Attorney General's Opinion 1969-70 #231

February 18, 1970

HONORABLE HUNTER B. ANDREWS
Member, Virginia State Senate

69-70 231

This is in reply to your letter of February 10, 1970, in which you inquire whether a school board and an association of teachers could enter into an agreement which would embody the following points:

"1. The recognition by the board of a local association of teachers as the agency to discuss on behalf of the teachers (so long as it embraced more than fifty percent of all certificated personnel) matters covered by the agreement.

"2. Specifically reserving the rights of others (including individual members of the local association) the full right to be heard by the board.

"3. A limitation of the matters to be discussed to items of economic importance to the teachers and elements of actual working conditions. Note: This would not prohibit the establishment of a professional council of representatives of the teachers, the administration and the board for the purpose of improving and upgrading curriculum and systems of instruction and providing for open channels of communication on matters of importance to the entire school system but not specifically involving the economics and working conditions of the teachers.

"4. Providing that when and if there would arise from the discussions matters failing of agreement, the parties shall submit such matters to mediation and/or arbitration but expressly stating that the results of the mediation shall not be binding on the board.

"5. Containing a clause that the teachers recognize that the State law provides that teachers shall not strike.

"6. Including in the representation school principals and supervisors but excluding the superintendent, associate and assistant superintendents and, where in existence, area administrators.

"7. Not requiring any individual teacher to become a member or maintain membership in the local association."

I am enclosing a copy of an opinion rendered to the Honorable Junie L. Bradshaw, Member, Virginia House of Delegates, dated February 16, 1970, in which the right of public employees to join a union was discussed and recognized. You will note that the authority of political subdivisions to enter into collective bargaining agreements was regarded as a minority practice which should be founded on a specific grant of authority rather than implied from the existing powers of political subdivisions.

While you do not refer to a teachers' union or a collective bargaining agreement in your letter, it must be noted that a collective bargaining agreement would contain many of the points which you present above. Nevertheless, while a collective bargaining agreement entered into by a school board would be of doubtful enforceability, this would not preclude the board from adopting an agreement or a resolution embodying one or more of the above points. It would be necessary for the board to retain the right to make the final decision in such matters, and membership in the association could not be required as a condition of employment.

The board would be free to discuss such matters with any group, including a teachers' association, which desired to present its views to the board. Under the Virginia Freedom of Information Act, as embodied in Chapter 21 of Title 2.1, such discussions would have to be open to the public.

While the board could limit the discussions to specific issues, as you suggest in point 3, it could not deny the right of others to be heard on matters which relate to decisions within the purview of the board's authority.

There would appear to be no authority which would preclude submission of a disputed issue to mediation or arbitration. However, it would be necessary that final decision rest with the board. The case of McKennie v. Charlottesville R. Co., 110 Va. 70, 65 S.E. 503 (1909), held that a municipal corporation had the power to contract, and therefore had the implied power to submit an issue to arbitration. However, § 133 of the Constitution of Virginia vests administration of the public schools in the school board. This grant of authority has been interpreted strictly to require that the board not delegate the final decision in such a matter. See, Howard v. School Board of Alleghany County, 203 Va. 55, 122 S.E.2d 891 (1961).

Point five, as to recognition that teachers do not have the right to strike, may properly be included in any written agreement which a school board may elect to enter. Section 40-65 of the Code prohibits strikes by public employees and would be applicable and enforceable irrespective of whether it was acknowledged by contract.

While a group such as you describe might undertake to discuss employment conditions of school principals and supervisors, such individuals would not be precluded from being heard individually. (This would appear to be expressly provided in point two above.)

As indicated above, it would be a prerequisite to the execution of the agreement that no individual teacher would be required to become a member or maintain membership in the local association.

The board would have the authority to execute the described agreement, subject to any limitations of authority suggested by the foregoing comments.