AGO 1962 No. 114 - Apr 16 1962
CITIES AND TOWNS ‑- COLLECTIVE BARGAINING AGREEMENTS ‑- AUTHORITY TO ENTER INTO.
Subject to certain qualifications, cities of the first, second and third classes have the authority to enter into collective bargaining agreements concerning wages, hours and working conditions with duly authorized representatives of employee organizations.
- - - - - - - - - - - - -
April 16, 1962
Honorable Martin J. Durkan
State Senator, 47th District
908 American Building
Cite as: AGO 61-62 No. 114
By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:
Do cities of the first, second and third classes have the authority to enter into collective bargaining agreements concerning wages, hours and working conditions with duly authorized representatives of employee organizations?
We answer your question in the affirmative subject to the qualifications mentioned in the analysis below.
The subject of collective bargaining in public employment has occasioned numerous opinions of this office. While the political subdivisions involved have not always been cities, the conclusions reached are, in our opinion, applicable to all municipal subdivisions. For an excellent discussion of the background of this subject, we direct your attention to AGO to the Washington state liquor control board dated July 17, 1946, a copy of which is enclosed. While the opinion relates to collective bargaining agreements for state employees, we feel it would be of value here. See, also, the enclosed copy of AGO 57-58 No. 228 [[to Prosecuting Attorney, Kittitas County on November 19, 1958]]relative to county road employees. Inasmuch as your letter states that you are considering legislation on this subject, we will take this opportunity to review for you the opinions of this office and court decisions on the general problems involved.
[[Orig. Op. Page 2]]
It initially must be noted that there may be conflicts between the provisions of a collective bargaining agreement and the charter or an ordinance of a city. We are sure that you realize that it would be impossible for this office to research the charters and ordinances of every city of this state to enumerate such possible conflicts. We therefore limit our discussion to a consideration of the Constitution and statutes of the state of Washington.
A city is a creature of the legislature and has only such powers as may be expressly conferred by statute or necessarily implied therefrom. While any reasonable doubt as to the existence of a power must be resolved against the municipal corporation, the statutes need not set forth in minute detail every power which the municipal corporation may exercise. See,Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955); State ex rel. Hunter v. Sup.Ct., 34 Wn. (2d) 214, 208 P. (2d) 866 (1949);Christie v. The Port of Olympia, 27 Wn. (2d) 534, 179 P. (2d) 294 (1947);Pacific Etc. Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947). We should add that the first class cities are not governed by the above strict rule and their powers are liberally construed. SeeWinkenwerder v. Yakima, 52 Wn. (2d) 617, 328 P. (2d) 873 (1958).
We have examined the statutes applicable to cities of the several classes and with the single exception of RCW 35.22.350,1/ which is applicable to certain municipal employees, we find no express authority for a city to enter into collective bargaining agreements with representatives of its employees. We have held, however, that a municipal corporation of this state has such power implied under its authority to employ sufficient personnel to perform the functions imposed by law. See, AGO 51-53 No. 401 [[to Cliff Yelle, State Auditor on September 9, 1952]]and AGO 51-53 No. 457 [[to W. Carmichael, State Representative on January 12, 1953]], copies of which are enclosed. As we there noted, this authority is limited by other restrictions applicable to municipal corporations which are not imposed upon private employers. Such restrictions include, among others, the following:
(1)Agreement may not give employees of governmental agencies the right to strike or picket.
Our court pointed out inPort of Seattle v. Inter. Etc. Union, [[Orig. Op. Page 3]] 52 Wn. (2d) 317, 324 P. (2d) 1099 (1958), that while a political subdivision has the authority to enter collective bargaining agreements with its employees, the employees of such a governmental unit do not have the right to strike and picket.
(2)A public body may not abdicate or delegate its responsibility by agreeing to be bound by the decision of a board of arbitration.
InState ex rel. Everett Etc. v. Johnson, 46 Wn. (2d) 114, 121, 278 P. (2d) 662 (1955), our court stated:
"Can the legislative body abdicate its responsibility and turn it over to a board of arbitrators whose decision will be binding upon the legislative body and the firemen? Clearly it has no legal right to do so. The theory of delegation of authority is that the person or group, to whom authority has been delegated, acts for and as the agent of the person or group delegating such authority. That is not the situation here. Here the council would be stepping out of the picture entirely, and the arbitration board would be performing a function which, by law, is the responsibility of the council.
"If the council had no legal right to so abdicate its responsibility in this matter, the people of Everett had no right, under Art. XI, § 10, of the state constitution, to require the council to do so. The charter amendment complained of contravenes and makes ineffective the state legislative act vesting the legislative powers, together with corresponding responsibilities, in the city council."
See also our letter to the Honorable Arnold R. Zempel, Prosecuting Attorney, Snohomish County, dated September 8, 1960, a copy of which is enclosed. Thus we are of the opinion that a provision in a collective bargaining agreement which would purport to bind the legislative body of a municipality to a determination made by another body would be invalid.
In AGO 57-58 No. 229 [[to Frank Brouillet, State Representative on November 20, 1958]], a copy of which is enclosed, we noted that the legislative authority of a municipal corporation could not be bound by contracts which limited its discretion in hiring, [[Orig. Op. Page 4]] firing or disciplining employees without expressed statutory authority to do so.
(3)Agreement cannot bind future boards.
In AGO to Honorable Cliff Yelle, State Auditor, dated October 15, 1946, a copy of which is enclosed, we held that absent statutory authority, the legislative body of a municipal corporation could not enter contracts under its general powers which would bind a future board, council, or commission. SeeKing County v. United States M. & S. Ins. Co., 150 Wash. 626, 274 Pac. 704 (1929);State ex rel. Schlarb v. Smith, 19 Wn. (2d) 109, 141 P. (2d) 651 (1943); Tullos v. Town of Magee, 181 Miss. 288, 179 So. 557 (1938); 10 McQuillin, Municipal Corporations (3rd Ed.) § 29.101.
Other general restrictions upon municipal corporations, such as for example the limitations imposed upon expenditures of public funds, are equally applicable to our consideration here. It goes without saying that the provisions of a collective bargaining agreement must be considered with these limitations in mind.
We are sure you realize it would be difficult if not impossible to attempt to set forth herein all the restrictions which may or may not apply to collective bargaining agreements of the various taxing districts of this state. Hence, we advise that, whenever any city desires to enter into such an agreement, a copy thereof be presented to its legal adviser in order to insure that no provision thereof violates the law of this state or is executed in excess of the powers granted the said municipal officers.
To summarize, we are of the opinion that a municipal corporation may enter into a collective bargaining agreement with representatives of its employees governing the same subject matter and subject to the same limitations as it would be authorized to enter into with a single employee. SeeLocal 266, Etc. v. Salt River Project Agr. Imp. & P. Dist., 78 Ariz. 30, 275 P. (2d) 393 (1954) where the Arizona court so reasoned.
Should you decide to propose legislation on this subject, please feel free to call upon this office for assistance.
We trust the foregoing will be of some help to you.
Very truly yours,
JOHN J. O'CONNELL
R. TED BOTTIGEER
Assistant Attorney General
*** FOOTNOTES ***
1/Statute previously held not to be restrictive. See AGO 57-58 No. 228, supra.