¶0 The Attorney General has received your request for an official opinion asking, in effect:
1. May a local school district which engages in collective bar gaining with its employees pursuant to 70 O.S. 509.1 et seq. (1981), as amended, grant greater, or lesser, salary and/or other benefits to those employees who choose not to be represented by the duly authorized collective bargaining agent?
2. Is the duly authorized collective bargaining agent referred to in question one (1) above required to represent non-members in processing grievances arising under a lawfully negotiated collective bargaining agreement?

¶1 Your questions necessitate an inquiry into the school employees negotiations act, 70 O.S. 509.1 et seq. (1981), as amended (the "Act") (all statutory references are to title 70 of the Oklahoma Statutes, unless otherwise indicated) and the interplay of several statutory provisions reflecting the tension, inherent in collective bargaining, between individual and group rights. More specifically, the Attorney General is asked to define the delicate balance between a labor organization's right to be the "exclusive representative of all employees" in a given bargaining unit and the rights of individual employees to communicate directly with their employer without regard to the union membership status of the employees involved ( 70 O.S. 509.2(A) ).

¶2 The key to the resolution of both questions is in reconciling the language of 70 O.S. 509.2(A) which provides that a properly selected labor organization (i.e., union) is the "exclusive representative of all the employees" with other language in 70 O.S. 509.2(A) which permits those who wish "not to be represented by any organization" to express that desire in writing to their employer. More precisely, our inquiry should focus on the intended effect of the latter provision. If the non-representation clause is construed to permit the employer to negotiate with individual employees in derogation of its duty to negotiate in good faith with the organization selected as the exclusive bargaining representative (as is discussed in Part I, B, below), the underlying purposes of statutory collective bargaining rights would be undermined. The Legislature should not be presumed to have effectively negated collective bargaining rights via the nonrepresentation clause. Rather, legislative enactments should be construed so as to reconcile different provisions and render them consistent and harmonious and give intelligent effect to each. Eason Oil. Co. v. Corporation Commission, 535 P.2d 283 (Okl. 1975).

¶3 The most viable alternative reading of the "non-representation clause" is that individual employees are not to be precluded from communicating with their employer on matters of concern to them. Compare 29 U.S.C.A. 159(a), in which such communications, including the adjustment of individual grievances, is permitted by federal statute. This reading would accord with the rules of construction outlined above which require the "non-representation clause" to be given substantive meaning without rendering nugatory the legislatively created principle of exclusive representation. Conversely, we reject an interpretation of the "non-representation clause" that would regard it as nothing more than an expression of the individual employee's desire not to be linked with a labor organization in the employer's eyes. See, Part II, below, for a fuller discussion of this issue.

¶4 Turning to the specific statutes implicated by your questions, the Act requires, inter alia, "[t]he board of education and the representatives of the [employee] organization . . . [t]o negotiate in good faith on wages, hours, fringe benefits and other terms and conditions of employment." 70 O.S. 509.6 (1987). An employee organization recognized pursuant to 70 O.S. 509.2 is "the exclusive representative of all the employees in such unit." Id. at subsection A (emphasis added). ( Collective bargaining units are defined in 70 O.S. 509.2(A)(1) (3). ) A collective bargaining unit is not coterminous with the membership of a particular labor organization. The term "unit" merely describes the class of persons, sharing a community of interest, for whom the exclusive representative bargains.) The same statute provides that "[a]ny person who desires not to be represented by any organization may so state in writing to his board of education." (Emphasis added). This provision is denominated, for purposes of this opinion, the non-representation clause.

¶5 The final section of the statute pertinent to your question is 70 O.S. 509.9 which provides as follows:

(Emphasis added).

¶6 It is a cardinal rule of construction that the various parts of a general statutory scheme should be harmonized in a way that will give coherent effect to the entire statutory scheme. Independent School District No. 89, Oklahoma County v. Oklahoma City Federation of Teachers, Local 2309 of American Federation of Teachers, 612 P.2d 719 (Okl. 1980).

¶7 Part I of this Opinion traces two additional provisions of the Act that militate against permitting individual bargaining with non-members of the union: (1) the anti-discrimination statute (70 O.S. 509.9) and (2) the requirement in 70 O.S. 509.6 that labor and management negotiate in good faith. Part II discusses the doctrine that requires unions to represent fairly the interests of all members of the bargaining unit without regard to their non-membership in the union or non-participaion in collective bargaining activities.

¶8 Your first question seeks to ascertain whether a school district may award differential compensation to employees based upon their membership or other participation in an organization which represents school employees for collective bargaining purposes.

¶9 The anti-discrimination language used by the Legislature in 70 O.S. 509.9 (quoted above) closely parallels that used by the Congress in the National Labor Relations Act (NLRA), at 29 U.S.C.A. 158(a)(3), which nakes it an unfair labor practice for an employer to "discriminate in regard to hire or tenure of employment or any term or condition of employment or to encourage or discourage membership in any labor organization."

¶10 The Oklahoma Supreme Court has in the past chosen to rely on the persuasive value of federal court decisions construing statutory provisions and policies similar to those under judicial scrutiny in Oklahoma. See, eg., Maule v. Independent School District No. 9 of Tulsa County, 714 P.2d 198, 201 (Okl. 1985) ( construing 70 O.S. 509.2 of this Act ); Stone v. Johnson, 690 P.2d 459 (Okl. 1984) ( construing provisions of the Fire and Police Arbitration Act, codified at 11 O.S. 51-101 et seq. (1981), as amended ).

¶11 Turning to the federal decisional law construing the NLRA's anti-discrimination provision, we find that the United States Supreme Court has found disparate wage treatment of union and non-union members to be "clearly discriminatory" and thus violative of the parallel federal anti-discrimination provision ( 29 U.S.C.A. 158(a)(3) ), Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. v. National Labor Relations Board, 347 U.S. 17, 39, 74 S.Ct 323, 98 L.Ed 455, 476 (1954), and the cases cited therein. See also, Chevron Oil Co., et al. v. NLRB, 442 F.2d 1067 (5th Cir. 1971). These two cases both involve wage discrimination in favor of non-union members. Conversely wage discrimination against non-union members is also prohibited. See eg., Rockaway News Supply Co., 94 NLRB 1056 (1951).

¶12 The United States Supreme Court has also held, under the NLRA, that individual employment contracts may not be utilized to defeat an employer's obligation to bargain collectively in good faith with the exclusive representative. In J.I. Case Company v. N.L.R.B., 321 U.S., 332, 64 S.Ct. 576, 88 L.Ed 762 (1944), the Court addressed the individual contract issue in these terms:

Id. at 338.

¶13 It was argued that individual employees should be permitted to negotiate more advantageous employment terms for themselves than could be achieved through collective bargaining. After noting that the "practice and philosophy" of collective bargaining was suspicious of such individual advantages, the Case Court identified the underlying policy reasons for rejecting individual contract terms in the collective bargaining context:

Id. at 338-339.

¶14 Although 70 O.S. 509.9 does not incorporate the specific types of discrimination enumerated in 29 U.S.C.A. 158(a)(3), the policies underlying the two provisions appear to be congruent: to-wit, to prevent any conduct designed to coerce membership or non-membership in labor organizations. It is manifest that offering greater salaries and/or other benefits to non-participants in the collective bargaining organization is the kind of discrimination the Oklahoma Legislature intended to prohibit.

¶15 70 O.S. 509.6 requires that once an employee organization is recognized, pursuant to the procedures outlined in 70 O.S. 509.2, the school district must meet with it to engage in good faith collective negotiations. Because 70 O.S. 509.2(A) requires the local board of education to recognize a properly selected "employee organization" as the "exclusive representative" of "all the employees" in an "appropriate bargaining unit," we conclude that the duty to bargain in good faith comprises a duty to bargain only with the exclusive representative. The question then becomes whether the bargaining of individual contracts with those who invoke the "non-representation clause" is consistent with the 70 O.S. 509.6 duty to bargain in good faith with the exclusive representative.

¶16 Under comparable federal law, individual bargaining has been held to violate the NLRA where individual contracts were made by employers with each employee without negotiating with a properly selected union. National Licorice Co. v. NLRB, 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940). To bargain with individual employees or with "splinter groups" in derogation of the duty to bargain with the exclusive representative has been held repeatedly by the federal courts to violate the duty to bargain in good faith as required by 29 U.S.C.A. 158(a)(5) and 159(a). See e.g., N.L.R.B. v. Pepsi-Cola Bottling Co., 499 F.2d 824 (5th Cir. 1971), cert. denied, 407 U.S. 910, 92 S.Ct. 2434, 32 L.Ed.2d 683 (1972); Western Addition Community Organization v. N.L.R.B., 485 F.2d 917 (D.C. Civ. 1973), cert. denied, 415 U.S. 913, 94 S.Ct. 1407, 39 L.Ed.2d 466 (1974).

¶17 It should also be noted that the exclusive representation provisions of public sector collective bargaining statutes, and the underlying public policy rationale previously averted to, have been upheld by the courts of other jurisdictions. See, Lullo v. International Association of Fire Fighters, Local 1066, 262 A.2d 681 (N.J. 1970); Weest v. Board of School Commissioners of the City of Indianapolis, 320 N.E.2d 748 (Ind.App. 1975).

¶18 We conclude that the recognition by the Legislature in 70 O.S. 509.2 of exclusive representation, when considered with 70 O.S. 509.9's clear prohibition against discrimination predicated on the exercise or non-exercise of rights under the Act, and the duty to bargain in good faith with the exclusive representative, prohibits the payment of greater or lesser wages and/or benefits based on an employee's level of participation (or non-participation) in the activities protected by the Act.

¶19 Your second question inquires as to a labor organization's duty to represent non-members in grievance proceedings. The "duty of fair representation" is not explicitly stated, either in the Oklahoma Act or in the NLRA. The duty imposed upon the labor organization to represent impartially the interests of all employees notwithstanding their refusal to join the union, has long been recognized by the federal courts as the natural corollary of the right of exclusive representation. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842, 850 (1967). A statutory exclusive collective bargaining representative has duties beyond that of representing its own members; by its selection as bargaining representative, it becomes the agent of all the employees, charged with the duty of representing their interests fairly and impartially. Czosek v. O'Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970). The Union thus may not deny benefits under the collective bargaining agreement to non-union members.

¶20 The duty described in Vaca v. Sipes, extends both to bargaining the collective agreement and to the labor organization's enforcement thereof. Ibid. This duty includes providing, to union members and non-members alike, access to any grievance procedure which may be included in the collective bargaining agreement. Id. at 386 U.S. 191, 17 L.Ed.2d 858.

¶21 Under federal labor law, the imposition of this duty does not require the surrender of the labor organization's control of the contractual grievance machinery to individual employees, nor does it require that all grievances be carried to the highest levels of the grievance procedure. The labor organization is simply under a duty to avoid treating members of the bargaining unit (as distinct from members of the labor organization) in an arbitrary or discriminatory fashion. Vaca v. Sipes, id. Numerous subsequent decisions of the federal courts of appeals have applied the fair representation doctrine. For Tenth Circuit cases, see, eg., Chernak v. Southwest Airlines Co., 778 F.2d 578 (10th Cir. 1985); Woods v. North America Rockwell Corp., 480 F.2d 644 (10th Cir. 1973); McMullans v. Ks., Okla. & Gulf Ry. Co., 229 F. 2d 50 (10th Cir. 1956). See also, Demings v. City of Ecorse, 377 N.W.2d 275 (Mich. 1985) (quoting the Michigan Supreme Court's prior decisions applying the duty of fair representation in public sector collective bargaining). Because the labor organization's duty of fair representation is so closely linked to its right of exclusive representation under federal law, we conclude that a similar duty may be inferred under Oklahoma law where the Legislature has created rights of exclusive representation in school employee organizations. See Maule, supra; Stone v. Johnson, supra. (This opinion cannot, and does not purport to explore the outer boundaries of the duty of fair representation under the Act.)

¶22 It is apparent from the foregoing that the individual employee's right, provided in 70 O.S. 509.2(A), to declare his or her desire "not to be represented by any [labor] organization" remains a substantial benefit to that employee. The employee is not required to channel through the labor organization all communications with the employer. Employees are free to speak to their employers on their own behalf with respect to their concerns, notwithstanding the employer's statutory duty to deal only with the exclusive representative on collective bargaining matters and any applicable contractual duty the employer may have undertaken to permit the labor organization to be present, express its views, and otherwise assert organizational interests. The conclusion also follows, however, that the exclusive representative's duty of fair representation extends to the processing of non-union member grievances pursuant to the terms of any applicable collective bargaining agreement.

ROBERT H. HENRY
ATTORNEY GENERAL OF OKLAHOAM
NED BASTOW
ASSISTANT ATTORNEY GENERAL