The Attorney General of Texas
~sy 9, 1984
JIM MAlTOX
Attorney General
Supreme Court Building Mr. Kenneth H. Ashworth Opinion No. JM-156
P. 0. BOX 12548
Austin, TX. 7871,. 2548
Commissioner of Higher Education
512/475-2501 Coordinating Board Re: Whether a community college
Telex 9101874-1367 Texas College & University System district may create a labor
Telecooier 51214750285 P. 0. Box 12788, Capitol Station management committee to conduct
Austin, Texas 78711 discussions concerning employ-
714 Jackson, Suite 700
ment conditions in the district
Dallas, TX. 75202.4508
214ll42-8844 Dear Mr. Ashworth:
You have asked whether article 5154~. V.T.C.S., prevents the
4824 Alberta Ave., Suite 164
El Paso. TX. 789352783
Alamo Community College District from creating a "labor management
9151533.3484 committee" that will discuss general proposals concerning employment
conditions when (1) no official grievance has been filed by any
individual employee and (2) wages, hours of work, and other conditions
,AWl Texas. Suite 700 of work are established by the duly elected college district board of
wston. TX. 77002911,
trustees.
I 1312235886
A letter from the chancellor of the Alamo Community College
608 Broadway, Suite 312 District states that he
Lubbock, TX. 79401.3479
8061747-5238
received a request from the executive director of
the American Federation of State, County, and
4308 N. Tenth, Suite B Municipal Employees (AFSCME), San Antonio Area
McAllen, TX. 78501-1985 Public Employees Local 2399, requesting that we
512/582-4547
'sit and discuss grievances' pertaining to such
matters as a cost of living salary increase, a
200 MaIn Plaza, Suite 400 longevity pay plan, increased mileage, funeral
San Antonio, TX. 78205.2797 leave, and night shift and 24-hour shift
512,2254191 differential pay . . . . I did not, however,
offer to meet with the union for purposes of
An Equal OpportunItyI
discussing those matters . . . .
AffIrmalIve Action Employer
The union replied by indicating that my letter
did not address itself to the union's 'request to
set a date, time and place for a meeting with our
designated Grievance Committee of ACCD Employee
Members . . . .'
I responded to that AFSCME letter by indicating
a willingness to attend any meeting to which I was
p. 686
Mr. Kenneth Il.Ashworth - Page 2 (JM-156)
invited. I also stated that I would not recognize
the union 'ACCD Grievance Committee' as an
official group for purposes of discussions of
wages, hours of work and working conditions within
the district. I advised the union that I worked
directly with staff councils which were composed
of employees who were elected as representatives
from all levels of our organization. I noted that
some of the union's members were elected members
of those councils. Finally, I advised the union
that grievances which we would consider would be
those filed by individual employees under our
grievance procedures. I also recognized the right
for such employees to choose union representation
in pursuit of their grievances.
. . . .
I view the Texas statutes as requiring the
college district to deal with unions in connection
with grievances only when they have been selected
as a representative of an employee who has filed a
grievance on a matter of individual concern to him
or her . . . . Thus, the union would be limited
to representing an employee with respect to the
particular item or items of concern to that
employee as expressed in his/her grievance and
would not be permitted to raise general issues
pertaining to wages, hours of work and conditions
of work within the college district concerning
which no employee has filed a grievance.
. . . .
If the Alamo Community College District and
other governmental units meet with and discuss so-
called 'grievances' by the union in the manner and
under the conditions set forth in the AFSCME
proposal . . . where the union is not representing
any particular employee or employees on any
specific grieved matter, [this] could invite the
very kind of collective bargaining with the union
regarding general conditions of employment which
is prohibited by the statute.
Article 5154c, V.T.C.S., provides in pertinent part as follows:
Section 1. It is declared to be against the
public policy of the State of Texas for any
p. 687
Mr. Kenneth Il.Ashworth - Page 3 (JM-156)
official or group of officials of the State, or of
a County, City, Municipality or other political
subdivision of the State, to enter into a
collective bargaining contract with a labor
organisation respecting the wages, hours, or
conditions of employment of public employees, and
any such contracts entered into after the
effective date of this Act shall be null and void.
Sec. 2. It is declared to be against the
public policy of the State of Texas for any such
official or group of officials to recognize a
labor organization as the bargaining agent for any
group of public employees.
. . . .
Sec. 5. The term 'labor organization' means
any organization of any kind, or any agency or
employee, representation committee or plan, in
which employees participate and which exists for
the purpose, in whole or in part, of dealing with
one or more employers concerning grievances, labor
r disputes, wages, rates of pay, hours of
employment, or conditions of work.
Sec. 6. The provisions of this Act shall not
impair the existing right of public employees to
present grievances concerning their wages, hours
of work, or conditions of work individually or
through a representative that does not claim the
right to strike.
To answer your question, we must first construe sections 1 and 2 of
this article.
Section 1 prohibits officials of political subdivisions from
entering into "a collective bargaining contract with a labor
organization respecting the wages, hours, or conditions of employment
of public employees." In our opinion, the term "collective
bargaining" necessarily contemplates a process in which officials of a
political subdivision and representatives of a labor organization
conduct negotiations with an eye towards reaching a binding,
enforceable, bilateral agreement between the subdivision and the
organisation. Case law supports this view. In Consolidated Edison v.
National Labor Relations Board, 305 U.S. 197, 236 (19381, for example,
the United States Supreme Court described Congress's provision for
collective bargaining in the National Labor Relations Act of 1935 as
having the "manifest objective" of "the making of contracts" between
r
p. 688
Mr. Kenneth H. Ashworth - Page 4 (JM-156)
employers and labor organizations. Similarly, National Labor
Relations Board v. Sands Manufacturing Company, 306 U.S. 332, 342
(1938) states that
[t]he legislative history of the Act goes far to
indicate that the purpose of the statute was to
compel employers to bargain collectively with
their employees to the end that employment
contracts binding on both parties should be made.
(Emphasis added).
Finally, in Beverly v. City of Dallas, 292 S.W.2d 172, 176 (Tex. Civ.
APP. - El Paso 1956, writ ref'd n.r.e.), the court stated that
a contract or agreement resulting from collective
bargaining must of necessity be a bilateral
procedure culminating in a meeting of the &nds
involved and binding the parties to the agreement.
Section 2 prohibits the recognition of a labor organization as
the "bargaining agent" for any group of public employees. The term
"bargaining agent" is clearly a term of art. Webster's New
Intercollegiate Dictionary, p. 89 (1981) defines a "bargain" as "an
agreement between parties settling what each gives or receives in a
transaction between them or what course of action or policy each
pursues in respect to the other." "Bargaining," therefore,
necessarily contemplates negotiations conducted with the intent of
reaching a "bargain." Discussions which do not have this objective do
not constitute "bargaining" within the meaning of section 2.
One kind of discussion which, in our opinion, would not
necessarily constitute "bargaining" is a "consultation." Webster's
New Intercollegiate Dictionary, p. 241 (1981) defines 'consult" as,
inter alla, "to ask the advice or opinion of" or "to deliberate
together." "Consultation" or "meeting and conferring" about
employment conditions is. we believe, perfectly permissible under
article 5154~. As long as the political subdivision merely
"discusses" such conditions, it is in no way obligated to implement
anything discussed during the consultations, and it retains the right
unilaterally to prescribe employment conditions in the district. See
a Beverly v. City of Dallas, supra; Attorney General OpinG
MW-130 (1980).
In our opinion, it is clear that under these two sections,
although political subdivisions may not recognize a labor organization
as the "bargaining" agent for any group of public employees, they may
certainly allow such an organization to act as spokesman for employees
in "consultations." Indeed, the Texas Supreme Court has held that
public employees have an "absolute right" to be represented in ?
p. 689
Mr. Kenneth H. Ashworth - Page 5 (~~-156)
grievance presentations by a union which does not claim the right to
strike. See Corpus Christ1 American Federation of Teachers v. Corpus
Christ1 Independent School District, 572 S.W.2d 663 (Tex. 1978). The
grievance in the Corpus Christ1 case concerned membership on what was
essentially a consultation committee.
The final issue to be addressed is whether the filing of a
"grievance" is a prerequisite to the initiation of "consultations"
between a political subdivision and a labor organization. We conclude
that nothing in article 5154~ supports this proposition.
In Dallas Independent School District v. American Federation of
State, County and Municipal Employees, Local Union No. 1442, 330
S.W.2d 702, 706 (Tex. Civ. App. - Dallas 1959, writ ref'd n.r.e.1, the
appellants complained that the trial court had issued a ruling that
was a declaration that the School Board was thereby "required to treat
with the [plaintiffl labor organisations on all employees as a class,"
and that article 5154~ only contemplated "individual grievances."
In overruling this point, the court of civil appeals made some
pertinent observations:
The judgment in this respect is identical with the
language of the Statute, limiting the authority of
plaintiff-unions to the presentation of
grievances . . . . And though, at times a
plaintiff local may be desirous of acting as
spokesman for fellow public employees as a group
rather than individually, still its role or right
to be heard by the School Board in no event
extends beyond the presentation of grievances.
330 S.W.2d at 707.
The clear import of the court's discussion and its action in
overruling the appellants' point is that article 5154~ does not
contemplate only individual grievances. Thus, we do not believe the
Texas courts would share your view that the Texas statutes require the
district to deal with employee grievances only on "matters of
individual concern." At the same time, we believe it is equally clear
that a local organization such as the one at issue here has a "right"
to be heard by a political subdivision only in instances in which
"grievances" have been raised. Thus, if the question before us were
whether a political subdivision is obligated to meet with a local
organization when no grievance is filed, we would answer in the
negative. As we understand it, however, the question is really
whether a political subdivision is permitted to meet with a local
organization when no formal grievance has been filed, for the purpose
of "consulting" about working conditions. We find nothing in article
p. 690
Mr. Kenneth H. hshworth - Page 6 (JM-156)
5154~. applicable case law, or prior Attorney General Opinions that
supports anything other than an affirmative answer to this question.
To summarize: (1) article 5154c prohibits "collective
bargaining" as well as the recognition of any labor organization as
the "bargaining agent" for any group of public employees; (2)
"consultations" between a labor organization, acting as spokesman for
employees, and officials of a political subdivision regarding
employment conditions are permissible, and such political subdivision
does not violate the prohibition against recognizing a labor
organization as the "bargaining agent" for public employees if it
merely confers with such organization regarding employment conditions;
(3) public employees have the right to present grievances concerning
employment conditions, and may present such grievances through a legal
representative, but the filing of a grievance is not a prerequisite to
the initiation of "consultations" between a labor organization and a
political subdivision. Of course, in applying these conclusions in
any particular fact situation, two other factors must be kept in mind:
(1) local policies will have a bearing on how these matters are to be
handled; and (2) "representatives" of employees who file grievances
under section 6 may not claim the right to strike.
We therefore conclude that article 5154~. V.T.C.S., does not
prohibit a comnity college district from establishing a "labor
management cowaittes" which will discuss general proposals concerning
employment conditions. The filing of a grievance is not a pre-
requisite for such general discussions. The board of trustees must
retain the right unilaterally to establish employment conditions in
the district.
SUMMARY
Article 5154c, V.T.C.S.. does not prohibit the
Alamo CosnnunityCollege District from establishing
a "labor management committee" which will discuss
general proposals concerning employment
conditions. A formal grievance is not a
prerequisite for such discussions. The board of
trustees must retain the right unilaterally to
dictate employment conditions in the district.
JIM MATTOX
Attorney General of Texas
p. 691
. . .
Mr. Kenneth H. Ashworth - Page 7 (JM-156)
TOM GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 692
Untitled Texas Attorney General Opinion
Combined Opinion