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AGO 1958 No. 228 - November 19, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS ‑- COUNTY ‑- COMMISSIONERS ‑- AUTHORITY TO ENTER INTO UNION SHOP AGREEMENT.

The board of county commissioners has the authority under state law to enter into a so-called union shop agreement with a union covering road department employees.

                                                                  - - - - - - - - - - - - -

                                                               November 19, 1958

Honorable W. R. Cole
Prosecuting Attorney
Kittitas County
National Bank of Commerce Building
Ellensburg, Washington                                                                                           Cite as:  AGO 57-58 No. 228

Attention:  Mr. Edward A. Dawson, Deputy

Dear Sir:

            By letter previously acknowledged, you requested an opinion of this office on a question which we paraphrase as follows:

            Does a board of county commissioners have the power, under state law, to enter into a "union shop agreement" with a road department union?

            We answer this question in the affirmative for the reasons hereinafter expressed.

                                                                     ANALYSIS

            A county is but an instrumentality of state government and, as such, has only the powers expressly conferred by the constitution and state laws, or those which are reasonably or necessarily implied from the powers granted.  State ex rel. King County v. Superior Court, 33 Wn. (2d) 76, 204 P. (2d) 514 (1949); State ex rel. Taylor v. Superior Court, 2 Wn. (2d) 575, 98 P. (2d) 985; see also, 14 Am.Jur. 200 and 209, sections 28 and 40; AGO 57-58 No. 220 [[to John J. Lally, Prosecuting Attorney, Spokane County on September 30, 1958]].

            The legislature has prescribed the powers of the boards of county commissioners in RCW 36.32.120 which reads, in part, as follows:

             [[Orig. Op. Page 2]]

            "The several boards of county commissioners shall:

            "(2) Lay out, discontinue, or alter county roads and highways within their respective counties, and do all other necessary acts relating thereto according to law, . . .

            "(6) Have the care of the county property and the management of the county funds and business and in the name of the county prosecute and defend all actions for and against the county, and such other powers as are or may be conferred by law; . . ."  (Emphasis supplied.)

            RCW 36.75.020 provides as follows:

            "All of the county roads in each of the several counties shall be established, laid out, constructed, altered, repaired, improved, and maintained by the board of county commissioners of the respective counties as agents of the state."

            Although these statutes do not expressly authorize the board of county commissioners to hire road employees, it is obvious that the board must have this implied power, since without such employees, a county could not perform the functions required of it under the above law.  See Christie v. The Port of Olympia, 27 Wn. (2d) 534, 179 P. (2d) 294 (1947).

            The specific contract clause which you submitted for our consideration, reads as follows:

            "The employer agrees that he will insist that new employees report to and become members of the union and remain paid up members of the union as long as employed by Kittitas county highway department."

            There is no question but that this clause provides for what is commonly referred to, and understood to be, a "union shop agreement".  The sole and only question which we must decide is whether the county has the power to enter into this type of agreement.  In Civil Service Forum v. New York City Transit Authority, 3 Misc. (2d) 346, 151 N.Y.S. (2d) 402 (1956), the court was required to pass upon the legality of a collective bargaining agreement entered into by the New York City Transit Authority, a public corporation created by law, and a union representing a majority of its employees.  The  [[Orig. Op. Page 3]] court upheld the agreement.  In the course of the opinion the court said:

            "At the outset it might be pointed out that our courts have consistently held that they will not review the wisdom of proposed contracts made by a public agency but will restrain only such acts as are prohibited by statute or are illegal. . . ." (Emphasis supplied.)

            The above case was reversed by the appellate division, 4 App. Div. (2d) 117, 163 N.Y.S. (2d) 476, but only so far as the granting of the authority's motion for dismissal was concerned.  See also,  Erie County Water Authority v. Kramer, 4 App. Div. (2d) 545, 167 N.Y.S. (2d) 557 (1957).

            Our court in the Christie case, supra, stated that "the power to employ includes the power to contract".  This decision was cited by the Arizona supreme court in Local 266, International Brotherhood of Electrical Workers v. Salt River Project Agricultural Improvement & Power District, 78 Ariz. 30 (1954), 275 P. (2d) 393 (1954), wherein it is stated:

            "That the District is not specifically given the power to make employment contracts, with the exception of an engineer, tells us little.  The authorization to do business in itself implies the necessity of hiring labor.  Christie v. Port of Olympia (International Longshoremen's & Warehousemen's Union, Intervenor), (1947), 27 Wash. (2d) 534, 179 P. (2d) 294.  To construe the statute otherwise would be to defeat the purpose of the legislation and lead to an absurdity which we refuse to do.  (Citations omitted.)

           . . .

            "To say that the District is powerless to enter into one agreement covering the terms of employment of many of its employees but has the power to enter into approximately 750 separate negotiations would be an incongruity beyond reason."  (Citations omitted.)

            In the case of Port of Seattle v. International Longshoremen's and Warehousemen's Union, 152 Wash. Dec. 267 [[52 Wn.2d 317]], 324 P. (2d) 1099, our court held that the union did not have the right to strike against the port district which is a political subdivision of the state and a municipal corporation.  Commenting upon the Christie case, supra, the court said:

            "In the Christie case, this court decided that a port district has the power to make contracts for the payment of deferred compensation to longshoremen.  At least  [[Orig. Op. Page 4]] inferentially, that case stands for the proposition that a port district hasthe power to enter into collective bargaining agreements.  (Citations omitted.)  However, we believe thatthere is a difference, perhaps small but nevertheless significant, between the power of a port district to contract and the power of the employees of the port district to strike and to picket."  (Citations omitted.)  (Emphasis supplied.)

            We believe the broad powers and duties of the boards of county commissioner are comparable to the powers given port districts in so far as entering into contracts with labor unions are concerned.  (See AGO, Lloyd L. Wiehl, Prosecuting Attorney, Yakima County, November 30, 1944; AGO, Reuben C. Youngquist, Prosecuting Attorney, Skagit County, May 29, 1951 [[Opinion No. 51-53-53]].)

            Thus, applying the doctrine of implied powers, we must conclude the board of county commissioners may enter a "union shop agreement" with a road department union unless (1) there is a constitutional or statutory prohibition against such contract, or (2) the agreement is illegal as violative of the public policy of this state.

            There is no constitutional or specific statutory provision which prohibits a county from entering into this type of agreement.  We are mindful, however, that the legislature in RCW 35.22.350, has given cities of the first class, which own and operate certain utilities, the authority to deal with accredited labor unions and to enter into contracts for periods not exceeding one year.  We recognize further, that this statute may be interpreted as an expression of legislative intent to give to the named cities such powers and withhold the same powers from counties.  However, we do not so construe the statute but believe that it was passed by the legislature in a superabundance of caution.  (See AGO, Cliff Yelle, State Auditor, June 7, 1944.)  Therefore, it is not determinative or conclusive on the issue of the implied powers of other municipal or quasi-municipal corporations.

            In 1946 this office issued an opinion to the Washington State Liquor Control Board in which the following language from the Twentieth Century Fund book, "Trends in Collective Bargaining" is quoted:

            ". . . it remains a fiercely contested point as to whether or not a city has the right to bargain collectively with its employees and to sign contracts that stipulate wages, hours, the union shop and the like.  The Institute of Municipal Law Officers has not retreated from the stand it took in 1941 on this issue.  It then asserted that a municipality may not enter into a labor contract in the absence of express  [[Orig. Op. Page 5]] enabling law endowing it with the authority to do so.  'Cities are creatures of limited powers,' said the Institute, 'having only those specifically delegated by constitution, charter and statute, and power to sign such collective bargaining agreements has not been expressly delegated to cities, except in a very limited way by the state of Washington.'

            "The Institute has also stated that a city cannot be a party to a collective bargaining pact because: (1) this would be against declared public policy, (2) municipal employees can't strike and in the Institute's view the use of the strike and collective bargaining are inseparable, and (3) they are, in legal and economic terms, different from employees in private industry.

            "Those who oppose this view answer that cities conduct their business constantly under the doctrine of implied powers.  Many courts, indeed, have found that the municipal corporation can draw on three classes of authority: (1) that granted in specific words; (2) that fairly or necessarily implied; and (3) that essential to accomplishing its avowed objects.  [See Christie & Port of Olympia, supra.]

            "The courts have further held that cities may legitimately invoke implied powers to hire 'outside' architects, and attorneys, to make assessments for local improvements, to purchase lands on which to erect school buildings, to construct waterworks and a long list of other things.  It would seem that, today, harmonious labor relations are crucial to the efficient transaction of a city's business.  Hence, to achieve that end, the power to utilize collective bargaining, andwritten agreements flowing from it, may be both 'fairly' and 'necessarily' implied, as 'essential' for attaining the very purposes for which the city, as a public corporation, exists."  (Emphasis supplied.)

            The foregoing statement pertains to cities but we feel that it is equally applicable to counties.  As previously stated, we find no constitutional or legislative prohibition against a county entering into a "union shop contract".  There remains, however, the question of whether such a contract would violate public policy.  In Pierce v. Yakima Valley Memorial Hospital Association, 43 Wn. (2d) 162, 260 P. (2d) 765 (1953) the court said:

             [[Orig. Op. Page 6]]

            ". . . The factors upon which any public policy is based‑-the relevant factual situation and the thinking of the times‑-are not static. . . .

            "'"Public policy" simply means that policy recognized by the state in determining what acts are unlawful or undesirable, as being injurious to the public or contrary to the public good.  It is not quiescent but active.  A policy adopted today as being in the public good, unlike the Ten Commandments, is not necessarily an ever-enduring thing.  As times and prospectives change, so changes the policy. . . .'"

            In the Christie case, supra, the court said:

            "We are not disposed to hold that, if that [labor] agreement had been formally made by the commissioners, it would have been void as against public policy.  On the contrary, under the conditions shown, we think the agreement made . . . was not only consistent with public policy, but with good judgment and common sense."

            At the present time, we cannot say that a contract by a county with a union providing for a "union shop" for road employees would be injurious to the public or contrary to the public good, and, therefore, be illegal and beyond the powers of the board of county commissioners.

            In passing we should mention that we have considered chapter 29, Laws of 1951 (RCW 73.16.010) which provides for a preference in public employment for honorably discharged veterans and their widows.  However, we do not construe this act as to prevent the county from entering into a "union shop" contract.  Under the contract clause here in question, the board of county commissioners retains, as it must, the right to select and hire employees of its choice.  Therefore, the preference in public employment provided by the legislature is unaffected.  The board may fully comply with this statute but thereafter require, as a condition of employment, that any employee hired become a member of a union and continue as such during the time of his employment.

            We have not overlooked Rhyne, on Labor Unions and Municipal Employees Law (1946) or the annotation in 31 A.L.R (2d) at page 1142 which are in effect contrary to the views expressed herein.  However, we believe that at the present time, in the absence of any contrary decisions by our supreme court, the conclusions we have reached are in accord with the law, as it pertains to counties, in this jurisdiction.

             [[Orig. Op. Page 7]]

            In summary we hold:

            (1) A county may enter into a "union shop" contract, as hereinabove set forth, when it retains the right to select and hire its employees and does not delegate this right to the union.

            (2) The implied power to contract for a union shop does not give the union the right to strike to enforce the agreement.  See Port of Seattle v. International Longshoremen's and Warehousemen's Union, supra.

            (3) The board is under no legal duty or compulsion to bargain collectively or enter into a union shop agreement with its employees.  However, it does have the power, in the event it elects to exercise it.

            The conclusions thus stated are consistent with the many prior opinions written by this office on the same general subject matter since 1944.  Some of these opinions, among others, are as follows:  AGO Cliff Yelle, State Auditor, June 7, 1944; AGO Leslie R. Cooper, Prosecuting Attorney, Snohomish County, July 10, 1944; AGO Lloyd Shorett, Prosecuting Attorney, King County, October 21, 1944; AGO Lloyd L. Wiehl, Prosecuting Attorney, Yakima County, November 30, 1944; AGO Ernest Thor Olson, State Senator, June 24, 1946 [[1945-46 OAG 857]]; AGO Washington State Liquor Control Board, July 17, 1946; AGO Cliff Yelle, State Auditor, August 21, 1946; AGO 51-53 No. 53, Reuben C. Youngquist, Prosecuting Attorney, Skagit County, May 29, 1951; AGO 51-53 No. 401, Cliff Yelle, State Auditor, September 9, 1952; AGO 55-57 No. 187, Cliff Yelle, State Auditor, January 17, 1956.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General

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