Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 7,2008
The Honorable Joe Driver Opinion No. GA-0625
Chair, Committee on Law Enforcement
Texas House of Representatives Re: Authority of a Type A general-law city to
Post Office Box 2910 permit employee payroll deduction as part of a
Austin, Texas 78768-2910 collective bargaining agreement (RQ-0647-GA)
Dear Representative Driver:
You explain that the City of Balcones Heights ("City"), a Type A general-law city with a
population below 10,000, "has entered into a collective bargaining agreement with its police
officers['] association" and that "[t]he agreement provides that the city will payroll deduct dues for
members of the police officers['] association."! We assume, based on arguments set out in your
request letter, that this agreement was made pursuant to the Fire and Police Employee Relations Act
("FPERA"), codified at chapter 174, Local Government Code. Request Letter, supra note 1, at 1.2
You indicate that "[t]he [C]ity is concerned that it cannot legally payroll deduct [association] dues,
since Local [Government] Code section 141.008, which gives permission to cities over 10,000 to
do payroll deductions, does not apply" to the City. Id.; see UNITED STATES CENSUS BUREAU, 2000
CENSUS OF POPULATION: POPULATION FINDER (population of Balcones Heights, Texas is 3,016),
available at http://www.factfinder.census.govl) (last visited May 5, 2008). Accordingly, you ask
whether "a general law city, with a population below 10,000, [may] lawfully provide payroll
deduction [of association dues] for its employees when the city has entered into a collective
bargaining contract that provides for payroll deduction[.]" Request Letter, supra note 1, at 1.
A general-law municipality possesses those powers and privileges expressly conferred upon
it by state law or necessarily implied therefrom. Tex. Dep 't ofTransp. v. City ofSunset Valley, 146
ISee Letter from Honorable Joe Driver, Chair, Committee on Law Enforcement, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Nov. 9, 2007) (on file with the Opinion
Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].
2AccordBrieffrom Michael L. Rickman, Senior Attorney, Combined Law Enforcement Associations ofTexas,
to Nancy S. Fuller, Chair, Opinion Committee, Office of Attorney General, at 3 (Jan. 31, 2008) ("The citizens of
Balcones Heights voted to give the police officers the right to bargain for benefits and privileges granted in Chapter
174.001 et. seq., Texas Local Government Code."). The brief also explains that the "[C]ity and its fire and police
employees were never covered by Chapter 143" ofthe Texas Local Government Code, which provides for a municipal
civil service system. Id. at 4.
The Honorable Joe Driver - Page 2 (GA-0625)
S.W.3d 637, 645 (Tex. 2004); City of West Lake Hills v. Westwood Legal De! Fund, 598 S.W.2d
681,683 (Tex. Civ. App.-Waco 1980, no writ); Tex. Att'y Gen. Ope No. GA-0084 (2003) at 8.
"[A] power will be implied only when such power is reasonably incident to those expressly granted
or is essential to the object and purposes of the corporation." Westwood Legal De! Fund, 598
S.W.2d at 683.
As you point out, section 141.008, Local Government Code, expressly provides that "[t]he
governing body of a municipality with a population of more than 10,000 may deduct from a
municipal employee's monthly salary or wages an amount requested in writing by the employee in
payment ofmembership dues to a bona fide employee's association named by the employee." TEX.
Loc. GOV'T CODE ANN. § 141.008(a) (Vernon 2008). We find no express authority or express
prohibition in state law for a municipality with a population of 10,000 or fewer to provide the type
of payroll deductions you ask about. We consider then whether a general-law municipality with a
population of 10,000 or fewer that is operating under the FPERA has implied authority to provide
payroll deductions for association dues.
We begin the search for implied authority under the FPERA by examining a city's duties
under the Act. Section 174.105 ofthe FPERA provides that when police officers are represented by
an association, "the public employer and the association shall bargain collectively." Id § 174.1 05(a).
"[T]he duty to bargain collectively means a public employer and an association shall[, among other
things,] confer in good faith regarding compensation, hours, and other conditions of employment."
Id. § 174.105(b)(2).
The terms "compensation, hours, and other conditions ofemployment" are not defined in the
FPERA, and we find no Texas case that addresses whether payroll deductions like those at issue here
are encompassed within these terms. But the Corpus Christi Court of Appeals has explained that
[t]he statutory duty imposed by the FPERA is the same duty imposed
by the National Labor Relations Act (NLRA) on private sector
employers and labor units. The subjects included within these
·categories are referred to as mandatory subjects of bargaining
preventing either the employer or the employee from taking unilateral
action on the subject. 3
Corpus Christi Fire Fighters Ass'n v. City of Corpus Christi, 10 S.W.3d 723, 726 (Tex.
App.-Corpus Christi 1999, pet. denied) (citation omitted) (footnote added). In other words,
"compensation, hours, and other conditions of employment" are mandatory subjects of bargaining
under the FPERA, just as they are under the NLRA. See id.; TEX. Loc. GOV'T CODE ANN.
§ 174.105(b)(2) (Vernon 2008).
3See Nat'l Labor Relations Bd. v. BASF Wyandotte Corp., 798 F.2d 849,852-53 (5th Cir. 1986) (explaining
the three general categories of subjects of bargaining under the NLRA: (1) mandatory subjects of bargaining; (2)
permissive subjects of bargaining; and (3) illegal subjects of bargaining).
The Honorable Joe Driver - Page 3 (GA-0625)
The determination of whether a particular item falls within these three broad subject areas
can be difficult. "With respect to the limitations on what should be considered mandatory subjects
of bargaining [under the NLRA], the Court has stated in broad terms that 'the limitation includes
only issues that settle an aspect of the relationship between the employer and the employees. ,,,
Corpus Christi Fire Fighters Ass 'n, 10 S.W.3d at 726 (quoting Allied Chern. & Alkali Workers of
Am., Local Union No.1 v. Pittsburgh Plate Glass Co., Chern. Div., 404 U.S. 157, 178 (1971)).
"Under state employment laws related to public employees, a recognized limitation on
mandatory bargaining is the concept ofmanagement prerogative, which involves issues ofpolicy that
should be exclusively reserved to a government's discretion." Id. at 726-27 (footnote deleted).4 The
Corpus Christi Court of Appeals has recognized the managerial prerogative limitation in regard
to the FPERA holding "that a balancing test should be applied" such that "a proposed subject
constitutes a condition of employment under the FPERA only if it has a greater effect on working
conditions than on management prerogatives." Id. at 727-28.
The Corpus Christi court applied the balancing test to the question of whether grooming
standards constitute a condition of employment as a matter of law. Id at 726, 728. The court found
that the policy had a greater effect on management prerogatives than on working conditions. Id. at
728. The purpose ofthe grooming standards policy was to improve the image ofthe fire department
and promote safety. Id. As to these concerns, the court explained that they "are largely subjective
in nature and directly reflect a reasonable departmental policy." Id. In contrast, the policy's effect
on working conditions was minimal as the is~ues addressed in the grooming policy had little to do
with the fire fighter's ability to perform his or her job. Id.
We find no Texas cases to guide us in the application of this balancing test to the question
you pose. Thus, we look to other jurisdictions that have applied a balancing test to the question of
whether payroll deductions are a management prerogative excluded from collective bargaining. In
National Education Association-Topeka, Inc., v. USD 501, Shawnee County, the Kansas Supreme
Court considered whether the "payroll deduction ofNEA-Topeka dues," among other things, was
a mandatorily negotiable "term[] and condition[] of professional service." 592 P.2d 93,97 (Kan.
1979). The test the court applied to make this determination was whether the deductions had a
greater direct impact on the well-being ofthe individual teachers than on the operation ofthe school
system. Id. Although payroll deductions worked· to benefit directly the teacher association in
transacting its affairs, the court recognized that the teacher association is simply an agent for the
teachers and "stands in the shoes ofthe teacher" under the test. Id. at 98. The court noted that there
was no evidence that payroll deduction had any significant impact on the operation of the school
4"Perhaps the single greatest, and almost universally recognized, limitation on the scope of bargaining or
negotiation by state public employees is the concept of managerial prerogative[;] ... the concept creates a dichotomy
between 'bargainable' issues, that is, those issues which affect conditions of employment, and issues of 'policy' which
are exclusively reserved to government discretion and cannot be made mandatory subjects of bargaining." Deborah
Tussey, Annotation, Bargainable or Negotiable Issues in State Public Employment Labor Relations, 84 A.L.R. 3d 242,
255-56 § 3[a] (1978).
The Honorable Joe Driver - Page 4 (GA-0625)
district but did have considerable impact on the teachers. Id. The court held that the payroll
deduction ofNEA-Topeka dues was a mandatory subject of negotiation. Id.
We believe the same reasoning applies here and that the payroll deduction ofassociation dues
has a greater effect on police officers' working conditions than on City management prerogatives.
A payroll deduction is of direct benefit to the police officers' association in transacting its affairs,
and the association is but an agent for the police officers as they exercise their right to negotiate.
TEX. Loc. GOV'T CODE ANN. § 174.102 (Vernon 2008). Unlike the grooming standard considered
by the Corpus Christi court, the issue of payroll deductions for association dues does not impact
public safety or the public's perception of the police department. See Corpus Christi Fire Fighters
Ass'n, 10 S.W.3d at 728. A payroll deduction does not, in our opinion, implicate the type of
subjective policy issues. that have been held by other jurisdict~ons to fall within the management
prerogative. See, e.g., Fraternal Order ofPolice, Miami Lodge 20 v. City ofMiami, 609 So. 2d 31,
34-35 (Fla. 1992) (holding that random drug testing is a management prerogative when there is
evidence of drug involvement by specific officers); Town ofBillerica v. Int 'I Assoc. ofFirefighters,
Local 1495, 615 N.E.2d 564, 565-66 (Mass. 1993) (holding that a minimum staffing provision was
a nondelegable right of management); Frackville Borough Police Dep't v. Penn. Labor Relations
Bd., 701 A.2d 632,635 (Pa. Commw. Ct. 1997) (holding that the selection ofamanager for a police
pension fund was a management prerogative). In sum, we conclude that the payroll deduction of
association dues is not a managerial prerogative and thus, is a proper subject of bargaining or
negotiation. 5
Having concluded that the payroll deduction of association dues is not excluded from
collective bargaining, we next consider whether such a payroll deduction is an item encompassed
within the terms "compensation, hours, and other conditions of employment"-mandatory subjects
of bargaining under the FPERA. Because Texas courts have indicated that the statutory duty under
the FPERA is the same duty imposed by the NLRA, we look to the NLRA and cases interpreting that
Act to resolve this issue. See McAllen Police Officers Union v. Tamez, 81 S.W.3d 401, 409 (Tex.
App.-Corpus Christi 2002, pet. dism'd) (looking to the NLRA, and the cases interpreting the
NLRA, to resolve issues under the FPERA); Int 'I Assoc. ofFirefighters, Local 399, Beaumont, v.
City ofBeaumont, 610 S.W.2d 543, 545-46 (Tex. Civ. App.-Beaumont 1980, no writ) (looking to
the NLRA to support the notion that vacation time is a condition of employment and legitimate
subject for collective bargaining under the FPERA). The Fifth Circuit Court ofAppeals has held that
a dues checkoff is a condition of employment and a mandatory subject of bargaining. Nat 'I Labor
Relations Bd. v. J.P. Stevens & Co., Gulistan Div., 538 F.2d 1152, 1165 (5th Cir. 1976); Sweeney
& Co. v. Nat 'I Labor Relations Bd., 437 F.2d 1127, 1134 (5th Cir. 1971). Like the payroll deduction
here, a dues checkoff is the deduction of union dues from the company's wage payments to the
employees. HK. Porter Co. v. Nat 'I Labor Relations Bd., 397 U.S. 99, 100 (1970); see also In re
NJ. Transit Bus Operations, Inc., 592 A.2d 547, 555 (N.J. 1991) (discussing the fact that the phrase
5We note that if such a payroll deduction would require an appropriation of money by any governing body, an
association must "serve on the public employer a written notice of its request for collective bargaining at least 120 days
before the date on which the public employer's current fiscal operating budget ends." TEX. Lac. GOV'T CODE ANN. §
174.107 (Vernon 2008).
The Honorable Joe Driver - Page 5 (GA-0625)
"check-off rights" is associated with private sector collective bargaining while "payroll deduction"
is the language traditionally associated with public sector collective negotiation). Based on this Fifth
Circuit precedent we conclude that the payroll deduction of association dues is a mandatory subject
of bargaining under the FPERA.
Because we conclude that the payroll deduction of association dues is a mandatory subject
of bargaining under the FPERA, we believe the City's duty under section 174.105 ofthe FPERA to
bargain collectively with a police officers' association implicitly gives the City authority to provide
this type ofpayroll deduction. TEX. Loc. GOV'TCODEANN. § 174.105 (Vemon2008). Suchpower
is fairly implied in or incident to the duty expressly imposed on the City to collectively bargain under
the FPERA. Our conclusion here comports with the policy objectives articulated in the FPERA and
the legislative mandate to construe the FPERA liberally. TEX. Loc. GOV'TCODEANN. §§ 174.002
(Vernon 2008) (setting out the policy objectives of the FPERA); 174.004 ("This chapter shall be
liberally construed.")~
The Honorable Joe Driver - Page 6 (GA-0625)
SUMMARY
The issue of payroll deduction of association dues is a
mandatory subject ofbargaining under the Fire and Police Employee
Relations Act ("FPERA"), codified at chapter 174, Local Government
Code. Thus, we conclude that a general-law municipality with a
population of 10,000 or fewer and a duty to bargain collectively under
section 174.105 of the FPERA has implied authority to provide
payroll deductions for association dues.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Christy Drake-Adams
Assistant Attorney General, Opinion Committee