May 27, 1991
You requested assistance in classifying employees in labor and management categories for the purposes of a "memorandum of understanding" between the city and certain employee organizations. When we discussed your request, it became clear that the purpose of the memorandum in question was the recognition of certain employee organizations as bargaining agents for municipal employees, and that the purpose of the classifications was to divide municipal employees into labor and management. I felt obligated to tell you that it appeared to me that what the city was doing was recognizing employee organizations for bargaining purposes, and that such an act is illegal in Tennessee. I sent to you the case of City of Chattanooga, etc v. Chattanooga Firefighters Assn., Local Union No. 820, et al. You subsequently requested a letter on the question of whether the city was within it rights to enter in to a "memorandum of understanding" with the organizations in question.
As I understand it, at least one of the organizations is not technically a union, but unless I am woefully mistaken, both organizations have the purpose and function of a collective bargaining unit for the purposes of the memorandum in question, and the memorandum itself has the purpose of recognizing them as such. While I would want to withhold any definite opinion of whether the memorandum of understanding is legal under Tennessee law until I learned all of the facts and studied the memorandum itself, it is clear that the memorandum represents an attempt to accomplish through the back door what cannot be accomplished through the front door.
I am aware that several cities in Tennessee follow the practice of doing through the back door what they cannot do through the front door with respect to collective bargaining. However, the point of this letter is to confirm what I told you on the telephone: if the courts look to substance over form, collective bargaining agreements titled as "memorandums of understanding" or by some other name to disguise their true purpose and function are probably null and void. The true intent and purpose of the agreement in question seems to be clear in the very act of the city classifying employees for the purposes contemplated by your request for assistance.
I refer you to the list of cases cited in City of Chattanooga to support the proposition that what the city is doing may not be legal, in particular Weakley County Municipal Electrical System v. Vick, 43 Tenn. App. 524, 309 S.W.2d 792 (1957). That case appears to me to be broad enough to prohibit collective bargaining agreements (by whatever name they are called) with organizations of any kind, even those that do not technically qualify as labor unions.
If I can help you further in this or any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant