Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1973 No. 56 -
Attorney General Slade Gorton

The governing body of a state college or university does not have the authority to grant formal recognition to a single employee organization as exclusive bargaining agent for the faculty.
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                                                                   May 23, 1973
Honorable Charles J. Flora
President, Western Washington
State College
Bellingham, Washington 98225
                                                                                                               Cite as:  AGLO 1973 No. 56
Dear Dr. Flora:
            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
            Does the governing body of a state college or university have authority to grant formal recognition to a single employee organization as exclusive bargaining agent for the faculty?
            We answer this question in the negative for the reasons set forth in our analysis.
            The state legislature has vested the boards of trustees or regents of the four-year state colleges and universities with broad powers and responsibilities with regard to the control and operation of those institutions.  RCW 28B.40.120 provides, for example, that:
            "In addition to any other powers and duties prescribed by law, each board of trustees of the respective state colleges:
            "(1) Shall have full control of the state college and its property of various kinds.
            "(2) Shall employ the president of the state college, his assistants, members of the faculty, and other employees of the institution, who, except as otherwise provided by law, shall hold their positions, until discharged therefrom by the board for good and lawful reason.
            ". . .
            "(9) Except as otherwise provided by law, to enter into such contracts as the trustees deem essential to college purposes.
             [[Orig. Op. Page 2]]
            ". . .
            "(11) May promulgate such rules and regulations, and perform all other acts not forbidden by law, as the board of trustees may in its discretion deem necessary or appropriate to the administration of the college."
            Similar provisions relating to the University of Washington and Washington State University are contained in RCW 28B.20.130 and RCW 28B.30.150, respectively.  However, although these general grants of authority by the legislature to the governing boards of the state colleges and universities are very extensive, those boards have not by these or any other statutes been expressly given the authority to recognize a particular labor union or other employee organization as the sole or exclusive bargaining agent for all faculty employees.
            The question of whether the governing board of a state college or university may grant such recognition to a particular organization of employees has not previously been considered by the courts of this state.  A similar question has, however, previously been determined by this office.  By opinion dated July 30, 1946 [[to John L. King, Regent, Board of Regents, University of Washington]], copy enclosed, which was written in response to a series of questions from the Board of Regents of the University of Washington regarding the propriety of collective bargaining contracts between that institution and its employees, we first affirmed its authority to enter into collective bargaining contracts with one or more organizations representing its employees.  Then, however, we went on to advise the board that it could not properly recognize any such organization as "the sole bargaining agency" for employees who were not members of that group.  With regard to this latter point, we said:
            ". . . the right of a union to represent all employees, including non-members, did not exist at common law and is created by labor relations acts which do not apply to governmental employees.  Hence, the union cannot legally be recognized as the bargaining representative of non-members.  . . . it should be clearly recognized that the union can be recognized as the sole bargaining agent only with respect to its own membership."
             [[Orig. Op. Page 3]]
            Although, as above indicated, the courts of our own state have not previously considered the specific question at hand, a number of other state courts have dealt with this issue.  The overwhelming majority of such courts have ruled that public agency employers (such as the governing boards of our state colleges or universities) have no power or ability to recognize a particular employee organization as the exclusive bargaining agent for all of the agency's employees in the absence of express legislative authorization.
            A leading case on the issues of collective bargaining and exclusive representation by and between public agencies and public employees is Norwalk Teachers' Association v. Board of Education of the City of Norwalk, 138 Conn. 269, 83 A.2d 482 (1951).  The court in this case was asked to decide (a) whether public employees could organize as a labor union for the purpose of collective bargaining; and (b) whether their public agency employers could "recognize" such a union for the purpose of collective bargaining.  The court answered both of these questions with a qualified "yes," saying:
            ". . .  There is no objection to the organization of the plaintiff [teachers' association] as a labor union, but if its organization is for the purpose of 'demanding' recognition and collective bargaining the demands must be kept within legal bounds.  What we have said does not mean that the plaintiff has the right to organize for all of the purposes for which employees in private enterprise may unite, . . . or that it shall be the exclusive bargaining agent for all employees of the unit . . .  It means nothing more than that the plaintiff may organize and bargain collectively for the pay and working conditions which it may be in the power of the board of education to grant.
            ". . .  The statutes and private acts give broad powers to the defendant [school board] with reference to educational matters and school management in Norwalk.  If it chooses to negotiate with the plaintiff with regard to the employment, salaries, grievance procedure and working conditions of its members, there is no statute, public or private, which forbids such negotiation.  It is a matter of  [[Orig. Op. Page 4]] common knowledge that this is the method pursued in most school systems large enough to support a teachers' association in some form.  It would seem to make no difference theoretically whether the negotiations are with a committee of the whole association or with individuals or small related groups, so long as any agreement made with the committee is confined to members of the association.  . . ."  83 A.2d p. 486.  (Emphasis supplied.)
            Similar conclusions denying public agencies the power, in the absence of express statutory authorization, to recognize exclusive bargaining representatives for employees were reached in the following cases:  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 Auth. v. Amer. Fed. of State, Etc., Employees, 83 N.J.Super. 389, 200 A.2d 134 (1964); Philadelphia Teachers' Association v. LaBrum, 415 Pa. 212, 203 A.2d 34 (1964).
            The Iowa court in the United Packing House case, supra, stated its position with regard to the issue of "exclusive representation" as follows:
            "The Board of Regents has the power and authority to meet with representatives of an employee's union to discuss wages, working conditions and grievances if it so desires.  It can do so without becoming obligated to meet with the representatives of any other group of employees.  The agreed terms could be adopted by the Regents in a proper legislative manner.  Such action does not involve an improper delegation of legislative powers to private persons as there is no compulsion to sign an agreement and the final decision remains in the Board of Regents.
            "On the other hand, if the legislature desires to give public employees the advantages of collective bargaining in the full sense as it is used in private industry, it should  [[Orig. Op. Page 5]] do so by specific legislation to that effect.  We cannot imply authority under these general powers [of the board of regents] to agree to exclusive representation, depriving other employees of the right to be represented by a group of their choosing or an individual the right to represent himself.  . . ."  175 N.W.2d 113.  (Emphasis supplied.)
            The Supreme Court of Minnesota in the Obermeyer case, supra, likewise ruled that specific legislative authorization is necessary before a public agency may recognize an exclusive bargaining representative for employees, saying:
            "The next point raised is whether the school board has implied power to conduct an election and bargain with elected representatives of teacher organizations.  The school board possesses only such powers as are granted by statute.  . . .  There is no authority, either express or implied, by which the school board can hold an election for the purpose of designating an exclusive representative of the teachers."  147 N.W.2d 366.  (Emphasis supplied.)
            Similarly, the New Jersey court in the New Jersey Turnpike Authority case, supra, made the following statement with regard to the issue of "exclusive" recognition and/or representation:
            "It should be emphasized that any one or more representatives may speak only for those employees who chose them.  The Turnpike has no right to recognize a representative of only a segment of its employees as agent for all of the employees of the Turnpike.  Therefore, if five separate groups of Turnpike employees each have a different representative, all five representatives are entitled to recognition."  200 A.2d 139.  (Emphasis supplied.)
            Finally, the Pennsylvania Supreme Court in the LaBrum case, supra, indicated in dicta that it has "serious doubt" as to the authority of the Philadelphia Board of Education to recognize or bargain exclusively with a  [[Orig. Op. Page 6]] representative selected by an employee‑conducted election, particularly in view of the Pennsylvania legislature's then existing failure to act on the subject of collective bargaining in public employment.
            Our own legislature, notably, has 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 to chapter 108, Laws of 1967, Ex. Sess., now codified as chapter 41.56 RCW and known as the "Public Employees' Collective Bargaining Act."  This act, which applies to most employees of the various counties, cities and towns, or other political subdivisions in this state but not to those of the state itself (and thus, not to employees of these four-year colleges and universities which are involved in this opinion), expressly provides in §§ 6-10 (RCW 41.56.060-41.56.100) for the recognition of exclusive bargaining representatives of such employees ‑ in the manner obviously contemplated by the above‑cited court decisions.
            On the other hand, and by way of significant contrast, we may also take note of chapters 28A.72 and 28B.52 RCW, encompassing what are commonly referred to as the "professional negotiations" acts for public school and community college teachers.  After establishing in RCW 28A.72.030 and RCW 28B.52.030, respectively, the right of these two classes of teachers to "meet, confer and negotiate" with the governing bodies of their schools through a designated employee organization, the legislature in both of these acts has provided that:
            "Nothing in this chapter shall prohibit any . . . employee [covered thereby] from appearing in his own behalf on matters relating to his employment relations with the . . . district."  (RCW 28A.72.050 and RCW 28B.52.050.)
            In view of the legislature's specific refusal to authorize public school or community college districts in this state to recognize a particular employee organization as the "exclusive bargaining representative" of all faculty or teacher employees, it would be illogical to assume that the legislature has at any time thus far intended to grant such authority to our state's four-year colleges and universities.  In so stating we further observe that two identical bills specifically designed to authorize the governing bodies of such institutions to grant such recognition were introduced during the recent 1973 legislative  [[Orig. Op. Page 7]] session, but both of them failed to pass.  See, Senate Bill No. 2224 and House Bill No. 542.
            For the reasons above indicated it is our opinion that until such time as the legislature does expressly authorize those governing boards to recognize a particular organization as the exclusive bargaining representative for all faculty employees in the manner contemplated by these bills, these boards will have no power or authority to grant such recognition.
            We trust the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Assistant Attorney General