Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 4, 2015
The Honorable Carol Alvarado Opinion No. KP-0044
Chair, House Committee on Urban Affairs
Texas House of Representatives Re: Whether section 142.056 of the Local
Post Office Box 2910 Government Code limits the frequency of
Austin, Texas 78768-2910 elections regarding the exclusive bargaining
agent for municipal police (RQ-0029-KP)
Dear Representative Alvarado:
Chapter 142, subchapter B of the Local Government Code authorizes certain municipalities
to negotiate with the exclusive bargaining agent of covered police officers pursuant to a "meet and
confer" agreement. See TEX. Loe. Gov'T CODE §§ 142.051-.068. On behalf of Representative
Chris Turner, you ask whether section 142.056 in subchapter B limits the frequency of elections
regarding the exclusive bargaining agent for municipal police. 1
The request letter provides the following facts. For several years, the Arlington Police
Association (the "APA") has been the recognized exclusive representative of covered police
officers of the City of Arlington (the "City") for meet-and-confer purposes. Supp. Request at 1.
Recently, the Arlington Municipal Police Association (the "AMPA") submitted a petition to be
recognized as the exclusive representative instead of the AP A. Id. The city ordered an election
pursuant to section 142.056, held in February 2015, to allow the affected police officers to decide.
if AMP A would become their new representative. Id. Because a majority of officers did not vote
for the AMP A, the AP A remains the exclusive representative for bargaining purposes. Id. at 1-2.
The AMP A has now sqbmitted a second petition to be recognized as the exclusive representative.
Id. at 2. Although the election on the first petition was held earlier this year, the city is
contemplating ordering an election on the. second petition. Id. The request letter notes that section
142.056 does not state how often an election must be held in response to such petitions and
therefore asks "whether [section] 142.056 should be interpreted to include a 12-month election bar
rule" similar to statutes in the National Labor Relations Act (the "NLRA"). Id. (citing 29 U.S.C.
§ 159(c)(3)).
'See Letter from Honorable Carol Alvarado, Chair, House' Comm. on Urban Affairs, to Honorable Ken
Paxton, Tex. Att'y Gen. at 1 (June 16, 2015) and Letter from Honorable Chris Turner, Tex. House of Reps., to
Honorable Ken Paxton, Tex. Att'y Gen. at 2 (June 16, 2015) ("Supp. Request"),
https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs; see also Letter from Honorable Robert
Rivera, Arlington City Council, to Honorable Chris Turner (June 10, 2015) (on file with the Op. Comm) (collectively
the "Request Letter").
The Honorable Carol Alvarado - Page 2 (KP-0044)
Courts construe a statute in the context of the statutory scheme as a whole. Tex. Dep 't of
Transp. v. City ofSunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). Thus, we review chapter 142,
subchapter B and its election provisions. Subchapter B allows certain municipalities to decide
whether to recognize an association as the sole and exclusive bargaining agent of covered
municipal police officers for negotiating certain terms and conditions of employment under a
"meet and confer" agreement. See TEX. Loe. Gov'T CODE§§ 142.051-.068 (subchapter B).
Under the subchapter, some issues may be decided by an election by the voting public of the
municipality (a "municipal election") and some issues may be decided by an election by the
affected police officers themselves, as discussed below. Initially, a particular association may seek
recognition as the "sole and exclusive" municipal police officer bargaining agent by presenting the
municipality with a petition signed by the majority of all of the police officers, excluding certain
employees. Id. § 142.053(a). A municipal governing body receiving such a petition for
recognition has three options. First, the governing body may grant recognition as its own decision,
without calling for any election. Id. § 142.053(a)(l). Second, the governing body may defer
recognition and call for a municipal election, so that the voting public may decide whether the
municipality may meet and confer under subchapter B. Id. §§ 142.053(a)(2), .055(a)-(c)
(providing for a municipal meet-and-confer election). Third, a governing body receiving such a
petition may order a police officer election, referred to in the statute as a certification election, to
determine whether the association represents a majority of the affected police officers. Id.
§§ 142.053(a)(3), .054. The election may be held by agreement of the parties or may be conducted
by the American Arbitration Association, with election costs to be borne by "the associations
named in any petition." Id. § 142.054(a), (b), (d). If the association named in the petition receives
a majority of the officers' votes, the governing body must either recognize the association as the
sole and exclusive representative or call for a municipal election to decide whether the municipality
may meet and confer under the subchapter. Id.§§ 142.053(b)(l), (2), .055.
Although a certification election "resolves the question concerning representation," id.
§ 142.054(c), police officers may seek to change the recognition of an association by filing "a
petition signed by a majority of all covered officers." Id. § 142.056(a). In response to a petition
for change, the governing body may either recognize the change or order a certification election
to be held under section 142.054. Id.§ 142.056(b)(l)-(2). Neither section 142.056 nor any other
provision in subchapter B, however, suggests that a certification election precludes subsequent
petitions for change or limits the number of certification elections that may be conducted within a
given period ohime. Id.§§ 142.051-.068.
By contrast, several provisions in subchapter B state that a public municipal election may
bar subsequent elections or petitions for a period of time. Section 142.055 provides that whenever
a municipal election has been held under the subchapter, no association may submit a subsequent
petition for. recognition "before the second anniversary of the date of the election." Id.
§ 142.055(£). Another provision states that when a governing body has granted recognition after
a municipal election, the governing body must wait two years before it may order an election to
repeal meet-and-confer authorization. Id. § 142.065(b). That provision states further that, when a
. municipal election to repeal meet-and-confer authority has been held, no association may submit
another petition seeking recognition for two years after the election. Id. § 142.065(g). These
provisions demonstrate that the Legislature knows how to give an election preclusive effect if it
so chooses. "When the Legislature includes a right or remedy in one part of a code but omits it in
The Honorable Carol Alvarado - Page 3 (KP-0044)
another that may be precisely what the Legislature intended." PPG Indus., Inc. v. JMB/Houston
Ctrs. Partners Ltd. P 'ship, 146 S.W.3d 79, 84 (Tex. 2004) (stating further that courts "must honor
that difference"). Because subchapter B provides for municipal elections to have preclusive effect,
we must assume that the omission of a provision giving similar preclusive effect to certification
elections was deliberate. See id.
The request letter asks, however, if subsection 142.056(b) might be construed as
incorporating a federal "election bar rule." See Supp. Request at 2. The request letter notes that
the NLRA provides that "[n]o election shall be directed in any bargaining unit or any subdivision
within which in the preceding twelve-month period, a valid election shall have been held." 29
U.S.C. § 159(c)(3); see Supp. Request at 2. The request letter further notes that a Texas court has
borrowed law from the NLRA in another context, applying a statute oflimitations from the NLRA
to a state labor-relations claim. See Supp. Request at 2 (citing Diaz v. San Antonio Prof'! Fire
Fighters Ass'n., 185 S.W.3d 37, 40 (Tex. App.-San Antonio 2005, no pet.)).
The representation provisions of the NLRA do not apply to Texas municipal employees.
CityofRoundRockv. Rodriguez, 399 S.W.3d 130, 136-37 (Tex. 2013)(citing 29 U.S.C. § 152(2)).
Courts have, on occasion, looked to federal law to clarify a state statute "when a Texas statute and
federal statute are animated in their common history, language, and purpose." Id. at 13 5 (quotation
marks omitted). For example, courts have relied on federal law to determine the meaning of a
word or phrase in a Texas labor-relations statute that has acquired a technical meaning. See, e.g.,
Sayre v. Mullins, 681S.W.2d25, 28 (Tex. 1984) ("condition of work"); Lunsfordv. City ofBryan,
297 S.W.2d 115, 117 (Tex. 1957) ("membership"); Dallas Indep. Sch. Dist. v. Am. Fed'n ofState,
Cnty. & Mun. Emp., 330 S.W.2d 702, 707 (Tex. Civ. App.-Dallas 1959, writ refd n.r.e.)
("representative"). And as the request letter notes, courts have applied an NLRA statute of
limitations to a state cause of action when it will require a "review and interpretation of the
pertinent labor agreement and [the cause of action] strongly resembles an unfair labor practices
charge." Flores v. Metro. Transit Auth., 964 S.W.2d 704, 707 (Tex. App.-Houston [14th Dist.]
1998, no pet.); see also Diaz, 185 S.W.3d at 40.
But courts construe a Texas public labor relations statute, like any other statute, with a goal
of discerning the Legislature's intent. City of Round Rock, 399 S.W.3d at 133. As the Texas
Supreme Court recently noted, the Texas Legislature can and has made policy choices in Texas
labor-relation statutes that differ from Congress's choices in the NLRA. Id. at 137 ("In
Texas, ... labor policy and regulation is determined exclusively by the Texas Legislature and the
language of its legislative enactments."). Because chapter 142, subchapter Bas a whole indicates
that the Legislature chose not to give officer elections preclusive effect, section 142.056 of the
Local Government Code cannot be construed as incorporating federal law to the contrary. See id.
at 13 9 (refusing to incorporate representation rights under the NLRA when the state statute is silent
on the issue). Accordingly, section 142.056 of the Local Government Code does not preclude
subsequent petitions or certification elections for a period of time after an election is held under
that section.
The Honorable Carol Alvarado - Page 4 (KP-0044)
SUMMARY
Section 142.056 of the Local Government Code does not
preclude a police officers association from filing subsequent
petitions for recognition as the exclusive bargaining agent or
preclude holding certification elections for a period of time after an
election is held under that section.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
WILLIAM A. HILL
Assistant Attorney General, Opinion Committee