Letter Opinion 1972 No. 043

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                                                                   May 30, 1972

Honorable Otto Amen
State Representative
District 9-B
Ritzville, Washington 99169                                                                                            Cite as:  AGLO 1972 No. 43 (not official)

Dear Sir:
 
            By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:
 
            May the Department of Agriculture use funds from the grain and hay inspection fund (RCW 22.09.500) to pay the salaries of grain inspectors who during their regular working hours are participating in collective bargaining with the department?
 
            We answer this question in the affirmative for the reasons set forth below.
 
                                                                     ANALYSIS
 
            At the outset, we note the absence of any specific statutory or constitutional prohibition or directive for the payment of salaries of grain inspectors participating in collective bargaining during their regular working hours.  These employees are covered by the state civil service act (chapter 41.06 RCW) and have been granted by RCW 41.06.150 the right to bargain collectively with their employer.  The personnel board has implemented that statute by establishing collective bargaining procedures and standards.  See, §§ 356-32-010 through 356-32-070, Washington Administrative Code.
 
            The Department of Agriculture through its grain and chemical division performs the grain inspection services required by chapter 22.09 RCW.  These employees have bargained collectively with the department since December 1, 1967, and the collective bargaining agreement which has been in effect for the last two years provides in Article IV, § 7, for an employee to be paid while attending union management meetings pursuant to the agreement.  It also provides in Article XI, § 3, that grievances may be handled during working hours. Of specific pertinence to your inquiry is Article XI, § 3, which provides in part:
 
             [[Orig. Op. Page 2]]
            ". . .  Management further agrees that the members of the Department of Agriculture Union Negotiating Committee shall be permitted time off without loss in pay to conduct negotiations with Management with the further understanding that expenses incurred by such committee members shall be borne entirely by the Union."
 
            The expenses incurred by the department in the course of the grain inspection program, including the salaries of the individual inspectors, are paid from the grain and hay inspection fund created by RCW 22.09.500, which provides in pertinent part as follows:
 
            "(1) All moneys collected as warehouse license fees, fees for weighing, grading, and inspecting commodities and all other fees collected under the provisions of this chapter, except as provided in subsection (2) of this section, shall be paid into the grain and hay inspection fund in the state treasury which is hereby established.  Such fund shall be used for administrative expenses under this chapter and for the enforcement of all the provisions thereof.  The department may use so much of such fund not exceeding five percent thereof as the director of agriculture may determine necessary for research and promotional work, including rate studies, relating to wheat and wheat products.
 
            ". . ."  (Emphasis supplied)
 
            The crucial phrase for the purposes of your question is underlined above; i.e., that "Such fund shall be used for administrative expenses . . .".  There can be no doubt that the expenses incurred by management, to-wit, the department, in engaging in collective bargaining are legitimate personnel expenses which would be covered within the phrase "administrative expenses."  The thrust of your question is whether the employees who are negotiating on their own behalf can be compensated by the employer for that period of time.
 
            The term "administrative expenses" would, of course, include the cost of personnel administration.  In the last decade public employment personnel administration has been increasingly involved in collective bargaining, mediation and other aspects of labor management relations.  In light of these relatively recent developments not only within our state but in many parts of this country, we should look to how these matters are covered in other jurisdictions.
 
            A basic source of information in this area is the publication "Collective Bargaining Negotiations in Contracts," published by the Bureau of National Affairs, Inc., which  [[Orig. Op. Page 3]] states in § 36:241,
 
            "Very few agreements take up the question of compensation for employees engaged in contract negotiations.  To a large extent this stems from the fact that negotiations are generally held during nonwork hours, and, therefore, employees suffer no loss of pay.  A fractional percentage of contracts, however, provide pay for negotiating time which coincides with regular working time.  Certain limitations may be specified, however ‑ for example, a restriction on the number of employees entitled to such pay or on the aggregate number of compensable hours."
 
            This concept is recognized in a number of areas of public employment.  For example, the President's Executive Order No. 11491 issued October 29, 1969, in § 20 originally provided that:
 
            ". . .  Employees [of federal agencies] who represent a recognized labor organization shall not be on official time when negotiating an agreement with agency management."  (Emphasis supplied)
 
            That prohibition, however, was substantially modified by Executive Order No. 11616 dated August 26, 1971, wherein the President amended his previous order so as to add to it the following exception:
 
            ". . .  Employees . . . shall not be on official time when negotiating . . . except to the extent that the negotiating parties agree to other arrangements which may provide that the agency will either authorize official time for up to 40 hours or authorize up to one‑half the time spent in negotiations during regular working hours, for a reasonable number of employees, which number normally shall not exceed the number of management representatives."
 
            Thus, it is to be seen that the federal government by administrative fiat now permits its agencies to pay employees for time spent during regular working hours in negotiation for collective bargaining.  While no similar specific authorization presently covers employees of the state of Washington or its agencies, the general need for, and the benefit derived by agency heads from constructive interchanges  [[Orig. Op. Page 4]] of communications between state employees and their representatives and their employer has been recognized in Governor Evans' Executive Order of September 3, 1971 (No. 71-04), which stated in part:
 
            "It is essential that maximum communication be maintained at all times between agency heads, their authorized representatives, and employees and their authorized representatives.  To facilitate this, management representatives should at all reasonable times hold themselves available for this purpose and shall take positive steps to insure the right of employees and/or their authorized representatives to meet with management representatives without obstruction and delay."
 
            We would regard a state agency's decision to allow its employees to negotiate with management on official time (i.e., while being paid for their work by the agency) as being consistent with this order and, so long as not prohibited by any statutory limitation, we would thus also regard the expenditure of agency funds to pay the salaries of these employees as constituting a proper expense for personnel administration related to the program to which the particular employees are assigned.  Conversely, however, we have found no provision in existing law which would require an agency to accept this approach or would restrict it from imposing reasonable limitations if and when it does so.
 
            Finally, we see no reason to distinguish the grain and chemical division of the Department of Agriculture from any other state agency in regard to these conclusions, and for this reason we believe the existing practice of this division, which you have questioned, to be legally permissible.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
EMANUEL E. ROSATTO
Assistant Attorney General