LABOR ‑- COLLECTIVE BARGAINING ‑- PUBLIC EMPLOYEES ‑- GOVERNOR ‑- VETO ‑- EFFECT OF PARTIAL VETO OF CHAPTERS 288 and 296, LAWS OF 1975, 1st EX. SESS. UPON REMAINING PROVISIONS

LABOR ‑- COLLECTIVE BARGAINING ‑- PUBLIC EMPLOYEES ‑- GOVERNOR ‑- VETO ‑- EFFECT OF PARTIAL VETO OF CHAPTERS 288 and 296, LAWS OF 1975, 1st EX. SESS. UPON REMAINING PROVISIONS

(1) Because the governor's veto of § 2 of Substitute Senate Bill No. 2408 (chapter 296, Laws of 1975, 1st Ex. Sess.), the public agencies now responsible for the performance of the functions thereby proposed by this act to be transferred to a new "public employment relations commission" will continue to perform those functions after September 8, 1975, in the absence of further legislative action.           

(2) In view of the governor's veto of § 4 of Substitute Senate Bill No. 2500 (chapter 288, Laws of 1975, 1st Ex.Sess.), certificated school district employees will, in the absence of further legislative action, continue after January 1, 1976, to be governed by the provisions of the school employees' professional negotiations act (chapter 28A.72 RCW), notwithstanding the express repeal thereof by the 1975 act, except to the extent that such provisions of the new law as are unaffected by the veto are in conflict with the earlier law.

(3) Administration of the provisions of chapter 288, Laws of 1975, 1st Ex. Sess., and chapter 296, Laws of 1975, 1st Ex. Sess., following their respective effective dates, by a new state agency will be unnecessary unless the governor's vetoes of portions thereof are overridden by the legislature or the vetoed sections are reenacted in a different form.

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                                                               September 5, 1975

Honorable Richard A. King
State Representative, 38th District
309 77th Place S.W.
Everett, Washington 98203

                                                                                                                 Cite as:  AGO 1975 No. 20

Dear Sir:

            By recent letter you have requested our opinion regarding the legal consequences of Governor Evans' partial vetoes of  [[Orig. Op. Page 2]] two bills passed by the 1975 legislature relating to labor relations in public employment ‑ Substitute Senate Bill No. 2408 and Substitute Senate Bill No. 2500.  In paraphrased form your questions are as follows:

            In the absence of further legislative action by way of a veto override or otherwise ‑

            (1) Will the public agencies now responsible for performance of the functions proposed by the legislature to be transferred to a new "public employment relations commission" by SSB No. 2408 (now chapter 296, Laws of 1975, 1st Ex. Sess.) continue to perform those functions after September 8, 1975, in view of the governor's veto of § 2 of that bill?

            (2) Will certificated school district employees continue after January 1, 1976, to be governed by the provisions of the school employees' professional negotiations act (chapter 28A.72 RCW), notwithstanding the express repeal thereof by § 28 of SSB No. 2500 (now chapter 288, Laws of 1975, 1st Ex. Sess.), in view of the governor's veto of § 4 of that bill?

            (3) What public agencies will administer the provisions of chapters 288 and 296,supra, following their respective effective date?

            We answer your first question in the affirmative and your second and third questions in the manner set forth in our analysis.

                                                                     ANALYSIS

            We will begin with a resume of the applicable statutes as they currently exist; i.e., prior to the effective dates of the 1975 acts to which your questions refer.

            At the present time, there are several different laws governing labor relations in the public sector in our state.  Thus, chapter 41.56 RCW covers this subject for noncertificated school district employees and most employees of the various other classes  [[Orig. Op. Page 3]] of municipal corporations or political subdivisions.1/   This act, known as the public employees' collective bargaining act, originated as chapter 108, Laws of 1967, Ex. Sess., and is administered by the state department of labor and industries.

            On the other hand, the certificated employees of school districts (mainly classroom teachers) are currently covered by the school employees' professional negotiations act, chapter 28A.72 RCW.  This law, which first came into being through the passage of chapter 143, Laws of 1965, includes both the local school boards of each district and the state superintendent of public instruction in its administrative functions.

            Thirdly, an almost identical professional negotiations act is also now in effect for the academic employees of the state community college system.  This act, now codified as chapter 28B.52 RCW, originated as chapter 196, Laws of 1971, Ex. Sess., and is administered by the state board for community college education and its appointed director.

            A fourth labor relations law currently in existence is chapter 47.64 RCW.  This law, which was adopted at the time of the state's acquisition of the Puget Sound Ferry System in 1949, covers, basically, the employees of that system and is administered by an agency called the "marine employee commission".

            Finally, insofar as is here material, chapter 53.18 RCW now covers labor relations involving the employees of the various port districts in our state.  Unlike the other existing laws which we have noted, this one does not contain any general provisions for its administration ‑ but it does include a provision for the arbitration of disputes by the department of labor and industries in accordance with the current provisions of chapter 49.08 RCW.  See, RCW 53.18.030.

             [[Orig. Op. Page 4]]

            Next, let us turn to the two 1975 legislative bills to which your questions refer.  By its passage of SSB No. 2408 and SSB No. 2500, the legislature provided for certain significant changes in the above described system of laws.  First by SSB No. 2408 it determined to establish a new state agency ‑ to be known as the "public employees' relations commission" ‑ and to transfer to that agency all of the duties and functions previously vested in (a) the department of labor and industries under chapter 41.56 RCW; (b) local school boards and the state superintendent of public instruction pursuant to chapter 28A.72 RCW; (c) the state board for community college education and its director under chapter 28B.52 RCW; (d) the marine employee commission as provided for by chapter 47.64 RCW; and (e) the department of labor and industries, with respect to the arbitration of labor disputes, by RCW 49.08.010, et seq.2/

             Secondly, by SSB No. 2500, the legislature further proposed to establish a comparable agency, denominated the "education employment relations commission", to administer a new labor relations law designed to cover all certificated school district employees.3/   Unlike SSB No. 2408, which retained the substance of the various existing labor relations laws and merely effected a transfer of the administrative functions provided for therein from the existing agencies to the new commission, this bill, because it also contained a totally new set of substantive provisions, included in § 28 an express repeal of chapter 28A.72 RCW in its entirety.

             [[Orig. Op. Page 5]]

            As earlier indicated, both of these bills were passed by the legislature.  When they reached the governor, however, they were, as below described, partially vetoed. The remainders of each, now denominated chapter 296, Laws of 1975, 1st Ex. Sess. (SSB No. 2408) and chapter 288, Laws of 1975, 1st Ex. Sess. (SSB No. 2500), are to take effect on September 8, 1975, and January 1, 1976, respectively (to the extent that they may be operative in spite of the vetoes as hereinafter discussed).4/

             Both § 2 of SSB No. 2408 and § 4 of SSB No. 2500, by which the public employment relations commission and the education employment relations commission, respectively, were to be created, stated that the members of these two commissions were to be appointed by the governor by and with the advice and consent of the senate:

            ". . . PROVIDED, That no member appointed when the legislature was not in session shall continue to be a member of the commission after the thirtieth day of the next legislative session unless his appointment shall have been approved by the senate.  One of the original members shall be appointed for a term of three years, one for a term of four years, and one for a term of five years."

            These identical provisos in each bill, however, were objected to by the governor when the bills reached his desk for approval or disapproval under Article III, § 12 of the state constitution ‑ on the ground, principally, that they would give the senate an ability to reject a given gubernatorial appointeeby inaction.  As explained in his veto message accompanying SSB No. 2408,

            ". . .  A governor goes on record in making an appointment; if the law requires confirmation by the Senate, that body should be required to go on record as confirming or rejecting the appointment.  Otherwise there is no way for the record to show to the governor, the appointee, and the public those who opposed the appointment and the  [[Orig. Op. Page 6]] reasons for their opposition."

            But because he deemed himself to be constitutionally precluded5/ from striking only the objectionable provisos to each bill, the governor, instead, vetoed § 2 of SSB No. 2408 and the counterpart provisions of § 4 of SSB No. 2500in their entirety.  In so doing, he acknowledged in both veto messages that his removal of the two sections involved rendered the remainder of each bill "virtually unworkable" ‑ and therefore, he concluded his message in each case by calling upon the legislature to redraft the section in question ". . . at the next opportune moment. . . ."

            We most certainly concur with the governor's candid description of the impact of his two vetoes upon the remainders of the laws in question.  In both cases, while allowing the rest of the act to go into effect,6/ the governor essentially frustrated the legislature's dual objectives of (1) creating a new labor relations system for certificated school district employees and (2) consolidating all administrative functions and duties in connection with the various other existing labor relations laws above described in a single state agency ‑ the public employment relations commission proposed to be created by the vetoed provisions of § 2 of SSB No. 2408.

            Of course, the legislature can respond to this action of the governor by overriding his two vetoes in accordance with the procedures set forth in Article III, § 12 of the constitution.  Or, in the alternative, the lawmakers can "breathe life" back into the two acts in the manner requested by the governor in his veto message ‑ by redrafting the rejected sections in some other manner.7/   In the meantime, however, our task in responding to your questions is to advise you, to the best of our ability, what the legal consequences will be if no such action is taken by the legislature prior to the effective dates of the two laws.

             [[Orig. Op. Page 7]]

            There are, as we view it, two possible approaches to be taken.  One would be to give full literal effect both to the vetoes and to the remainders of the two laws ‑ resulting in a system of substantive labor relations laws for public employees but with no administrative agency in existence to perform the functions upon which the legal rights and duties of the employees and employers involved are declared by the laws to be dependent.  The other approach would be to treat the vetoes, instead, as having caused all of the remaining provisions of the two acts which are dependent upon or otherwise assume the existence of either of the two aborted employment relations commissions to be legally inoperative in the absence of further legislative action.

            Having so described our alternatives, we readily reject the first and adopt the second.  It seems clear to us that neither the legislature in passing the two bills, nor the governor in partially vetoing them, intended to withdraw from the state department of labor and industries, or from the state superintendent of public instruction, the state board for community college education, or the marine employee commission, the functions which they are presently required to perform under the various laws summarized at the outset of this opinion except on a basis whereby those functions would be assumed, instead, by a new state agency.  Neither the legislature nor the governor, in other words, appears to us to have intended what in effect would be a hiatus in the administration of the statutorily defined labor-management relations in public employment in our state that are presently covered by those laws. While not all public employees would bear the burden of such a result since neither of the two bills involved touches upon those state employees who are covered, instead, by chapter 41.06 RCW (the state civil service law), the manifest problems which would arise from this approach seem apparent.  Therefore, in our view, the most plausible solution to be reached by the courts if the issued should be litigated ‑ and the one which we here adopt as our opinion ‑ is that of viewing the governor's vetoes as having rendered the remaining provisions of the two acts inoperative to the extent of their dependence upon, and relationship to, the two vetoed commissions.

            Moreover, not only does this approach strike us as being the only sound one to be taken from a policy standpoint but it is, as well, one for which there is judicial precedence  [[Orig. Op. Page 8]] squarely in point.  We have reference to the case of Acme Finance Co. v. Huse, 192 Wash. 96, 112, 113, 73 P.2d 341 (1937), which dealt with a 1937 law providing for the licensing and regulation of small loan companies.  As passed by the legislature, several sections of this act made reference to the rights and obligations of persons to whom licenses were to be issued.  The governor left those sections intact but he vetoed the basic licensing authorization contained in § 3 of the act.  The court, however, held the effect of this veto to be as follows:

            "Since § 3 was vetoed, it follows that no licenses can be issued as required under the act, for all the particulars and specifications of the proposed licenses are wiped out by the veto.  The veto, therefore, also took with it § 2, for it would be a vain, useless, and unlawful thing to require an application for a license, accompanied with a fee of one hundred dollars, when no license can be issued.  Since no license can be issued, §§ 7, 8, 9, 10, and 11 must, obviously, be inoperative, for they relate only to licensees and licenses.  A portion of § 5, and possibly all of the section, must go out for the same reason. . . ."

            In addition, this approach is much like that which we ourselves recently utilized in answering a question involving the governor's partial veto of another 1975 act, chapter 125, Laws of 1975, Ex. Sess. (SSB No. 527).  By § 4 of this act the legislature had proposed to grant certain rule‑making powers to the state utilities and transportation commission with respect to the operation of super-tankers on Puget Sound and adjacent waters.  The governor vetoed that section but left certain language in § 3 of the act which provided that:

            ". . . additional tug shaft horsepower equivalencies may be required under certain conditions as established by rule and regulation of the Washington utilities and transportation commission pursuant to chapter 34.04 RCW:

             [[Orig. Op. Page 9]]

            Noting the legislative history of the bill, however, including the governor's veto, we said in AGLO 1975 No. 67 [[to Donald H. Brazier, Chairman, Utilities & Transportation Commission on July 31, 1975, an Informal Opinion AIR-75567]], copy enclosed:

            "From this legislative history of the measure, it appears clear that this proviso was simply intended to complement, and to gain its legal significance from, § 4 of the bill as it had earlier been amended in the Senate.  In other words, the reference to the utilities and transportation commission in the proviso was simply a recognition that the substantive power to adopt rules and regulations had previously been granted by the Senate's amendment to § 4.  Therefore, the reference in § 3 was not, itself, a substantive grant of authority to adopt rules and regulations but was rather a recognition that rules adopted under § 4 could also affect the conditions set forth in § 3.

            ". . .

            "In view of the governor's veto of § 4 of Substitute House Bill No. 527, and his stated reason therefor, together with the legislative history of the act as passed by the House of Representatives and amended by the Senate, the utilities and transportation commission does not have any authority under chapter 125, Laws of 1975, 1st Ex. Sess., to adopt rules or regulations governing the operation of oil tankers and their escorting tug boats on Puget Sound and adjacent waters."

            Applying a comparable analysis and approach to the vetoes of § 2 of SSB No. 2408 and § 4 of SSB No. 2500 as above described, we thus here reach the following results insofar as your first two questions are concerned:

            Question (1):

            All of the remaining (unvetoed) provisions of SSB No. 2408, now chapter 296, Laws of 1975, 1st Ex. Sess., are unquestionably dependent upon the existence of the vetoed "public employment relations commission".  As earlier explained, this  [[Orig. Op. Page 10]] act purports to grant no new functions or powers to the administering agency or agencies.  Instead, it only transfers existing functions from the several agencies now involved to the proposed but aborted new commission.

            Therefore, by vetoing § 2 of this bill, it follows that the governor has rendered inoperative all of the remaining sections of the act which merely implement that legislative proposal by amendatorily substituting the word "commission" for the name of the prior agency involved.8/   Likewise, because the only reason for abolishing the marine employee commission was the anticipated substitution for it of the new public employment relations commission, the veto of § 2 has also caused the repeal of RCW 47.64.020 by § 39 of the bill to be inoperative.  Thirdly, for the same reason this veto has had the same effect upon §§ 31 and 32 by which the legislature proposed to amend RCW 43.22.260 and 43.22.270 so as to withdraw certain mediation functions from the department of labor and industries in view of the mediation role to be performed, instead, by the new commission.  And finally, of course, the veto has frustrated § 1, containing the legislature's declaration of purpose, and has rendered inoperative §§ 4 through 7 relating to the powers and duties of the commission and establishing its principal office.

            As a result, our direct answer to your first question is in the affirmative.  Because of the veto, each of the agencies now responsible for the functions which otherwise would have been transferred to the new commission will continue, in the absence of further legislative action, to perform those same functions even after this "law" technically takes effect on September 8, 1975.

            Question (2):

            Preliminarily, we should point out that the above answer to your first question means, among other things, that the present professional negotiations act for certificated public school employees (chapter 28A.72 RCW) will remain fully operative between September 8, 1975, and January 1, 1976, under the administrative jurisdiction of local school boards  [[Orig. Op. Page 11]] and the state superintendent's office as before ‑ notwithstanding the amendments contained in §§ 8-11 of chapter 296 (SSB No. 2408), supra.  On and after the latter date,9/ however, the situation which will exist in the absence of further legislative action will be somewhat more complicated.

            As earlier explained, the bill with which your second question is concerned ‑ SSB No. 2500 ‑ differed from SSB No. 2408 in that it not only provided for a new administrative agency for labor-management relations between certificated teachers and their employees but, in addition, was also designed to establish a new system of substantive statutory laws covering that subject.  Nevertheless, as evidenced by repeated references to the "commission" inmost of its remaining unvetoed sections, this bill also clearly contemplated the existence of such a new administrative agency as an integral part of the system which it was intended to establish.  See, in addition to the definition appearing in § 3(3),10/ the following other unvetoed sections of the bill:

            Section 5 ‑ Compensation and internal operation and organization of the commission.

            Section 6 ‑ Location of the office of the commission.

            Section 8 ‑ Necessary commission functions regarding the granting of recognition to new exclusive bargaining representatives.

             [[Orig. Op. Page 12]]

            Section 9 ‑ Necessary commission functions regarding the determination of appropriate bargaining units.

            Section 10 ‑ Certification by commission of exclusive bargaining representatives.

            Section 12 ‑ Authority of commission to adopt rules and regulations.

            Section 13 ‑ Functions of commission in the case of impasse proceedings.

            Section 16 ‑ Prevention of unfair labor practices by commission.

            Section 17 ‑ Applicability of administrative procedures act to commission.

            Section 23 ‑ Authority of commission to exclude certain job categories from coverage.

            Under therationale employed in answering your first question (based uponAcme Finance Co. v. Huse, supra), the governor's veto of § 4 of this bill has rendered each of these other "dependent" sections inoperative.

            On the other hand, there are several other portions of SSB No. 2500 whichwill take effect on January 1, 1976, even without further action by the legislature, because they are not dependent upon the existence or nonexistence of the vetoed commission.  Thus, most of the remaining definitions in § 3 will have at least some legal force and effect to the extent that the terms defined appear in other operative sections of the resulting act.  Included among these is the following definition of "exclusive bargaining representative":

            "(6) The term 'exclusive bargaining representative' means any employee organization which has:

            "(a) Been selected or designated pursuant to the provisions of this chapter as the representative of the employees in an appropriate collective bargaining unit; or

            "(b) Prior to the effective date of this chapter, been recognized under a predecessor statute as the representative of the employees in an appropriate collective bargaining or negotiations unit."

             [[Orig. Op. Page 13]]

            Although subpart (a) of this definition will be inoperative in the absence of the commission because of the role required to be played by it under §§ 8-10,supra, subpart (b) will have the effect of qualifying those employee representatives which have been previously recognized under the procedures set forth in RCW 28A.72.030 as "exclusive bargaining representatives" for the purposes of any other operative sections of the new law in which this term appears.

            Other sections of the act which, in our opinion, will thus become operative as of that date include:

            Sections 7 and 11 ‑ Authorizing and providing the mechanics to implement agency shop clauses in collective bargaining agreements.11/

             Section 14 ‑ Authorizing collective bargaining agreements to provide for binding arbitration.

           Section 15 ‑ Listing unfair labor practices.12/

             Section 18 ‑ Authorization for certain "retroactive" pay13/ and the inclusion of provisions for salary increases in collective bargaining agreements.

             [[Orig. Op. Page 14]]

            Likewise, under this same reasoning, there are some six additional sections of lesser substantive importance which also are not dependent upon the existence of a "commission" and, hence, will become operative without further legislative action on January 1, 1976.  These are § 1 which merely states the official name of the act ‑ "the educational employment relations act"; § 2 which sets forth the purpose of the act; § 20 which preserves certain preexisting employee rights and benefits; § 24 which does likewise as to employers' rights and responsibilities under other laws; §§ 21 and 22 amending RCW 28A.01.130 (which defines "certificated employee") and RCW 28A.67.065 (regarding the evaluation of certificated employees); § 25 a severability clause; and finally, § 26 which contains the effective date provisions above described.

            What, then, in view of all of this, will be the status of the present "professional negotiations" act as of January 1, 1976?  This, of course, is the precise question you have here asked.

            It is our opinion on this point that because of the impact of the governor's veto of § 4 of SSB No. 2500 on the remaining new or amendatory sections contained therein, as above explained, the accompanying express repeal of the present professional negotiations act for certificated school employees in § 28 of the new act is, likewise, inoperative.  Although certain portions of the new law will take effect without further legislative action in spite of the veto, these sections do not by themselves form the complete new labor relations law (with accompanying administrative provisions) which the legislature intended as the replacement for the present professional negotiations act.

            Aside from theAcme Finance Co. case, there is another decision by the Washington supreme court which lends support to this conclusion.  We have reference toSpokane Grain and Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316 (1910), in which the factual pattern involved was as follows:  During its regular 1909 session, the legislature had passed a new act relating to the enforcement of certain liens.  Thereafter, during its special session of the same year the legislature sought to change that statute by passing a different act containing a total of six sections.  The first four sections of this second act related to the enforcement of liens, the fifth section repealed the act which had been passed during  [[Orig. Op. Page 15]] the regular session, and the sixth section contained an emergency clause.  When this measure reached the governor's desk he vetoed the first four sections but did not veto the repealer of the regular session enactment which these sections were intended to replace.

            Nevertheless, in later rendering its decision on the scope of the veto the court held that the regular session enactment had not been repealed and thus was still in effect, reasoning as follows:

            ". . . all affirmative legislation was wiped out by the veto, and the repealing clause was left standing alone.  The repealing clause was a mere incident to the affirmative legislation contained in the act, and when the latter fell under the veto the former fell with it.  In other words, when the executive approved the repealing section he approved something that his veto had already destroyed.  The legislature attempted to substitute one act for another and the executive had a right to place his veto on the substitution, but he could not defeat the one act by his veto, and the other by approving the repealing clause."

            The conclusion which we have here reached regarding the impact of the governor's veto upon the express repeal of chapter 28A.72 RCW by § 28 of SSB No. 2500 does not, however, mean that this prior law is wholly unaffected by the new one. By § 19 of the new law (to which we have not previously referred) the legislature provided that

            "This chapter shall supersede existing statutes not expressly repealed to the extent that there is a conflict between a provision of this chapter and those other statutes. . . ."

            This section, it seems to us, is operative notwithstanding the veto.  Accordingly, in those cases where there is a conflict between the old professional negotiations act and the portions of chapter 288,supra, which will become operative on January 1, 1976, without further legislative action, the latter will prevail.  One clear example of such a conflict,  [[Orig. Op. Page 16]] of course, will be in the area of agency shop clauses.  As we have seen §§ 7 and 11 of the new law expressly authorizes a form of this type of union security agreement.  RCW 28A.72.070, however, as construed by this office in AGO 1975 No. 7, presently prohibits such clauses.14/   Therefore, giving effect to the later law pursuant to § 19 thereof, on and after January 1, 1976, such clauses will be permissible parts of a collective bargaining agreement between a school district and the representative of its certificated employees to the extent provided for in §§ 7 and 11 thereof.

            This completes our answer to your second question.  Before turning, briefly, to your third and final inquiry, however, we should explain one further point in passing.  While we have spoken of a necessity for legislative action in order to make all but a few sections of SSB No. 2500 operative so as to replace the present law (chapter 28A.72 RCW) in its entirety, that action (whether in the form of a veto override or the passage of a replacement provision) will not necessarily have to restore the essence of § 4 of this bill to be effective.  Note, again, the definition of "commission" which appears in § 2(3) of SSB No. 2500 as follows:

            "(3) The term 'commission' means the education employment relations commission established by section 4 of this 1975 act:  PROVIDED, That if the legislature creates another board, commission, or division of a state agency comprehensively assuming administrative responsibilities for labor relations or collective bargaining in the public sector, 'commission' for the purposes of this 1975 amendatory act shall mean such board, commission, or division as therein created."

             [[Orig. Op. Page 17]]

            Thus, making use of the proviso, it appears to us that the legislaturecould breathe full life into both SSB No. 2408 and SSB No. 2500 (chapters 296 and 288) by the simple act of repassing § 2 of the former in a form acceptable to the governor or overriding his veto of the original section.  In that event, however, the new labor relations system for certificated school employees would be administered by the same "public employment relations commission" as would administer the other laws affected by SSB No. 2408 ‑ rather than by a special commission as contemplated by § 4 of SSB No. 2500.15/

             Question (3):

            The foregoing answers to your first two questions in turn mean (in answer to your last question) that there will be no need for any new agency to administer the literal provisions of chapters 288 and 296, supra, following their respective effective dates, unless the legislature either overrides the vetoes or reenacts the section or sections involved in some other form.

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

Very truly yours,