COMMUNITY COLLEGES ‑- EMPLOYEES ‑- LABOR ‑- ELECTIONS ‑- WEIGHTED VOTING IN SELECTION OF BARGAINING REPRESENTATIVE
A community college district may not adopt a regulation under which those academic employees working full time would each be allocated one full vote, those employed two-thirds of full time would be allotted two-thirds of a vote, and those employed less than two-thirds of full time would be allocated one‑third of a vote in the election of their recognized bargaining representative under chapter 28B.52 RCW.
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February 21, 1975
Honorable Edward D. Seeberger
State Representative, 14th District
Olympia, Washington 98504 Cite as: AGLO 1975 No. 18
This is written in response to your recent request for an opinion of this office regarding the legal ability of a community college, under the community college academic employees' negotiation act (28B.52 RCW), to adopt rules and regulations providing for weighted voting by its academic employees in any election to determine the recognized academic employee organization for the district. Specifically you have asked whether a community college district may adopt a regulation under which those academic employees working full time would each be allocated one full vote, those employed two-thirds of full time would be allotted two-thirds of a vote, and those employed less than two-thirds of full time would be allocated one‑third of a vote in the election of that recognized employee organization?1/
We answer this question in the negative for the reasons set forth in our analysis.
Chapter 28B.52 RCW codifies the provisions of chapter 196, Laws of 1971, 1st Ex. Sess., as amended, commonly known as the community college academic employees' negotiations act. Its declared purpose, as set forth in [[Orig. Op. Page 2]] RCW 28B.52.010 is:
". . . to strengthen methods of administering employer-employee relations through the establishment of orderly methods of communication between academic employees and the community college districts by which they are employed."
RCW 28B.52.020 then sets forth the following two pertinent definitions:
"'Employee organization' means any organization which includes as members the academic employees of a community college district and which has as one of its purposes the representation of the employees in their employment relations with the community college district.
"'Academic employee' means any teacher, counselor, librarian, or department head, who is employed by any community college district, with the exception of the chief administrative officer of, and any administrator in, each community college district."
The basic substantive requirement of the act is set forth in RCW 28B.52.030 as follows:
"Representatives of an employee organization, which organizationshall by secret ballot have won a majority in an election to represent the academic employees within its community college district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of trustees of the community college district or its delegated representative(s) to communicate the considered professional judgment of the academic staff prior to the final adoption by the board of proposed community college district policies relating to, but not limited to, curriculum, textbook selection, in-service training, student teaching programs, personnel, hiring and assignment practices, leaves of absence, salaries and salary schedules and noninstructional duties." (Emphasis supplied.)
[[Orig. Op. Page 3]] And finally, the apparent basis for the proposed regulation to which your question refers is RCW 28B.52.080, which provides that:
"Boards of trustees of community college districts shall adopt reasonable rules and regulations for the administration of employer-employee relations under this chapter. The boards may request the services of the department of labor and industries to assist in the conduction of certification elections as provided for in RCW 28B.52.030."
No such regulation, however, could have the effect of changing the terms of the act itself. Therefore, the question to be resolved is whether the system of weighted voting which the instant proposal would involve would or would not be in conflict with any portion of that act ‑ and, in particular, so much of RCW 28B.52.030 as we have underscored in quoting it above.
In the words of that section, the single criterion to be met by an employee organization in order to be recognized as the bargaining representative for the academic employees of a community college is that it shall have "won a majority" in an election held for the purpose of determining whether or not the organization should be so recognized. Query: Does this simply mean "a majority" of the academic employees voting on the question or may it, instead, mean "a majority" of the votes cast by those employees under a weighted voting system established by regulation under RCW 28B.52.080?
Under the proposal described in your letter it is readily to be seen that an organization favored by significantly less than a majority of all the academic employees of the community college district voting on the question could gain recognition asthe bargaining representative for all of the district's academic employees. Consider, for example, the following possibility:
A community college faculty consisting of one hundred academic employees, forty of whom serve full time, thirty of whom serve two-thirds time, and thirty of whom serve less than two-thirds time. Applying the weighted voting formula here proposed, the forty full time employees would have a total of 40 votes; the thirty employees serving two-thirds time would have a total of 20 votes; and the thirty employees serving less than [[Orig. Op. Page 4]] two-thirds time would have a total of 10 votes ‑ for a grand total of 70 votes for all employees. Thus the total number of votes required in order to obtain recognition of a given employee organization would be 36, or one more than half of the total potential votes. Yet this number of votes could, under the formula, be cast by the combined efforts of only thirty-six percent of the total of all academic employees eligible to vote; i.e., thirty-six full time employees. Consequently, sixty-four percent of the academic employees involved would be forced to be represented by an employee organization which they opposed, and which was only favored by slightly more than one‑third of all of the academic employees of the district.
Is this truly a possibility the legislature had in mind when it said in RCW 28B.52.030,supra, that an employee organization "which . . . shall by secret ballot have won a majority . . ." shall have the right ". . . to meet, confer and negotiate with the board of trustees of the community college district . . ."? If so, it doubtless could have found appropriate words to express that intent. In our considered judgment, however, this is not what the statute as it was actually enacted contemplates.
Pursuant to the definition of academic employee in RCW 28B.52.020,supra,all teachers, counselors, librarians and department heads employed by a community college district except certain administrators are automatically made members of a single bargaining unit to be represented bythe employee organization which obtains recognition under RCW 28B.52.030 ‑ regardless of whether they work full or part time. This same section then goes on to define "administrators" and to provide that:
". . . Administrators shall not be members of the bargaining unit unless a majority of such administrators and a majority of the bargaining unit elect by secret ballot for such inclusion pursuant to rules and regulations as adopted in accordance with RCW 28B.52.080."
Here, quite obviously, the word "majority" means a majority of the members of the bargaining unit; i.e., all academic employees. We would thus regard it highly incongruous to attribute a different meaning to that same word as it is used in conjunction with the selection of the bargaining representative for that unit.
[[Orig. Op. Page 5]] Conceivably the legislature could have so defined its terms as to have excluded part time academic employees from this bargaining unit and to have required them to form one of their own. Having determined instead, however, to include all such employees in a single unit it must likewise, in our judgment, be taken to have intended that each of those employees should have an equal voice in the selection process. Once chosen, the bargaining representative has not only the right but the duty to representall of the academic employees of the particular community college district. Each, accordingly, has an equal stake in its selection.
It is thus our opinion, in direct answer to your question, that it would be contrary to the intent of the legislature as expressed in RCW 28B.52.030,supra, for a community college board of trustees, under RCW 28B.52.080, to adopt a regulation under which those academic employees working full time would each be allocated one full vote, those employed two-thirds of full time would be allocated two-thirds of a vote, and those employed less than two-thirds of full time would be allocated one‑third of a vote in the selection of the recognized academic employee organization for the district. We therefore answer your question in the negative.
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/As originally submitted, your letter also contemplated the possibility of a regulation which would totally exclude from voting in an election to determine the recognized academic employee organization those academic employees serving on less than a one‑third time basis. We have, however, been informed that community college district No. 16 no longer contemplates the adoption of such an exclusionary provision.