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December 15, 1970
Honorable William C. Jacobs
Director, Department of Labor & Industries
General Administration Building
Olympia, Washington 98501
Cite as: AGLO 1970 No. 158
Prior to submitting the foregoing question to this office for an official attorney general's opinion, we are advised that you posed essentially the same question to Assistant Attorney General Walter F. Robinson, Jr., one of the members of our staff who is assigned to advise the department of labor and industries. Following his receipt of your inquiry, Mr. Robinson researched the question and responded by the memorandum opinion dated November 25, 1970, a copy of which is attached hereto. In this memorandum opinion, it was concluded that because of the provisions of RCW 41.56.060, any determination by the department of labor and industries as to whether or not supervisors were to be included in a particular bargaining unit representing a group of public employees covered by the provisions of chapter 41.56 RCW would necessarily have to be made on a case by case basis. RCW 41.56.060 provides as follows:
"The department, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining [[Orig. Op. Page 2]] unit, the department shall consider the duties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees. The department shall determine the bargaining representative by (1) examination of organization membership rolls, (2) comparison of signatures on organization bargaining authorization cards, or (3) by conducting an election specifically therefor." (Emphasis supplied.)
The foregoing memorandum opinion has now been reviewed by this office on an official basis. In addition, we have reviewed two memorandum briefs which have been submitted by counsel for the Association of Washington Cities, urging a contrary conclusion.
However, notwithstanding the arguments in the latter memoranda, it is our considered judgment that the more persuasive legal arguments are in support of the conclusion stated in Mr. Robinson's memorandum opinion of November 25, 1970, supra. This is not to say, of course, that the department's lack of authority, at the present time, to exclude supervisors from any bargaining unit by generalized rule means that the department is required to include supervisors in every case which is presented to it for determination under RCW 41.56.060, supra. Our conclusion is simply that because of the provisions of RCW 41.56.060, the department may not foreclose the possibility of including supervisors within a particular bargaining unit, in a given case, by a rule of general application such as that to which your letter has made reference.
It is hoped that the foregoing will be of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General