                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   October 4, 2000 Session

  LOCAL UNION 760 OF THE INTERNATIONAL BROTHERHOOD OF
  ELECTRICAL WORKERS, ET AL. v. THE CITY OF HARRIMAN AND
              THE HARRIMAN UTILITY BOARD

                  Direct Appeal from the Chancery Court for Roane County
                       No. 13317    Frank V. Williams, III, Chancellor

                                  FILED DECEMBER 8, 2000

                                 No. E2000-00367-COA-R3-CV


This appeal from the Roane County Chancery Court concerns whether the Chancery Court erred in
determining that a collective bargaining agreement entered into between Appellant, Local Union 760
of the International Brotherhood of Electrical Workers, and Appellees, the City of Harriman and the
Harriman Utility Board, is null and void. We affirm the decision of the Chancery Court and remand
for further proceedings, if any, consistent with this opinion. We adjudge costs of the appeal against
the Appellants.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; Cause
                                        Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Gerald Largen, Kingston, Tennessee and R. Jan Jennings, Nashville, Tennessee, for the appellants,
Local Union 760 of the International Brotherhood of Electrical Workers, et al.

Edward G. Phillips, Jon G. Roach and Dean B. Farmer, Knoxville, Tennessee for the appellees, the
City of Harriman and the Harriman Utility Board.

                                            OPINION

        This is an appeal from the Roane County Chancery Court's grant of summary judgment in
favor of Defendants/Appellees, the City of Harriman and the Harriman Utility Board. The issues
raised on appeal, which we restate, are whether the Harriman Utility Board exceeded the scope of
it's powers by entering into a collective bargaining agreement with Appellant, Local Union 760 of
the International Brotherhood of Electrical Workers, and whether such agreement is, as a
consequence, void.
        We affirm the judgment of the Chancery Court and remand for further proceedings, if any,
consistent with this opinion.

        The determinative facts of this appeal are not disputed. Accordingly, it is our obligation to
ascertain the state of the law and apply it to the facts of this case.

        The standard of review in the summary judgment context is well settled. Since our inquiry
involves purely a question of law, no presumption of correctness attaches to the trial court's
judgment. Our duties are confined to reviewing the record to determine whether Rule 56 of the
Tennessee Rules of Civil Procedure have been met. Cowden v. Sovran Bank/Cent. S., 816 S.W.2d
741 (Tenn. 1991). Rule 56.03 provides that summary judgment is only appropriate where (1) there
is no genuine issue with regard to the material facts relevant to the claim or defense contained in the
motion. Byrd v. Hall, 847 S.W. 2d 208 (Tenn. 1993); and (2) the moving party is entitled to a
judgment as a matter of law on the undisputed facts. Anderson v. Standard Register Co., 857 S.W.
2d 555 (Tenn. 1993).

        The City of Harriman, is a municipal corporation established pursuant to the laws of the state
of Tennessee. The Charter of the City of Harriman grants the City the power to establish, maintain
and operate a utility. In furtherance of such power, in 1939, the City created the Harriman Utility
Board. Employees of the Utility Board subsequently chose to become members of Local Union 760
of the International Brotherhood of Electrical Workers of America.

       In June of 1949, the Harriman Utility Board and Local Union 760 entered into a collective
bargaining agreement which constituted a labor contract covering employees of the Utility Board.
Over the years this original agreement, as modified and ratified, has been carried forward and has
culminated in the agreement which is the subject of this case.

       In October of 1997, within the context of a labor dispute between the Utility Board and
Local Union 760, the Harriman City Attorney issued an opinion declaring that the Harriman City
Council and the Harriman Utility Board have no power or authority to engage in collective
bargaining with City employees or with union representatives. The City Attorney's opinion further
declared that the results of any such bargaining are void.

        Subsequently, relying upon the opinion of the City Attorney, the Utility Board declined to
continue bargaining negotiations with Local Union 760 and, also, declined to process grievances
filed by the Union on behalf of employees and former employees of the Utility Board. On May 20,
1998, in response to the Board's declinations, Local Union 760, along with several employees and
former employees of the Utility Board, filed a lawsuit in the Roane County Chancery Court seeking
enforcement of the collective bargaining agreement previously entered into by the Board and the
Union. Thereafter, the Utility Board filed a Motion for Summary Judgment asserting that the
agreement was beyond the authority of the Board, against public policy and, therefore, void. The
City of Harriman filed a Motion to Dismiss and Alternatively for Summary Judgment.



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        By judgment entered May 20, 1999, the Chancery Court granted the Motions of the City and
the Utility Board and dismissed the Complaint of Local Union 760 and the Board employees. In it's
accompanying opinion the Chancery Court held that the City of Harriman and the Harriman Utility
Board were without authority to enter into the collective bargaining agreement with Local Union 760
and that the agreement was, therefore, illegal and void.

        On May 26, 1999, Local Union 760 and the Board employees filed a Motion to Alter or
Amend Judgment or for New Trial asserting that the Union had raised certain constitutional issues
which had not been addressed in the Chancellor's opinion. On December 1, 1999, the Chancery
Court entered an Order denying such Motion and holding that the facts set forth did not support the
claim that there had been a violation of constitutional rights. Local Union 760 and the Utility Board
employees then filed this appeal.

        It is well resolved under Tennessee law that municipalities may exercise only those express
or necessarily implied powers delegated to them by the Legislature in their charters or under statutes.
City of Lebanon v. Baird, 756 S.W.2d 236 (Tenn. 1988).

        We find nothing in the Charter of the City of Harriman that either expressly or impliedly
grants the City of Harriman, or derivatively, the Harriman Utility Board, the power to engage in
collective bargaining or to enter into a collective bargaining agreement. Nor are we aware of any
statutory law in this State that grants such power.

         In the case of Weakley County Municipal Electric System v. Vick, 309 S.W.2d 792 (Tenn.
Ct. App.1957) striking employees of the plaintiff maintained that the county electric system could
lawfully enter into a contract with a labor union with respect to employees and their working
conditions. The Tennessee Court of Appeals disagreed citing a California case for the proposition
that " to hold to the contrary would be to sanction government by contract instead of government by
law." see City of Los Angeles v. Los Angeles Building and Construction Trades Council, 210 P2d
305 (Calif. Ct. App. 1949).

       The Appellants contend that the holding set forth in Weakley no longer represents the law in
Tennessee and argue that municipal corporations are not now prohibited from engaging in collective
bargaining with their employees and in entering into collective bargaining agreements. The
Appellants rely on three Tennessee statutes to support this argument.

        The first two statutes relied upon by the Appellants - T.C.A. 49-5-601 et seq and T.C.A. 7-
56-101 et seq - grant municipalities the right to engage in collective bargaining with educational
professionals and transit workers respectively. However, these statutes are limited in application to
the specific groups designated therein. The argument that T.C.A. 49-5-601 et seq and T.C.A. 7-56-
101 et seq invest municipal corporations with the right to engage in collective bargaining in general
is without merit.




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       The remaining statute cited by the Appellants to support their argument is T.C.A. 8-44-201
which requires that labor negotiations between representatives of public employee unions and
representatives of state or local government entities be open to the public. The Appellants argue that,
since T.C.A. 8-44-201 does not designate a specific classification of public employee to which it is
applicable, it impliedly recognizes a general right of all public employees to engage in collective
bargaining. We disagree.

       Subsection (c) of T.C.A. 8-44-201 states:

         (c)Nothing contained in this section shall be construed to grant recognition rights
         of any sort.

       It is our view that T.C.A. 8-44-201 only applies in those instances where the authority to
engage in collective bargaining is otherwise granted. T.C.A. 8-44-201 does not, in itself, grant or
extend such authority.

        We find that the Appellees were without express or implied authority, either by statute or
under the Charter of the City of Harriman, to engage in collective bargaining or to enter into a
collective bargaining agreement with the Appellants. Consequently, we hold that the collective
bargaining agreement between these parties is void and unenforceable.

       Although the Appellants have raised certain constitutional issues under the Fourteenth
Amendment of the U.S. Constitution and under Article XI, Section 2 of the Tennessee Constitution,
we decline to address those issues for the reasons stated below.

        The Appellants assert that their rights to equal protection under the Fourteenth Amendment
have been violated because the Legislature has allowed collective bargaining between municipalities
and transit workers under T.C.A. 7-56-101 et seq, but has not allowed collective bargaining between
municipalities and utility workers. The Appellants contend that the Legislature had no reasonable
or rational basis for according transit workers special treatment by enacting T.C.A. 7-56-101 et seq.
The Appellants, thereby, place the validity of such statute in question.

        Rule 24.04 of the Tennessee Rules of Civil Procedure states:

         When the validity of a statute of this state or an administrative rule or regulation
         of this state is drawn in question in any action to which the State or an officer or
         agency is not a party, the court shall require that notice be given the Attorney
         General, specifying the pertinent rule or regulation

        Our review of the record in this case reveals that the Attorney General was not notified that
the validity of T.C.A. 7-56-101 et seq was being drawn in question and the Appellants are now,
therefore , precluded from pursuing this issue on appeal.



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         The Appellants additionally argue that application of the holding in the Weakley County case,
supra, to the pre-existing collective bargaining agreement between the Appellants and the Appellee
Utility Board violates the prohibition against impairment of contracts under Article XI , Section 2
of the Tennessee Constitution. However, it appears from the record before us that the Appellants did
not plead this issue in their original complaint and first raised this issue in their post trial Motion to
Alter or Amend the Judgment, or for New Trial filed pursuant to Rule 59 of the Tennessee Rules of
Civil Procedure. The Chancellor held that the Appellants were precluded from raising the
impairment of contract issue by post trial motion and we agree. Rule 59 motions should not be used
to raise new, previously untried theories or to present new, previously unasserted, legal arguments.
see Bradley v. McLeod, 984 S.W.2d 929 (Tenn. Ct. App. 1998). It appearing that the issue of
impairment of contract under Article XI was not properly raised and adjudicated in the Chancery
Court trial, we decline to review such issue on appeal. A party on appeal will not be permitted to
depart from the theory on which the case was tried in the lower court. see Brookside Mills, Inc. v.
Moulton, 404 S.W.2d 643 (Tenn Ct. App. 1965).

         Finally, the Appellants assert that the Appellee Utility Board is estopped from renouncing
it's obligations under the collective bargaining agreement. However, Tennessee law provides that
very exceptional circumstances are required to invoke the doctrine of estoppel against the State and
it's governmental subdivisions. Bledsoe County v. McReynolds, 703 S.W.2d 123, (Tenn. 1985). We
do not find that the circumstances in this case warrant application of the doctrine of estoppel.

        For the reasons stated above, the judgment of the Chancery Court is affirmed and the cause
remanded for such further proceedings consistent with this opinion as may be necessary and
collection of costs below. We adjudge costs of appeal against the Appellants and their surety.




                                                __________________________________________
                                                HOUSTON M.GODDARD, PRESIDING JUDGE




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