City and County of Denver v. Denver Firefighters Local No. 858, AFL-CIO, AFL-CI

Decision Date09 May 1983
Docket NumberNo. 81SC70,AFL-CI,R,81SC70
PartiesThe CITY AND COUNTY OF DENVER; the Board of Councilmen of the City and County of Denver; the Honorable William H. McNichols, Jr., acting in his capacity as Mayor of the City and County of Denver; Edward F. Burke, Jr., Salvadore "Sam" Carpio, Cathy Donahue, Stephen Grogan, Paul A. Hentzel, Kenneth M. MacIntosh, James J. Nolan, Larry Perry, Cathy Reynolds, William R. Roberts, M.L. Sam Sandos, L. Don Wyman, in their capacities as members of the Board of Councilmen of the City and County of Denver and Elvin Caldwell, in his capacity as a member and President of the Board of Councilmen of the City and County of Denver, Petitioners, v. DENVER FIREFIGHTERS LOCAL NO. 858,espondents.
CourtColorado Supreme Court

Max P. Zall, City Atty., Robert D. Dowler, Brian H. Goral, Asst. City Attys., Damas & Smith, Stanislas S. Damas, Denver, for petitioners.

Brauer, Simons & Buescher, P.C., Mark N. Simons, Denver, for respondents.

Semple & Jackson, Martin Semple, Robert I. Cohn, Denver, for amicus curiae, Denver Public Schools.

Larry F. Hobbs, Denver, for amicus curiae, Colorado Educ. Ass'n.

LOHR, Justice.

The Denver Firefighters Local No. 858, IAFF, AFL-CIO (Union), filed a complaint against the City and County of Denver (City) and city officials requesting injunctive relief, claiming that the defendants had breached the parties' collective bargaining agreement by refusing to submit a firefighter's grievance to binding arbitration. The Denver District Court granted the Union's summary judgment motion and the Colorado Court of Appeals affirmed. We allowed the City's petition for writ of certiorari 1 and now affirm the judgment of the court of appeals.

An overview of the parties' past employment and bargaining relationship is helpful to an understanding of the issues presented by this case. On June 15, 1971, Denver voters adopted an amendment to Denver's Home Rule Charter (the 1971 amendment) establishing the right of the firefighters to bargain collectively with the City over terms and conditions of employment and providing for binding arbitration of all unresolved issues should contract negotiations break down. 2 Pursuant to this amendment, the Union and the City have negotiated and entered into collective bargaining agreements each year since 1972.

During negotiations for the 1975 contract, the parties could not agree on the inclusion of a provision for binding arbitration as the final step in a grievance procedure to resolve disputes arising under the terms of the agreement. A panel of arbitrators was appointed as provided by the 1971 amendment to resolve the disputed issue. The panel issued a binding arbitration award favoring the position taken by the firefighters during negotiations and ordered the parties to include a grievance arbitration procedure in their 1975 agreement. Such a provision was also included in the parties' 1976 and 1977 agreements without resort to arbitration during negotiations for these contracts. 3

The grievance procedure provided for in Article XV of the 1977 agreement, at issue in the present case, establishes a three-step process. Within seven days of learning the facts giving rise to his complaint, an aggrieved firefighter must present a written grievance to the district chief, stating the reasons therefor and the specific provisions of the agreement allegedly violated. The grievant, union steward and district chief then meet to discuss the matter, and the district chief issues a decision. If the firefighter is not satisfied with the "step 1" decision, he may appeal under "step 2" to the fire chief, who then discusses the matter with the firefighter and two members of the Union grievance committee and issues his decision. If the grievant is not satisfied with the fire chief's decision, the Union may give written notice to the City of its intent to submit the matter to arbitration under "step 3." The parties select a "Grievance Arbitration Board" consisting of an appointee of the City, an appointee of the Union, and a third appointee jointly selected by the "representatives of each party." Should the City and Union representatives fail to agree upon the third arbitrator, the American Arbitration Association selects the third member in accordance with its rules. After hearing the grievance, the arbitration board renders a decision, and its "findings" are "final and binding on all parties concerned."

The grievance procedure applies only to those complaints alleging a violation of an express provision of the agreement. Matters specifically excluded from arbitration, among others, are those requiring a change in any terms or conditions of employment as established in the agreement and those not specifically covered by any provisions of the agreement. 4

On June 20, 1977, the president of Local 858, Michael D. McNeill, filed a grievance stating:

The aggrieved fire fighter has been discriminated against because of his union activity in as much as he has not received over time for more than 24 months.

The provisions of the 1977 agreement alleged to have been violated were Article VI, Section 2, 5 prohibiting the arbitrary exercise of discretionary power by the City, and Article IV, Section 2, 6 prohibiting discrimination by the City against a firefighter for Union activity. McNeill was dissatisfied with the outcome of the first two steps of the grievance procedure, 7 and the Union notified the City of its intent to submit the matter to arbitration. The City responded by letter stating that it refused to submit the matter to arbitration because Greeley Police Union v. City Council, 191 Colo. 419, 553 P.2d 790 (1976) "invalidated binding arbitration of labor disputes involving public jurisdictions." The Union did not agree that Greeley Police Union prohibited binding arbitration of grievances arising under the terms of an existing collective bargaining agreement, and this suit followed.

The Union set forth three claims for relief, alleging that the City was required to arbitrate the matter under the terms of the 1977 agreement, under sections 13-22-203 and -204, C.R.S.1973 (1982 Supp.) of the Uniform Arbitration Act, and under C.R.C.P. 109 and Colo. Const. Art. XVIII, § 3. The Union requested that the court specifically require the City "to perform under the contract and to proceed with arbitration."

The City filed a motion to dismiss the complaint for failure to state a claim, and the Union filed a motion for summary judgment. After considering affidavits and oral argument, the district court granted the Union's motion and denied the City's motion. 8 The court distinguished between grievance arbitration of matters arising under the terms of an existing collective bargaining agreement and interest arbitration of terms and conditions of employment to resolve disputes arising during negotiations in the formation of a contract. The court concluded that Greeley Police Union invalidated only interest arbitration between public officials and employees, 9 and that arbitration of McNeill's grievance was not an unconstitutional delegation of the City's legislative authority because resolution of the grievance requires the interpretation and application of an existing agreement. In addition, the court addressed the City's contention that its negotiators did not voluntarily agree to the grievance arbitration provision in the 1977 agreement and concluded that the contract is binding on the City.

The City appealed from the judgment of the district court to the Colorado Court of Appeals. The court of appeals affirmed the judgment, adopting the district court's distinction between grievance and interest arbitration to answer the constitutional question. Denver Fire Fighters Local No. 858, IAFF, AFL-CIO v. City and County of Denver, 629 P.2d 1086 (Colo.App.1980). 10 We granted the City's petition for a writ of certiorari to consider the question of whether the Colorado Constitution prohibits the submission to binding arbitration of grievances arising under the terms of a collective bargaining agreement between public employers and their employees. We conclude that it does not, and affirm the court of appeals' decision.

We first address the question of whether binding arbitration of disputes involving the interpretation and application of a public employment collective bargaining agreement violates the constitutional prohibition against delegation of legislative authority to persons other than elected officials. We then consider the specific contract provision challenged by the City.

I.

The elected officials of the home rule city of Denver have the authority to legislate upon and regulate matters relating to the terms and conditions of employment for municipal employees. Colo. Const. Art. XX, § 6. Denver's elected officials responsible for performing this legislative function may not constitutionally delegate their ultimate decision-making authority to persons who are unaccountable to the electorate. Greeley Police Union v. City Council, supra. To allow delegation of legislative authority to an arbitrator who is not elected by the voters of Denver would contravene a central purpose of Colo. Const. Art. XXI, § 4 to give the electorate the power of recall over those officials exercising legislative power.

A review of our cases applying the nondelegation principle to public employment collective bargaining situations is helpful to place the present dispute in context. In Fellows v. LaTronica, 151 Colo. 300, 377 P.2d 547 (1962), a Pueblo firefighter requested arbitration of a grievance arising under the terms of a collective bargaining agreement. The court denied the firefighter's request for arbitration, holding that the nondelegation principle prohibits public officials from entering into a binding collective bargaining agreement with city employees absent specific authority granted by city charter or state statute.

Fellows v....

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