County Dept. of Public Welfare of Lake County v. American Federation of State, County and Municipal Emp., AFL-CIO, Indiana Council 62

• Decision Date: 05 February 1981
• Docket Number: No. 3-578A114,AFL-CI,AFL-CIO,INDIANA,3-578A114
• Parties: In the Matter of COUNTY DEPARTMENT OF PUBLIC WELFARE OF LAKE COUNTY, Defendant-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES,COUNCIL 62, by Joseph Bolt, Council Director, and Lake County Department of Public Welfare Employees, Local of American Federation of State, County and Municipal Employees,, by J. Edward Johnston, President, and J. Edward Johnston, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 153

416 N.E.2d 153

In the Matter of COUNTY DEPARTMENT OF PUBLIC WELFARE OF LAKE

COUNTY, Defendant-Appellant, v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL

EMPLOYEES, AFL-CIO, INDIANA COUNCIL 62, by Joseph Bolt,

Council Director, and Lake County Department of Public

Welfare Employees, Local of American Federation of State,

County and Municipal Employees, AFL-CIO, by J. Edward

Johnston, President, and J. Edward Johnston, Plaintiffs-Appellees.

No. 3-578A114.

Court of Appeals of Indiana, Third District.

Feb. 5, 1981.

Thomas C. Ridgely, Gary, for defendant-appellant.

Charles S. Brown, Jr., and Nancy S. Brown, Brown & Brown, New Castle, for plaintiffs-appellees.

GARRARD, Judge.

This is an appeal from a judgment ordering the Lake County Welfare Board (the board) to engage in collective bargaining in good faith with the American Federation of State, County and Municipal Employees, AFL-CIO (the union) as the exclusive bargaining agent of its employees. We reverse.

On April 25, 1975, the governor approved the Public Employees Bargaining Act, IC 22-6-4-1 et seq. as enacted by the legislature. The act was to become effective July 1, 1975.

Presumably in anticipation of exercising rights afforded by the act, on May 7, 1975, a number of labor officials approached the board and indicated that they were seeking recognition as collective bargaining agent for the employees of the county welfare department. In order to resolve the matter, the board agreed to hold an election among department employees to determine their wishes.

On May 21st a "Consent Election Agreement" form provided by the Indiana Division of Labor was executed by representatives of the board and the union. Pursuant thereto the Division of Labor conducted an election on June 10th and on June 18, 1975, certified the union as the sole agent of the department's employees for purposes of collective bargaining.

The parties began negotiating in early August and continued to bargain until the latter part of January 1976. At that time the State Welfare Director and the Director of Labor Relations for the State Personnel Division requested the board to cease negotiations on the ground that under the State Personnel Act, IC 4-15-2-1 et seq., the employees involved were state employees rather than county employees.

On February 4, 1976 the Benton Circuit Court declared the Public Employees Bargaining Act unconstitutional. On appeal the Supreme Court affirmed. I.E.E.R.B. v. Benton Community School Corp. (1977), 266 Ind. 491, 365 N.E.2d 752.

When the board declined to negotiate further, the union instituted this action for mandate and specific performance. The trial court granted relief as heretofore set forth.

We first observe that when the statute was determined to be unconstitutional the effect was to leave the law as though the statute had never been enacted. Thus, validity of the contract cannot depend upon the statute's provisions. Oolitic Stone Co. of Ind. v. Ridge (1910), 174 Ind. 558, 91 N.E 944; Coleman v. Mitnick (1964), 137 Ind.App. 125, 202 N.E.2d 577, reh. den. 137 Ind.App. 125, 203 N.E.2d 834.

The union argues, however, that the contract and judgment are sustainable upon principles of general contract law. It supports this contention by reference to three provisions contained in the agreement executed by the parties on May 21, 1975.

Paragraph 6 of the agreement stated that if the union won the election, the employer "will begin negotiations on a contract within 15 days."

Paragraph 7 provided that if over 50% of those voting in the election selected the union, the employer would recognize the union "as the exclusive Bargaining Agent, in compliance with existing State and Federal laws."

Finally, paragraph 14 stated, "Any questions not covered by the Agreement may be determined in accordance with Consent Election Procedure followed by the National Labor Relations Board."

In considering the proper effect of the agreement, it is critical at the outset that we distinguish the situation before us from two related sets of circumstances.

In Gary Teachers Union v. School City of Gary (1972), 152 Ind.App. 591, 284 N.E.2d 108 and East Chicago Teachers Union v. Board of Trustees (1972), 153 Ind.App. 463, 287 N.E.2d 891, this court was confronted with the issue of collective bargaining by school corporations in the absence of any applicable statute imposing a duty of collective bargaining. However, both cases involved the enforceability of collective bargaining contracts covering the wages, hours and working conditions of the employees involved which had been actually agreed to and accepted by the parties. Moreover, no question was presented as to the effect of the agreement upon employees who did not desire to have the union serve as their agent. The legal issue before the court was the power of the board to voluntarily enter such a contract. No such contract is involved in the present dispute.

Secondly, the form of the court's order requires bargaining to the ascertainable standard of "good faith," and through its mandate that the board "perform its contract," requires the board to recognize the union as the exclusive bargaining agent for all employees "in compliance with existing state and federal laws." Thus, the situation presents more than the limited issues of whether the employees have rights to freedom of association and free speech as guaranteed by the constitution. See, e. g., N.A.A.C.P. v. Button (1963), 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405. See also Pickering v. Board of Education (1968), 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (free speech); Shelton v. Tucker (1960), 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (right of association).

The common law of this state does not, of course, grant to one group of individuals the right to impose their will upon another group merely because the whole number work for the same employer and the former group constitute something more than 50% of the total. Indeed one of the principal purposes manifested by Section 9 of the Wagner Act, nationally, was to alter that consequence so labor might bargain on more equal terms with management. See, e. g., Consolidated Edison Co. v. N.L.R.B. (1938), 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126. Similarly, the notion that between employer and employee there should be not only the right but a duty to bargain over the terms of employment is a creature of statute. ¹ Peters v. Poor Sisters of Saint Francis Seraph (1971), 148 Ind.App. 453, 267 N.E.2d 558. While such statutes do not command the parties to agree, they are enforceable through imposing the duty to bargain by an ascertainable standard, good faith, through the prohibition of unfair labor practices. See 29 U.S.C.A. § 158(a)(5); IC 22-6-4-5(a)(5).

When confronted with the question, the courts have held that there is no constitutional right or obligation to bargain collectively. Hanover Tp. Fed. of Teachers (AFL-CIO) v. Hanover Community School Corp. (7th Cir. 1972), 457 F.2d 456; Indianapolis Education Ass'n v. Lewallen (7th Cir. 1969), 72 LRRM 2071.

Bypassing the question of whether the board is actually the employer, and assuming arguendo that the board could enter into an agreement applicable to those employees who wanted the union to speak for them, what is the effect of the election agreement of May 21, 1975 as an independent contract?

Under Indiana law, in order to be enforceable a contract must be sufficiently certain and definite in all its essentials that we can ascertain when and whether it has been performed.

Here the only requirement of paragraph 6 of the agreement was that the board was to "begin negotiations on a contract within 15 days" if the union was determined to be the bargaining agent. While it does not appear that negotiations were commenced within that time limit, nothing is made of that fact by the parties and it is undisputed that they did negotiate for several months prior to the institution of these proceedings. What is critical is that the agreement required no more. The language employed in the instrument was at most an agreement to make an agreement. As such, under Indiana law the promise was illusory and is unenforceable. Helvey v. O'Neill (1972), 153 Ind.App. 635, 288 N.E.2d 553; Wallace v. Mertz (1927), 86 Ind.App. 185, 156 N.E. 562.

Nor is this conclusion altered by the terms of paragraphs 7 and 14 of the agreement. Paragraph 7 called for recognition of the union as exclusive bargaining agent "in compliance with existing State and Federal laws." With the state statute declared unconstitutional, there simply were no state or federal laws which applied to permit the status referred to.

Paragraph 14 provided that "any questions not covered by the Agreement may be determined in accordance with Consent Election Procedure followed by the National Labor Relations Board."

The subject matter of the agreement, as well as that of the procedure referred to, deals with the conduct of an election to determine an exclusive bargaining agent. See National Labor Relations Board, Statement of Procedures, Rules and Regulations, Series 8, § 101.19. Such agreements are provided for in labor law as a means of avoiding the uncertainty, delay and expense involved in the formal determination of representation questions. ² The one before us was executed nearly upon the eve of what all must have thought would be the effective date of such an authorizing statute in Indiana. However, such was not the case.

We agree the document might stand on its own corners. We do not believe, however, that the included reference to election procedure may be utilized to lever into the agreement the substantive obligations which do not otherwise exist apart from statute, and which would be necessary to dispel the illusory quality of the board's bare promise to "begin negotiations on a contract." Since this is so we need not consider the other allegations raised on appeal.

We reverse the...