Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MATTOX June 21. 1984
Attorney General
Supreme Cowl Building
Honorable Froy Salinas Opinion No. JM-177
P. 0. BOX 12546
Austin. TX. 76711. 2546
Chairman
5121475-2501 State, Federal and International Re: Scope of "conditions of
Telex 9101674.1367 Relations Conrmittee work" with regard to public
Telecopier 512!475.0266 Texas Rouse of Representatives employees' presentation of
P. 0. Box 2910 grievances
714 Jackson, Suite 700 Austin, Texas 78769
Dallas, TX. 75202-4506
2141742.6944 Dear Representative Salinas:
You have asked whether
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793
915/5333464 a state agency [may] ~restrict. limit, narrow or
exclude certain areas of wages, hours, or
conditions of work from the definition of a
-1 Texas, Suite 700
grievance.
~ston. TX. 77002-3111
713/223-5666
Your question refers to a statute~which directs that
606 Broadway. Suite 312 [t]he provisions of this Act shall not impair the
Lubbock, TX. 79401.3479 existing right of public employees to present
8061747.5236
grievances concerning their wages. hours of work,
or conditions of work individually or through a
4309 N. Tenth, Suite B representative that does not claim the right to
McAllen. TX. 76501~1665 strike. (Emphasis added).
512,882-4547
V.T.C.S. art. 5154~. 06. You advise that some agencies do not
200 Main Plaza. Suite 400 recognize
. . an employee's right to file grievances individually or
San Antonio. TX. 76205-2797 through a representative concerning such matters as assignment and
512/225-4191 reassignment of employees, salary schedules, contents of personnel
evaluations, terminations, and other such job-related matters.
An Equal Opportunity/
Affirmative Action Employer We conclude that the key statutory language, "conditions of
work," may not be construed to "restrict, limit, narrow or exclude"
any aspect of the employment relationship from the grievance process.
The Supreme Court of Texas has given a very broad construction to
the term "conditions of work" in article 5154~. section 6. In the
leading csse of Corpus Christi American Federation Teachers v. Corpus
Christ1 Independent School District, 572 S.W.2d 663 (Tex. 1978) (per
r curiam), [hereinafter Corpus Christi AFT] the court concluded that the
membership and agenda of a faculty advisory committee involved a
"condition of work" within the meaning of the statute, despite the
p. 783
1
Honorable Froy Salinas - Page 2 (JM-177)
?
fact that discussion by the coannittee was limited to educational
policy and that consideration of topics such as salaries and fringe
benefits was excluded. The court based its opinion on the grounds
that the committee served "to provide a direct line of communication
to the [school] management," and that, even with the exclusion of some
work-related topics, discussion of many other topics related to
"conditions of work" could possibly have arisen and, indeed, could not
have been precluded in view of the committee's function of
communicating with management. 572 S.W.2d at 664. Though the court
found it unnecessary to define "conditions of work" precisely, it is
plain that its meaning was intended to be very broad.
Thus in Corpus Christ1 AFT the court reasoned that the simple
possibility that some unspecified work-related matters might arise in
labor-management discussion necessarily involved "conditions of work."
You, in contrast, present the case of definite and undisputed con-
ditions of work which have actually arisen in such discussion or which
are normally considered subjects for labor-management communication.
Thus it is unnecessary to go to the full limits of the supreme court's
broad but indefinite construction of that term to declare that the
matters pre~sentedin your letter are indisputably "conditions of work"
for which a grievant may invoke article 5154~. section 6.
This broad construction of the term "conditions of work" is --Y
complemented and supported, moreover, by accepted usage inthe afield
of labor law, and is thus further consistent with the court approved
maxim that terms of art should be construed in their technical sense
in the absence of contrary legislative intent. See, e.g., Lloyd A.
Fry Roofing Company v. State, 541 S.W.2d 639, 642 (Tex. Civ. App. -
Dallas 1976, writ ref'd n.r.e.) (construing "uncombined water"). In
construing article 5154c, the basic statute governing labor-management
relations in state employment, Texas courts have in fact turned to the
usage of analogous federal labor laws to construe terms in the state
statute. See, e.g., Lunsford v. City of Bryan, 297 S.W.2d 115, 117
ITex.
. 1957)
``,.~ (usine
- federal labor law to construe "membershiu" in art.
5154~. $4); Dallas Independent School District v. American Federation
of State, County and Municipal Employees, Local Union No. 1442, 330
S.W.2d 702, 707 (Tex. Civ. App. - Dallas 1959, writ ref'd n.r.e.)
(using federal labor law to construe "representative" in art. 5154c,
§6). In Lunsford the court implicitly found that this constructional
technique was consistent with the intent of the legislature in
enacting article 5154~. Lunsford, supra, at 117.
Section 8(d) of the National Labor Relations Act [hereinafter
N=w, 29 U.S.C. 9158(d), requires unions and management to meet and
confer with respect to "terms and conditions of employment." Section
8(d) is analogous to article 5154~. section 6, because both address
the subject matter of mandatory employer-employee discussion, whether
in collective bargaining or grievance procedures, respectively. Both
the federal courts and the-National Labor Relations Board [hereinafter
NLRB] have interpreted this provision in the BLRA to include virtually
p. 784
Honorable Froy Salinas - Page 3 (JM-177)
s subject which "is an aspect of the relations between [an employer]
and its own employees," Ford Motor Company v. NLRB, 441 U.S. 488. 501
(1979); see also Allied Chemical A Alkali Workers of America, Local
Union No. 1 v. Pittsburg Plate Glass Company Chemical Division, 404
U.S. 157, 178-79 (1971), or which involves "a departure from
previously established operating practices, or . . . a significant
impairment of job tenure, employment security, or reasonably
anticipated work opportunities . . . .u Westinghouse Electric
Corporation, 150 N.L.R.B. 1574, 1576 (1965). Nor is it relevant that
the employer considers the issue "too trivial" so long as the
employees consider the matter substantial. Ford Motor Company, supra,
at 501. It 1s~ therefore plain that the expression "terms and
conditions of employment" found in section 8(d) of the NLRA includes
the public employees' activities as set forth in your letter, and when
section 8(d) is used as an aid in construction of the state statute.
this approach also confirms that these activities are "conditions of
work" within the meaning of article 5154~. section 6.
SUMMARY
Under both state decisional law and accepted
usage in the field of labor law, a state agency
may not unduly and unjustly restrict the scope of
matters included in "conditions of work" as a
means to limit the protections of article 5154~.
section 6, V.T.C.S., offered to state employees
presenting grievances. Instead, the term "con-
ditions of work" should be construed broadly to
include any ares of wages, hours or conditions of
employment, and any other matter which is
appropriate for communications from employees to
employer concerning an aspect of their relation-
ship.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICPARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
p. 785
Honorable Froy Salinas - Page 4 (JM-177)
APPROVD:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Nancy Sutton
p. 786