Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 5/7/2008
Status: Precedential
Modified Date: 7/6/2016
The Honorable Joe Driver Chair, Committee on Law Enforcement Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910
Re: Authority of a Type A general-law city to permit employee payroll deduction as part of a 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."1 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 l.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.gov/) (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 of Transp. v. City of Sunset Valley, *Page 2
As you point out, section
We begin the search for implied authority under the FPERA by examining a city's duties under the Act. Section 174.105 of the FPERA provides that when police officers are represented by an association, "the public employer and the association shall bargain collectively." Id. § 174.105(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 of employment" 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,
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,
"Under state employment laws related to public employees, a recognized limitation on mandatory bargaining is the concept of management prerogative, which involves issues of policy 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 of the grooming standards policy was to improve the image of the 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 issues 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 of NEA-Topeka dues," among other things, was a mandatorily negotiable "term[ ] and condition of professional service."
We believe the same reasoning applies here and that the payroll deduction of association 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 FightersAss'n,
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,
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 of the FPERA to bargain collectively with a police officers' association implicitly gives the City authority to provide this type of payroll deduction. TEX. LOC. GOV'T CODE ANN. § 174.105 (Vernon 2008). Such power 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'T CODE ANN. §§ 174.002 (Vernon 2008) (setting out the policy objectives of the FPERA); 174.004 ("This chapter shall be liberally construed."). *Page 6
Very truly yours,
GREG ABBOTT, Attorney General of Texas
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
National Education Ass'n-Topeka, Inc. v. U.S.D. No. 501 ( 1979 )
Texas Department of Transportation v. City of Sunset Valley ( 2004 )
Sweeney & Company, Inc. v. National Labor Relations Board ( 1971 )
National Labor Relations Board v. J. P. Stevens & Company, ... ( 1976 )
Matter of NJ Transit Bus Operations, Inc. ( 1991 )
H. K. Porter Co. v. National Labor Relations Board ( 1970 )
Fraternal Order of Police v. City of Miami ( 1992 )
Corpus Christi Fire Fighters Ass'n v. City of Corpus Christi ( 2000 )
City of West Lake Hills v. Westwood Legal Defense Fund ( 1980 )
Allied Chemical & Alkali Workers of America, Local Union No.... ( 1971 )