State Board of Regents v. United Packing House Food & Allied Workers, Local No. 1258

BECKER, Justice

(concurring specially).

I concur in the announced result; i. e., the trial court’s order is affirmed. I cannot concur in certain limitations which are imposed by way of dicta in connection with acknowledgment of the Board of Regents’ power to bargain collectively.

I.One must first determine just what the majority holds. As I read the opinion the court holds the Board has power to:

1. Meet with, confer and consult with representatives of labor employees in order to make its judgment as to wages, grievances and working conditions. (Opinion, pp. 112 and 113).

2. They may implement their decision by: (a) appropriate legislation (Opinion page 113), (b) by a proper contract with the union binding all members of the union. (Opinion, page 117).

3. The Board is not compelled to exercise the power noted but may do so if it pleases.

This is all the case calls for us to decide and I agree with these decisions. But the court goes on to mandate certain affirmative actions and prohibit other actions, to wit:

1. The Board cannot agree to exclusive representation by a designated union. (Opinion, page 113).

*119 2. It may deal with as many groups (presumably within the same classification) as decide to associate themselves together for the purpose of collective bargaining, but may also refuse to deal with any one or more groups if it so desires, Thus making the group of its choice the exclusive bargaining agent in fact if not in theory. (Opinion, page 113).

These two pronouncements are not within the issues presented to us and they should not be decided at this time. They have not been adequately briefed and argued. Nor do we have a reasonably complete record on the subject. If the questions are to be decided without adequate argument or briefing, then I must disagree with the majority conclusion on the basis of what has been submitted.

II. Let us first look at the facts and issues presented. Nothing in the record indicates the defendants contend they must be recognized as the exclusive bargaining agent. The trial court’s decision is silent on the subject. Plaintiff-appellant’s brief is also silent except for the following sentence: “* * * The question of exclusive recognition is one which requires a great deal of consideration. * *

Defendants’ answering brief is silent on the subject of exclusive bargaining. In fact, defendants limit their contention in this area: “It is defendant’s argument that beside the power to contract for employment presently being exercised by plaintiff for personal service, the plaintiff had the power to execute a master contract with the members of the defendant union for personal services * * Nothing in this brief reveals a contention that defendants must be recognized as the exclusive bargaining agency.

Plaintiff’s reply brief answers both defendants’ brief and certain of the Amicus Curiae briefs noted infra. Again defendants do not argue the exclusive bargaining matter. Its only reference thereto follows: “* * * if the trial court’s decision is affirmed, the State of Iowa will have permissive collective bargaining for public employers with no rules to control this bargaining. Without specific legislation, pub-lie employers will not know if representation must be exclusive, if arbitration is required, if strikes are legal or if matters under the merit system are proper subjects of bargaining. These are but a few of the questions which would arise. * *

Three Amicus Curiae briefs were filed. A brief by the city of Des Moines repeatedly notes that the right to bargain exclusively with defendants is not involved here: “Thus, too, the district court’s refusal to find an absolute prohibition against any and all collective bargaining did not connote or necessarily endorse the matters of arbitration, exclusive recognition or any of the other ‘complex’ problems which might or might not arise in a particular bargaining situation. It simply left it open to the parties to proceed if both were willing, with such ultimate and collateral questions as they might encounter being susceptible to judicial resolution if desired or out of hand rejection if the employer should be unwilling to agree.

“* * * (It being emphasized again that no demand for ‘exclusive’ recognition was or has been suggested or placed in issue here.)”

The Iowa State Education Association states early in its brief: “At the outset it should be made clear that the matter at issue does not involve the legality of public employee strikes, a request for recognition of an exclusive bargaining agent, or the right of public employees to force collective bargaining upon a public employer who is unwilling to do so. * * *.”

The Iowa Nurses Association also received permission to, and did, file an Ami-cus Curiae brief. At page 16 it states: “ * * * The case of Philadelphia Teachers Association vs. LaBrum [ 415 Pa. 212 ], 203 A.2d 34 (Sup.Ct., Pa., 1964) cited by appellant concerns itself only with an interpretation of state law concerning the appointment of an arbitrator and exclusive recog *120 nition, and again, has no relevance to the case at bar.”

One would suppose that if the right to bargain exclusively were an issue in this appeal the parties would have argued the matter and the friends of the court would not have been at such great pains to note the matter was not an issue here.

III. Why then does the majority opinion deal with the issue? In part at least the answer lies in the law review article by Richard F. Dole, Jr., State and Local Public Employee Collective Bargaining in the Absence of Explicit Legislation, 51 Iowa Law Rev. 539. This article elected to comment on this case in depth and in detail while it was in the process of appeal. From the standpoint of this case it is not, I submit, the usual learned article in a professional journal, commonly used as secondary authority in opinions of appellate courts. It is, rather, an unofficial Amicus Curiae brief which deals primarily with an issue not now before the court.

As noted by the majority, defendant relies heavily on Professor Dole’s article. The article is not used in connection with the issue of exclusive bargaining. This is natural because the issue isn’t argued at all by anyone.

IV. There cannot be much doubt that the issues of exclusive bargaining and mandatory recognition of multiple bargaining agencies are not in this case. But if the court elects to ignore this fact and proceeds with an advisory opinion we all have to vote on the advice.

I cannot agree that public collective bargaining must be interpreted to prohibit exclusive bargaining with one recognized agency. Within limits, this court can tell an administrative agency what it can and cannot do under the law. But we cannot, and normally do not, attempt to tell the agency how to do what it can do.

This is what we are doing here. We say they may bargain collectively but they may not bargain exclusively. In the same breath we say the agency has the right to refrain from bargaining with any groups of employees it chooses. The positions are inconsistent. If the agency can recognize one group and refuse to bargain with all others isn’t it bargaining exclusively ? We are not here talking about closed shops, or union shops, or any of the other restrictive types of contracts in the broad spectrum of the labor law. We are speaking only of the agency’s right to limit its discussion to one representative.

As a practical matter we are placing public agencies in an impossible position. While Professor Dole’s article should be treated as an additional brief, the majority opinion makes it germane. The article poses the underlying difficulty of non-exclusive bargaining rather well: “Power to confer exclusive recognition is a corollary of power to execute a master contract. Where there are actual or potential rival employee representatives, it is difficult for a public employer to obtain a master contract without resort to exclusive recognition. Competitive pressures make each representative reluctant to reach agreement until every representativve is willing to accept the same terms. Exclusive recognition also simplifies the administration of a master contract. In the absence of exclusive recognition, employees claiming infringement of their rights under a master contract can shop around for a representative who is willing to press their claims. This, of course, introduces competitive considerations into contract administration and can require a public employer to deal with an inordinately large number of employee representatives. Exclusive recognition both relaxes competitive pressure on the recognized representative and permits a public employer to channel all employee claims through a single representative.

“Some courts seem to have been as perturbed by exclusive recognition as by the negotiation of collective bargaining contracts. There are several older decisions indicating that it is an abuse of discretion *121 for a public employer to grant exclusive recognition to an employee representative if all employees concerned are not already supporters of the exclusive representative. However, the more recent cases conclude that exclusive representation of both members and nonmembers is permissible where there is satisfactory evidence of at least majority employee support for the exclusive representative, the exclusive representative is required to represent all employees regardless of union membership, and employees are given assurances that exclusive representation will not preclude individual presentation of complaints to the public employer.” 54 Iowa Law Rev. 546, 547, 548. With the above limitations, exclusive bargaining should not pose the problems envisioned by the majority. But again, at this time, we should not attempt to explore the subject.

V. One of the phrases most often used in the majority opinion is “collective bargaining in the industrial sense”. There is an implication that if the employee’s bargaining unit is recognized as an exclusive agent there is collective bargaining “in an industrial sense”. This is not true. The legal right to strike has been eliminated. The legal necessity to bargain has been eliminated. The right to deal with nonunion individuals is preserved. The open shop — as it is commonly known — is preserved. So that even if the public agency finds it more efficient — or even necessary —to bargain exclusively, there are many factors which remove the process from bargaining “in the industrial sense”. If this phrase is a shorthanded way of making a point it is an oversimplification that commands a poor result.

This statement is already too long, yet it is clearly incomplete. The difficulty is that the opinion and concurrence are written on a point not argued. The opinion, as written, is likely to cause more public employee industrial strife, rather than less. It can only make the public administrators’ personnel problems more complicated rather than less complicated. I would affirm the trial court without the qualifying obiter dicta which imposes unnecessary burdens on the public agencies.

RAWLINGS, J., joins in this special concurrence.