COMMUNITY COLLEGES ‑- EMPLOYEES ‑- LABOR ‑- LEGALITY OF AGENCY SHOP CLAUSE COVERING COMMUNITY COLLEGE ACADEMIC EMPLOYEES

COMMUNITY COLLEGES ‑- EMPLOYEES ‑- LABOR ‑- LEGALITY OF AGENCY SHOP CLAUSE COVERING COMMUNITY COLLEGE ACADEMIC EMPLOYEES

The board of trustees of a community college district may not legally include what is commonly referred to as an "agency shop" clause in a negotiated agreement entered into between such board and the faculty employees of the district under the provisions of chapter 28B.52 RCW for the reason that such a clause is prohibited by RCW 28B.52.070.

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                                                                   April 22, 1975

Honorable George C. Corcoran
President, Seattle Community College District
401 Queen Anne Avenue North
Seattle, Washington 98109

                                                                                                                   Cite as:  AGO 1975 No. 7

Dear Sir:

            By recent letter you have requested an opinion of this office on a question which we paraphrase as follows:

            May the board of trustees of a community college district legally include what is commonly referred to as an "agency shop" clause in a negotiated agreement entered into between such board and the faculty employees of the district under the provisions of chapter 28B.52 RCW?

            We believe that this question must be answered in the negative.

                                                                     ANALYSIS

            As outlined in your letter, the question you have here posed was precipitated by a request received by the board of trustees of Seattle Community College late last year to include the following commitment in a negotiated agreement covering the academic employees of that district:

            "The Board of Trustees agrees to submit the matter of an 'agency shop' to a vote  [[Orig. Op. Page 2]] by all full-time (100%) members of the bargaining unit.  Eligible to vote on this issue will be all full-time (100%) instructors, counselors, and librarians.  The 'agency shop,' election will be conducted by the State Department of Labor and Industries.  If the majority of those eligible to vote approve the 'agency shop,' the Board of Trustees will assure its implementation.  The vote will be separate from the one designed to ratify this agreement.  Part-time faculty are excluded from voting on this issue from the mandatory dues provision of the 'agency shop.'"  (Emphasis supplied.)

            In requesting our opinion with regard to the matter you have further described the proposed arrangement as involving one or the other of two alternative approaches; i.e.,

            "(a) The agency shop would be an arrangement whereby non-members of the faculty association or federation would be required to pay over to the association or federation the amount paid by its members as membership dues or donate an equivalent amount to a charitable organization should religious beliefs preclude payment to the association or federation; or

            "(b) The agency shop would be an arrangement whereby non-members of the faculty association or federation were required to pay over to such association or federation the amount of their pro rata cost of the expenses incurred by the association or federation in bargaining for benefits for such teachers or donate an equivalent amount to a charitable organization should religious beliefs preclude payment to the association or federation."

            In considering your question it is important to note, at the outset, that we are dealing in this opiniononly with the academic employees of a community college district.  This term, as defined in RCW 28B.52.020 means,

            ". . . any teacher, counselor, librarian, or department head, who is employed by any  [[Orig. Op. Page 3]] community college district, with the exception of the chief administrative officer of, and any administrator in, each community college district."

            Thus, nothing contained herein should be read as having any bearing upon the legality of either an agency shop clause or a union shop clause in a collective bargaining agreement covering the classified employees of a community college district who are covered under a different law with respect to this issue; namely, chapter 28B.16 RCW and, particularly, RCW 28B.16.100, as amended by § 2, chapter 154, Laws of 1973, to expressly authorize certain forms of such clauses.

            Moreover, because the academic employees of a community college are, instead, covered by the particular terms of a separate "professional negotiations" law which has been codified as chapter 28B.52 RCW, none of the various prior opinions of this office upholding the legality of union security clauses of one kind or another forother classes of public employees are determinative of your present question.  In none of the situations covered by those opinions1/ were we confronted with a statute comparable to the one with which we must here deal, RCW 28B.52.070, as set forth below.

            The genesis of chapter 28B.52 RCW was a similar law covering negotiations between the boards of directors of local school districts and their certificated employees, chapter 143, Laws of 1965 ‑ now codified as chapter 28A.72 RCW.

             [[Orig. Op. Page 4]]

            At the time this law was enacted it also covered the academic employees of the community colleges because of the fact that those colleges were then operated as component parts of the school districts.  Then, in 1967, the present system of community colleges, operated as state agencies, was established by the legislature through its passage of chapter 8, Laws of 1967, Ex. Sess.; and following this, the legislature in 1971 enacted a new, but virtually identical, professional negotiations law for the academic employees of those institutions in their altered capacity as state employees.  See, chapter 196, Laws of 1971, Ex. Sess.2/

             Among the original provisions of the professional negotiations law for school district certificated employees was a section (§ 7, chapter 143, Laws of 1965) which provided that:

            "Boards of directors of school districts or any administrative officer thereof shall not discriminate against certificated employees because of their exercise of rights under this act."

            In 1969, however, this section was amended by § 4, chapter 52, Laws of 1969, Ex. Sess.  Set forth in bill form for ease of reference with respect to the thrust of this amendment, it changed the text of the original statute to read as follows:

            "Boards of directors of school districts or any administrative officer thereof shall not discriminate against certificated employees or applicants for such positions because of theirmembership or nonmembership in employee organizations or their exercise ofother rights under this chapter."

             [[Orig. Op. Page 5]]

            Then, when the present provisions of chapter 28B.52 RCW were enacted for the benefit of the academic employees of the community colleges in 1971, this same language was carried over into the new law where it is now to be found codified as RCW 28B.52.070.  See, § 6, chapter 196, Laws of 1971, Ex. Sess., providing that:

            "Boards of trustees of community college districts or any administrative officer thereof shall not discriminate against academic employees or applicants for such positions because of their membership or nonmembership in employee organizations or their exercise of other rights under this chapter."

            The legislative history of the critical 1969 amendment to § 7, chapter 143, Laws of 1965,supra, discloses that as originally introduced3/ and passed by the senate it contained only the word "membership" and that the additional phrase "or nonmembership" was added through the adoption of a committee amendment by the house of representatives.4/   As thus altered, the bill was returned to the senate which concurred in the house amendment and passed the bill on to the governor who signed it into law on April 7, 1969.

            It is because of this resulting statute, RCW 28B.52.070, supra, that your question, as above paraphrased, must be answered in the negative.  Simply stated, its language epitomizes and appears to have been directly patterned after various laws of other states which are commonly referred to as "right-to-work" laws.  While some of these laws expressly bar both closed or union shop clauses (i.e., provisions requiring union membership either as an initial qualification for employment or as a condition for the retention of employment after a specified period of time) and agency shop clauses such as you have inquired about here,5/ others only  [[Orig. Op. Page 6]] express a prohibition against the former and yet have been held by courts to preclude at least the usual form of the latter as well.

            A leading case in point is that of Retail Clerks Local 1625 v. Schermerhorn, 373 U.S. 746, 10 L. ed. [[L.Ed.]]2d 678, 83 S.Ct. 1461 (1963).  Earlier, the Florida supreme court had held that a right to work provision of that state's constitution which only expressed a prohibition against closed or union shop agreements also invalidated an agency shop provision that left union membership optional with the employees involved but required, nevertheless, as a condition of continued employment that any nonunion employees pay to the union sums equal to the negotiation fee and periodic dues paid by union members.  See,Schermerhorn v. Local 1625 Retail Clerks, Int. Ass'n, Fla., 141 So.2d 269 (1962), in which this ruling was explained as follows:

            "The portion of Section 12 of the Declaration of Rights which is in issue, reads as follows:

            "'The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union, or labor organization; provided, that this clause shall not be construed to deny or abridge the right of employees by and through a labor organization or labor union to bargain collectively with their employer.'

            "This section clearly bestows on the workingman a right to join or not to join a labor union, as he sees fit, without jeopardizing his job.  Inasmuch as the Constitution has granted this right, the agency shop clause is repugnant to the Constitution in that it requires the nonunion employee to purchase from the labor union a right which the Constitution has given him.  The Constitution grants a free choice in the matter of belonging to a labor union.  The agency shop clause contained in the contract under consideration purports to acknowledge that right, but in fact, abrogates it by requiring the non-union worker to pay the union for the exercise of that right or, in  [[Orig. Op. Page 7]] the alternative, to be discharged from his employment.  Such an arrangement is palpably and totally inconsistent with the freedom of choice contemplated by our Declaration of Rights, Section 12."

            On appeal to the United States Supreme Court the question was whether the Florida law, as thus construed, was within the purview of a section (§ 14(b)) of the National Labor Relations Act which provided that:

            "'Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law.'"

            The Supreme Court in a unanimous opinion by Justice White, held that it was ‑ thereby interpreting this section of the federal law so as to characterize an agency shop clause as being a kind of ". . . agreement[s] requiring membership in a labor organization as a condition of employment . . ."

            This decision is best understood in the context of a companion case decided on the same day,NLRB v. General Motors Corp., 373 U.S. 734, 10 L.ed [[L.Ed.]]2d 670, 83 S.Ct. 1453 (1963).  In that case the court held that an agency shop clause is the "practical equivalent" of an ". . . agreement requiring membership in a labor organization as a condition of employment . . ." for the purposes of § 8(a)(3) of the NLRB which authorizes the inclusion of such clauses in labor contracts in the absence of state legislation to the contrary.  Accordingly, it ruled that General Motors' refusal to bargain over the question of an agency shop constituted an unfair labor practice.  Understandably, the court then followed suit in Retail Clerks,supra, by holding that consistency required a state statute prohibiting membership in a labor organization as a condition of employment also to be read as precluding an agency shop agreement even where such agreements are not expressly forbidden by the particular state statute in question.

            Another recent case reaching this same result is Smigel v. Southgate School Dist., 388 Mich. 531, 202 N.W.2d 305 (1972), which involved the construction of § 10 of Michigan's public employment relation act.  This statute stated, in  [[Orig. Op. Page 8]] pertinent part, that:

            "It shall be unlawful for a public employer or an officer or agent of a public employer * * * (c) to discriminate in regard to hire, terms or other conditions of employment in order to encourage or discourage membership in a labor organization; * * *"

            The Michigan supreme court, citing Retail Clerks and General Motors, supra, held that an agency shop provision in a collective bargaining agreement between a school district and the representatives of its teachers was prohibited by this statutory language.

            Two other earlier cases to the same effect are Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P.2d 456 (1961), andBaldwin v. Arizona Flame Restaurant, 82 Ariz. 385, 313 P.2d 759 (1957).  In fact, in only one case have we found a contrary result being reached insofar as the typical agency shop clause is concerned.  That wasMeade Electric Co., Etc. v. Hagberg, Etc., 129 Ind. App. 631, 159 N.E.2d 408 (1959), in which the court reasoned, in effect, that if the Indiana legislature had truly intended by its right-to-work law6/ to prohibit agency shop clauses as well as union or closed shop agreements it would have patterned its act after those from other states which expressly did so.  However, as was noted by the Rhode Island supreme court inTown of N. Kingston v. Teachers Ass'n, 110 R.I. 698, 297 A.2d 342 (1972), the Indiana statute also contained criminal penalties for its violation and, hence, was subject to a rule of strict construction that would not otherwise have been applicable.7/

             Finally, this last cited Rhode Island case itself deserves some further mention.  There, the statute involved was one  [[Orig. Op. Page 9]] expressly conferring upon public school teachers the right

            ". . . to join or decline to join any association or organization regardless of whether it has been certified as the exclusive representative of certified public school teachers."

            In considering the legitimacy of an agency shop clause under this statute the court first noted that in each of the cases relied upon by those opposing such a clause (including all of the cases above cited in this opinion) the agreement required all nonunion employees, as a condition of employment, to pay to the union or otherwisean amount equal to the dues and other fees required to be paid by union members.  Accord, the first approach described in your letter and quoted at the beginning of this opinion, which represents the usual form of an agency shop clause.  As was explained in some detail by Justice White, writing for the United States Supreme Court in theRetail Clerks case, supra, and by the Michigan court in Smigel v. Southgate School Dist., supra, such a clause in effect requires a nonunion employee to subsidize the union's institutional activities ‑ activities from which he receives no benefit unless he joins the union.  Thus, it places him in the position of either having to join the union in order to receive "his money's worth" or staying out and allowing the union to be a "free rider" to the extent of that subsidy.  This, in turn, results in a compulsion to join the union which is, of course, the antithesis of a right-to-work type statute.

            However, reasoned the Rhode Island court, if all that was required of a nonunion employee was the payment of a pro rata share of the union's actual expenses incurred in bargaining for benefits ‑ benefits accruing to both union and nonunion employees alike ‑ this line of argument against an agency shop clause would be met and an equitable balance would be achieved between the competing interests of the union and any nonunion employees.  Therefore, while disapproving of the usual form of agency shop clause with which it was initially presented, the court nevertheless granted its approval to:

            ". . . that kind of agency shop provision which neither requires a nonjoiner to share in expenditures for benefits he is not entitled to receive, nor exacts  [[Orig. Op. Page 10]] from him more than a proportionate share of the costs of securing the benefits conferred upon all members of the bargaining unit."

            On the other hand, even such a modified form of an agency shop clause was later found to be unacceptable inN.J. Turnpike Un. v. N.J. Turnpike Auth., 123 N.J. Super. 461, 303 A.2d 603 (1973), aff'd. per curiam 64 N.J. 579, 319 A.2d 224 (1974).  The clause in question here read as follows:

            "It is therefore agreed that it is a condition of employment or continued employment that commencing on the thirtieth day following the initial employment of any employee covered by this agreement, all employees shall pay to the union an amount, equal to the amount of the regular dues of the union, plus an amount equal to the regular initiation fee of the union, and that failure to make such payments during the month when the same is due shall constitute good cause for, and require separation from employment.  It is further agreed thatall funds paid to the Union by or on behalf of persons not members of the union because of this agreement shall be used exclusively to defray the costs of collective negotiations, the negotiation and adjustment of grievances with the Authority and other expenses relating to the representation of such persons.  Should it bedetermined that the funds thus paid by said nonmembersexceed their fair share of such expenditures, it is agreed thatadjustments in said amount of initiation fee and/or dues shall be made to eliminate such excess."  (Emphasis supplied.)

            Initially, the court in this case rejected the argument that the above clause was prohibited by a section of the New Jersey constitution which permitted public employees to process grievances through representatives of their own choosing.  The court did, however, find such a prohibition in a statutory provision (NJSA 34:13A-5.3) which read as follows:

            ". . . public employees shall have, and  [[Orig. Op. Page 11]] shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join and assist any employee organization or to refrain from any such activity; . . ."

            In so holding the New Jersey court made note of the Rhode Island case which we have just discussed but explained its disagreement with that case as follows:

            "A predicate to most commentary upon the propriety of the agency shop in the public sector is the acknowledged duty of a public employees' organization, acting as an exclusive representative, to conduct itself fairly and without discrimination on behalf of all employees, members and nonmembers alike.  Lullo v. Intern. Ass'n of Fire Fighters,supra.  Thus, where the manifest purpose and practical effect of an agency shop is to distribute among all employees in some equitable fashion the organization's costs for benefits conferred in representing employees, and in that manner to eliminate the so-called 'free ride' which would otherwise be enjoyed by nonmember employees, the validity of such a technique has been acknowledged.  Town of North Kinston v. North Kingston Teach. Ass'n, R.I. 297 A.2d 342 (Sup. Ct. 1972) (noting in particular the agency shop proposed here by the union, 297 A.2d at 346, fn. 9).  Nevertheless, in pursuing what might otherwise be considered the legitimate objective of eradicating the 'free ride,' an employee's organization should not be permitted to impose what is tantamount to a 'forced journey' upon nonjoiners.  Retail Clerks Int. Ass'n v. Schermerhorn, supra, 373 U.S. at 752-754, 83 S.Ct. 1461; cf. Board of School Dir. v. Wisconsin Emp. Rel. Comm'n, 42 Wis.2d 637, 168 N.W.2d 92, 97-98 (Wis. Sup. Ct. 1969).

            ". . .  The agency shop arrangement suggested herein does purport to relate the payments to be made  [[Orig. Op. Page 12]] by nonmembers to the union's expenses for collective negotiations and the handling of grievances.  But it also mandates that payments to the union by nonmember employees are a condition of employment; the amount of such payments is the exact equivalent of initiation fees and regular dues, and failure to pay results in discharge.  These clauses, though counterpoised with those which purport to relate such payments to union expenses, would have the predominant effect of inducing, if not compelling, union membership, participation and assistance on the part of nonmember employees. . . ."  (Emphasis supplied.)

            With all of these cases in mind let us focus, again, upon the wording of our own community college "right-to-work" law, RCW 28B.52.070; i.e.,

            "Boards of trustees of community college districts or any administrative officer thereof shall not discriminate against academic employees or applicants for such positions because of their membership or nonmembership in employee organizations or their exercise of other rights under this chapter."

            Leaving asideMeade Electric Co. Etc. v. Hagberg, Etc., supra, if for no other reason than that it stands by itself in the face of a great weight of authority to the contrary, and, in any event, involved a criminal statute which RCW 28B.52.070 is not, it appears clear from the reasoning of each of the other cases above discussed that this statutory language must be viewed as at least prohibiting an agency shop clause of the type first described in your letter; i.e., an agency shop clause under which nonmembers of a designated employee organization would be required, as a condition of employment,

            ". . . to pay over to the association or federation the amount paid by its members as membership dues or donate an equivalent amount to a charitable organization should religious beliefs preclude payment to the association or federation; . . ."

             [[Orig. Op. Page 13]]

            The fact that this clause would permit a nonmember to pay the amount specified to a charitable organization instead of to the federation should his religious views so dictate seems to us to be irrelevant ‑ for the clause would still have the effect of inducing, or pressuring, the employee to join the federation in order to receive the full benefits he would, in substance, be paying for.

            As far as the modified clause contemplated by the second part of your request is concerned,8/ it seems evident that the accounting problems resulting from the use of this approach would be substantial if not monumental if the necessary precision in apportionment were to be achieved ‑ and this alone might prevent it from being used in a given case even if no legal problems were presented by it.  However, in our judgment there are legal problems as well which necessitate our also answering this portion of your question in the negative.

            As we have seen, the usual argument advanced to justify both the ordinary agency shop clause and the modified requirement for nonunion employee contributions to the costs of negotiating is that such employees should not be "free riders" at the collective bargaining table.  In this case, however, the surface appeal of this argument is dispelled because of another section of the professional negotiations law for community college academic employees; namely, RCW 28B.52.050 which provides that:

            "Nothing in this chapter shall prohibit any academic employee from appearing in his own behalf on matters relating to his employment relations with the community college district."

             [[Orig. Op. Page 14]]

            It is self-evident that a requirement imposed on a nonunion employee to contribute to the bargaining costs incurred by a certified representative of other employees would tend to discourage the exercise of this right of representation reserved by the statute to the individual employee.  For this reason the inclusion of even the modified form of agency shop provision you have posited would seemingly give rise to such a discrimination against academic employees by reason of nonunion membership as is proscribed by RCW 28B.52.070,supra.  A contention that the individual employee may be uninterested in representing himself or effectively unable to negotiate independently is unpersuasive on this point.  To have the validity of a modified agency shop provision turn on such subjective considerations would be both administratively and legally untenable.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General