Fort Dodge Community School District v. Public Employment Relations Board

McCORMICK, Justice

(dissenting).

I would hold that compensation for early retirement is a mandatory subject of bar*185gaining because it is supplemental pay. The court’s contrary holding appears to be based on a continuing policy of construing the Public Employment Relations Act strictly against the bargaining rights of public employees. I believe this policy is contrary to legislative intent and leads to an incorrect result in this case.

I. Approach to construction. The court started down its present path in City of Fort Dodge v. PERB, 275 N.W.2d 393 (Iowa 1979), and Charles City Community School District v. PERB, 275 N.W.2d 766 (Iowa 1979). In those cases the court recognized that the mandatory bargaining topics in section 20.9 constitute exceptions to the employer rights enumerated in section 20.7. The court concluded that the list of topics was exclusive and definitional rather than descriptive. This conclusion finds reasonable support in the language and legislative history of the statute.

Instead of stopping there, however, the court adopted two rules of construction that have no support in the language or legislative history of the statute and are contrary to general rules of statutory construction. One rule is to give a narrow meaning to the enumerated bargaining topics, and the other is to require a “balancing” of the bargaining right against the employer rights under section 20.7. See Charles City, 275 N.W.2d at 773-75; City of Fort Dodge, 275 N.W.2d at 398. The restrictive approach to definitions was confirmed in Marshalltown Education Association v. PERB, 299 N.W.2d 469, 470 (Iowa 1980), and the balancing test was confirmed in Charles City Education Association v. PERB, 291 N.W.2d 663, 666 (Iowa 1980).

The rule giving restrictive definitions is contrary to the legislative mandate in section 4.1(2) that terms “be construed according to the context and approved usage of the language.” The mere fact that the legislature adopted a “laundry list” or definitional approach to mandatory bargaining subjects does not dictate restrictive definitions. Because nothing in the context justifies departure from the regular canon of construction, I believe the court is mistaken in giving narrow definitions to bargaining topics.

The definition of “wages” provides an example of the incongruity of restrictive definitions. In City of Fort Dodge, the court shunned the ordinary notion that compensation can be paid in kind rather than cash. In the second Charles City case, the court repeated and applied a definition equating the term with pay for labor, “usually manual or mechanical, at short stated intervals, as distinguished from salaries or fees.” 291 N.W.2d at 668. It is difficult for me to believe the legislature would so characterize the work of all public employees, whether they be custodian, policeman, or professor. Even school boards would probably be surprised to learn that wages are to be distinguished from salaries.

The court in City of Fort Dodge and the second Charles City case expressed a commitment to giving the bargaining subjects their ordinary meaning. See 291 N.W.2d at 668 and 275 N.W.2d at 396-97. A contrary intention was expressed in the first Charles City case and the Marshalltown case. See 299 N.W.2d at 470 and 275 N.W.2d at 773. All four cases, however, applied restrictive definitions in fact. I believe the court was right in its statement of the rule in City of Fort Dodge and the second Charles City case but wrong in its restrictive definitions in all four cases.

I also believe the “balancing test” is an unwarranted judicial imposition on the statute. Once it is recognized that the bargaining topics in section 20.7 are exceptions to employer rights in section 20.9, no occasion for balancing exists. In creating the exceptions, the legislature has already balanced whatever interests it deemed significant. It is a contradiction to assert that the topics in section 20.7 are exceptions to employer prerogatives but yet are not exceptions unless PERB or a reviewing court finds the employee interest in bargaining outweighs the public employer’s interests in its section 20.7 rights. It is also fallacious to omit statutory employee rights in section 20.8 from any balancing process.

*186The result is not merely recognition of a legislative intent to have a short list of mandatory bargaining topics. The court’s approach also narrows the scope of each topic. If the topic survives the definitional test, it must then confront the balancing test, where any conflict is resolved against the employee. I believe this approach is a palpable frustration of legislative intent.

II. The question in this case. The record shows PERB has interpreted supplemental pay as meaning any cash payment to an employee in addition to the employee’s regular wages. As a consequence, the board has recognized the bonus for early retirement, moving expenses, travel allowances, tuition reimbursement and compensation for unused sick leave as supplemental pay. To me this is a tenable interpretation of the bargaining subject. It is one that the agency arrived at while attempting to give effect to this court’s prior definitional standards. It conforms with common sense and the ordinary meaning of the concept. If the rule of deference to agency constructions of the statute has any meaning, this is a case in which it should be applied.

The effect of the court’s holding is to deprive the concept of supplemental pay of a definition. Rather than define the term, the court gives an example based on an assumed distinction between primary and secondary duties under a contract. No basis for such a distinction appears in the statute or in the record in this case. The distinction is neither meaningful nor workable. We are left with a holding that supplemental pay is a form of wages as that term has been restrictively defined by the court. Because the subject of wages is separately listed, the supplemental pay topic has no independent significance.

I would reverse the district court.

HARRIS, J., joins this dissent.