AUTHORITY OF STATE PERSONNEL BOARD TO EXCLUDE SUPERVISORS

OFFICES AND OFFICERS ‑- STATE ‑- PERSONNEL BOARD ‑- COLLECTIVE BARGAINING ‑- CIVIL SERVICE ‑- LABOR ‑- AUTHORITY OF STATE PERSONNEL BOARD TO EXCLUDE SUPERVISORS

The Washington State Personnel Board has the statutory authority under RCW 41.06.150 to promulgate rules defining and excluding "executive management," "supervisors" and "individuals regularly privy to confidential matters affecting the employer-employee relationship" from the right to bargain collectively with their appointing authorities, as it does currently under merit system rules 356-06-010 and 356-42-010(2).

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                                                                    July 23, 1974

Honorable Leonard Nord
Director, Department of Personnel
600 South Franklin
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1974 No. 70

Dear Sir:
 
            By letter previously acknowledged you requested the opinion of this office on the following question:
 
            Does the Washington State Personnel Board have the statutory authority under RCW 41.06.150 to promulgate rules defining and excluding "executive management," "supervisors" and "individuals regularly privy to confidential matters affecting the employer-employee relationship" from the right to bargain collectively with their appointing authorities, as it does currently under merit system rules 356-06-010 and 356-42-010(2)?
 
            We answer your question in the affirmative for reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            The state civil service law was passed by the voters of this state as Initiative No. 207 on November 8, 1960, and is now codified as chapter 41.06 RCW.  Section 15, now RCW 41.06.150, directs the state personnel board to promulgate rules and regulations on a large number of subjects and, in its original form, made only a short reference to the topic of labor relations ‑ as follows:
 
            "The Board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this act and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, . . . agreements between agencies and employee organizations providing for grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an agency; . . ."
 
             [[Orig. Op. Page 2]]
            In 1967, however, as a part of the Public Employees' Collective Bargaining Act (chapter 108, Laws of 1967, Ex. Sess.), the legislature amended this statute to provide (insofar as is here material) that:
 
            "The board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, . . . determination of appropriate bargaining units within any agency:  Provided, That in making such determination the board shall consider the duties, skills, and working conditions of the employees, the history of collective bargaining by the employees and their bargaining representatives,  the extent of organization among the employees, and the desires of the employees; . . ."
 
            See, § 13, chapter 108, supra.  It is to be noted, however, that while this particular section of the act contained the foregoing amendment to the state civil service law, the remainder dealt with a different matter; namely, the establishment of a new, formalized, collective bargaining procedure for most of the employees of the various counties, municipal corporations and other political subdivisions.  See, §§ 1-12, chapter 108, supra.  This portion of the law is administered through the department of labor and industries.
 
            As we understand it your present concern over the validity of merit system rules WAC 356-06-010 and WAC 356-42-010(2) arises by reason of a prior opinion of  [[Orig. Op. Page 3]] this office advising that the department of labor and industries does not have the authority in determining the appropriate units for bargaining under § 6 (RCW 41.56.060) to promulgate rules excluding supervisors from bargaining units containing other employees.  See, opinion dated December 15, 1970, to the director of the department of labor and industries [[to William C. Jacobs, an Informal Opinion AIR-70658]], copy enclosed, affirming the conclusion earlier stated in a memorandum opinion of November 25, 1970, a copy of which is also enclosed.  However, as pointed out in the latter, there are substantial differences between RCW 41.56.060, relative to the determination of bargaining units on a case by case basis for local governmental employees, and RCW 41.06.150, supra, empowering the state personnel board, in broad terms, to ". . . adopt rules and regulations . . . regarding the basis for, and procedures to be followed for . . . determination of appropriate bargaining units within any agency . . ."  In the one case, the agency involved is to determine the scope of appropriate bargaining units on the basis of the facts of each case and certain criteria laid down by the legislature ‑ thus precluding it from, in effect, prejudging all cases by adopting a rule excluding supervisors in every situation, regardless of its facts.  In the other ‑ i.e., the instant case ‑ the agency involved is, itself, both to establish the criterion and then apply it to the various applications which come before the board for determination.

            It therefore remains our opinion1/ that the broad grant of power to the state personnel board by RCW 41.06.150, supra, to promulgate rules for the determination of appropriate bargaining units in any agency contains within it the discretionary power to enact a rule of general applicability such as the existing WAC sections cited in your question which would exclude supervisors from membership in appropriate bargaining units.  Conversely, the board could alternatively conclude, as a matter of policy, that  [[Orig. Op. Page 4]] supervisors should, instead, be included in all or certain cases.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

KENNETH W. ELFBRANDT
Assistant Attorney General

                                                         ***   FOOTNOTES   ***
 
1/See our prior opinion to the chairman of the state personnel board dated November 7, 1969, (copy enclosed) in which, addressing ourselves to this same question, we concluded that:
 
            ". . . whether supervisory personnel should be included or excluded from bargaining units is a matter committed by law to the sound judgment and discretion of the State Personnel Board."