amended petition for a declaratory judgment, we can find no mention by the city of these subjects until the supplemental brief was filed. There was no evidence in the case to support the allegations. It is apparent that the matter was not called to the attention of, nor considered by, the trial court. In such a posture, we decline to consider these issues. If the city wishes to press them, it must do so in another action.
The judgment is affirmed in part and reversed in part and remanded with directions to enter a decree consonant with the views expressed herein.
MR. CHIEF JUSTICE PRINGLE specially concurs.
MR. JUSTICE CARRIGAN concurs in part and dissents in part.
MR. JUSTICE ERICKSON does not participate.