City of Roseburg v. Roseburg City Firefighters, Local No. 1489

LINDE, J.,

concurring.

The Court decides, and I concur, that the City of Roseburg cannot legally refuse to bargain with its firefighters under the state’s Public Employe Collective Bargaining Act on the grounds that PECBA alters the city’s charter or denies the right of referendum contrary to the “home rule” provisions of the Oregon Constitution.1 Nothing that has happened so far in this proceeding has that effect.

*289I write separately because the issues are difficult and statements made in explaining the present decision could be read to have unintended implications for future cases. For this reason it seems appropriate to state what I understand to be the grounds of this decision and what is not decided in this case.

Like the parties themselves, the Court takes its starting point of analysis in the principles stated in LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204 aff’d on rehearing 284 Or 173, 586 P2d 765 (1978). Those principles afford room for the state either to set substantive terms and conditions of employment for municipal employees or to assure such employees of procedural protections in the process by which these terms and conditions are determined.

First. Roseburg happens to have enacted its own procedures for bargaining collectively with its employees, which conflict with those prescribed by PECBA. Because we sustain the validity of PECBA, there is no occasion to consider whether the presence or absence of a conflict affects the restraint of article XI, section 2, upon the state’s authority. A statute which would “amend or repeal” one city’s conflicting charter provision might also be said to “enact” a charter provision for another city that has chosen not to legislate on the subject. Arguably any given city’s constitutional immunity from a state law should not depend on its formal political decision to enact a conflicting law, although a contrary argument also is possible. That question can arise when a state law is invalidated under article XI, section 2, or is sustained for lack of a conflicting *290municipal provision; it does not arise in this case. Cf. LaGrande/Astoria v. PERB, 281 Or at 151 n. 21, citing Boyle v. City of Bend, 234 Or 91, 98 and n. 6, 380 P2d 625 (1963).

Second. One basis for the Court’s decision sustaining PECBA is that it enacts a substantive state policy rather than a state-imposed procedure for local decisions. This is a complex issue that deserves careful scrutiny.

A state law plainly would be a substantive enactment if it were simply to specify pay scales, working hours, job security, insurance, or other fringe benefits for municipal employees. This is the same in constitutional principle as the state-mandated retirement benefits sustained in LaGr ande/Astoria and the other kinds of labor standards mentioned there, 281 Or at 153, even though it would represent a farreaching extension in political practice. A constitutional attack would need another basis than that the law does not lay down substantive standards. Nor would it matter that such a substantive state law displaces a local procedure for deciding the same issues. The limit is reached when such a law contains provisions incompatible with the city’s freedom to choose its political form. 281 Or at 156.

This remains true if the same kinds of terms and conditions of employment were set by a state agency under statutory authority delegated by the Legislative Assembly rather than by the statute itself. The fact that rules are made by an agency, and by administrative procedures in which the views of the interested parties are heard and considered, does not deny the resulting rules the same character of substantive state law that they would have if the legislature had enacted them. Contrary to the assumption of the dissent, such a state process for state-mandated local employment standards therefore need not be justified as a law imposing a state-mandated local process must be.

The more difficult question is which description fits the terms and conditions of employment that emerge from the process mandated by PECBA.

*291Unquestionably the prohibition of strikes by the firemen and certain other public employees, ORS 243.736,2 is a substantive state law, and its arbitration provisions are designed to balance that prohibition. But that alone does not make the arbitration provisions into a law fixing substantive labor standards rather than a process for arriving at such standards. Unquestionably, also, PECBA as a whole has social and economic objectives, as the opinion says. But such objectives also could be said to motivate many laws that would impose organizational forms and procedures on cities contrary to article XI, section 2. To escape that section on a “substantive state law” theory, it is not enough that a state law has a substantive “goal” or “purpose” to be promoted by prescribed procedural “means”; the state must itself define the substance of the standards it intends to achieve. The state did so in the law challenged in LaGrande/Astoria, which required cities to place police officers and firefighters under the state’s Public Employees’ Retirement System or provide equal or better benefits under another retirement system. One question in the present case, therefore, is whether PECBA similarly results in state-mandated substantive standards rather than only state-mandated procedures.

This is a close question. The fact that the results may not be uniform throughout the state is immaterial; state agencies often have authority to set different rates or standards of service to meet different local conditions. The majority opinion identifies two reasons why PECBA can be said to result in state-mandated substantive labor standards. One is that unless the parties agree otherwise, the arbitrator who resolves the impasse ultimately is selected by the Employment Relations Board, a state agency. The second reason is that the statute includes a list of “factors” to guide the arbitrators selected by the parties or by the board. Therefore the ultimate terms of employment in a city which does not reach agreement with its own firefighters are characterized as a rule imposed by a state agency according to statutory criteria.

*292I am not persuaded that PECBA as a whole fits this single characterization as a state procedure for arriving at state-mandated labor standards. Rather, the statutory scheme is at best a hybrid between state-administered labor standards and conventional, bilateral labor relations and dispute settlement. A city and its firefighters are entirely free, even encouraged, to reach their own agreement without reference to any public interest or public policy of the state other than the policy of collective bargaining itself. The “factors” listed in ORS 243.746(4) only govern arbitration when the parties do not agree. And they are stated only as “factors,” a word often used to avoid commitment to any ultimate test, value, or policy that the decisionmaker is directed to realize. Nor is it clear that the arbitrators under this act are expected to see themselves as agents for the state and its public interest in the same sense as a state administrative agency, rather than as an agency of the local community or as conventional, nongovernmental labor arbitrators.3 Either of the first two views, at least, obviates any issue whether a “nongovernmental” view of the arbitrators’ role would make the procedure an unlawful delegation of governmental authority to a nongovernmental decision-maker, see Or Const, art I, § 21, Hillman v. Northern Wasco County PUD, 213 Or 264, 323 P2d 664 (1958). See generally City of Detroit v. Detroit Police Officers Ass’n., 408 Mich 410, 294 NW2d 68, 83-95 (1980); Salt Lake City v. Firefighters Local 1645, 563 P2d 786 (Utah 1977).

Delegation issues have proved troublesome to other state courts that have considered similar statutory provisions for interest arbitration in public sector employment. The reported decisions do not always distinguish clearly between three different attacks: (1) on delegating authority to set terms of employment at all; (2) on the nongovernmental status of the arbitrators; or (3) on removing authority from the politically responsible local officials. *293The statutory “factors,” when treated as indicators of some coherent public policy channeling the arbitrators’ discretion, are generally held adequate to satisfy any modern nondelegation doctrine. The same statutory factors, however, coupled with provisions for judicial review, are sometimes also cited to show that the arbitrators are agents of the public. See, e.g., Town of Arlington v. Board of Concil. & Arbit., 370 Mass 769, 352 NE2d 914, 920-921 (1976); City of Amsterdam v. Helsby, 37 NY2d 19, 332 NE2d 290, 299-302 (1975) (Fuchsberg, J., concurring); City of Warwick v. Warwick Regular Firemen’s Ass’n., 106 RI 109, 256 A2d 206 (1969); contra, Salt Lake City v. Firefighters Local 1645, 563 P2d 786, 789-90 (Utah 1977); Town of Berlin v. Santaguida, 98 LRRM 3259 (Conn Super Ct 1978). The use of politically unaccountable, independent arbitrators chosen for the individual case, as an issue distinct from delegation as such, was given prominence in an opinion by Justice Levin in Dearborn Fire Fighters Local 412 v. City of Dearborn, 394 Mich 229, 231 NW2d 226 (1975). Following an amendment of the statute so as to provide a permanent panel of official arbitrators tied more strictly to statutory standards, the Michigan Supreme Court upheld the amended scheme in City of Detroit v. Detroit Police Officers, Ass’n. supra. Similarly, the Washington statute makes the arbitration panel a state agency. RCWA 41.56.450, sustained in City of Spokane v. Spokane Police Guild, 87 Wash2d 457, 553 P2d 1316 (1976) .

It should be understood that the three challenges to delegation are not the same. If an obligation to decide according to statutory standards were enough to make one a delegate of the state, many individuals and entities that administer regulated private institutions might be surprised to find themselves public officials. The ambiguity of the arbitrators’ role is no accident; it results from the deliberate wish to use an “independent” or “neutral” decisionmaker for decisions which, however, are more policymaking than judicial in the sense of applying preexisting norms to facts. Professor, now Judge, Grodin, put it this way:

“The problem of political responsibility arises initially from the fact that arbitrators may be called upon to determine policy issues otherwise subject to the local legislative *294process. But if the arbitrator is made politically responsible to the local electorate, which is in effect a party to the dispute, then arbitration loses its neutral character; and to the extent that the arbitrator’s constituency is the same as that of the legislative body that would otherwise exercise authority over the policy questions posed, the process becomes redundant.
“If, on the other hand, the arbitrator is made politically responsible to a larger electorate — for example, the electorate of the state as a whole — problems of neutrality and redundancy give way to problems concerning local autonomy and the role of collective bargaining. What was once a local issue, determinable ultimately through the local political process, becomes a state issue, determinable by state officials. ...”

Grodin, Political Aspects of Public Sector Interest Arbitration, 64 Cal L Rev 678, 693-94 (1976). It is this third attack on the delegation, the replacement of locally accountable officials by arbitrators, that is at issue in the present case.

Grodin notes that the arbitrators’ role is left ambiguous because collective bargaining is undercut precisely to the extent that the law assumes the existence of a substantive state policy for terms and conditions of employment, a policy which will take form in an eventual arbitration award. He finds the “heart of the dilemma” in the tension between the perspective that sees the arbitrator as “an essentially private person who happens to be involved in resolving a dispute concerning a public entity” and the legal necessity to legitimize the arbitrator as a public decisionmaker.4 Justice Tanzer would resolve the tension for purposes of the third, “home rule,” attack on the arbitration provision by characterizing the arbitrator as a state official making a substantive state decision pursuant to state criteria. This may well be the correct choice when the “neutral” arbitrator is chosen by the Employment Relations Board. It is tenuous when the parties choose an arbitrator without reference to any list of official arbitrators designated by ERB.

*295The present dispute has not reached the stage when it is necessary to characterize such an arbitrator. For this case, therefore, we may best describe PECBA as a hybrid under which some steps are conducted by the state itself through ERB (and arguably through an ERB-appointed arbitrator in case of impasse) and other steps (the actual bargaining and arbitration by an agreed, independent arbitrator) are state-mandated local procedure, which must have the justification stated in LaGrande/ Astoria.

There is an additional reason to be cautious in characterizing the eventual result of arbitration under PECBA as a state-imposed substantive rule, because this may have implications for the referendum issue under article IV, section 1(5), to which I return below.

Third. In this proceeding, it is premature to argue that PECBA leads to substantive results that are incompatible with the city’s freedom to choose and maintain its own political form. Possibly this could become an issue in the designation of bargaining units, see LaGrande/Astoria v. PERB, 281 Or at 156 n. 31, or in disputes over mandatory issues of bargaining, or over the permissible reach of an arbitration award. No such issues have arisen here. This does not mean that the present controversy is not ripe for adjudication. For the reasons stated by the Court, the validity of PECBA is properly at issue on review of the board’s order. However, the possibility that one or another hypothetical future arbitration awards may contain provisions impinging on a city’s reserved home rule powers does not invalidate the statute. If a specific provision of an award is attacked on this ground, it can be dealt with as an issue of statutory interpretation. The mere apprehension is *296no defense to the present charge that the city refused entirely to bargain under the statute.

Fourth. An alternative basis for the Court’s decision is that insofar as PECBA imposes state-mandated local procedures rather than state-generated substantive results, the act nevertheless is valid under the precedents recognizing the state’s authority to safeguard the interests of persons affected by governmental decisions in the procedures by which these decisions are reached. See LaGrande/Astoria v. PERB, and cases cited in 281 Or at 146 & note 15. This refers to “procedural protections,” see 284 Or at 182; the state cannot justify altering the processes of city government as a means to obtain the state’s preference of one rather than another substantive city action.

While the majority opinion does not make the distinction as clear as it might, I agree that PECBA can be sustained as a procedural safeguard for city employees. At least with respect to the conditions under which they work and the pay and other benefits they receive in return, the interest of city employees in the process by which these matters are decided is as appropriate for legislative protection as the interests of property taxpayers in assessments and appeals, ORS 309.090-.100, Boyle v. City of Bend, supra, interests of landowners and others in urban services and planning, see, e.g. ORS 215.402-.513, the interests of bond purchasers, creditors, and taxpayers in local bonding procedures, City of Cascade Locks v. Carlson, 161 Or 557, 90 P2d 787 (1939), see generally ORS ch 287; or the interests of suppliers and users in contracting and procurement procedures, ORS 279.015-.045. As mentioned in the preceding paragraph (“Third”), it is conceivable that improper decisions of the Employment Relations Board or of arbitrators appointed under the act may trench on reserved home rule authority, but this possibility does not make the act itself invalid or justify the city’s refusal to bargain under it until such an issue arises.

Fifth. There remains the referendum issue under article IV, section 1(5). That subsection provides:

“The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and *297district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. In a city, not more than 15 percent of the qualified voters may be required to propose legislation by the initiative, and not more than 10 percent of the qualified voters may be required to order a referendum on legislation.”

Roseburg contends that, because its ordinance provides for referring the parties’ final offers to the city’s voters, the absence of such a provision in PECBA deprives the people of Roseburg of the powers reserved in section 1(5) and invalidates the statute.

This confuses two provisions of section 1(5). The subsection itself reserves to the people the referendum “as to all local, special and municipal legislation of every character in or for their municipality or district.” This is to be exercised in a manner provided by “general laws” and does not depend on inclusion in a charter or ordinance. What cities may provide for themselves is the “manner of exercising those powers as to their municipal legislation.” But if a city’s own “municipal legislation” is superseded by an otherwise valid state law, even a special or local law, this clause has no further application.

Of course it can be argued that section 1(5) as a whole shows that local voters were to be able to vote on all legislation that is special to their own locality. But the question whether the terms and conditions arrived at under PECBA are “local [or] special. . . legislation” subject to referendum under general laws is not now before us. As previously mentioned, this question depends in part on the characterization of those terms and conditions as a state-imposed substantive rule. If it were to arise, it would be directly under article IV, section 1(5), independent of any provision in a city charter or ordinance.5

*298Summary. It is not surprising that state legislation meets the strongest “home rule” objections and causes the most difficult legal issues when it deals with municipal employment practices, as was the case in LaGrande/ Astoria and earlier in Heinig6 and in Branch v. Albee.7

The reason is not only that state-mandated labor standards commit local tax money; that can be true of state standards for other municipal functions. More to the point, state regulation of municipal employment practices deals with the city government’s personnel, that is to say, with the individuals and the institutional lines of authority by which “home rule” is carried out. Nonetheless, state-mandated collective bargaining laws for public employees, including interest arbitration at least for those employees who are forbidden to strike, have been enacted in many *299states since 1969. See McAvoy, Binding Arbitration of Contract Terms: A New Approach to the Resolution of Disputes in the Public Sector, 72 Col L Rev 1192 (1972). There are many social interests of city employees, such as wage and hour standards, safe and healthy working conditions, insurance and retirement benefits which state law may protect without threatening home rule with respect to the city policies and programs that city personnel are employed to carry out.

Accordingly, state laws governing municipal personnel must be designed and administered with sensitivity toward such inexact distinctions as those between employees and policymaking officials, and between working conditions and program content. As stated above, such distinctions could become “home rule” issues in the designation of bargaining units, in the specification of mandatory subjects of bargaining, or in an arbitration award. But they are not before us in the present proceeding, and we decide nothing about them.

All that was before the Court of Appeals for review was the board’s determination that the city committed an unfair labor practice in refusing to bargain under the state’s act on the ground that the act contravened the “home rule” amendments. As stated above, PECBA encompasses some state substantive policies (prohibition of strikes), some procedures administered by the state itself, some local procedures mandated to provide procedural protection for employees who are denied the right to strike (collective bargaining), and only in the last resort the settlement by arbitration that may be characterized as a state-mandated local procedure (when the parties agree on their own arbitrators) or arguably as a state-mandated substantive result (when ERB selects an arbitrator). The act therefore cannot be circumvented altogether by refusing to bargain under it, in the absence of some legal challenge to the designation of the bargaining unit or to some other specific order. The Court of Appeals did not err in affirming ERB’s order.

Or Const art XI, § 2:

“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of *289every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon. ...”

Or Const art IV, § 1(5):

“The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. ...”

ORS 243.736:

“It shall be unlawful for any policeman, fireman or guard at a correctional institution or mental hospital to strike or recognize a picket line of a labor organization while in the performance of official duties.”

ORS 243.746(4) includes among the “factors” (c), “The interest and welfare of the public,” without specifying the state’s rather than the locality’s “public,” and also (h), “Such other factors. . . which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, factfinding, arbitration or otherwise between the parties, in the public service or in private service.”

“What was once a local issue, determinable ultimately through the local political process, becomes a state issue, determinable by state officials. An argument can be made in favor of centralizing decisionmaking with respect to issues of public employee wages and working conditions, and with respect to *295the larger questions of budgetary policy which those issues entail. Indeed, in many states local government decisions, particularly those involving fiscal policy, are already largely controlled by state law, and more control may be inevitable if not desirable. Centralization of decisionmaking seems hardly an appropriate response to the concerns of the local electorate over the loss of their right to control local policy issues, however. Moreover, such a process is inevitably antithetical to collective bargaining, for it assumes the existence of a state policy for determination of wages and conditions of employment.” (footnotes omitted.)

64 Cal L Rev at 694.

LaGrande/Astoria, in 284 Or at 184, said the following about article IV, § 1(5):

“The constitution shows, however, that beyond the limitation on enacting, amending, or repealing charters the legislature did not lose the power to enact purely local laws. Article IV, section 23, lists the specific kinds of *298special or local laws that are forbidden. And article IV, section 1(5) the ‘home rule’ section, itself provides that a referendum by the qualified voters of each municipality or district may be invoked against such local or special laws, those made by the legislature as well as those enacted by local governments. See Rose v. Port of Portland, 82 Or. at 573, 162 P. 498, 508; Wasco County P.U.D. v. Kelly, 171 Or 691, 699, 137 P.2d 295 (1943).8”

The accompanying footnote stated:

“8. This understanding is also shown by a pamphlet circulated by the People’s Power League in 1906 supporting adoption of the ‘home rule’ amendments. The pamphlet stated that adoption of the amendments would give ‘COMPLETE HOME RULE to the voters of every county, city and town, through the local application of the initiative and referendum to all purely local business, including CITY CHARTERS to be enacted and amended by each city for itself, LOCAL LAWS AND FRANCHISES passed by the legislature, and ORDINANCES, RESOLUTIONS AND FRANCHISES passed hy city councils and county courts;. . . ’

“In other words, the proponents of the amendments had no notion that the amendments were to withdraw the constitutional authority of the legislature to make local laws other than the authority to enact, amend, or repeal characters. They relied on the political process of the referendum to maintain local popular control over such laws.”

State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962), invalidated a statute requiring cities to establish civil service systems administered by a prescribed city commission.

Branch v. Albee, 71 Or 188, 142 P 598 (1914), invalidated a statute that required cities of more than 50,000 inhabitants (which meant only Portland) to establish a “board of police pension and relief’ to administer a fund to be raised from specific license fees and fines.