623 P.2d 339 | Alaska | 1981
OPINION
In this appeal arising from the interpretation of a collective bargaining agreement, we are asked to determine the applicability of the Fairbanks Personnel Ordinance
On May 21, 1979, the city council approved the personnel ordinance at issue here. The ordinance differed from the bargaining agreement in probationary periods, sick leave, annual leave, and other areas. On June 29,1979, the city notified the union that it no longer recognized the agreement and that the fire department members were covered by the ordinance. A hearing on the motion for a preliminary injunction filed by the union was held on August 3rd. On October 17th, the superior court granted a permanent injunction against the city, prohibiting it from enforcing the May 1979 personnel ordinance against the firefighters’ union.
I
The first issue is whether the city waived its PERA exemption by negotiating with the union, thus forfeiting the authority to enact its own personnel guidelines. Our decision in City of Fairbanks v. Fairbanks AFL-CIO Crafts Council, 616 P.2d 18, (Alaska 1981), is controlling. See Anchorage Municipal Employees Association v. Municipality of Anchorage, 618 P.2d 575, 579-80 (Alaska 1980). Consistent with those opinions, we hold that the city has not waived its PERA exemption. The personnel ordinance is valid and not in conflict with PERA.
II
The second issue is whether the city breached its agreement with the union by failing to negotiate after the union gave notice of its desire to change the bargaining agreement. By approving the bargaining agreement in Ordinance No. 3659 in April of 1977, that agreement was incorporated into the ordinance by reference. Fairbanks General Code section 1.104 states that “[ordinances repealed remain in force ... for the preservation of all rights and remedies existing by them and so far as they may apply, to any ... contract ... already affected by them.”
Consistent with Fairbanks General Code section 1.104, the city is bound by the provisions of the bargaining agreement until termination.
In Anchorage Borough Education Association v. Greater Anchorage Area Borough, 1 Pub. Bargaining Cas. ¶ 10,066, No. 72-2263 (Alaska Super., 3d Dist., Anchorage, Oct. 4, 1972), the court considered a bargaining agreement involving a similar failure to specify the proper notice. The court held that “[fjailure to specify any particular form of notice in an agreement gives rise to the implication that any reasonable method is sufficient.” We find the superior court’s approach persuasive: Notice must be both reasonable and timely.
In the Anchorage Borough Education Association dispute, a press release was not reasonable notice because of the contract’s importance to public welfare. In the present case the passage of the personnel ordinance was the notice of termination. Since all persons are presumed to know the contents of the laws, Ferrell v. Baxter, 484 P.2d 250, 265 (Alaska 1971); 5 E. McQuillin, Municipal Corporations § 15.28, at 105 (3d ed. 1969); notice by ordinance is not unreasonable. Although the form of notice may have been adequate, it must also be timely. In Anchorage Borough Education Association there was a contract clause providing that negotiation requests be submitted before December 1. The court reasoned that notice to terminate would not be timely unless it was given sufficiently in advance to allow time for the nonterminating party to request negotiations. In the case at bar notice, /. e., the passage of the ordinance, was given on May 21, 1979. The deadline for notice of modification or change was 90
We hold that the parties were bound by the provisions of the agreement negotiated between the city and the union, from April 1, 1977, until June 30, 1981. Passage of the personnel ordinance on May 21, 1979, amounted to implied notice by the city of its intention to terminate the agreement on June 30,1980.
The injunction issued below is modified insofar as it is inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART.
. F.G.C. §§ 2.501-2.523 (as revised on June 13, 1979 by Fairbanks City Council Ordinance No. 3786).
. Section 4 provides:
“This Act is applicable to organized boroughs and political subdivisions of the state, home rule or otherwise, unless the legislative body of the political subdivision, by ordinance or resolution, rejects having its provisions apply.”
Section 4, ch. 113 SLA 1972.
. This notice followed the instructions of sec. 1.2 of the bargaining agreement:
“Either party desiring a change or modification in this agreement shall notify the other party in writing at least ninety (90) days prior to June 30, 1979.”
.The personnel ordinance did not expressly repeal Ordinance No. 3659 which approved the bargaining agreement. The rule for determining statutory repeal by implication is stated in Peter v. State, 531 P.2d 1263, 1268 (Alaska 1975): “We shall look to the purpose indicated by the legislature in passage of an act in our effort to determine whether the new enactment is intended to repeal a prior one.” (cited with approval in Hafling v. Inlandboatmen’s Union, 585 P.2d 870, 876 n.20 (Alaska 1978)). The comprehensiveness of the personnel ordinance is indicative of the intent to repeal all previous ordinances approving different bargaining agreements. See Peter, 531 P.2d at 1267.
. After proper termination, the union has no right to insist that the city negotiate with it absent a municipal ordinance or state statute imposing a duty to bargain. We have already discussed the inapplicability of PERA. Although the National Labor Relations Act, § 8(a)(5), 29 U.S.C. § 158(a)(5) (1976), requires employers to bargain collectively with employee representatives, the Act does not apply to public employees. Further, there is no common law duty to bargain collectively. Newport News Firefighters Ass'n Local 794 v. City of Newport News, 339 F.Supp. 13, 16 (E.D.Va.1972); Atkins v. City of Charlotte, 296 F.Supp. 1068, 1077 (W.D.N.C.1969).
. The request for negotiations, even in view of the personnel ordinance, would not necessarily be a futile gesture. The ordinance does not prohibit the city from negotiating. On the contrary, Fairbanks General Code § 2.505 gives the city manager “the authority to negotiate with representatives of employee organizations representing city employees .... ” During negotiations, the provisions of the personnel ordinance established the guidelines to be achieved, id, but do not set the specific terms of a contract.