Jones v. International Ass'n of Firefighters, Local Union No. 936

• Decision Date: 22 May 1980
• Docket Number: No. 1613,1613
• Citation: 601 S.W.2d 454
• Parties: 108 L.R.R.M. (BNA) 3090 Luther JONES, Mayor of the City of Corpus Christi et al., Appellants, v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO. 936 et al., Appellees.
• Court: Texas Court of Appeals

Page 454

601 S.W.2d 454

108 L.R.R.M. (BNA) 3090

Luther JONES, Mayor of the City of Corpus Christi et al., Appellants, v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL UNION NO.

936 et al., Appellees.

No. 1613.

Court of Civil Appeals of Texas, Corpus Christi.

May 22, 1980.

Rehearing Denied June 12, 1980.

Bruce Aycock, James R. Bray, Corpus Christi, for appellants.

Russell H. McMains, David L. Perry, Edwards & Perry, Corpus Christi, for appellees.

OPINION

NYE, Chief Justice.

This case involves the right of appellees (the International Association of Firefighters, Local Union No. 936, the Corpus Christi Police Officers Association, and their officers, individually and in their representative capacities), to a writ of mandamus to compel appellants (the Mayor, City Council, City Manager, and City Secretary to the City of Corpus Christi), hereinafter called City, to hold an election concerning a proposed amendment to the Corpus Christi City Charter which, if passed, would, in effect, require mandatory arbitration as a method to resolve collective bargaining impasses between the City of Corpus Christi and the Firefighters and Policemen. The cause was submitted to the trial judge on stipulated facts. The trial court granted appellees' request for a writ of mandamus from which the city appeals.

The stipulated facts that are material to this appeal are: 1) the City of Corpus Christi (City) is a home-rule city under the laws of the State of Texas; 2) in 1975, the qualified voters of the City in a duly held election lawfully adopted the provisions of Tex.Rev.Civ.Stat.Ann. art. 5154c-1 (Supp.1980), and have never repealed the adoption of the same; 3) on March 5, 1979, appellees presented a petition to the City Secretary bearing the signatures of more than 5% of the qualified voters of the City; 4) the petition requested that a proposal be submitted to the qualified voters of the City as a charter amendment to require compulsory binding arbitration at the request of either party in the event an impasse had been reached in the collective bargaining negotiations; 5) on July 3, 1979, the City Council adopted a resolution refusing to call an election for the purpose of voting on the proposed charter amendment; 6) the City Council, acting through ordinance, has the authority on behalf of the City, to enter into a collective bargaining agreement pursuant to article 5154c-1, and to agree, or to refuse to agree, to particular proposed provisions of such agreements; 7) City employees serve as representatives of the City Council in negotiations for collective bargaining agreements with all final decisions regarding particular terms contained in collective bargaining agreements made by the City Council acting through ordinance.

On appeal, the parties agree that the stipulated facts establish that appellees complied with all of the conditions precedent to requiring an election on the proposed charter amendment pursuant to Tex.Rev.Civ.Stat.Ann. article 1170 (Supp.1978). ¹ Under such circumstances, our appellate review is limited. The appellees, being otherwise entitled to have an election called and held, cannot be defeated unless it appears that the subject matter of the proposed charter amendment is not legislative in character or that the subject matter of the proposed charter amendment has been withdrawn from the field in which initiatory process is operative. The validity of the amendment, if adopted, is not at issue. Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645, 648 (1951); Edwards v. Murphy, 256 S.W.2d 470, 476-77 (Tex.Civ.App. Fort Worth 1953, writ dism'd). Here, the parties agree that the subject matter of the proposed charter amendment is legislative in character. Our Court has so held in International Association of Firefighters, Local No. 2390 v. City of Kingsville, 568 S.W.2d 391 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.). Therefore, our inquiry is limited to the single question of whether or not the subject matter of the proposed charter amendment has been withdrawn from the field in which the initiatory process is operative.

All of the parties agree that the Supreme Court case of Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1951) is the leading authority on the subject that is before us. In that case, Justice Calvert, writing for the Supreme Court, summarized as follows several methods by which the initiatory process could be limited:

"In the case of Taxpayers' Ass'n of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657, this Court said that 'the power of initiative and referendum . . . is the exercise by the people of a power reserved to them, and not the exercise of a right granted', and that 'in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.' . . . The field where the initiatory process is operative may also be limited by general law. Article XI, Section 5 of our Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this state. Any rights conferred by or claimed under the provisions of a city charter, including the right to an initiative election, are subordinate to the provisions of the general law. It follows that the Legislature may by general law withdraw a particular subject from the field in which the initiatory process is operative. Again, the field may be limited by the city charter itself. Other provisions of the charter may withdraw from the people the power under the initiative provisions to deal with a particular subject."

Here, the parties agree that there is no provision, either express or implied, contained in the City Charter which would limit the initiative process in question. In addition, the City does not contend, nor have we found, an express provision contained in the general laws of this State precluding the initiative process in this instance.

Under its first point of error, however, the City contends that it was justified in refusing to submit the proposed charter amendment to the electorate and that the district court erred in granting its writ of mandamus ordering an election because article 5154c-1 vests exclusive authority in the public employer to make all decisions for the City regarding collective bargaining. The City argues further that this article establishes procedural steps in the collective bargaining process which are incompatible with a determination by the electorate to submit to binding arbitration, thus, in both instances, withdrawing by implication the subject matter of the proposed amendment from the initiative process.

Until the enactment of article 5154c-1, the general laws of the State expressly prohibited collective bargaining as well as strikes in the public employment sector. Tex.Rev.Civ.Stat.Ann. art. 5154c §§ 1, 3 (1971). Art. 5154c was amended by art. 5154c-1 in 1973. Sec. 20(a) states that: "This Act shall supersede all conflicting provisions in previous statutes concerning this subject matter; to the extent of any conflict the previous conflicting statutory provision is hereby repealed . . ." This new act (The Fire and Police Employee Relations Act), applies only to firefighters and policemen in cities which adopt the provisions of the Act by local option elections. ²

The qualified voters of the City of Corpus Christi, in an election held for this purpose, adopted this new article. This article (5154c-1), as enacted, continues to prohibit strikes and generally provides procedures whereby public employers and firefighters and policemen can reach an agreement concerning compensation and other terms and conditions of employment through collective bargaining, mediation and voluntary arbitration. Section 2 of the Act expressly states the Act's policy. Paragraph 2 of this section says:

In view of the essential and emergency nature of the public service performed by firefighters and policemen, a reasonable alternative to such strikes is a system of arbitration conducted under adequate legislative standards."

Section 4 of the Act establishes the requirement that firefighters and policemen should receive compensation and other conditions of employment which are substantially the same as those which prevail in comparable private sector employment.

Where the firefighters and policemen are represented by an association for collective bargaining purposes, section 7 obligates the public employer and the association to bargain collectively in good faith and at reasonable times concerning the terms and conditions of employment or to negotiate an agreement concerning such terms and conditions.

The particular sections of the Act upon which the City relies to support its contentions ³ provide as follows:

"Sec. 9. (a) In any dispute between a public employer and its protective services employees represented by an association, pursuant to this Act, where an impasse is reached in the collective bargaining process, or where the appropriate lawmaking body fails to approve a contract reached through collective bargaining, and as a result the public employer and employees are unable to effect a settlement, then either party to the dispute, after written notice to the other party containing specifications of the issue or issues in dispute, may request appointment of an arbitration board; provided, however, that a party shall not request arbitration more than once during any fiscal year.

ARBITRATION

Sec. 10. (a) The request for arbitration . . . shall be initiated within five days . . . . If both parties elect to settle their dispute by arbitration, such election shall be made within five days following the request for arbitration, and shall be in the form of a written agreement to arbitrate. The issues to be arbitrated shall be all matters which the parties have been unable to resolve . . . .

(b) Although the policy of this Act favors and encourages ...