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AGLO 1972 No. 20 -
Attorney General Slade Gorton

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                                                                  March 30, 1972

Honorable Richard A. King
Chairman, Public Employees'
Collective Bargaining Committee
309 77th Place S.W.
Everett, Washington 98201                                                                                            Cite as:  AGLO 1972 No. 20 (not official)

Dear Sir:
            This is written in response to your recent request for an opinion of this office as to whether the term "collective bargaining" as defined in RCW 41.56.030 encompasses all of the subjects which are listed in RCW 28A.72.030 ‑ a part of the certificated school district employees' "professional negotiations" act.
            We believe that this question must be answered in the negative.
            In responding to your request we should note, first, the relationship between the two legislative enactments to which you have referred.  The so-called "professional negotiations" act for certificated school district personnel, now codified as chapter 28A.72 RCW,1/ originated as chapter 143, Laws of 1965, while the "public employees' collective bargaining act," chapter 41.56 RCW, was enacted two years later pursuant to chapter 108, Laws of 1967, Ex. Sess.  By virtue of § 2 of the latter act (RCW 41.56.020) the provisions thereof are inapplicable to those certificated school district employees who are covered by the earlier, 1965 act; in other words, the two acts are mutually exclusive in so far as school district employees are concerned.
             [[Orig. Op. Page 2]]
            Your question, as we understand it, is prompted by a pending interim study of the efficacy of both acts ‑ in terms of whether and to what extent the concept of "professional negotiations" may either overlap or extend beyond the scope of "collective bargaining."  To obtain this insight into the scope of the two acts, you have asked for our thinking as to whether all of the negotiable items listed in RCW 28A.72.030 may be said to fall within the purview of "personnel matters" for the purposes of "collective bargaining" under RCW 41.56.030 (4).
            With this in mind, let us now note the pertinent sections of each act.
            RCW 28A.72.030:
            This section contains the basic substance of the 1965 "professional negotiations" act and provides as follows:
            "Representatives of an employee organization, which organization shall by secret ballot have won a majority in an election to represent the certificated employees within its school district, shall have the right, after using established administrative channels, to meet, confer and negotiate with the board of directors of the school district or a committee thereof to communicate the considered professional judgment of the certificated staff prior to the final adoption by the board of proposed school 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."
            RCW 41.56.030 (4):
            This subsection defines the term "collective bargaining," for the purposes of the public employees' collective bargaining act of 1967, as meaning:
            ". . . the performance of the mutual obligations of the public employer and the  [[Orig. Op. Page 3]] exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter."
            While we believe that some of the subjects enumerated in the first of these two acts would fall within the purview of the second if it were made applicable to certificated school district employees, we do not believe that these two acts are wholly coextensive.  Accordingly, we answer your question in the negative.
            This answer is based, first, upon the open-ended aspect of RCW 28A.72.030; i.e., the phrase ". . . proposed school policies relating to, but not limited to . . . [the designated list of subjects]" (Emphasis supplied.)  Because of this phraseology it is to be seen that even if every one of the expressly listed subjects of negotiation under this statute could be said to fall within the scope of "personnel matters" under RCW 41.56.030 (4), it still could not be stated categorically that the two acts are wholly coextensive.
            Secondly, however, we believe that among these expressly listed subjects of negotiation under RCW 28A.72.030 there are two ‑ curriculum and textbook selection ‑ which, if not totally outside of the areas covered by "collective bargaining" under RCW 41.56.030 (4), are at least on the margin.  In other words, we would say that to the extent that "professional negotiations" under RCW 28A.72.030 imparts to the certificated employees of a school district a right, collectively, to voice their views to the board on these subjects, this statute gives these employees a "voice in the management of the school district's affairs" which is beyond at least the traditional scope of employer-employee collective bargaining under a statute such as chapter 41.56 RCW.  See, 22 Vanderbilt Law Review 833, 855 (1969), and cases cited therein ‑ including, particularly, Joint School Dist.  [[Orig. Op. Page 4]] No. 8 v. Wis. E. R. Board, 37 Wis. 2d 483, 155 N.W. 2d 78 (1967); and Farmingdale Classroom Teachers, 68 LRRM 2761 (N.Y. Supreme Ct. 1968).
            In analyzing this point an important distinction must be drawn between the right to express this voice and the mere right to negotiate as to whether or not it may be expressed pursuant to an agreed upon contractual provision.  See, Matter of North Dearborn Heights School Dist., etc., a proceeding involving a hearing before a Michigan Labor Mediation Board which is reported in C.C.H. Labor Law Reports, State Laws, Vol. 3, § 49,521, at pp. 60,434 through 60,437.  In that case the tribunal ruled that the question of whether or not the certificated employees of a school district are, as a matter of local policy, to have such a voice in management was a negotiable question under a traditional "wages, hours and working conditions" public employees' collective bargaining statute.  However, it is evident that the right to negotiate on whether a district's teachers are to have a voice in curriculum or textbook selection is not the same thing as a statutory right to express that voice ‑ such as has been granted to teachers in this state by RCW 28A.72.030, supra; and thus to this extent the provisions of this statute must be regarded as being broader in scope than those of RCW 41.56.030, supra.
            On the other hand, we also perceive a considerable overlap between the two acts here under consideration.  Most certainly, such matters listed in RCW 28A.72.030 as "in-service training," "student teaching programs," "personnel," "hiring and assignment practices," "leaves of absence," "salaries and salary schedules and noninstructional duties" would appear to fall within the purview of "personnel matters, including wages, hours and working conditions" as that terminology appears in RCW 41.56.030 (4).  Therefore, even if the first of these two statutes were not in existence it would seem to us that these items would still be negotiable in any bargaining sessions between these employees and their school boards ‑ although, of course, there would undoubtedly be some procedural differences because of the differing provisions of the two acts in this regard.
            We trust the foregoing will be of assistance.
Very truly yours,
Philip H. Austin
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/See, also, chapter 28B.52 RCW which codifies a substantially identical set of statutory provisions covering the "academic employees" of our state community colleges.