Authority of four-year state-supported higher education institutions to engage in collective bargaining with faculty representatives

AGO 1994 No. 16 - Sep 28 1994

Attorney General Christine Gregoire

COLLEGES AND UNIVERSITIES-COLLECTIVE BARGAINING-HIGHER EDUCATION-Authority of four-year state-supported higher education institutions to engage in collective bargaining with faculty representatives

1. The faculty at four-year state-supported higher education institutions do not have a right under current law to engage in collective bargaining with their employers.

2. At their discretion, the governing bodies of four-year state-supported higher education institutions may enter into bargaining with representatives of the faculty concerning wages, hours, and working conditions, but such bargaining does not establish the terms of employment for nonrepresented faculty members.

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September 28, 1994

HonorableJames E. West
State Senator, District 6
115-D Institutions Building
Olympia, WA 98504-0406

Cite as: AGO 1994 No. 16

Dear Senator West:

By letter previously acknowledged, you have asked for an opinion on two questions that we paraphrase as follows:

1. Do faculty at four-year institutions of higher education have a right to engage in collective bargaining?

2. If faculty have a right to engage in collective bargaining, must the governing boards of such institutions have procedures to protect the rights of faculty members who have not chosen to be represented?

BACKGROUND

The meaning one ascribes to the term "collective bargaining" bears on the questions that you have posed. Thus, to respond to your questions, we must define collective bargaining for purposes of this opinion. Collective bargaining has two quite different meanings. As a statutory term, collective bargaining typically is defined much as the Legislature has defined it in RCW 41.56.030.[1] This statute states that collective bargaining means

the performance of the mutual obligations of the public employer and the 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.^[[2]]

RCW 41.56.030(4).

One hallmark of statutory collective bargaining is that it extinguishes the power of an individual employee to manage the employee's relationship with the employer and vests exclusive power in a representative selected by the majority of employees in a particular group to act in the interests of all employees of that group. SeeNLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 18 L. Ed. 2d 1123, 87 S. Ct. 2001 (1967), reh'g denied, 389 U.S. 891, 19 L. Ed. 2d 202, 88 S. Ct. 13. Another characteristic of collective bargaining in its statutory sense, is that it entails a legally enforceable obligation on the part of the employee representative and the employer to engage in collective negotiations in good faith.[3]

Outside of its statutory sense, collective bargaining has a different meaning. It is defined simply as: "Negotiation between the representatives of organized workers and their employer to determine wages, working hours, rules, and working conditions." Webster's II New Riverside University Dictionary 281 (1984). See also Black's Law Dictionary 263 (6th ed. 1990).

In this nonstatutory context, collective bargaining merely connotes the activity of negotiating with a representative of employees over terms of employment. In this sense, collective bargaining entails no legally enforceable right or obligation to engage in negotiation. Nor does it involve exclusive representation of a group of employees based on the desires of a majority of that group. In its nonstatutory sense, collective bargaining does not exclude individual employees from conferring and negotiating with employers concerning the terms of employment, as does typical statutory collective bargaining.

SHORT ANSWER

Faculty at four-year institutions of higher education do not have aright to engage in collective bargaining either in its statutory or nonstatutory sense. However, the governing bodies of four‑year institutions of higher education have the discretion to engage in collective bargaining in its nonstatutory sense; that is, the governing bodies of such institutions may (but have no duty) to negotiate with a representative of faculty members regarding terms and conditions of employment of those faculty members actually choosing to be so represented. Such negotiations do not establish the terms and conditions of employment of nonrepresented faculty.

ANALYSIS

Question 1:

Do faculty at four-year institutions of higher education have a right to engage in collective bargaining?

The Legislature has not granted to faculty of four-year institutions of higher education a right to engage in collective bargaining.[4] No such right exists as a matter of common law. Michigan City Area Sch. v. Siddall, 427 N.E.2d 464, 466 (Ind. App. 1981);Columbus Educ. Ass'n v. Archuleta, 29 Ohio App. 3d 264, 505 N.E.2d 279 (1986). And no such right exists as a matter of constitutional law. Smith v. Arkansas State Highway Employees, 441 U.S. 463, 60 L. Ed. 2d 360, 99 S. Ct. 1826 (1979).[5]

Absent a legal obligation, a public employer has the same freedom of choice as any other party to deal with or reject dealing with a bargaining representative. Michigan City Area Sch., at 467. Thus, faculty at four-year institutions of higher education have no right to engage in collective bargaining.

Our response to your inquiry would be less than complete, however, if we did not note that the governing bodies of four-year colleges and universities have the discretion to engage in collective bargaining in its non-statutory sense. In AGLO 1973 No. 56 and AGLO 1976 No. 61 (copies enclosed) this office determined that the governing bodies of four-year colleges and universities have such authority by virtue of broad statutory powers and responsibilities, including the authority to employ faculty and enter into contracts.[6] The statutes relied on in AGLO 1973 No. 56 and AGLO 1976 No. 61 have not materially changed, nor have the case law principles relied on in those opinions. Accordingly, we adhere to them.

Thus, if they so choose, the governing bodies of four-year colleges and universities may negotiate with a representative chosen by faculty members regarding the terms and conditions of employment of those faculty members choosing to be so represented, just as such governing bodies may, if they so choose, negotiate with unrepresented faculty members or an agent of an individual faculty member. As our prior opinions make clear, however, this does not mean that four-year colleges or universities have authority to engage in collective bargaining of the type detailed in RCW 41.56.030 or similar statutes.

Question 2:

If faculty have a right to engage in collective bargaining, must the governing boards of such institutions have procedures to protect the rights of faculty members who have not chosen to be represented?

This question is predicated on an affirmative answer to your first question—an answer that we do not give. Accordingly, it is not necessary to reach this question. We do reiterate, however, that the collective bargaining authority of the governing boards of four-year colleges and universities is limited. Such bargaining authority does not include recognizing an exclusive bargaining representative and such bargaining does not establish the terms or conditions of employment of non-represented faculty members.

We trust this opinion will be of assistance to you.

Very truly yours,

CHRISTINE O. GREGOIRE
Attorney General

MAUREEN HART
Senior Assistant Attorney General

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[1]Chapter 41.56 RCW generally provides for collective bargaining in counties, cities, and political subdivisions of the state. RCW 41.56.020. It also authorizes certain state employees to choose to be governed by the chapter. RCW 41.56.201. However, it does not apply to or authorize faculty of four-year institutions of higher education to opt for its coverage.

[2]This definition is very similar to others appearing in state statutes and to the definition of collective bargaining in the National Labor Relations Act. See, e.g., RCW 41.59.020(2); 29 U.S.C. § 158(d).

[3]See, e.g., RCW 41.56.140(4), .150(4) (making it an unfair labor practice to refuse to engage in collective bargaining), RCW 41.56.160 (giving the Pubic Employment Relations Commission authority to prevent unfair labor practices and issue remedial orders).

[4]By contrast, the Legislature has extended such a right to several groups of public employees. See, e.g., RCW 41.56 (generally authorizing collective bargaining in units of local government), RCW 41.59 (extending collective bargaining rights to certain school district employees), RCW 28B.52 (extending collective bargaining rights to academic employees of community colleges), RCW 41.06 (providing for collective bargaining in the state civil service).

[5]As the United States Supreme Court explains in Smith:

The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. . . .

But the First Amendment is not a substitute for the national labor relations laws. . . . [T]he fact that procedures followed by a public employer in bypassing the union and dealing directly with its members might well be unfair labor practices were federal statutory law applicable hardly establishes that such procedures violate the Constitution. The First Amendment right to associate and to advocate "provides no guarantee that a speech will persuade or that advocacy will be effective." The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

U.S. 464-65 (citations omitted).

[6]AGLO 1973 No. 56 and AGLO 1976 No. 61 concluded that the governing bodies of four-year colleges and universities have no authority to recognize an exclusive bargaining representative chosen by a majority of faculty, but do have the discretion to engage in collective negotiations with one or more organizations representing faculty.