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AGLO 1976 No. 61 - October 04, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

COLLEGES AND UNIVERSITIES ‑- EMPLOYEES ‑- LABOR ‑- EXCLUSIVE BARGAINING AGENT FOR COLLEGE AND UNIVERSITY FACULTY MEMBERS

The board of regents of the University of Washington may not grant formal recognition to a single employee organization as exclusive bargaining agent for the faculty.

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                                                                 October 4, 1976

Honorable Pete Francis
State Senator, 32nd District
7310 E. Greenlake Dr. No.
Seattle, Washington 98115                                                                                                               Cite as:  AGLO 1976 No. 61

Dear Senator Francis:

            By letter previously acknowledged you requested an opinion of this office on the following question:

            ". . .  May the Board of Regents of the University of Washington, in it discretion and as part of its power 'except as otherwise provided by law, to enter into such contracts as the regents deem essential to university purposes,' R.C.W. [[RCW]]28B.20.130, bargain on an exclusive basis with an agent duly selected by a majority of the academic employees (including faculty, professional librarians, and counselors) with respect to wages and conditions of employment, any agreement reached being subject to the overriding power of the legislature?"

            We answer your question in the negative.

                                                                     ANALYSIS

            In posing the foregoing question you have acknowledged the fact that this office, in AGLO 1973 No. 56 [[to Charles J. Flora, President, Western Washington State College, on May 23, 1973, an Informal Opinion, AIR-73556]], copy enclosed, concluded that:

            ". . . the governing body of a state college or university doesnot have authority to grant formal recognition to a single employee organization as exclusive bargaining agent for the faculty."  (Emphasis supplied.)

            Since the time of our issuance of the foregoing 1973 opinion1/ the legislature, as you know, has met on  [[Orig. Op. Page 2]] several occasions.  So far as our research has disclosed, however, the legislature has not materially amended any of the statutes bearing upon the question of whether or not recognition may be granted to a single employee organization as exclusive bargaining agent for the academic employees of the state colleges or universities.  During this same period of time the legislature has, however, once again (in the words of AGLO 1973 No. 56, at page 6)

            ". . . clearly demonstrated that it is well able to spell out and grant such authority when it intends to do so with respect to a particular class of public agency-employers. . . ."

            We have reference, in this case, to chapter 288, Laws of 1975, 1st Ex. Sess., now codified as chapter 41.59 RCW and known as the "Educational Employment Relations Act."  This act, which applies to most certificated employees of the various public school districts in our state but not to employees of the state itself (and thus not to the academic employees of our four-year colleges and universities such as are involved in your present opinion request), expressly provides in §§ 8-10 (RCW 41.59.070-41.59.090) for the recognition of exclusive bargaining representatives of those employees.  Accord, the pattern previously established by chapter 108, Laws of 1967, Ex. Sess. (chapter 41.56 RCW), the "Public Employees' Collective Bargaining Act" for most municipal employees to which we likewise referred, in similarly contrasting terms, in AGLO 1973 No. 56, at p. 6.  If the legislature desires to extend this same authority to the board of regents of the University of Washington or the similar governing bodies of our other four-year colleges and universities, it most certainly may do so.  Until and unless that occurs, however, we can see no valid reason to depart from our earlier opinion with regard to the question discussed therein.

            This is not to say, by any means, that express authority is necessary in order to permit a public agency to engage in collective bargaining, perse.  Clearly it is not, as is evidenced by such other previous opinions of this office as AGO 61-62 No. 114 [[to Martin J. Durkan, State Senator, on April 16, 1962]]and AGO 57-58 No. 228 [[to W. R. Cole, Prosecuting Attorney, Kittitas County, on November 19, 1958]], copies of which you will also find enclosed for your immediate reference.  Accord,Christie v. port of Olympia, 27 Wn.2d 534, 179 P.2d 294 (1947), and IBEW v. Salt River Project, Ariz., 275 P.2d 393 (1954), cited in your letter requesting our opinion at page 2.  But such general authority, which has been held to flow from the power of a public agency to employ  [[Orig. Op. Page 3]] and fix the compensation and working conditions of all necessary personnel, has not been found sufficient to justify recognition of an exclusive bargaining representative by a vast majority of the courts which have passed upon that precise question.  See, e.g.,Norwalk Teachers' Association v. Board of Education of the City of Norwalk, 138 Conn. 269, 83 A.2d 482 (1951), State Board of Regents v. United Packing House, Etc.,    Iowa   , 175 N.W.2d 110 (1970); Minneapolis Fed. of Teachers Local 59 v. Obermeyer, 275 Minn. 347, 147 N.W.2d 358 (1966);Turnpike Authority v. Amer. Fed. of State, Etc., Employees, 83 N.J. Super. 389, 200 A.2d 134 (1964); and Philadelphia Teachers' Association v. LaBrum, 415 Pa. 212, 203 A.2d 34 (1964), all of which were cited and discussed in our earlier, 1973, opinion.

            Of the other cases mentioned in your letter which you asked us to examine in connection with your current request, only one is at all at odds with the foregoing line of cases.  InChicago Div. of Ill. Ed. Ass'n. v. Board of Education, 222 N.E.2d 243 (1966), the Illinois supreme court does appear to have sanctioned, without specific legislative authority, the recognition of an exclusive bargaining representative for the employees of a public school district.  Notably, however, the court in that case itself recognized a diversity of authority on the question and simply chose to go the way it did whereas, in AGLO 1973 No. 56,supra, based upon what we found to be both a better reasoned and substantially more numerous line of cases, contra, went the other way.  And again, as above stated, we simply see no reason, at the present time, to change our minds.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Which, although issued in the form of a letter opinion, nevertheless constituted an "official" opinion of the attorney general.

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