Oliver v. City of Tulsa

• Decision Date: 12 October 1982
• Docket Number: No. 53992,53992
• Citation: 1982 OK 121,654 P.2d 607
• Parties: I.L. OLIVER, a member of Local 176, International Association of Firefighters for and on behalf of the members of said Association, Appellee, v. CITY OF TULSA, Oklahoma, a municipal corporation, Appellant, and Tulsa Fire Chiefs Association, an unincorporated association, Appellant, Intervenor.
• Court: Oklahoma Supreme Court

Page 607

654 P.2d 607

1982 OK 121

I.L. OLIVER, a member of Local 176, International Association of Firefighters for and on behalf of the members of said Association, Appellee, v. CITY OF TULSA, Oklahoma, a municipal corporation, Appellant and Tulsa Fire Chiefs Association, an unincorporated association, Appellant, Intervenor.

No. 53992.

Supreme Court of Oklahoma.

Oct. 12, 1982.

Rehearings Denied Dec. 13, 1982.

Appeal from the District Court, Tulsa County; Richard V. Armstrong, Trial Judge.

Action for declaratory judgment construing the Firefighters' and Policemen's Arbitration Law, 11 O.S.1971, §§ 548.1 to 548.14, and as amended by 11 O.S.Supp.1972, § 548.4 et seq. From a judgment granted in favor of plaintiff below, appellant City of Tulsa and appellant intervenor, Tulsa Fire Chiefs Association, appeal.

AFFIRMED IN PART AND REVERSED IN PART.

Waldo F. Bales, City Atty. by Neal E. McNeill, Asst. City Atty., Tulsa, for appellant, City of Tulsa, Oklahoma.

Chapel, Wilkinson, Riggs, Abney, Keefer & Henson by Charles S. Chapel, Dianne L. Smith, Tulsa, for appellee.

LAVENDER, Justice:

The City of Tulsa (City) is a municipal corporation and a city of the first class under the laws of Oklahoma, operating under a charter approved by the Governor of the State of Oklahoma on the 5th day of January, 1909.

Local 176, International Association of Firefighters (Union) is the exclusive bargaining agent for the "Firefighters" in the City of Tulsa, and I.L. Oliver (Oliver) is a member of that union and appears for and on behalf of the members thereof as well as for himself personally.

Tulsa Fire Chiefs Association (Chiefs Association) is an unincorporated association composed of employees of the City fire department of the rank of District Chief and higher.

Oliver filed suit against City for a declaratory judgment on the issues hereinafter discussed.

Do the provisions of Article XVIII of the Charter of the City of Tulsa, being a charter amendment proposed by initiative petition and approved at a municipal election and by the Governor of Oklahoma, which amendment prescribes longevity pay for firemen, take precedence over the Firefighters' and Policemen's Arbitration Law, supra, so that longevity pay or allowances are not negotiable as between the City and the Union?

City contends that the trial court erred in its holding that municipal employee longevity pay is a matter of statewide concern and therefore the terms of the Oklahoma Policemen's and Firemen's Arbitration Law superseded the provisions of Article XVIII of the City's charter.

We have held that a city charter which is adopted and approved in accordance with the Constitution and which is not inconsistent therewith becomes the organic law of the city and supercedes all laws of the state in conflict therewith insofar as such laws relate to merely municipal matters. ¹ As we said in U.S. Elevator, supra, "Under this rule, the conflict between the supremacy of the state law and the exercise of municipal power under its charter is resolved by determining 'whether such law pertains to general matters of the state and its government or pertains to municipal affairs.' Lackey v. State, 29 Okl. 255, 116 P. 913 (1911)."

We find that the longevity pay of Tulsa firemen is a matter of purely local concern. However, the rights afforded by the Firefighters' and Policemen's Arbitration Law, supra, including the right of "collective bargaining" as therein set forth and defined are matters of statewide concern. ² But the rights therein afforded do not pertain to longevity pay, but only to the privilege of the firemen of speaking through a collective voice to authorized representatives of the City. ³ There is, therefore, no conflict between the charter provision and the statute.

Did the codification of the Oklahoma Municipal Code (11 O.S.Supp.1977, § 1-101 et seq.) which became effective on July 1, 1978, and which specifically repealed 11 O.S.1971, § 548.1 et seq. render the Union's action for declaratory judgment construing the 1971 Act moot and thereby eliminate any justiciable controversy?

It will be observed that the Oklahoma Municipal Code, supra, re-enacts in substantial form 11 O.S.1971, § 548.1 et seq., as amended by 11 O.S.Supp.1972, § 548.3 et seq. (see 11 O.S.Supp.1977, § 51-101 et seq.).

When a revised and consolidated act re-enacts in the same or substantially the same terms the provisions of the act or acts so revised and consolidated, the revision and consolidation shall be taken to be a continuation of the former act or acts, although the former act or acts may be expressly repealed by the revised and consolidated act; and all rights and liabilities under the former act or acts are preserved and may be enforced. ⁴

We therefore hold that the Oklahoma Municipal Code, supra, although it purported to repeal the statutes sought to be construed, re-enacted in substantial form the statutes purportedly repealed, and did not disrupt the continuity of the statutory law or interrupt its force and effect.

Does the Firefighters' and Policemen's Arbitration Law (11 O.S.1971, §§ 548.3, 548.4) and as amended by the Firefighters' and Policemen's Arbitration Law (11 O.S.Supp.1972, §§ 548.3, 548.4) define and determine the make-up of a collective bargaining unit so that whether municipal firemen of the rank of District Chief or higher are included in the bargaining unit is not a matter of negotiation between the City and the duly constituted bargaining agent for the "firefighters"?

The pertinent provisions of the Firefighters' and Policemen's Arbitration Law of 1971, supra, and the contrasting amendment thereof in 1972 are as follows:

1971 Act:

"SECTION 3. Definitions

"As used in this act, unless a context requires a different interpretation:

"1. 'Firefighters ...' shall mean the permanent paid members of any fire department ... in any city, town or municipality within the State of Oklahoma but shall not include supervisory personnel who have the authority to employ or discharge employees and the ... Chief of the Fire Department and an administrative assistant. The administrative assistant shall be that person so designated by ... the Chief of the Fire Department.

* * *

* * *

"4. 'Bargaining agent' shall mean any lawful association, fraternal organization, labor organization, federation or council having as one of its purposes the improvement of wages, hours and other conditions of employment among employees of municipal fire ... departments.

"SECTION 5. Bargaining agent--Recognition

"The bargaining agent selected by a majority of the firefighters ... in any city, town or municipality shall be recognized by the corporate authorities as the sole and exclusive bargaining agent for all firefighters ... employed in the city, town or municipality, unless and until recognition of such bargaining agent is withdrawn by a vote of a majority of the firefighters ... in said city, town or municipality.

"SECTION 6. Meet and confer--Agreements

"It shall be the obligation of the city, town or municipality, acting through its corporate authorities, to meet at reasonable times and confer in good faith with the representatives of the firefighters ... within ten (10) days after receipt of written notice from said bargaining agent requesting a meeting for collective bargaining purposes. The obligation shall include the duty to cause any collective bargaining agreement resulting from negotiations to be reduced to a written agreement, the term of which shall not exceed one (1) year; * * *.

"SECTION 7. Arbitration

"In the event that the bargaining agent and the corporate authorities are unable, within thirty (30) days from and including the date of the first meeting, to reach an agreement on a contract, any and all unresolved issues shall be submitted to arbitration, upon request of either party."

1972 Act:

"548.3 Definitions

"As used in this Act, unless a context requires a different interpretation:

"1. 'Firefighters ...' shall mean the permanent paid members of any fire department ... in any city, town or municipality within the State of Oklahoma but shall not include the ... chief of the fire department and an administrative assistant. The administrative assistant shall be that person so designated by the ... chief of the fire department.

* * *

* * *

"6. 'Bargaining agent' shall mean any lawful association, fraternal organization, labor organization, federation or council having as one of its purposes the improvement of wages, hours and other conditions of employment among employees of fire ... departments.

* * *

* * *

"548.4 Collective bargaining rights--Supervisory and professional municipal employees--Petition--Hearing--Elections

"A. Firefighters, ... in any city, town or municipality shall have the separate right to bargain collectively with their city, town or municipality and to be represented by a bargaining agent in such collective bargaining with respect to wages, salaries, hours, rates of pay, grievances, working conditions and all other terms and conditions of employment.

"B. Supervisory and professional municipal employees may form, join and participate in the activities of employee organizations, provided such organizations do not include nonsupervisory employees. The corporate authority shall not extend formal recognition to a supervisory or professional organization for the purpose of meeting and conferring with respect to grievances and conditions of employment, but may consult or otherwise communicate with such an organization on appropriate matters. The corporate authority shall determine whether an individual is to be considered a supervisory, professional or confidential municipal employee for meet and confer purposes, subject to appeal to the Board.

* * *

* * *

"E. In order to assure to firefighters ... of any city, town or municipality the fullest freedom in exercising the rights guaranteed by this act, the Board shall decide in each...