dissenting.
I dissent from the opinion by the “majority”1 because it does not properly apply the new “criteria” adopted by this court in LaGrande/Astoria v. PERB 2 for application in “home rule” cases. Instead, the “majority” has gone far beyond those “criteria” and has based its decision on new grounds which make meaningless the LaGrande/Astoria distinction between matters of “procedure” and those of “substance.” Of more importance, these new grounds, as adopted by the “majority” as the basis for its decision, also have the effect of largely destroying any remaining area in which the power of “home rule” granted to cities by the Oregon Constitution to adopt charter provisions and ordinances can still prevail over the *301power of the legislature to adopt conflicting state statutes. This far-reaching result is made clear by an examination of the grounds on which the opinion by the “majority” is based and which are as follows:
(1) When, as here, a state statute and a city ordinance prescribe conflicting “procedures,” the statute is not subject to the LaGrande/Astoria “criteria” for statutes addressed to “procedures” of local government, so as to require the showing of a “need” for the procedures provided by such a statute, as required by LaGrande/Astoria, if it serves any “social, economic or other regulatory objectives” of the state. Because all state statutes presumably serve some “substantive social, economic or other regulatory objectives” of the state, the result is to destroy “home rule” on matters relating to “procedures” of local government, as set forth in LaGrande/Astoria.
(2) Even when a statute is one addressed to “procedures” of local governments which, by charter or ordinance, have adopted conflicting “procedures,” the “need” required to justify such a statute can be established whenever the legislature says that there is such a “need.” In addition, the “need to safeguard the interests” of the persons affected is not limited by the “majority” to a need to provide “procedural protections” for such persons, as held in LaGrande/Astoria, but is extended to a need to safeguard or promote any interests of such persons which the legislature may deem to be in need of protection. The result is to confer upon the legislature complete supremacy over cities in all matters involving “procedures” of local government, as well as in all “substantive” matters.
(3) Despite the fact that Article IV, Section 1(5) of the Oregon Constitution was amended to confer upon the voters of cities the right of initiative and referendum as to “all local, special and municipal legislation of every character” and despite the fact that in Rose v. Port of Portland 3 this court recognized that this amendment was submitted to the voters for adoption with an expressed representation that it would “give the people power to control the salaries of county and district officers,” the “majority” holds that *302the state has the power by statute to prescribe salaries and wages for all city officers and employees.
At the outset of a discussion of the problems presented in this case, it is important to keep in mind both the text of the “home rule” provisions of the Oregon Constitution and the purpose of those provisions.
In State ex rel Heinig v. Milwaukee et al, an opinion by Justice O’Connell, this court unanimously held that:
“* * * [T]he constitutional amendments * * * vested in the cities a part and an exclusive part of the power to legislate free from control of the state legislative assembly.”4
Indeed, as stated in the dissent in LaGrande/Astoria I:
“It has been recognized by authorities on this important subject that one of the basic purposes of ‘home rule’ is to ‘stake out a limited area where local government could legislate for itself and to ‘carve out an area in which the municipality enjoys a measure of local autonomy free from legislative interference or control * * *’ ” 281 Or at 159. (Footnotes omitted) (Emphasis added)
As recently stated by a recognized authority on this subject:
“The modern trend goes toward liberal construction of such grants [of home rule] with respect to local affairs and in several jurisdictions it has been held that home rule cities should be given the largest possible measure of self-government.” (Citing cases)5
In Heinig this court, by a unanimous opinion, held that the test to be applied in determining whether a particular matter is one of “local” or “state” concern is “not whether the state or the city has an interest in the matter, for usually they both have, but whether the state’s interest or that of the city is paramount” (231 Or at 481), i.e., “whether it is substantial enough to predominate over the interest of the city” (231 Or at 484), and that “[e]ach case requires a weighing of the state’s interest against the interest of the municipality.” (231 Or at 488).
*303In LaGrande/Astoria, this court did not disagree with the objectives of the “home rule” amendments as stated in Heinig, but in a four-to-three decision abandoned the test as stated in Heinig, together with the 20 years of precedent upon which Heinig was based, although holding that the reasoning of Heinig was still applicable in cases involving matters of procedure. This court in LaGrande/Astoria II was also critical (at p. 177) of the cities for their failure “to point to precise words” in Article XI, Section 2, to sustain their position. As a substitute for the Heinig test of “predominant interest,” this court in LaGrande/Astoria adopted a test based upon a distinction between statutes relating to “structure and procedures” of local government and those involving matters of “substance.” In formulating that new test, this court said in LaGrande/Astoria that:
“Article XI, section 2, for instance, is addressed to the legislative assembly and to the cities, telling the legislature what it may not do and the voters of the several cities what they may do. Judicial interpretations of such a provision must strive to articulate these directives and avoid formulations that give no guidance to government and leave every policy dispute to judicial decision.” LaGrande/Astoria I at 147. (Emphasis added)
and that for this purpose this court must adopt “identifiable criteria, derived from * * * constitutional command.” (LaGrande/Astoria II at 185).
This court in LaGrande/Astoria then purported to find “precise words” in Article XI, Section 2, to provide “identifiable criteria derived from * * * constitutional command” as the basis for the distinction made by it between statutes relating to matters of “structure and procedures” of city government and those involving matters of “substance,” and also to provide the basis for the “criteria” adopted by the court for application in each of those two types of cases.
That new distinction and these new “criteria” were adopted by this court in LaGrande/Astoria despite the fact that on rehearing all parties, including not only the cities, but also the unions and the Attorney General, representing the State of Oregon, conceded that such a distinction is *304inconsistent with the legislative history of the “home rule” amendments.
This is the first case since its decision in LaGrande/Astoria in which this court is required to apply the new “criteria” adopted in that case for application in determining whether statutes enacted by the Oregon legislature which conflict with the provisions of the charter or ordinances of a city prevail over such provisions in view of the “home rule” provisions of the Oregon Constitution, Article XI, Section 2, and Article IV, Section 1(5).
The more specific question presented for decision in this case is whether provisions of a state statute (ORS 243.742), which provides for a procedure for compulsory arbitration in the event that an “impasse” is reached in collective bargaining between a city and its firemen, prevail over the provisions of an ordinance adopted pursuant to a city charter and which also provides for collective bargaining between the city and such employees, but provides a different procedure to be followed in the event of such an “impasse,” under which the two “final offers” by the parties shall be referred to the voters of the city, whose vote is final and binding.
By its decision in LaGrande/Astoria I, and under the “criteria” adopted as the basis for that decision, this court held that the following distinction must be made:
(1) “When a statute is addressed to a concern of the state with the structure and PROCEDURES of local agencies, the statute impinges on the powers reserved by the amendments to the citizens of local communities. Such a state concern MUST be justified by a NEED to safeguard the interests of persons or entities affected by the procedures of local government.”
but that
(2) “* * * a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state prevails over contrary policies preferred by some local governments if it is clearly intended to do so, unless the law is shown to be irreconcilable with the local community’s freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.” 281 Or at 156 (Emphasis added)
*305In order to properly apply these “criteria” as stated by this court in LaGrande/Astoria, the following are the issues which must be resolved in order to support a proper decision in this case:
(1) Is this state statute, which provides both a procedure for collective bargaining and also a procedure for determination of wages for city employees in the event of an “impasse,” a statute which is “addressed to a concern of the state with the structure and PROCEDURES” of local government?
(2) If so, has there been the required showing of a “need to safeguard the interests of persons or entities affected” by such a procedure?
(3) If not, and if this matter is one “addressed primarily to substantive * * * objectives” of the state, is this state statute “irreconcilable with the local community’s freedom to choose its own political form”?
1. This state statute, which provides a PROCEDURE for collective bargaining and a PROCEDURE for “post-impasse” settlement of disputes over wages for firemen and policemen by compulsory arbitration is a statute “addressed to a concern of the state with the * * * PROCEDURES” for collective bargaining and for “post-impasse” settlement of such disputes as provided by city ordinances, such as the ordinance in this case.
The opinion by the “majority” would hold that this statute, which provides a “post-impasse” procedure for compulsory arbitration, prevails over the Roseburg ordinance, which provides a different “post-impasse” settlement procedure, is not a “statute * * * addressed to a concern of the state with the structure and procedures” of local government, so as to require the showing of a “need to safeguard the interests of * * * persons affected” by the procedure provided by the Roseburg ordinance (the “criteria” prescribed in LaGrande/Astoria for “procedural” statutes), for the following reasons:
(a) “The dominant character of PECBA is that of ‘a general law addressed primarily to social, economic and other regulatory objectives of the state.’ ” 292 Or at 275-76. (Emphasis added).
*306(b) “Local governments may prefer other policies or may prefer other means [i.e., other procedures] of achieving these policies, but the legislature, by enacting PECBA, has made that substantive decision as a matter of state law. As substantive legislation, state law prevails unless it unlawfully interferes with the structure of local government.” 292 Or at 277. (Emphasis added)
As stated by the “majority,” however, this state statute includes the following policy statement:
“It is the public policy of the State of Oregon that where the right of employes to strike is by law prohibited, it is requisite to the high morale of such employes and the efficient operation of such departments to afford an alternate, expeditious, effective and binding procedure for the resolution of labor disputes * * ORS 243.742(1). (Emphasis added)
Indeed, ORS 243.650(5) also provides that:
“ ‘Compulsory arbitration’ means the procedure whereby parties involved in a labor dispute are required by law to submit their differences to a third party for a final and binding decision.” (Emphasis added)
Thus, the statute in this case provides a procedure for collective bargaining for disputes involving wages of firemen and policemen and also provides a procedure for compulsory arbitration in the event of an “impasse” in collective bargaining. By statutory definition, this is a “procedure.” The Roseburg ordinance also provides a procedure for collective bargaining for disputes involving wages of firemen and policemen, but provides a different procedure for the settlement of such disputes in the event of an “impasse” in collective bargaining.6
*307It would thus appear to be obvious not only: (1) that this statute is a state statute which provides a procedure for collective bargaining in disputes over wages for firemen and policemen and a procedure for the compulsory arbitration of such disputes in the event of an “impasse” in collective bargaining, but also (2) that in providing such statutory procedures for the settlement of such disputes, this statute is “addressed to a concern of the state with the * * * procedures” for collective bargaining in such disputes as provided by ordinances such as the Roseburg ordinance and, in particular, with the procedures provided by such ordinances for the settlement of such disputes in the event of an “impasse” in collective bargaining.
Indeed, this “concern” of the state with the procedures provided by such ordinances as the Roseburg ordinance is recognized by the “majority” (although not in terms of “concern”) by its statement that the purpose of this statute is to “protect their [firemen and policemen] economic welfare during their employment and to provide a means [i.e., a procedure] for them to affect certain negotiable working conditions” and (by the providing of such a means, i.e., procedure) to protect public safety by preventing interruption in the provision of essential government services.
The critical flaw in the opinion by the “majority,” however, is the “giant jump” in its reasoning, which is to the effect that (1) because the state has such a “concern” with the procedures for collective bargaining and “post-impasse” settlement procedures such as those provided by the Roseburg ordinance, and (2) because the state believes that its “policies” to protect the interests of firemen and policemen are better served by the procedures for collective bargaining and compulsory arbitration as provided by this statute, than by the procedures provided by such ordinances, it therefore follows that (3) this statute is not one “addressed to a concern of the state with * * * procedures of local agencies” (so as to be invalid in the absence of the showing of a “need to safeguard the interests of the persons * * * affected”), but is somehow transformed into a statute “addressed primarily to substantive social, economic, or other regulatory objectives of the state” (so as to be valid *308unless the statute is shown to be “irreconcilable with the local community’s freedom to choose its own political form.”).
Presumably, all state statutes are addressed to some “substantive social, economic or other regulatory objectives of the state,” including purely procedural statutes. It does not necessarily follow, however, that because a state procedural statute is “addressed” to such an “objective,” the proper test to be applied in determining whether a procedure provided by such a statute prevails over a procedure provided by a city ordinance is the test as stated in LaGrande/Astoria for “substantive” statutes, a rigid test which places the burden on the city and is more favorable to the state, rather than the test stated in LaGrande/Astoria for “procedural” statutes, a test which requires a showing of “need” and is more favorable to cities.
If this were so, the distinction made in LaGrande/ Astoria between matters of “procedure” and those of “substance,” so as to give cities the benefit of some measure of protection from legislative interference in matters involving “structure and procedures” of local government by imposing the burden in such cases to show a “need to safeguard the interests of persons or entities affected by the procedures of local government” to justify such interference, would be rendered largely meaningless and illusory. Yet this is the essence of the reasoning by the “majority” in support of its strange conclusion that this statute is not one that is “addressed to a concern of the state with the structure and procedures of local agencies,” so as to be subject to the “criteria” as stated in LaGrande/Astoria for application in determining the validity of procedures provided by such a statute when in conflict with procedures provided by a city ordinance, as in this case.
In support of its holding that the PECBA statute is “substantive” rather than “procedural,” the “majority” would make a distinction between: (1) a statute which mandates a city procedure by a city agency, and (2) a statute which does not mandate a city procedure by a city agency, but provides for a mandatory procedure by a state agency which supersedes and invalidates procedures provided by city agencies established under city charter or *309ordinance. According to the “majority,” because the PECBA statute is of the second type it is a “substantive,” not a “procedural,” statute.
I disagree. Statutes of both types are statutes which are “addressed to a concern of the state with the structure and procedures of local agencies” because both have the purpose, as well as the effect, of superseding all existing and conflicting procedures established under city charters or ordinances. In my opinion, the distinction urged by the “majority” is one which could “fool only a lawyer,” to paraphrase a previous holding by this court.7 As also recognized by this court in LaGrande/Astoria I, the legislature cannot do “by indirection” what it cannot do directly. (281 Or at 151-52).
For all of these reasons, I am of the firm opinion that this statute is clearly a statute “addressed to a concern of the state with the * * * procedures” of local government and, therefore, that the question whether that statute prevails over the conflicting procedures provided by the Rose-burg ordinance must be determined by application of the “criteria” or test as stated by this court in LaGrande/ Astoria for application in such cases, and as next discussed, 1. e., whether the “state concern” has been “* * * justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.” (281 Or at 156).
2. There has been no showing of a “NEED to safeguard the interests of persons” affected by the procedure provided by the Roseburg ordinance.
The “majority” says (292 Or at 282) that “[w]ere we to accept” the contention that this statute is one “addressed to a concern of the state with the structure and procedures of local agencies,” as contended by the city, so as to require the showing of a “need” for such a statute, “our conclusion would be the same” for the following reasons:
(a) “Whether or how to safeguard in public employment the interests of labor * * * is a political question for the legislature and PECBA is the legislative determina*310tion of that issue in Oregon.” 292 Or at 283. (Emphasis added)
(b) “PECBA restricts [the] interests [of public employees] by denying to specified public safety employees the right to strike, regardless of whether their local employers would choose to deny that right. It then safeguards the interests of those employees by providing a substitute protection in the form of binding arbitration. We are not able to say that there is no reasonable basis for [such] legislative action.” 292 Or at 284. (Emphasis added)
These contentions beg the question to be decided in this case. It may be that in the absence of the provisions of city ordinances which guarantee to city employees the right of collective bargaining and which also provide a procedure for settlement of disputes after an “impasse” in collective bargaining, as in this case, the state would have the power to enact this statute.
The question to be decided in this case, however, is whether, in view of the powers reserved to cities by Article XI, Section 2, such a statute supersedes provisions of city ordinances which, as in this case, also guarantee to city employees the right of collective bargaining and provide a procedure for settlement of disputes after an “impasse” in collective bargaining, and which also restrict their right to strike. Under the “criteria” adopted by this court in LaGrande/Astoria, such a statute “MUST be justified by a NEED to safeguard the interests of persons * * * affected by the procedures of local government,” i.e., a showing that despite the availability of the procedures provided by the city ordinance, there is nevertheless a “need” for the procedures provided by the statute to supersede the provisions of such an ordinance in order to “safeguard the interests of persons or entities affected by the procedures” provided by the ordinance.
In LaGrande/Astoria this court recognized that under the “criteria” adopted in that case for application in cases involving a conflict between procedures under city charters or ordinances and procedures under state statutes, as in this case, the question of the “need” for the procedure under the statute is a question to be decided by the court, *311just as under the rule of Heinig the question of “predominant interest” was a question to be decided by the court.8 In other words, under the LaGrande/Astoria test, the crucial question is not whether the legislature has asserted a need for the statute by recitals in the statute, but whether the “need” is sufficient, as determined by the court, to justify the statute’s intrusion into “the structure and procedures” of local government.
The “majority,” however, has abdicated this function to the legislature by its holding that in such a case the legislature, by its enactment of the statute, may conclusively determine the question of “need.” The result would destroy any area of “home rule” by cities in cases in which procedures adopted by city charter or ordinance conflict with procedures adopted by state statutes and confer upon the legislature complete supremacy over cities in the area of “procedures” of local government by permitting the legislature to preempt that entire area.
This is contrary to the holding by this court in LaGrande/Astoria that “procedures” of local government as provided by city charters or ordinances are to prevail over procedures provided by statute unless there has been a showing of a “need” for the statutory procedures in a case involving such a conflict. It is also contrary to the purpose *312of home rule amendments to “carve out an area in which the municipality enjoys a measure of local autonomy free from legislative interference or control.” In other words, if the legislature can preempt even the entire area relating to “procedures of local government,” there is little, if any, area left to the cities in which they can have “local autonomy free from legislative interference or control.”
In addition, the “majority” goes far beyond the “criteria” adopted by this court in LaGrande/Astoria, in which this court described the nature of the “interests” which the court found were intended to be protected for the purpose of determining the existence of such a “need.” Thus, the “majority” says (in footnote 2) that such “interests” are not limited to those of a “due process nature,” but extend to the safeguarding of “other interests, such as collective bargaining.”
In LaGrande/Astoria II this court held that:
“A city’s choice of its frame of government in its charter, and even beyond the charter as such, is not subject to general or statewide laws, except for procedural protections of the kind cited at note 15 of the original opinion. With respect to general laws for governmental processes, our opinion reaffirmed the rule of State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962). See 281 Or at 146, 576 P2d at 1210.” 284 Or at 182.9 (Emphasis added)
As noted by the city in this case, the cases cited in footnote 15 dealt with specific procedural protections for individuals in a particular governmental decision-making process: Brown v. City of Salem, 251 Or 150, 444 P2d 936 (1968) (notice of proposed street assessment under ORS 223.389 and 223.399); Bennet v. City of Oceanlake, 247 Or 539, 430 P2d 1004 (1967) (notice of public improvement to affected property owners under ORS 223.389); City of *313Woodburn v. State Tax Comm’n., 243 Or 633, 413 P2d 606 (1966) (notice to voters in state law requiring tax levy measure to be expressed in dollar as opposed to mill amounts); Boyle v. City of Bend, 234 Or 91, 380 P2d 625 (1963) (court appeal from assessment decision); City of Cascade Locks v. Carlson, 161 Or 557, 90 P2d 787 (1939) (bond issuance procedures).
As also noted by the city, in each of these cases, with the possible exception of Cascade Locks, a state procedure prevailed because an individual was harmed by lack of notice or an appeal from a governmental quasi-judicial decision that had particular impact on that person. In this case there are no asserted procedural infirmities in the local decision-making process which would result in a failure of that process to give proper notice or representation to an affected individual or entity.
Even assuming that the “majority” is correct in its holding that “need” for a state statute is not limited to a need for “procedural protections,” but may properly be extended to a need to safeguard any “interest” of municipal employees, the union still has not sustained its burden under the record in this case to make the required “showing” of “need.” In LaGrande/Astoria I, the “criteria” adopted by this court as a matter of “constitutional command” provide that “when a statute is addressed to a concern of the state with the * * * procedures of local agencies * * * such a state concern MUST be justified by a NEED to safeguard the interests of persons * * * affected by the procedures of local government.” (281 Or at 156).
In this case there has been no showing of such a “need.” There has been no showing that the procedure for arbitration under the PECBA statute would protect the interests of the Roseburg firemen better than those interests would be protected under the “post impasse” procedure provided by the Roseburg ordinance. There has been no showing that after an “impasse” in collective bargaining between a city and the union representing its firemen and police officers, a decision by an arbitrator selected by both the city and the union would be more favorable to the firemen or police officers than a decision made by the voters of the city, much less that the appointment of an *314arbitrator in such a case would “provide a measure of economic security” to firemen or police officers. It follows that there has been no showing of a “need” for the statutory procedure to protect these employees.10
*315Of even more fundamental and controlling significance is the position of the union on the question of “need.” It must be remembered that this is an adversary proceeding. This is an unfair labor practice proceeding in which the union has charged the city with an unfair labor practice in refusing to bargain under the procedure provided by the PECBA statute, contending that the procedure provided by the PECBA statute superseded and invalidated the procedure provided by the Roseburg ordinance. The union, however, has completely failed to make a showing of any “need,” as required before a “procedural” statute will be held to supersede and invalidate procedures provided by a city charter or ordinance.
In its brief as respondent in the Court of Appeals, its only response to the contention by the city that the PECBA statute was “procedural,” thus requiring such a showing of “need,” was that the statute was “substantive,” not “procedural.” In its subsequent memorandum in response to a written question by this court on the specific question of “need,” the response by the union was again that the PECBA statute is a “substantive” statute and is not a “procedural” statute, so as to require a showing of “need,” but that if the statute was “procedural,” the “contrary procedures of the state law” are “justified” (a) by the statements of “policy” of the statute, and (b) by an article published in a 1975 law journal11 to the effect that in the years 1969-1972 there were no work stoppages by firefighters in several cities in other states in which compulsory arbitration was required.
*316For reasons previously stated, the PECBA statute is not a “substantive” statute.12 Also, the fact that the legislature may have been “justified” in enacting the PECBA statute does not satisfy the requirement of LaGrande/Astoria that such a “procedural” statute “must be justified by a need to safeguard the interests” of the persons affected by the “procedures of local government” before the city may be prohibited from following the procedure provided by its ordinance and required to follow the procedure provided by the PECBA statute. As previously noted, the legislature, by enactment of such a statute, cannot “preempt” the question of “need,” which is a question to be decided by the courts.13
Moreover, “need” for such legislation in Oregon cannot properly be established by reference to a published article to the effect that over ten years ago there were no strikes by firefighters in several cities in other states in which compulsory arbitration was required, but with different, if any, constitutional requirements for “home rule.” For all we know from the record in this case, firemen in Oregon, who were previously forbidden from striking in 1963,14 have been able through collective bargaining to achieve wages at a level equal to or higher than the level of wages achieved by firemen in states in which compulsory arbitration is required.
For these reasons alone, if for no other reasons, I am of the opinion that the union has not sustained its burden to make a “showing” of “need” as required by the “criteria” adopted by this court in LaGrande/Astoria and that, as a result, the opinion by the Court of Appeals must be reversed.
*3173. If a procedure for collective bargaining and for the determination of wages for city firemen or policemen in the event of an “impasse” is a matter of “substance,” rather than “procedure,” the provisions of this statute are “irreconcilable” with the city’s “freedom to choose its own policital form. ”
Even assuming, but by no means conceding, that a procedure for collective bargaining and for the determination of wages for city firemen and policemen in the event of an “impasse” is not a statute “addressed to a concern of the state with the * * procedures of local agencies,” the imposition upon a city of the procedure provided by this state statute would be “irreconcilable” with its “freedom to choose its own political form.”
The “majority” holds that the procedure provided by this statute is not “irreconcilable” with the “freedom” of this city to “choose its own political form” for the following reasons:
(a) “PECBA does not deal with the structure of local government.” 292 Or at 277. “This case involves structure and procedures of state government, not local government.” 292 Or at 282. “* * * [T]he political forms and procedures by which a city decides matters which remain within its legislative purview is unchanged.” 292 Or at 281. (Emphasis added) See also 292 Or at 282.
(b) This is so because “an ultimate decision under PECBA is made by a process of arbitration provided and conducted by ERB, an agency of the state. * * * The statute * * * assumes that the arbitrator works [for] the state in the implementation of state policy” (292 Or at 279) and because “PECBA provides for certain decision-making arrangements at the state level as an implementive device for its primary substantive objectives of the state.” 292 Or at 281. (Emphasis added)
(c) There is a distinction between a state statute which provides that programs for city employes are to be administered by a state-mandated local “board” and a statute which, as in this case, provides for administration of such a program by a state board. 292 Or at 277-78.
It does not follow from the single fact that “PECBA does not deal with the structure of local government” and that “PECBA makes no organic change to the *318political form of local government” that this statute, which requires arbitration of disputes between a city and its employees, is not a statute which is “irreconcilable with the local community’s freedom to choose its own political form,” as the “majority” would conclude. For the same reasons, that conclusion does not follow from the finding by the “majority” that “the political forms and procedures by which a city decides matters which remain within its [the city’s] legislative purview are unchanged.”
With respect to the statement by the “majority” that an arbitrator who acts under the provisions of this statute is an “agent of the state,” it would appear, upon examination of ORS 243.746, that the arbitrator is not an “agent of the state,” but is a person who, in most cases, would be selected by the parties themselves (the city and union) to act as a neutral person on behalf of both parties.15 The further statement by the “majority” that the city has admitted that such an arbitrator is an agent of the state is at the least misleading, if not untrue, when that alleged
*319“admission” by the city is read in context.16 But even if the arbitrator is an “agent of the state,” it does not follow that the provisions of the statute, which strip from the city and its city manager the powers conferred by the city charter, are not “irreconcilable” with its “freedom to choose its own political form.”
The further statement by the “majority” that the “decision-making arrangements” provided by PECBA “at the state level” are an “implementive device for its primary substantive objectives of the state,” although perhaps material upon the question whether this statute is “substantive,” instead of “procedural,” is immaterial to the question whether, if “substantive,” its provisions are inconsistent with the freedom of the city “to choose its own political form.”
*320In LaGrande/Astoria I this court said that the “central object” of the Home Rule Amendments is to:
“* * * allow the people of the locality to decide upon the organization of their government and the scope of its powers under its charter without having to obtain statutory authorization from the legislature * * 281 Or at 142. (Emphasis added)
In LaGrande/Astoria II this court said that:
“* * * the limitation expressed in article XI, section 2, should not be read to hinge on whether a city chooses to place a particular policy into its charter or into some other form of enactment pursuant to its charter * * *.” 284 Or at 177-78. (Emphasis added)17
As for the distinction by the “majority” between statutes which provide for programs for city employees to be administered by a state-mandated local board and statutes which provide for such programs to be administered by a state board, any such distinction is no more controlling upon the question whether the statute is inconsistent with the freedom of the city “to choose its own political form” than upon the question whether the statute is “substantive” rather than “procedural,” as previously discussed.18
To illustrate, take a simple hypothetical case: The charter of a small eastern Oregon incorporated city with a population under 500 (of which there are many)19 provides for a mayor, recorder, treasurer, police chief and fire chief, and confers upon the city council the power to enact ordinances setting the salaries of each of these city officials. The police chief is the city’s only police officer. The fire chief is the only paid fireman and is the head of a non-paid *321volunteer fire department. It would seem to be obvious that for the fire chief and police chief to demand not only collective bargaining for an increase in salary, but compulsory arbitration in an effort to secure salaries higher than those provided by such an ordinance, would be “irreconcilable” with the local community’s freedom to choose its own “organization” of local government and “the scope of its powers.”20
Finally, and as contended by the city, in LaGrande/Astoria I this court said that the 1906 municipal home-rule amendments “are concerned with the structural and organizational arrangements for the exercise of local self-government, with the power of local voters to enact and amend their * * * municipal charters and to employ the initiative and referendum for ‘local, special [or] municipal legislation.’ ” (281 Or at 142-43); Roseburg’s provision for resolving by popular vote certain impasses between the city’s administration and the city’s firefighters concerns “the structural and organizational arrangements for the exercise of local self-government,” and to intrude an arbitrator into the resolution of such an impasse would modify, contrary to local preferences, “the structural and organizational arrangements for the exercise of local self-government.”21
*3224. The fixing of salaries and wages of municipal officers and employees is a proper subject of “municipal legislation” and, as such, is subject to the initiative and referendum powers expressly reserved to city voters by Article IV, Section 1(5) of the Oregon Constitution.
There is a further and independent reason why the decision by the Court of Appeals must be reversed. That is because the fixing of salaries and wages for municipal officers and employees is a proper subject of “municipal legislation” and, as such, is subject to initiative and referendum by city voters under Article IV, Section 1(5) of the Oregon Constitution.
Article IV, Section 1(5) of the Oregon Constitution provides that:
*323“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. * * *” (Emphasis added)
As previously noted, this court in LaGrande/Astoria I stated, although in a somewhat different context, that:
“* * *cities sometimes place * * * rules for the conduct of government into ordinances, or perhaps resolutions, bylaws, or other forms of enactment allowed by the city’s charter. It is not the label that matters but the role of the provision in local self-government.” (Emphasis added) 281 Or at 150.
The Roseburg ordinance involved in this case provides not only procedures for collective bargaining between the city and the representatives of its employees and for the determination of wages for city employees in the event of an “impasse” in collective bargaining, as previously stated, but also provides that in the event of such an “impasse” and after findings by a factfinding board, the city council shall “call for a special election of the voters of the city” at which the best offers of the city and the union shall be submitted to the voters of the city, whose “decision” shall be “final and binding.”
In spite of the extremely broad reservation of power to voters of Oregon cities of the referendum power as to “all local, special and municipal legislation of every character”, and the statement by this court that “[i]t is not the label that matters, but the role of the provision,” the “majority” holds, in effect, that the Roseburg ordinance under which, in the event of an “impasse” in collective bargaining, the amount of the compensation to be paid to city firemen or policemen is to be submitted by referendum to a vote of the city voters is not “municipal legislation” subject to powers expressly reserved to city voters by Article IV, Section 1(5) for the following reasons:
*324“In the absence of a superseding statute, the city would have been free to legislate an entirely different scheme of employment relations with or without collective bargaining and impasse resolution provisions. By virtue of PECBA, however, the decision (impasse arbitration) is now beyond the city’s choice. It is immaterial to the validity of the statute that the city council has decided by ordinance to refer to a plebiscite a future decision which is no longer the city’s to make. Were it otherwise, local government could cripple the ability of the state to legislate regarding any matter of state policy which affected local governments by the simple expedient of local referendum. The home rule amendments were not intended to have that drastic, general effect.” 292 Or at 288.
With all due respect to the “majority,” this reasoning simply begs the question whether, conceding that a city cannot, by initiative or referendum, adopt legislation “regarding any matter of state policy” (such as by the adoption of a city ordinance providing the death penalty for murder), an ordinance which provides for a referendum to the voters of a city on the question of the amount of compensation to be paid to city officers or employees is “municipal legislation” subject to the powers expressly reserved to city voters by the provisions of Article IV, Section 1(5) of the Oregon Constitution. That question has never before been submitted to this court for decision. That question has, however, been considered by other courts, whose decisions would also be ignored by the “majority.”
In City of Las Vegas v. Ackerman, 85 Nev 493, 457 P2d 525 (1969), it was held (at 457 P2d 528) that:
“* * * The fixing of the salaries of municipal employees in the City of Las Vegas is a legislative function. The people have the power through the initiative process to enact legislation fixing such salaries.” (Emphasis added)
It is of particular significance to note that the controlling provision of the Nevada Constitution reserved to voters of cities the power of initiative and referendum in terms identical to those of Article IV, Section 1(5), i.e., “as to all local, special and municipal legislation of every kind. ” *325To the same effect, see Glass v. Smith, 150 Tex 632, 244 SW2d 645 (1952).22
In view of the broad language of Article IV, Section 1(5), which reserves to city voters the power of initiative and referendum “as to all local, special and municipal legislation of every character,” as well as the length and strength of the democratic tradition in Oregon, in which the right of initiative and referendum was first recognized in 1906 by constitutional amendment, I am of the firm opinion that all voters of Oregon, including all city voters, are entitled to a liberal construction by this court of that broad language of Article IV, Section 1(5), and that, as a result, this court should hold that the fixing of salaries and wages of municipal officers and employees is not only legislation, but also that an ordinance which fixes the amount of compensation to be paid to city officials and employees is “municipal” legislation, so as to be subject to the exclusive control of the voters of a city by the process of initiative and referendum under Article IV, Section 1(5).
Indeed, as noted by this court in Rose v. Port of Portland, 82 Or 541, 562, 162 P 498 (1917), when what was then Article IV, Section la was submitted to the voters for *326approval in 1906 as an amendment to the Oregon Constitution, following a statement by its sponsors which said, among other things:
“The adoption of this amendment will give the people power to control salaries of county and district officers.” (Emphasis added)
Again, to illustrate the point, consider the hypothetical case of a typical small incorporated city with a population under 500 and which employs one police officer, who may be designated by charter or ordinance as its “chief of police.” (As of 1980, there were 60 incorporated cities in Oregon with a population under 500.)23 Assume that in such a small city and under such a charter or ordinance the council should pass a new ordinance raising the annual salary of the “chief of police” from $12,000 to $50,000. Or assume, as a further hypothetical case, that the commissioners of the City of Portland should enact an ordinance raising the annual salaries of not only all commissioners, but also its police chief, to $100,000.
The holding by the “majority” would require one of two results in such a case: (1) that such an ordinance referring to the voters of either the small Oregon city or the voters of the City of Portland the question whether such an increase in compensation to city officals and employees is not “legislation” subject to the referendum powers expressly referred to city voters by Article IV, Section 1(5) of the Oregon Constitution, and that there is no right or power of referendum under such facts, or (2) that even if such an ordinance is “legislation” subject to such a referendum, an ordinance fixing the compensation of city officers or employees is not “municipal legislation” within the exclusive power of city voters to “control,” but that the state may by statute fix or substantially increase the amount of compensation to be paid to city officers and employees.
In view of the basis upon which what was then Article IV, Section la was submitted to the voters of Oregon for approval, either of such conclusions would surely come as a shock to all city voters in Oregon, not to speak of the sponsors of what was then Article IV, Section *3271(a) and those who voted for its adoption in 1906. Either of such conclusions would also make a mockery of the provisions of what is now Article IV, Section 1(5) of the Oregon Constitution, which in the broadest possible terms reserves to all city voters the power of initiative and referendum “as to all local, special and municipal legislation of every character.”
5. The concurring opinion by Denecke, C.J.
The concurring opinion by Chief Justice Denecke is far less drastic than the “majority” opinion in that it appears to agree with this dissent and to disagree with the “majority,” with respect to the following holdings by the “majority”:
(a) The holding by the “majority” that the PECBA statute, which provides a procedure for collective bargaining and compulsory arbitration and supersedes all conflicting city ordinances, is not a “procedural” statute, but is a “substantive” statute, because it is “addressed” to state objectives.
(b) The holding by the “majority” that even if the PECBA statute is a “procedural” statute, so as to require a “showing” of a “need” to safeguard the interests of city firefighters by providing a procedure for collective bargaining and compulsory arbitration, such a required “showing” of “need” is satisfied whenever the legislature “says” that a statute is “needed,” with the result that under the holding by the “majority” the question of “need” is no longer a question to be decided by the courts.
I disagree with the concurring opinion by Chief Justice Denecke, however, in his conclusion that:
“In this case it is apparent to me that there is a ‘need’ to substitute compulsory arbitration, or something akin, for the forbidden right to strike to secure reasonable wages and working conditions.”
As previously stated,24 this court held in LaGrande/Astoria that “procedural” statutes “must be justified by a need to safeguard the interests” of the persons involved. This court did not say how much a “showing of need” can or must be made. I do not contend, as stated by *328the Chief Justice, that such a showing must be made “by the introduction of evidence.” I do contend, however, that in a case such as this in which a union contends that a city is guilty of an unfair labor practice for refusing to proceed under the procedure provided by a statute and for preferring to proceed under the procedure provided by a city ordinance, and in which the union contends that the statute supersedes and invalidates such an ordinance, the union has the burden to make some sufficient showing of such a “need,” whether by evidence, by a “Brandeis-type” brief, or by argument based on reference to legal authorities or one based on logic. For reasons previously stated, the union has completely failed to do so in this case.25 This being so, and in the absence of any such “showing” of “need,” it would be improper, in my opinion, for this court, sua sponte, to do what would amount to a taking of judicial notice of such a “need,” as would be the effect of the concurring opinion by Chief Justice Denecke.
It may be “fair and equitable” to provide by state statute a procedure for collective bargaining and a “post-impasse” procedure for compulsory arbitration for the benefit of city firemen who cannot strike. Under the criteria adopted by this court in LaGrande/Astoria, however, the question to be decided by this court in this case is not whether such a statute is “fair and equitable,” but whether a “need” has been shown for the procedures provided by such a statute to supersede and invalidate the procedures for collective bargaining and post-impasse procedures provided by city ordinances. No “showing” of such a “need” has been made in this case.
6. The concurring opinion by Linde, J.
The scholarly concurring opinion by Justice Linde would sustain the validity of the PECBA statute on theories quite different from those urged by the parties in this case. For that reason, and because his concurring opinion was only recently filed, it has not been possible, as a practical matter, to analyze it in depth or to comment upon it beyond the following observations:
*329(a) The requirement of a showing of “need.”
I agree with statements by Justice Linde (292 Or at 290-292) of reasons why the PECBA statute may not be a “substantive” statute. The fatal flaw in his concurring opinion, however, is his attempt to “sweep under the rug” the “criteria” adopted by this court in LaGrande/Astoria I in an opinion by Justice Linde himself, in which it was held that as a matter of “constitutional command” (281 Or at 156) a statute “addressed to a concern of the state with the structure and procedures of local agencies * * * MUST be justified by a NEED to safeguard the interests of persons * * * affected by the procedures of local government.”
As previously noted, it is evident from the decision by this court in LaGrande[Astoria that the question whether there has been a sufficient showing of such a “need” is a question to be decided by the court.26 As also previously noted, the holding by the “majority” opinion is contrary to this requirement, as stated in LaGrande/Astoria, in that the “majority” now holds that the entire question of “need” is for the legislature to decide, thus abdicating that judicial function to the legislature and further emasculating what little was left by LaGrande/ Astoria as an area of “home rule” in which cities can legislate without interference by the legislature.27 The concurring opinion by Linde, J., completely ignores this fundamental question.28
That concurring opinion (at 292 Or at 296) discusses the nature of the “interests” which are subject to statutory “procedural protections” under those LaGrande/ Astoria “criteria” and concludes that “the interest of city employees in the process by which these matters [wages, *330working conditions and other benefits] are decided is * * * appropriate for legislative protectionThe question to be decided, however, is not whether such interests are “appropriate” for legislative protection, but whether legislative protection has been “justified by a NEED to safeguard” such interests. Such a “need” is not demonstrated simply by the state’s preference for the procedure provided by the statute over the procedure provided by the ordinance.
(b) The delegation of power to specify wages, etc.
The concurring opinion says that because the state could specify wages, hours and working conditions for city firemen, it can delegate such power to one arbitrator, if the arbitrator is an agent of the state. No such contention was made by the parties in this case.
I do not agree with the assumption that in Oregon, in which “home rule” is protected by the Oregon Constitution, the state legislature can “specify” wages, hours and working conditions for city firemen. Furthermore, under the terms of the PECBA statute, the arbitrator to be selected under the procedure provided by that statute is not a state arbitrator to whom any such power can properly be delegated, for reasons also previously stated.29
(c) The appealability of an arbitration award.
The concurring opinion also suggests (292 Or at 295) that a further reason why the PECBA statute cannot be held to be invalid in this case is that wages, hours and working conditions for firemen will not be determined in this case and that a second appeal may be taken from an award by an arbitrator selected under the procedure provided by the statute if the award “contain(s) provisions impinging on a city’s reserved home rule powers.” Again, no such contention was made in this case, and such a holding would inject a further element of uncertainty into the entire arbitration process.30
*331(d) The referendum question.
It is stated by Justice Linde (292 Or at 297) that:
«* *■ * 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.”
This statement begs the question whether, under the provisions of Article IV, section 1(5), “municipal legislation” adopted by a city can be “superseded” by an “otherwise valid state law.” As stated above, in the discussion of this question in response to the “majority” opinion, it has been previously recognized by this court that Article IV, Section 1 was submitted to Oregon voters as a proposed constitutional amendment with the respresentation by the framers of that proposed amendment that its adoption would “give the people power to control salaries of county and district officers.”31 Such a promised purpose would be frustrated if a city ordinance adopted pursuant to Article IV, Section 1(5) prescribing salaries for city officers could be “superseded” by a state statute, as would be the result of the concurring opinion by Linde, J.
“Post Mortem”
Now that “home rule” for Oregon cities is “dead and buried” for most, if not all, practical purposes, a “post mortem” may be appropriate. I am concerned not only with the result of the decision in this case, but with the grounds on which the decision by the “majority” is based and its devastating effect in future cases by an opinion which would confer almost, if not complete, legislative “supremacy” over cities by its holdings that:
(1) Even a statute which provides procedures which conflict with procedures provided by city ordinances will not be considered as one “addressed to * * * procedures of local government” if such a statute “is addressed primarily to substantive social, economic or other regulatory objectives of the state.” Not only are all statutes presumably “addressed” to some such “objective,” but under the decision by the “majority” that determination is one which can now be foreclosed by legislative decision.
*332(2) Even statutes which are “addressed to structure and procedures” of local government will prevail over conflicting city ordinances whenever the legislature decides, either expressly or by implication, that there is a “need” for such a statute.
(3) City voters do not have the power by initiative or referendum to “control” the compensation paid by cities to their officers and employees, contrary to the representation to Oregon voters when Article IV, Section 1 was submitted to them for approval as an amendment to the Oregon Constitution.
The sole response by the “majority” to these three “post mortem” conclusions is a quotation from Mark Twain that reports of his death were “greatly exaggerated.” This is a clever, but evasive, response. The “majority” does not deny that its opinion in this case has these three drastic results.
In addition to the obvious effects of such needless and drastic holdings by the “majority” in this case, the additional consequences of these holdings, when considered with the two concurring opinions, include the following:
(1) The “criteria” adopted by this court in LaGrande/Astoria and purportedly based upon “precise” provisions of Article XI, Section 2, so as to constitute a “constitutional command,” are illusory, meaningless, and impractical in application, as demonstrated by the fact that a majority of this court cannot agree upon the meaning and application of such “criteria.”
(2) The distinction by the “majority” of this court in LaGrande/Astoria between statutes “addressed” to matters of “procedure” and those “addressed” to matters of “substance” (a distinction repudiated by the union, the Attorney General and the cities in that case) is also illusory and meaningless, as the same distinction has been found in other contexts.32
(3) The test of “predominant interest,” as previously reaffirmed by unanimous decision of this court in *333Heinig and approved by many authorities on the subject,33 but rejected by this court in LaGrande/Astoria in a four to three decision, is not only a more honest and straightforward test, but one far less difficult in application than the “criteria” adopted in LaGrande/Astoria. Tests involving a “balancing” of interests have been adopted by courts in many other contexts.34
(4) Under these holdings by the “majority,” the Oregon legislature could adopt statutes which, by “preemption,” not only supersede any “structure or procedures” provided by any city charter or ordinance, but also impose, either directly or indirectly, heavy financial burdens on cities without providing funds with which to meet such burdens.35
(5) The only remaining recourse available to the cities, as a practical matter, is to promote the adoption of an amendment to the Oregon Constitution which “spells out” more specifically the “home rule” rights of cities and counties.
For all of these reasons, I dissent from the opinion by the “majority” in this case.
Campbell, J., joins this dissent.The opinion by Justice Tanzer will be referred to in this dissent as the “majority” opinion despite the fact that it does not “speak” for a majority of this court, in view of the concurring opinions by Chief Justice Denecke and Justice Linde.
281 Or 137, 576 P2d 1204 (1978), which will be referred to as LaGrande/Astoria I, and 284 Or 173, 586 P2d 765 (1978), which will be referred to as LaGrande/Astoria II.
82 Or 541, 562, 162 P 498 (1917).
231 Or 473, 481, 373 P2d 680 (1962).
Rhyne, The Law of Local Government Operations, p. 58, § 4.3 (1980).
In LaGrande/Astoria I this court described what was intended by its use of the term “structure and procedures” of local government. Thus, this court said that:
“ '* * * [P]rocess(es) of local government’ [include, among other things,] ‘qualification and selection of local government personnel, taxation and finance. * * *’” (281 Or at 143)
and also include considerations such as
“* * * the citizens’ interests in responsible government, in elections, in official accountability, in the procedures of * * * decision, taxing * * * and the like.” (281 Or at 147). (Emphasis added)
See Martin v. Oregon Building Authority, 276 Or 135, 145, 554 P2d 126 (1976).
This conclusion necessarily follows from the following statements by this court in LaGrande/Astoria:
(1) The holding that “[w]ith respect to general laws for governmental processes, our opinion reaffirmed the rule of State ex rel Heinig v. City of Milwaukee, 231 Or 473, 373 P2d 680 (1962).” (284 Or at 182, referring to 281 Or at 146). Under Heinig the question of “predominant interest” was a question to be decided by the court, rather than by the legislature.
(2) The holding that the “criteria” recognized by the court as statements of “constitutional command” are “principles for resolving a conflict between such a law and an inconsistent local provision for the conduct of city government.” (281 Or at 156).
(3) The holding that challenges to a statute under the home rule provisions are not “beyond judicial review.” (281 Or at 147).
(4) The holding with reference to “the position of the Legislative Assembly in the constitutional scheme” and to “the value of recitals of legislative findings and justifications” that “[i]f constitutionality hinged on such recitals, it would become a game for draftsmen obliged to anticipate whatever might impress a future court * * (284 Or at 186). (Emphasis added)
Note 15 of “the original opinion” is as follows:
“E.G., Brown v. City of Salem, 251 Or 150, 444 P2d 936 (1968); Bennet v. City of Oceanlake, 247 Or 539, 430 P2d 1004 (1967); City of Woodburn v. State Tax Comm’n, 243 Or 633, 413 P2d 606 (1966); Boyle v. City of Bend, 234 Or 91, 380 P2d 625 (1963); City of Cascade Locks v. Carlson, 161 Or 557, 90 P2d 787 (1939). See also Fasano v. Washington County Comm’n, 264 Or 574, 507 P2d 23 (1973), and its progeny, in which procedural protections for affected persons have been inferred from state laws authorizing various local government decisions.” (281 Or at 146).
As noted in the brief filed by the League of Oregon Cities as amicus curiae, the voters of a city would presumably recognize not only the importance of fire protection, but also the hazard that the quality of fire protection might well be jeopardized by firemen who are distressed over the terms of their employment. As also noted in their brief, municipal firemen are not without “political clout” in such matters, as demonstrated by several successful municipal campaigns conducted by them. According to the League of Oregon Cities, these include the following:
(1) Soon after Milwaukie firefighters lost the Heinig case they mounted an initiative campaign that amended the city’s charter by addition of a detailed provision for a system of civil service for them (Milwaukie Charter, chapter X (1964), currently appearing in Milwaukie Charter, chapter X (1975)).
(2) A little more than a decade ago Eugene firefighters successfully conducted a campaign to add to the Eugene Charter a provision for collective bargaining, including a form of compulsory arbitration known as final offer arbitration (Eugene Charter, unnumbered and untitled amendment adding nine sections to the charter (1970), currently embodied essentially in Eugene Charter, section 25 (1976)).
(3) In Astoria, the firefighters were successful in having the city charter amended to provide for a civil service system (1962 amendment to section 33 of Astoria Charter adding subsection (h), currently still in the charter as section 33(h) (1946)). They were also successful in having the charter amended to provide for collective bargaining (1962 amendment to section 33 of Astoria Charter adding subsection (i), currently still in the charter as section 33 (i) (1946)).
(4) In LaGrande, firefighters were reported to have succeeded in 1974 in having the amended charter of 1974 include chapter X, dealing with collective bargaining.
(5) In Springfield, firefighters initiated and succeeded in having the city electorate add article XI to the city charter in 1971. This article provides for a form of binding arbitration known as final offer arbitration.
Indeed, in a city whose residents depend for employment primarily upon a large sawmill, whose employees are all members of a union, the voters in such a city might well vote for higher wages for firemen than might be awarded by a “disinterested” arbitrator. The voters in such a city also might well, under an ordinance such as this, vote to approve the “best offer” by the union representing the firemen, rather than the “best offer” by the city. In other words, no “need” has been shown to protect municipal firemen from the democratic process.
The only answer by the “majority” to this contention by the city is to say that it “says nothing about the interests of other protected persons such as jail guards” and that it “goes to the wisdom of PECBA, not to its constitutionality.” 292 Or at 285. The reference by the “majority” to jail guards, if intended to refer to guards at the state penitentiary, is not in point because no city ordinance provides a comparable procedure to safeguard their interests. If intended to refer to guards *315or city jails, such guards may also be police officers, at least in some cities, and thus protected by the same procedures provided by such an ordinance and with the same “political clout.”
The contention by the “majority” that this contention by the city goes only to the “wisdom” of PECBA misses the point. Instead, this contention goes to the question of the “need” for PECBA, because if firemen and policemen have “political clout,” there may well be no “need” for PECBA, at least in the absence of some demonstration of a “need” for it despite the availability to those employees of the procedures provided by city ordinances.
Wheeler, An Analysis of Fire Fighter Strikes, 26 Labor Law Journal 17 (1975).
See discussion 292 Or at 305-309, supra.
See discussion 292 Or at 310, 311, supra, and note 8, supra.
See 1963 Or Laws ch 579 § 6, since repealed in 1973 by the PECBA statute, 1973 Or Laws ch 536 § 39.
The statutory provisions for selection of arbitrators are set forth in ORS 243.746, which provides that:
“(1) In carrying out the arbitration procedures authorized in subsection (2) of ORS 243.742, the public employer and the exclusive representative may select their own arbitrator.
“(2) Where the parties have not selected their own arbitrator within five days after notification by the board that arbitration is to be initiated, the board shall submit to the parties a list of five qualified, disinterested persons. Each party shall alternately strike two names from the list. The order of striking shall be determined by lot. The remaining individual shall be designated the ‘arbitrator’:
“(a) When both parties desire a panel of three arbitrators instead of one as provided in this subsection, the board shall submit to the parties a list of seven qualified, disinterested persons. Each party shall alternately strike two names from the list. The order of striking shall be determined by lot. The remaining three persons shall be designated ‘arbitrators.’
“(b) When the parties have not designated the arbitrator and notified the board of their choice within five days after receipt of the list, the board shall appoint the arbitrator from the list. However, if one of the parties strikes the names as prescribed in this subsection and the other party fails to do so, the board shall appoint the arbitrator only from the names remaining on the list.
“* * * * *” (Emphasis added)
It will be noted that this statute first provides that in a case such as this the city and union “may select their own arbitrator” (ORS 243.746(1)); that only in the event of their failure to do so shall ERB submit to the parties a list of either *319five or seven names from which the parties then select an arbitrator or arbitrators by a process under which each party alternating shall strike two names from the list (ORS 243.746(2) (a)), and that only “when the parties have not designated the arbitrator” in this manner shall ERB “appoint the arbitrator” from such a list. (ORS 243.746(2)(b)).
In the field of labor arbitration, it is not unusual for the parties to prefer to “select their own arbitrator,” rather than to be confined in their choice to a list submitted to them by some government agency. Thus, in determining the question of whether, under the provisions of ORS 243.746, an arbitrator selected in the manner provided by that statute is an agent of the state or a neutral person acting on behalf of the parties, it cannot be properly assumed that the parties in any given case will not “select their own arbitrator” as a neutral person to act on behalf of both parties. And even if they choose to select an arbitrator from lists submitted by ERB, it does not follow, in my opinion, that such an arbitrator is “the agent of the state,” rather than a neutral person selected by the parties themselves acting on behalf of the parties, although selected by them to act in that capacity from lists of names submitted by ERB. Indeed, as previously noted, the statute expressly provides that it is only when the parties fail to select an arbitrator from such a list that ERB “shall appoint the arbitrator.”
In other words, in that remote third contengency, but only in such an event, is an arbitrator to be “appointed” by ERB so as to be properly considered to be an agent of the state. In the two other and more probable contingencies, the arbitrator is selected by the parties themselves as a neutral person to act on behalf of both parties, so as not to be an agent of the state.
Upon examination of the city’s briefs and petition for review, it appears that its reference to the “decisional power of a state arbitrator” was not an admission that arbitrators selected pursuant to the provisions of this statute “work on behalf of the state,” as held by the “majority,” much less that they are “agents” of the state. On the contrary, the reference by the city to a “state arbitrator” appears only to have been intended to refer to the fact that an arbitrator selected by the parties under the provisions of the statute would be an “outside” arbitrator.
To the same effect, this court said in LaGrande/Astoria I that:
“* * * cities sometimes place * * * rules for the conduct of government into ordinances, or perhaps resolutions, by-laws, or other forms of enactment allowed by the city’s charter. It is not the label that matters but the role of the provision in local self-government.” 281 Or at 150. (Emphasis added)
and that the Home Rule amendments were designed:
“* * * to secure local control over the structure and organization of local government, and the capacity to act on a community’s own initiative in any form, so long as the action is authorized by the voters either in a charter or in ‘local, special [or] municipal legislation’ adopted under article IV, section 1(5), and is not otherwise contrary to law.” 281 Or at 150. (Emphasis added)
See discussion 292 Or at 308-309, supra.
See 1981-82 Oregon Blue Book, pp. 277 to 280.
More specifically, and as contended by the city in this case, the people of Roseburg, by appropriate charter provisions, have decided to establish and maintain the council-manager form of government and that in council-manager government generally, and under Roseburg’s council-manager government particularly, the charter effects a certain separation of powers and duties. This separation is an essential feature of “the organization of * * * government” that exists within the council-manager plan. The manager is placed in a central role regarding the employment of municipal personnel, having powers of appointment denied the council, but being responsible directly to the council for carrying out policies prescribed by the council. The council has powers and duties that do not reside in the manager. As contended by the city, if, as insisted by the Firefighters’ Union, an arbitrator can be intruded into the relationships between the city’s council and manager, on the one hand, and the city’s firefighters, on the other, that intrusion inevitably modifies the “organization” of the government of the city and takes away the power of “the people of the locality to decide upon the scope of its powers under its charter.”
As further pointed out by the city, this court in LaGrande/Astoria II said that had State ex rel Heinig v. City of Milwaukie, supra, been before it, the court would have reached the same conclusion as the court in Heinig, although on a different rationale. The particular state law in Heinig would have established a *322city-run civil service commission for local firefighters. This court said, with reference to Heinig, that:
“* * * civil service law [adjudicated in Heinig] would have displaced the authority of the politically accountable local officials over the selection, assignment, discipline, and replacement of the employees for whose performance they were responsible, and done so * * * by direction from the state. * * * Thus the act was held to be an intervention into the powers of appointment, transfer, and discharge of personnel specified in the Milwaukie city charter, unjustified by any independent statewide concern * * 281 Or at 152. (Emphasis added)
To the same effect, if provisions of this state statute for compulsory arbitration in the event of an “impasse” in collective bargaining were held paramount to provisions, of the Roseburg ordinance for a referendum to the voters of the two “best offers” in the event of such an “impasse,” the arbitration statute would then displace not only the authority of politically accountable city officers, but that of the city electorate itself over such matters.
Finally, as also noted by the city, what is particularly important about the refusal by this court to overrule Heinig in LaGrande/Astoria is that any purported justification to protect the interests of affected persons in this case is substantially the same sort of justification that could have been used in Heinig to hold that state law is controlling. The affected persons (public and firefighters) are the same and the concern of the state relating to the interests of these employees and of the public is substantially the same. If Heinig is good law and if there was in that case no overriding state concern, then the result in this case must be the same as Heinig - that this statute is “irreconcilable” with the freedom of the people of Roseburg to “choose [their] own political form” and to “decide upon the organization of their government and the scope of its powers,” and that this local law prevails.
The “majority” makes no attempt to directly answer these contentions by the city which, in my view, are well taken.
Although not directly in point on this issue, the following additional cases should also be noted: In Collins v. City and County of San Francisco, 112 Cal App 2d 719, 247 P2d 362 (1952), it was held (at 247 P2d 370) that the adoption of a municipal employees’ salary standardization ordinance by a board of supervisors
“* * * clearly involves a discretionary fact finding process, and is therefore legislative in character [and subject to referendum].”
Although involving different facts, in Schryver v. Schirmer, 84 SD 352, 171 NW 2d 634 (1969), it was also held (at 171 NW 2d 635) that:
“The fixing of salaries of municipal officers and employees is a legislative function * * *.”
To the same effect, see Taxpayers’ Ass’n v. City of Houston, 129 Tex 627, 105 SW 2d 655 (1937); State ex rel Martin v. Eastcott, 53 SD 191, 220 NW 613 (1928); State ex rel Leo v. City of Tacoma, 184 Wash 160, 49 P2d 1113 (1935); and Spencer v. City of Alhambra, 44 Cal App 2d 75, 111 P2d 910 (1941).
For cases holding to the contrary, but under substantially different ordinances and constitutional provisions, see Greeley Police Union v. City Council of Greeley, 191 Colo 419, 553 P2d 790 (1976); Bagley v. City of Manhattan Beach, 18 Cal 3d 22, 132 Cal Rptr 668, 553 P2d 1140 (1976); City of Lawrence v. McArdle, 214 Kan 862, 522 P2d 420 (1974), and Rauh v. City of Hutchinson, 223 Kan 514, 575 P2d 517 (1978).
See 1981-82 Oregon Blue Book, pp. 277 to 280.
See discussion 292 Or at 313-314, supra.
See discussion 292 Or at 313-316, supra.
See discussion 292 Or at 310-311, supra, and note 8.
See discussion 292 Or at 311, supra.
The concurring opinion by Linde, J., refers (at 292 Or at 296) to the “state’s authority to safeguard the interests of persons affected by governmental decisions in the procedures by which those decisions are reached,” citing LaGrande/Astoria I, 281 Or at 146 and n. 15, but makes no reference to the further requirement that before the state can do so its concern "must be justified by a need” to do so.
See note 15, supra.
The concurring opinion also suggests that an arbitration award may be subject to referendum under Article IV, Section 1(5) of the Oregon Constitution. This would add a further element of uncertainty to the statutory process.
See discussion 292 Or at 324-327, supra.
See dissenting opinion in LaGrande/Astoria II (284 Or at 201-203).
See dissenting opinion in LaGrande/Astoria I (281 Or at 177).
See dissenting opinion in LaGrande/Astoria I (281 Or at 179-180). See also dissenting opinion in LaGrande/Astoria II (284 Or at 205).
See dissenting opinion in LaGrande/Astoria I (281 Or at 191-193). As stated by one writer:
“The most pernicious feature of the doctrine of state supremacy over cities is the tendency of the legislature to lay burdens on the cities. * * *” Mott, Home Rule for American Cities, American Municipal Association 11, at 46-47 (1949).