Littleton Ed. Ass'n v. Arapahoe County School Dist., No. 6

• Decision Date: 23 August 1976
• Docket Number: No. 26963,26963
• Citation: 553 P.2d 793,191 Colo. 411
• Parties: , 93 L.R.R.M. (BNA) 2378, 80 Lab.Cas. P 53,929 LITTLETON EDUCATION ASSOCIATION, Plaintiff-Appellant, v. ARAPAHOE COUNTY SCHOOL DISTRICT, NO. 6, et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 793

553 P.2d 793

191 Colo. 411, 93 L.R.R.M. (BNA) 2378,

80 Lab.Cas. P 53,929

LITTLETON EDUCATION ASSOCIATION, Plaintiff-Appellant, v. ARAPAHOE COUNTY SCHOOL DISTRICT, NO. 6, et al., Defendants-Appellees.

No. 26963.

Supreme Court of Colorado, En Banc.

Aug. 23, 1976.

Hobbs & Waldbaum, P.C., Larry F. Hobbs, Denver, Alperstein, Plaut & Busch, P.C., Frank Plaut, Lakewood, for plaintiff-appellant.

Simon, Eason, Hoyt & Malone, P.C., Richard L. Eason, Stephen G. Everall, Englewood, for defendants-appellees.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Joseph N. deRaismes, First Asst. Atty. Gend., Human Resources Section, John Kezer, Asst. Atty. Gen., Denver, for Division of Labor, Dept. of Labor and Employment, State of Colorado, amicus curiae.

Robert H. Chanin, Elise T. Snyder, Washington, D.C., for National Education Association, amicus curiae.

Dennis E. Valentine, Englewood, for Colorado Education Association, amicus curiae.

Zwerdling, Mauer, Diggs & Papp, A. L. Zwerdling, Washington, D.C., for American Federation of State, County and Municipal Employees, AFL-CIO, amicus curiae.

Hubert M. Safran, Denver, for American Federation of State, County, and Municipal Employees, Council 76, AFL-CIO, amicus curiae.

Fred W. Clifford, Boulder, for The Colorado Federation of Teachers, amicus curiae.

Jay W. Swearingen, Reese Miller, Denver, for The Colorado Association of School Boards, amicus curiae.

DAY, Justice.

This appeal involves a determination of the validity of a collective bargaining agreement between defendant-appellee school board of Arapahoe County school district No. 6 (the board) and plaintiff-appellant Littleton Education Association (LEA). One of the main issues is the applicability of the Public Meetings Law to the bargaining process in this case. We affirm the judgment declaring the particular agreement illegal. We do not adopt the court's ruling that, absent legislative authority, the board has no power to enter into collective bargaining agreements.

We review the factual background in this case to bring our ultimate determination into focus. The LEA is a local affiliate of the Colorado Education Association. The latter is a state affiliate of the National Education Association, an independent organization of professional educators. The board and LEA have successfully and amicably negotiated two separate agreements with respect to salaries and other terms and conditions of teachers' employment in the district since 1967. The second of these predecessor agreements expired on December 31, 1973.

Prior to that date negotiations for a new contract were unsuccessful. The board, therefore, pursuant to its statutory duty, adopted a salary schedule incorporating it into the budget prepared for the 1974 fiscal year. By a so-called 'no contract, no work' philosophy LEA members voted to strike and on January 3, 1974, the walkout began. The district's schools were closed for a period of two weeks. The teachers returned to work when the board obtained a preliminary injunction against the strikers.

Prior to the strike the LEA proposed a salary schedule which was rejected by the board. Following the strike the board proposed a compromise schedule. This was accepted by a vote of a majority of the teachers taken on March 5, 1974. One week later the board and LEA entered into the subject agreement incorporating the compromise salary schedule.

Shortly thereafter the board sent individual contracts to each teacher to be signed and returned within a month. If not so executed, the board considered the teacher to have abandoned the right to continued employment.

At this point the LEA commenced the present action in an effort to enjoin the board from requiring the execution of the individual contracts. They alleged them to be inconsistent with the terms of the collective agreement as well as the Teacher Employment, Dismissal, and Tenure Act of 1967. Sections 22--63--101 Et seq., C.R.S.1973. The board counterclaimed for a declaratory judgment that the agreement was illegal and therefore void.

The trial court concluded that the agreement was unenforceable on several grounds: (1) that the legislature had not authorized public school district boards to enter into collective bargaining agreements; (2) that negotiations were conducted in violation of the Public Meetings Law: section 29--9--101, C.R.S.1973; (3) that various aspects of the agreement violated specific statutory provisions pertaining to the powers and duties of the district boards of education; and (4) that the agreement lacked consideration.

I.

Collective bargaining negotiations entered into on a voluntary basis have resulted in agreements in 38 of the state's 181 school districts. In 1975 these contracts affected approximately 21,896 teachers in the state public school system.

In arguing for affirmance of the trial court's determination of the Per se invalidity of such agreements, the board argues that this court's ruling in Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547 (1962), is controlling. In Fellows a municipal fireman claimed the city of Pueblo was required by a collective bargaining agreement to submit his dispute concerning vacation and sick leave to binding arbitration The court held that the contract between the city and the labor union representing the firemen constituted an unlawful delegation of legislative responsibility by the municipality.

Upon reconsideration of the collective bargaining issue in light of subsequent case law, we now make it clear that Fellows should not be considered as per se invalidation of collective bargaining agreements in the public sector even though there is no express statutory authorization for the practice. See Rockey v. School District #11, 32 Colo.App. 203, 508 P.2d 796 (1973). Rather, Fellows should be limited to the holding on its facts: a public employer cannot be compelled to arbitrate, Disputes arising from collective bargaining agreements. This view is reflected is some of the dictum in the decision:

'. . . A proper exercise of the legislative function might well involve consultation and negotiation with spokesmen for public employees, but the ultimate responsibility rests with the legislative body and, under the record here presented, that responsibility cannot be contracted away. For a complete annotation on the question see 31 A.L.R. (2d) 1142.'

Also this view was elaborated upon in the specially concurring opinion of the present Chief Justice:

'That public employees may organize in unions and may designate a representative to present their views as to terms and conditions of employment to the body charged with the duty of setting such terms and conditions if the body chooses to hear them seems now to be generally accepted. Agreements reached between the negotiating parties may be translated into effect by proper legislative action, providing such agreements do not conflict with constitutional, charter or statutory provisions.'

It is to be noted that Fellows did not address the question of the bargained-for agreement itself. And we also point out that the subject agreement did not provide for binding arbitration on the points of disagreement when the negotiations broke down as involved in Greeley Police Union v. City Council of Greeley, Colo., 553 P.2d 790. On the contrary, only the services of an impartial fact finder are provided for. The agreement specifically states that the fact finder's report '. . . shall be advisory only . . .' If the parties are still at an impasse after the advisory report of a fact finder, the agreement provides that '. . . the Board has the authority To make the final decision and determination on all unresolved issues, without further negotiation.' (Emphasis added.)

The defect in the board's position that the subject agreement constitutes an unlawful delegation of authority and places control of a school system in the lands of an employee organization reflects a basic misperception of the negotiations process. Negotiations between an employer and an employee organization entered into voluntarily, as in this case, do not require the employer to agree with the proposals submitted by employees. Rather, the Ultimate decisions regarding employment terms and conditions remain exclusively with the board. While the employees' influence is permitted and felt, the control of decision-making has not been abrogated or delegated.

Furthermore, school boards in this state are empowered with the general authority to contract. Section 22--32--101, C.R.S.1973. Section 22--32-- 109(1)(f), C.R.S.1973, indicates that school boards may contract for the purpose of performing their specific duty:

'To employ all personnel required to maintain the operations and carry out the educational program of the district, and to fix and order paid their compensation;'

Also, the district boards may, under section 22--32--110(1)(k), C.R.S.1973, enter into a contract for the purpose of exercising their specific power:

'To adopt written policies, rules, and regulations, not inconsistent with law, which may relate to the efficiency, inservice training, professional growth, safety, official conduct, and welfare of the employees, or any classification thereof, of the district. . . .'

In Chicago Division v. Board of Education, 76 Ill.App.2d 456, 222 N.E.2d 243 (1966), the court held that a school board does not require legislative authority to enter into...