*1 CITY EDUCATION PARK

ASSOCIATION, Plaintiff Appellant, EDUCATION OF

The BOARD OF DISTRICT, CITY

PARK SCHOOL Appellee.

Defendant

No. 920688-CA. Appeals of Utah. 27, 1994.

July West, H. and John M.

Robert Chanta DC, McCoy, Washington, T. Michael Murray, appellant. for Ostler, Burbidge, R. Blake T. Brinton Weed, appellee. City, Lake F. Salt Stuart ORME, BILLINGS, DAVIS and Before JJ.

DAVIS, Judge: (PCEA) Association Park Education granting court’s appeals from the trial order judgment of Edu- summary (the District of the Park School cation Board). We reverse. *2 did

BACKGROUND tracts not reference the Master Contract by 2.2 required paragraph agree- as of that employees of an association of PCEA is Instead, provided ment. the contracts that of Edu- the Park School District Board by the two teachers to be bound most of the certified em- representing cation regulations and set rules as forth September ployees of Board.1 Prior to policies procedures and Board. The 21, 1988, recognized Board had PCEA as alleges Hadden Schulthess bargaining agent the exclusive for those em- “voluntarily” agreed to contracts outside the ployees.2 September On Contract; however, scope of the Master Had- entered into a “Master Con- the Board on agree- den noted her her years covering tract” the school 1988-89 and ment be bound its terms under was sub- provisions 1989-90. of the Master Con- ject pending “griev- to the resolution her half-time, “[a]ny full-time, apply tract grievance That ance.” concerned the loss of alia, part-time specify, inter teacher” health insurance Policy benefits under pay has the health the Board GCDA. Schulthess not did make a similar by insurance costs for individuals covered contract, on her party notation but was also a Recognizing individual contract. an grievance. teacher, contract will made with each provision includes a keeping GCDA, Policy with the Board agreement policies as well as all “[t]his other provide did not health insurance benefits to duly promulgated the Board be refer- will for Hadden Schulthess the 1989-90 yearly enced each teacher’s contract and year. result, school As a PCEA filed a com- part Finally, be a deemed to thereof.” against plaint April on the Board possibility anticipating the of future conflict requesting damages award agreed upon between the terms in the Mas- amount of Hadden’s and Schulthess’s medical changing policies, ter Contract and expenses year along for that school with paragraph pro- 2.3 the Master Contract declaratory injunctive relief. Based any “In vides: case direct conflict between upon foregoing undisputed facts, both express provisions agreement of this parties summary judgment moved for follow- policy!,] practice, Board of Education ing discovery. 16, 1992, September On procedure, incorporat- or writing custom trial court granting issued an order agreement, ed in this shall summary judgment. Board’s motion for On control.” 8, 1992, December the court entered a Utah 52(a) Civil Rule of Procedure statement of Notwithstanding provisions grounds First, for the court’s decision. Contract, 27,1989, on Master June the Board the court ruled that Hadden and Schulthess adopted policy regarding a new health care bargain independently had elected to job-sharing3 employees. benefits for This the Board and were thus covered policy, “Policy as provides known GCDA” Second, Master Contract.” the court ruled “any [job-sharing] employee contracted that the of the Master Contract— for per less than 25 hours week will not be stating that in the case of conflict between eligible for health and accident insurance the terms of the poli- and Board coverage.” subsequently The Board offered cies, the terms of pre- the contract would 20-hour employment contracts for the 1989- impermissibly vail—was void because it year guidelines Policy 90 school under the teachers, job-sharing Margery GCDA to prevents] two the Board Education Nancy Hadden and amending policies regarding benefits, Schulthess. The con- 1. "Certified" representative are those who hold a as the ciation exclusive of all certi- professional standard certificate or authorization personnel.” fied bargaining agent is not to teach. PCEA supervisors, substitutes, employees, confidential 3.Job-sharing Policy is defined GCDA as "a per employees, employees. diem and classified voluntary program providing two or more em- ployees opportunity position.” share one 2. The "[t]he states that hereby recognizes Ci1y the Park Asso- Education termination, Supreme ty. As the Utah observed compensation, personnel, taking away Lake v. International Ass’n many provisions, thus Salt other (Utah 1977): Firefighters, P.2d manage properly statutory requirements according to affairs Athough delegation the old has doctrine *3 Moreover, provi- a and standards. repudiated, an been there remains under- limitation on the be an unlawful sion would validity, requires lying those core which authority. The legislative Board Board’s selected, given pro- a who have been precluded cannot be from of Education cess, given constituency; from a retain policies, adopting amending its additional power policy the to make ultimate deci- rescinding existing policies. policies, or made sions and override decisions oth- appeal This followed. complexities budgeting and ers. The programs, the selection of are duties elect- APPEAL ON

ISSUES electorate; to ed officials owe the these policy delegated.... (1) decisions cannot be on appeal: There two issues wheth- para- holding in the trial court erred er (footnote omitted). Consequently, Id. at 790 graph 2.3 of the Master Contracts—which corporation municipal cannot bind itself “[a] contract are provides that the terms of that by any beyond scope pow contract the its policies— any conflicting Board supersede to ers, anyone contracting corpora on unlawful limitation is invalid as an corporate to limita tion deemed know the legislative authority; and wheth- Board’s respect.” v. Dist. tions this Miller School determining er the trial court erred County, Cowley Kan.App.2d to elected Hadden and Schulthess (1987), 242 Kan. aff'd, P.2d 75 their independently for contracts (1988). P.2d 113 therefore not covered under the Con- bar, In the case at the trial court tract. paragraph 2.3 of Master determined stating that in the event conflict Contract — STANDARD OF REVIEW policies between Board the terms School granting challenge to order A an agree of the agreement, of the only summary judgment “presents for review prevail unlawful ment would limitation —is definition, because, by law conclusions of authority. legislative of the Board’s summary judgment do not cases decided on prevents urges provision Board that this disputes.” resolve factual Schurtz BMW amending policies regarding Board its (Utah Am., Inc., 1108, 1111-12 P.2d of N. 1991). “benefits, compensation, personnel, termi the trial court’s conclu We review and, result, a is no nation” as for correctness. Id. sions law responsibly longer “properly to able manage according statutory to re affairs its ANALYSIS quirements and standards.” Enforceability of Master Contract position in this case is both The Board’s authority to illogical inconsistent with its authorized

School boards are binding agreements. things necessary for The Board to enter into statute “do maintenance, correctly that it limited contract- prosperity, *4 of specified a class of individuals. the Su- As Fighters’ Negotiation of vision the Utah Fire preme of Colorado in Littleton noted mandatory, provided binding that for Act Dist, Arapahoe County Educ. v. Ass’n Sch. in bargain- of issues not resolved arbitration 411, (1976) (en banc): 191 Colo. 553 P.2d 793 organizational ing firefighters’ between the The in the representative municipal and defect board’s authorities. subject agreement court invalidated Act because if a the an un-

The constitutes occurred, bargaining impasse delegation places lawful authority ultimate of and regarding system decisions what terms of a school control in the hands of be employee organization would included the collective an a basic reflects Advocate, arbitration, People's binding repugnant 4. The Board also cites v. statutory Inc. Court, 316, Superior Raines, Cal.App.3d 181 policy implicit 226 Cal. in those sections.” 796 (1986) Rptr. City County 640 San statutory prohibition P.2d at 304. There is no Patterson, 95, Cal.App.3d Francisco v. 248 202 against entering fixing into a contract the condi- (1988), Cal.Rptr. proposition 290 for case, employment tions this does the nor Board cannot enter into a contract that restricts provide mandatory binding policies to alter or in the amend its grievances. Consequently, of teacher arbitration Advocate, People’s future. the court struck holdings in Raines and Mindemann adopted an down initiative at a recent election relevant. govern legisla the content of future Finally, County the Board cites San Legislature "[n]either tion because may house of 898, Cooper, Cal.Rptr. v. Francisco 13 Cal.3d 120 Legis bind its own hands or of future those 707, (1975), 403 a case more with facts by adopting change.” capable latures rules not Cooper similar the facts to of the instant case. Advocate, People's Cal.Rptr. 226 at 647. In Pat a governing employee involved "resolution” terson, proposed limiting a initiative ordinance adopted by work terms the Board of Education power of all future boards of education to sell or after conference with the teachers’ union. One property release real was struck down on the provision specified of the resolution grounds that if it is unlawful for the current Board could not alter the terms of the resolution particular to to board bind all future boards a approval without from the union. The policy, similarly then the electorate is barred provision ground struck down on the that it Patterson, doing Cal.Rptr. from so. 248 at 296. delegation unlawful of decision-mak distinguishable instant from The case is Patterson ing authority. court also held People's significant a Advocate. There is salary adopted by increases the resolution entering binding difference between a into em were valid enforceable and could ployment period contract for a fixed of time and unilaterally changed by the Board because "such enacting legislation that would bind all future salary integral part become schedules an of each particular boards to a policy. employment teacher’s contract.” Cal. Id. 120 Board, Two other cases cited Raines v. 18, Rptr. at 728 n. 534 P.2d at 424 n. 18. There 6, (Okla. Independent Sch. Dist. No. 796 P.2d 303 fore, provision the court while struck down the 1990), Independent and Mindemann v. Sch. Dist. protected salary by prevent which increases 6, (Okla.1989), provi 771 No. P.2d 996 invalidate altering of the agreements sions approval, absent resolution union it also held require grievances that teacher submitted to permitted renege that the Board was not on its reasoning arbitration. The behind the promise agreed. raise the salaries as court’s decisions in these was that cases Master Contract in the instant discipline, suspend, case contains no or dismiss an em provision requiring approval ployee is vested in the or an admin school board pursuant changes; breaching we supervision istrator under the decline to hold that board's Therefore, concluded, unambiguous statute. clear and the court "A terms of the Con responsibili making policy change school board's a abdication of these tract is tantamount ties, by requiring prior approval to submit these decisions to of PCEA. from, negotiations process. departure is a or surrender misperception of, independent policy- of a board’s employer and an exercise Negotiations between an Engineers making power.”); Lindon employee organization entered into volun- (Utah 1981) Co., case, P.2d tarily, require do not Constr. as in this agree proposals (upholding sub- employer to Rather, disputes agreement calling ulti- for arbitration of by employees.

mitted arising involving out of contract as not regarding mate decisions “delegation of ... exclusively unlimited discretion to an remain terms and conditions panel persons private hoc to make basic employees’ in- ad While the with the hoard. Dole, Jr., governmental F. policy”); Richard felt, the control permitted fluence Employee Public State Local Collective decision-making abrogated has not been Bargaining Explicit Legis in the Absence delegated. Authorization, lative 54 Iowa L.Rev. added); (emphasis at 796 see P.2d (1969) (“Because public employer 543-44 # 11, Paso Rockey v. School Dist. El also agree employee repre not have to an does Colo.App. P.2d County, 32 proposals, public employer sentative’s dele (“While district, corporate the school gates authority representative by to a no bargain body, enter into a collective cannot attempting negotiate bargain a collective *5 delegates re ing agreement whereby it its Furthermore, any ing agreement contract. employing per sponsibility and discretion is that results an exercise of discretion rather sonnel, into a fact that the board entered the delegation public authority by of the than relating to collective employer.”) does mean the of teachers not weight authority supports The of PCEA’s authority delegated it has its or per se that position entering binding employ- into a decision-making power.”); Louisiana Teach containing ment contract the the Bd., Parish Sch. 303 ers’ Ass’n Orleans claims does in- Board are unenforceable not 564, (holding that (La.App.1974) 568 So.2d delegation of volve an unconstitutional deci- bargaining un collective does not constitute Further, sion-making authority. common delegation decision-making lawful of authori sense dictates that the to enter into a ty only ... has decided “[t]he because Board obligation .to be bound contract includes collectively respect to with to terms Accordingly, we the contract.5 reverse conditions; right final and it retains the of invalidating paragraph the trial court’s order it decision to what terms and conditions as Indeed, 2.3 of Master Contract. agree right to will to. it retains the denied, all.”), agree at decide not to cert. 305 Separate Contracts (La.1975); Dayton So.2d 541 Classroom Educ., Dayton Bd. 41 The Board also contends that trial Teachers Ass’n v. 714, correctly determined that the terms of St.2d 323 N.E.2d 718 Ohio (“Neither authority prohibits a are not in this reason nor the Master Contract and manifesting poli from ease because Hadden Schulthess “volun- board education its tarily contract with the district cy calling in written form and elected to decisions writing directly signed not contracts with agreement or contract. It can added). entering individually.”6 (Emphasis The seriously argued that into such obtaining provisions or to is contract referred 5. Our conclusion consistent 53A-la-302(3)(b). legislation establishing a (a).” Centennial § Id. If in Subsection Program. §§ Code Ann. 53A~la- Schools Utah unilaterally change to board were free school (1994). voluntary program to -304 This bargaining agree- policies to obviate participat- provides of a that the school directors ments, 53A-la-302(b) superfluous. § “request may school a waiver from the local agree- any provision board education of in an implies that 6. The Board ment contract between the district and controlling when Hadden Schul- was employees prevents or hinders the school signed contracts "the section thess their because goals.” achieving performance from renegotiation.” regarding benefits was under However, 53A-la-302(3)(a). § waiver brief, reply points out in its “subject the local board to between agrees, question apparently entity employees the Board and the “right private is a industry sovereign Board notes that Utah to work” and not to the state, employees right have the political or its subdivisions. bargain collectively right “the refrain Comm’rs, Westly v. Board 573 P.2d or all such activities.” Utah Code (Utah 1978) (footnote omitted) (1988). “right § Ann. 34-20-7 This to re- added). (emphasis supreme court later collectively frain” from has been interpreted holding municipal as Westly interpreted by Board to mean that em- employees statutory do have a right granted right ployees have been enter Council, bargain collectively. Pratt v. separate employer, with an into contracts (Utah 1981).7 639 P.2d n. 10 despite bargain- existence inapplicable Because section 34-20-7 is case, ing agreement. In this because Had- public employees, we must look elsewhere knew that den Schulthess under the public may determine whether they offered were not bargain independently with employer their entitled to certain benefits and nonetheless agree- when there is a collective contracts, these to enter into in place purporting ment to cover these em- argues signed that the and executed ployees. While the National Labor Relations undisputed contracts are evidence of their (the NLRA) Act also inapplicable state to a intent to contract subdivisions, political or its presented courts Board. The Board takes this not- with collective public issues withstanding provisions paragraphs 2.2 sector have turned cases decided in the 2.3 of the Master and notwith- guidance. context of the NLRA standing undisputed fact that Jeffer- Hadden County son Shorey, Sch. Dist. v. grieving and Schulthess were the denial of (Colo.1992) (“Although public em- provided by benefits the Master Contract at ployees subject are not requirements *6 time their contracts were executed and law, of federal labor federal decisions none- specifically that Hadden referred to the theless guidance resolving offer similar grievance in her contract. sector.”); public issues Buhl Educ. The trial court’s reliance on section 34-20- 4,12, Ass’n v. Joint Dist. No. Sch. 101 Idaho support 7 in of its determination that Hadden 16, (1980) 1070, 1075 (noting that right and Schulthess exercised their to bar- although apply NLRA does or its state gain misplaced. Even authori- subdivisions, political analysis of collective

ty by quite cited clearly Board states bargaining forth in Supreme as set Court employees public by are covered provide case guidelines”). law “does sound Interpreting labor state’s laws. the declara- policy of Communications, tion “Little AT Utah’s Norris-La v. & T Retherford Act,” (Utah 1992), § Ann. Guardia Utah Code 34-19-1 844 P.2d 949 Supreme the Utah (1988), observed, Supreme the Utah presented Court was with the issue of wheth- agreement er an individual jurisdictions, providing more construing Numerous stat- rights than available [state utes Labor those under a collective Acts] Relations similar to ours, rejected bargaining agreement uniformly have was The concept enforceable. analyzed court the issue in of statements the context contained interpretation apply public employees. therein a bargaining of In the explicit legislative agreement absence language, public which did not involve em- of governing ployees. statutes labor relations between The noted it is well employers employees apply only to established under federal labor law “al- was suggest right who entitled to benefits was not under rene- do not such a was exercised gotiation, requir- and the term here. part Both Schulthess Hadden were employees health insurance for covered grievance process disputing validity Poli- in full remained force and effect. cy they “voluntarily GCDAat the time elected” to separately, expressly contract and Hadden noted right 7. We further note that even if there were a signature "[s]ubject on her contract that her was separately employer to contract with an grievance pres- determination of which is by bargain- waive benefits ing agreement, conferred ently being heard.” undisputed facts of this case

273 private agreement.... Wherever separate tive any employee can reach though functions, they with its contracts conflict employer, separate agreement with yield obviously must or the Act would be with the collec- must be consistent futility. reduced to a negotiated by the tive Thus, separate equally since the collective inconsistent It is clear union.... purpose at trade is to serve the 969 agreements are not enforceable.” Act, NLRB, 332, contemplated the individual v. 321 U.S. (citing J.I. Case Co. as a waiver 581, (1944); contract cannot be 339, 676, 88 L.Ed. 762 64 S.Ct. effective employee to which the other- Co., Mfg. NLRB v. Allis-Chalmers accord benefit wise would be entitled under the trade 2001, 2006, 175, 180, 87 S.Ct. 388 U.S. agreement. very purpose providing (1967)). The court discussed L.Ed.2d 1123 agreement is to statute the collective decisions, noted that even federal several separate agree- supersede the terms separate agreements more favorable ments with terms which re- employee than the collective strength unenforceable, and held that flect agreement were group. Its and serve welfare policy underlying these decisions advantages open every benefits and au- Nothing could undermine the sound. unit, employee whatev- thority bargaining unit more of a collective type pre-existing er the or terms of his allowing individuals or co- thoroughly than employment. contract of separate employees to enforce horts of 337-38, at Id. 321 U.S. at 64 S.Ct. 580-81 advantageous that were more added); (emphasis Caterpillar, see also employees than was the collective those Williams, 386, 395-97, Inc. v. 482 U.S. itself_ Accord- 2431-32, 2425, 96 L.Ed.2d 318 S.Ct. ingly, upset this balance we decline (further holding); explaining J.I. Case ac allowing agreements individual to undercut Richmond, Fredericksburg, & Poto cord bargaining agent. union as the Transportation mac R.R. v. Commu Co. Retherford, (citing v. 844 P.2d at 970 Chmiel Union, 973 F.2d nications Int’l Co., Beverly Hotel 873 F.2d Wilshire (4th Cir.1992); Melanson United Air (9th Cir.1989); Eitmann v. New Or 1285-86 Cir.1991), (9th Lines, Inc., F.2d Serv., Inc., 730 F.2d 362-63 leans Pub. — denied, U.S. -, rt. S.Ct. *7 ce (5th denied, Cir.), 469 U.S. cert. (1991). 116 L.Ed.2d (1984). S.Ct. 83 L.Ed.2d bar, Park In the ease at Case, Supreme provided In J.I. Schulthess, educators, including Hadden and purpose and a detailed discussion of the exclusively by to be elected respect scope bargaining. collective With turn, negotiations. in contract PCEA bargain- interplay between a collective negotia to conduct contract Board elected contracts, the ing agreement and individual bargaining the exclusive tions with PCEA as Court stated: The Master agent for those educators.8 contracts, no matter what the Individual agreed upon by and the justify full-time, their execution circumstances by all half Board covered its terms terms, may availed of time, subsequently or what their not be part-time or teachers delay procedures pre- Board, or by to defeat and accorded health hired by the National Labor Relations teachers. scribed benefits to all these insurance bargaining, Therefore, looking negotiate Act to collective nor to decision to contracting employee individually from a exclude the with Hadden Schulthess unit; may duly bargaining nor without health insur ascertained two direct breaches they bargaining or to ance benefits constituted be used forestall hold that these Master Contract. We limit the terms of the collee- of the or condition clearly presupposes expressly legislation the existence stated that its 8. The Board has legality in the context of collective to enter into a collective §§ hiring Utah Code Ann. 53A- educators. See not at issue in this case and we therefore do not (1994). -402 we note that recent 6-401 to issue. reach.this justified by employ- enter separate breaches cannot be into a individually “right” supported ee’s with the Board if even the facts their desire Thus, employer. scope foregoing reasons, whatever to do so. For the we right bargain individually employee of an reverse and remand with instructions to en- be, may right it does not include the summary waive ter judgment for PCEA. by benefits conferred employee. covering BILLINGS, J., concurs. analysis in and J.I. Case is com- Retherford

pelling applicable per- to this case. To ORME, Presiding Judge Associate mit such individual contracts would make (concurring part concurring in the futile; we decline to do part): result in so. opinion I except concur the court’s as to “Separate the section entitled Contracts.” CONCLUSION That with public section deals whether em- entering voluntarily After into a ployees bargain individually right have the PCEA, Master Contract with the Board sub- public with employers though even a collec- sequently two of its breached terms. The tive bargaining agreement is in effect. I see unilaterally changed the contract term no need to reach this issue. regarding job- health insurance benefits for by The sound majority result reached teachers, sharing and coerced Hadden and can readily premised solely ground on the sign pur- Schulthess to individual contracts alluded to in 7 of opinion. footnote the main porting to waive the benefits of the Master employee Whether or not public is entitled Contract. The fact that mere the Board and waive certain to be certain bound contractual rights employee obtained association an improper does not constitute dele- bargaining agreement, its collective no gation legislative authority. The Board waiver occurred this cáse. The Mas- relinquish private entity did not to a ter Contract between the PCEA and the decisions, policy to make nor it did specifically accorded health insurance indefinitely bind itself and future boards to a full-time, half-time, benefits to part- Therefore, particular policy. trial subsequently time teachers hired. Hadden by invalidating erred in the and Schulthess hired as half-time teach- stating that in case of con- ers and thus entitled to benefits under the policy flict between the terms of Agreement. Master As a public matter of Contract, prevail. Master latter shall policy as well interpreta- as sound contract signed The contracts Hadden and Schul- tion, any rights waiver of such would have to incorporated thess conflicting intentional, explicit, unambiguous the term in the Contract regarding *8 rather being than left for inference. See health Accordingly, pur- insurance benefits. Hunter, (Utah Hunter v. suant paragraph 2.3 of the Master Con- 1983). I such require a waiver to be tract, conflicting ap- is not expressed in the individual con- plicable to employees covered the Master tract, specifically reference the collective during term. bargaining agreement, clearly and to state We employ- further hold that where those employee’s recognition rights or bene- ees have selected an exclusive fits available thereunder and his or her deci- agent, agent and where that has entered into rights sion to waive those or benefits. No a thing happened here. In contrast employer, they nor employer neither waiving rights, their both consis- bargain individually free to for inclusion of tently disputed attempt to de- terms in an individual that contra- prive them of health their benefits. vene bargaining agree- those in the collective Thus, ment. join and Schulthess Accordingly, majority Hadden I in revers- not in the trial depriving court’s decision Had- (cid:127) important benefits otherwise available to How- of health benefits. den and Sehulthess them. inability ever, legal not on their I do so based employer, separately contract with their that it has not been shown upon the fact

but they contract outside the intended to bargaining arrangement and waive notes and success scope powers. promotion ing within the of education.” schools and 53A-3-402(17) (1994). powers” by defining “scope § of its so Code Ann. Utah ability has or “things narrowly that it alter Expressly among those nec included virtually any despite policy amend essary” is into written enter contrary, the is es- up provisions employment for terms of five contracts 53A-3-411(l). However, contending governmental en- sentially that a years. § a tity by any contract. That cannot be bound ability to enter into such contracts is board’s is, governmental every well contract between completely It is estab unfettered. individual, entity private entity or may any into enter lished that a board services, prod- for the delegates legislative authori- whether contract that ucts, construction, objec- any placed lawful other hands of a tive, governmental may if panel be breached of arbitrators who were unaccountable entity doing has a reason for so. public. Firefighters, at 789. Therefore, entity’s governmental statuto- inapposite Firefight- The instant case is into rily conferred to enter any delegate Board did not ers. The deci- is, following sion-making ability to PCEA or other reasoning, illusory. Board’s body regarding which be ac- teachers would addition, benefits, corded insurance health or what the supported by is not ease law. The case Instead, scope of these benefits would be. primarily upon Board relies International enumerated benefits for Firefighters,4 involving pro- Ass’n a case