MEMORANDUM
TO:
Mike Tallent
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
June 5, 2000
RE:
Bargaining with Unions by Tennessee Municipalities
You have the following questions: What can and what cannot the city do with
respect to negotiating, or entering into, agreements with, firefighter unions?
This much seems to be fairly clear:
1. There is no statutory law authorizing municipalities to enter into collective
bargaining agreements with unions in Tennessee, except with respect to certain
municipal transit workers and schoolteachers. The law in this area is “judge-made law.”
2. Municipalities cannot enter into collective bargaining agreements with unions
in Tennessee, and such agreements as exist are unenforceable.
3. Municipal employee strikes are illegal in Tennessee and will be enjoined by
the courts.
4. The picketing of municipal offices by unions is illegal in Tennessee and will be
enjoined by the courts.
5. One of the cases in this area suggests that it is not illegal for a union to
attempt to talk to negotiate or bargain, with a municipality. However, no enforceable
agreement between the city and the union can be made. Nothing in this case suggests
that a municipality is required to talk to, or negotiate or bargain, with a union.
6. A recent federal case in West Tennessee held that Tennessee Code
Annotated, section 7-51-104, under which a city is required to deduct association dues
from firefighters under the conditions prescribed in that statute is unconstitutional under
both the U.S. and Tennessee Constitutions for being class legislation. Ironically, one of
the classes contained in that Act exempts cities in your County from that Act.
There is no law at the federal or state level that prohibits municipal employees
from forming or joining unions. Indeed, Tennessee Code Annotated, section 7-51-204,
provides that municipalities having full-time fire departments must upon the written
request of any fire department employee, deduct membership dues for employee
association where the membership of the association has reached the threshold
prescribed by that statute. That statute is a left-handed recognition of the right of
firefighters to join unions, and a left-handed means by which an employee’s union in the
clock of an employee’s association obtains membership dues.
However, Tennessee case law has limited the authority of municipalities to
recognize unions or to enter into contracts with them, and has likewise limited the
authority of unions to take action against municipalities for refusing to enter into
contracts with them. It is true that a number of cities in Tennessee have so-called
“informal” agreements or “memoranda of understanding” with unions, but those
agreements and memoranda are illegal and unenforceable.
In City of Alcoa v. I.B.E.W., Local 760, 203 Tenn. 12, 308 S.W.3d 476 (1957),
some employees of the city’s electrical system went on strike and were picketing the
offices of the city and following non-striking employees to their places of employment.
The specific question in the case, said the Court, was: Does the union and its city
employees have a right to strike in an effort to compel the city to enter into a collective
bargaining agreement? Holding that the answer was no, the Tennessee Supreme
Court upheld the trial court’s injunction, which had “ordered that the defendant, their
agent or representatives, may not by acts or otherwise cause, authorize, induce or
engage in a strike against the complainant and may not picket the premises of the
complainant in any way.” However, the injunction did permit the union to contact, talk
to, and to negotiate, and bargain with the city.
Weakley County Municipal Electrical System v. Vick, 43 Tenn. App. 524, 309
S.W.3d 792 (1957), is similar in facts and outcome. There, employees of the Weakley
County Municipal Electrical System went on strike. The trial court enjoined the union
from picketing the utility’s offices and property, and from intimidating, harming,
harassing or molesting its employees. The question in that case was whether the
Weakly County electrical system could enter into a contract with a labor union with
respect to its employees and their working conditions, rates of pay, etc. Finding no
authority for collective bargaining contracts in the statute under which the utility was
organized, the Court of Appeals declared that:
...we find therein no provision which could possibly authorize the collective
bargaining contract demanded by defendants in the instant case, for obtaining of which
they went on a strike and established picket lines. Since even “peaceful picketing of an
unlawful purpose may be enjoined” [citations omitted], and since “it is for the court to
determine whether or not the labor objective sought to be accomplished by coercive
action by a labor union and its officials is lawful” [citations omitted], we think the learned
Chancellor in the instant case, correctly adjudged that the strike of defendants was
illegal, and properly granted a permanent injunction against the same. [At 804]
The facts in Fulenwider v. Firefighters Association Local Union 1784, 649
S.W.2d 268 (1982), are unique, but the Court’s language with respect to the legal
relationship between unions and municipal employees follows City of Alcoa and
Weakley County, above. In that case the question was whether a firefighter’s union
was liable for inadequate fire protection leading to the destruction of the plaintiff’s
property. The plaintiff argued that the inadequate fire protection arose from Memphis
City firefighters being on an illegal strike when the fire occurred.
Although the Court held the union not liable, it declared that:
As stated previously, there are no applicable state statutes
dealing with municipal employees such as those involved
here or their right to engage in collective bargaining or to
strike.
Previous cases in this state have held that strikes by public
employees are illegal and that contracts between municipal
corporations and unions representing their employees are
unenforceable. [Citing City of Alcoa, and Weakley County
Municipal Electric System, above]
We are not asked to disturb those rules in the present case,
although plaintiff is somewhat ambivalent as to the “legality”
of the memorandum of understanding between the City and
the union, recognizing that such agreements have generally
been held unenforceable but nevertheless insisting that
plaintiff has enforceable rights arising therefrom as a thirdparty beneficiary. [At 270]
Justice Fones issued a strong dissent on the grounds that “Strikes against public
employees are clearly illegal in Tennessee. [Citing Weakley County, above]. It is also
true that present case law in Tennessee declares that contracts between municipalities
and public employee unions are illegal and unenforceable.” [Citing Weakley County,
above] [At 274]. He would have allowed a trial on the merits to determine if strike was
responsible for the damage.
Chattanooga firefighters went on strike in 1978. In City of Chattanooga v.
International Association of Fire Fighters, Chattanooga Fire Fighters Association, Local
Union 820, No. 53708, September 9, 1978, the chancellor, citing the above cases and
cases from other jurisdictions, declared the strike illegal, and ordered the firefighters
back to work. Ascertaining the ranking police officer in the courtroom, he instructed the
officer as follows:
All right. Lieutenant, tell the Sheriff that I want him, he is the
ranking law enforcement agent of this county, sir, tell him to
contact the warden of the Hamilton County Workhouse, Red
Locke, find out how many beds he has available, find out
how many beds the sheriff has available. If he don’t [sic]
have as many as 400, call the local cities and about and find
out what beds can be obtained, because the Court is going
to enter an order in a minute directing these people to go
back to work and if they do not, then they can bring their
toothbrush and their shaving kit because you know where
you are going.... [At 6]
Although that case is a trial court case not having the force of “law,” from a
precedential standpoint, it is illustrative of the legal position of striking government
employees in Tennessee.
The picture with respect to the requirement that municipalities deduct dues for
firefighters’ associations under Tennessee Code Annotated, section 7-51-204, is not as
clear.
International Association of Firefighters Local 3858 v. City of Germantown, No.
99-2289, found that the union in that case was an association within the meaning of
Tennessee Code Annotated, section 7-51-204, but found that statute unconstitutional
under both the U.S. and Tennessee Constitutions on the ground that its exemptions for
several counties was an illegitimate classification. It refused to elide the offending
exemptions and preserve the constitutionality of the statute.
That decision is not binding in the federal courts in East Tennessee. In addition,
I have not yet been able to determine if that decision will be a reported one. If it is not
reported, in theory it does not have the precedential value of a reported case. In
addition, I understand the case will probably be appealed.
But the Court is on solid ground on the illegal classification argument. I can think
of no reason the five exemptions found in Tennessee Code Annotated, section 7-51204, would have withstood challenge in any Tennessee, let alone federal, court.
However, I have always thought the courts would elide the classifications and preserve
the constitutionality of the statute. Your County is one of the population classifications,
which excludes the cities in your County from the application of that statute, but if the
courts elided the classifications, that statute would apply to every county in the state,
including yours.
The International Association of Firefighters Local 3858 Court’s refusal to elide
the exemptions found in Tennessee Code Annotated, section 7-51-204, was based on
the fact that while the original bill from which it derived had a severability clause, the
codified version did not. That Court pointed to State v. Tester, 879 S.W.2d 823 (Tenn.
1994) for support. But in Tester the Tennessee Supreme Court refused to elide the
offending exemptions because they applied to 92 of 95 counties !!!!! It is true that the
Tester Court did point out that the severability clause in the statute at issue there had
not been codified, it did so in a footnote! Here is what Tester said on the elision issue:
The work release statute does not contain a severability
clause. [Reference to footnote 2] However, the defendant
contends that we should consider as evidence of legislative
intent the general severability clause codified at Tenn. Code
Ann. Section 1-3-110 (1985), which applies to all parts of the
Tennessee Code. We are convinced, however, the general
severability clause is not sufficient to justify eliding the
constitutionally impermissible classification that excludes 92
of 95 counties. ‘Where a clause is so interwoven with outer
portion of an act that we cannot suppose that the legislature
would have passed the act with that clause omitted, then if
such clause is declared void, it renders the whole act null.’
Hart v. City of Johnson City, 801 S.W.2d 512, 517 (Tenn.
1990). We cannot conclude that, clear of doubt from the
face of the statute, the Legislature would have passed the
act with the limitation omitted. [Footnote 3 referenced] If we
accepted the invitation to apply the doctrine of elision, we
would be applying the work release statute statewide in
order to uphold the statute, and thus indulging in judicial
legislation. This we decline to do. Elision is not appropriate
in this case. [At 830]
Footnote 2 reads as follows: “Although a severability clause was included in the
Act as originally passed in 1990, it is not now, nor apparently has it ever been, codified.
See Acts of 1990, ch. 1065, section 2, 1990 Tenn. Pub. Acts 786, Tenn. Code Ann.
Section 41-2-128(c) (1990 & Supp. 1993).” Footnote 3 reads: “Moreover, the
Legislative History reveals that an amendment which would have applied the work
release program statewide failed to pass the State Senate and was thereafter
withdrawn by the House. Tape # 74, House Session 4/25/91.”
Tester would have been decided the same way even had the statute contained
a severability clause; that case turned on the number of counties exempted from the
application of the statute at issue, and the legislative history of the statute, all of which
indicated that the General Assembly would never have passed the statute without the
elided classifications.
In addition, the International Association of Firefighters Local 3858 Court itself
noted that it had some trouble getting around In re Swanson v. Swanson, 2 S.W.3d 189
(Tenn. 1999), a Tennessee case decided five years after Tester. In that case, the
Tennessee Supreme Court elided a statute that did not contain a severability clause. It
applied the severability clause in Tennessee Code Annotated, section 1-3-110. The
International Association of Firefighters Local 3858 Court conceded that was true, and
that Swanson had also cited Tester for the preposition that elision is appropriate “when
a conclusion can be reached that the legislature would have enacted the act in question
with the unconstitutional portion cited.” But the International Association of Firefighters
Local 3858 Court declared that it would treat Swanson as an “anomaly” until the
Tennessee Supreme Court spoke more clearly on the question of whether a statute
without a severability clause can be elided.
I do not see Swanson as an anomaly. No classifications were at issue in that
case, but that case appears to me consistent with other elision cases that stand for the
proposition that illegal classifications will be elided and the constitutionality of the statue
at issue upheld unless the Court determines that the General Assembly would not have
passed the statute absent the classifications. [See, for example, State ex rel. Ross v.
Fleming, 211 Tenn. 255, 346 S.W.2d 892 (1963)] As I pointed out above, the
International Association of Firefighters Local 3858 Court overlooked the fact that
Tester said only that it would not use the general severability clause found in
Tennessee Code Annotated, section 1-13-301, to elide a classification that exempted
92 out of 95 counties. Tennessee Code Annotated, section 7-51-204, involves a
classification exempting only five counties. One can only guess whether the
Tennessee courts would elide that classification, thereby preserving the constitutionality
of that statute, but I am guessing that they would.