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The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Gibson D. (Gib) Lewis Opinion No.FlW-557
Supreme Court Building
Chairman
P. 0. BOX 12546
Austin, TX. 76711. 2548 Committee on Intergovernmental I&: Constr"ction of article
512,475.2501 Affairs 5154c-1, V.T.C.S.
Telex 910/674-1367 House of Representatives
Telecopier 5121475.0266 Room 114, John H. Reagan Bldg.
Austin, Texas 78711
1607 Main St., Suite 1400
Dallas, TX. 75201-4709 Dear Representative Lewis:
2141742.6944
You have requested our opinion whether as a part of its duty of
fair representation, a police association recognized under article
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793 5154c-1, V.T.C.S., is required to extend to non-association members of
91W533.3464 a bargaining unit the opportunity to vote on contract ratification.
Policemen and firemen employed by cities that have adopted the
1220 Dallas Ave., Suite 202
Houston. TX. 77002-6966
provision of article 5154c-1, V.T.C.S., have the right to organize and
7131650-0666 bargain collectively. If after election it is shown that a majority
of policemen working for a department desire to organize, the public
employer must recognize the organization as "the sole and exclusive
606 Broadway, Suite 312 bargaining agent" for all the policemen in that department. V.T.C.S.
Lubbock. TX. 79401-3479
art. 5154c-1(6)(b).
8061747-5236
A careful reading of the statute reveals no language requiring an
4309 N. Tenth. Suite B association to permit non-members of the bargaining "nit to vote on
McAllen, TX. 76501.1665 contract ratification. Nor, for that matter, does the statute require
5121662-4547
the association to extend this right to its members. Section 8
provides in part:
200 Main Plaza. Suite 400
San Antonio, TX. 76205.2797 Whenever a public employer and an association
5121225-4191 reach an agreement on compensation and/or other
terms and conditions of employment.... [tlhe
An Equal Opportunity/ agreement shall be enforceable and shall be
Affirmative Action Employer binding upon the public employer, the association,
and the firefighters or policemen covered therein.
While the right to vote on contract ratification could be
extended to members and/or non-members through an organization's
constitution or by-laws, the statute does not mandate this result. It
is clear from the language found in section 8 that an agreement need
p. 2040
Honorable Gibson D. Lewis - Page 2 (MW-557)
only be reached between the association, i.e., its bargaining agent,
and the employer to legally bind all members of the unit.
In your request you cite the duty of fair representation and ask
whether or not this duty, article 5154c-1 notwithstanding, requires
public employee associations to seek contract ratification from
non-members.
The duty of fair representation had its origins and has been
chiefly defined through a series of federal court decisions
interpreting the National Labor Relations Act, 29 U.S.C. section 151
et seq. See, e.g., Steele v. Louisville and Nashville RR Company, 324
U.S. 192 (1944); Ford Motor Company v. Huffman, 345 U.S. 330 (1952).
Simply stated, the duty of fair representation imposes upon a
labor organization granted exclusive bargaining status under federal
statutes an obligation to serve the interests of all members of the
bargaining unit "without hostility or discrimination... to exercise
its discretion with complete good faith and honesty, and to avoid
arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). The
duty extends to members and non-members alike, Steele v. Louisville
and Nashville RR Company, supra, and encompasses both the collective
bargaining process and the enforcement of the collective bargaining
agreement. Vaca v. Sipes, supra. Although this doctrine has not been
invoked in a reported case in Texas, those jurisdictions having public
employee bargaining statutes similar to our own uniformly have held
that the duty of fair representation does not require a public
emnlovee
. _ association to submit contracts for the approval of
non-members. Pennsylvania Labor Relations Board v. Eastern-Lancaster
County Education Association, 427 A.2d 305 (Pa. 1981); Daigle v.
Jefferson Parish School Board, 345 So.2d 583 (La. 1977); Wald V.
Nassau Chapter Civil Service Employees Association, Inc., 340 N.Y.S.2d
45 (N.Y. SUP. 1973). This result stems from the very nature and
purpbse of cbllectiie bargaining statutes, which is to prbvide for the
orderly resolution of labor disputes by vesting exclusive authority to
negotiate contracts in the representative organization chosen by a
majority vote of the members of a bargaining unit.
We concur with the holdings of other jurisdictions and find that
the duty of fair representation would not require that a public
employee association recognized under article 5154c-1 extend to
non-association members the opportunity to vote on contract
ratification.
SUMMARY
Article 5154c-1 does not require that a public
employee association extend to non-association
members of a bargaining unit the opportunity to
p. 2041
Honorable Gibson D. Lewis - Page 3 (MW-557)
vote on contract ratification. The duty of fair
representation does not require that a public
employee association extend to non-association
members of a bargaining unit the opportunity to
vote on contract ratification.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by William 0. Goodman
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
p. 2042