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# The Attorney General of Texas

December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. BOX 12546 Austin, TX. 76711. 2548 512,475.2501 Telex 910/674-1367 Telecopier 5121475.0266

1607 Main St., Suite 1400 Dallas, TX. 75201-4709 2141742.6944

4624 Alberta Ave., Suite 160 El Paso, TX. 799052793 91W533.3464

1220 Dallas Ave., Suite 202 Houston. TX. 77002-6966 7131650-0666

606 Broadway, Suite 312 Lubbock. TX. 79401-3479 8061747-5236

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200 Main Plaza. Suite 400 San Antonio, TX. 76205.2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer Honorable GibsonD. (Gib)Lewis Chairman Committee on Intergovernmental Affairs House of Representatives Room 114,John H. Reagan Bldg. Austin, Texas 78711 OpinionNo.FlW-557
I&: Constr"ctionof article 5154c-1,V.T.C.S.

Dear RepresentativeLewis:
You have requested our opinion whether as a part of its duty of fair representation, a police association recognized under article 5154c-1,V.T.C.S., is required to extend tonon-associationmembers of a bargainingunit the opportunityto vote on contract ratification. Policemen and firemen employed by cities that have adopted the provision of article 5154c-1,V.T.C.S.,have the right to organizeand bargain collectively. If after election it is shown that a majority of policemen working for a department desire to organize, the public employer must recognize the organization as "the sole and exclusive bargaining agent" for all the policemen in that department. V.T.C.S. art. 5154c-1(6)(b).
A careful readingof the statute revealsno language requiringan association to permit non-members of the bargaining "nit to vote on contractratification. Nor, for thatmatter, does the statute require the association to extend this right to its members. Section 8 provides inpart:

Whenever a public employer and an association reach an agreement on compensation and/or other terms and conditions of employment.... [tlhe agreement shall be enforceable and shall be binding upon the public employer, the association, and the firefightersor policemen covered therein. While the right to vote on contract ratification could be extended to members and/or non-members through an organization's constitutionor by-laws, the statutedoesnot mandate this result. It is clear from the language found in section 8 that an agreement need

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only be reached between the association, i.e., its bargaining agent, and the employer to legallybind allmembers of theunit.
In your requestyou cite the duty of fair representationand ask whether or not this duty, article 5154c-1 notwithstanding, requires public employee associations to seek contract ratification from non-members. The duty of fair representation had its origins and has been chiefly defined through a series of federal court decisions interpretingthe National Labor RelationsAct, 29 U.S.C. section 151 et seq. See, e.g., Steelev. Louisville andNashvilleRR Company, 324 U.S. 192 (1944);FordMotor Companyv. Huffman, 345 U.S. 330 (1952). Simply stated, the duty of fair representation imposes upon a labor organization granted exclusive bargaining status under federal statutes an obligation to serve the interests of all members of the bargaining unit "without hostility or discrimination... to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). The duty extends to members and non-members alike, Steele v. Louisville and Nashville RR Company,supra, and encompassesboth the collective bargaining process and the enforcement of the collective bargaining agreement. Vaca v. Sipes,supra. Although this doctrinehas not been invoked in a reported case in Texas, those jurisdictionshaving public employee bargaining statutes similar to our own uniformly have held that the duty of fair representation does not require a public emnlovee association to submit contracts for the approval of

. _ non-members. PennsylvaniaLabor Relations Board v. Eastern-Lancaster County Education Association, 427 A.2d 305 (Pa. 1981); Daigle v. Jefferson Parish School Board, 345 So.2d 583 (La. 1977); Wald V. Nassau Chapter Civil ServiceEmployeesAssociation, Inc., 340 N.Y.S.2d 45 (N.Y. SUP. 1973). This result stems from the very nature and purpbse of cbllectiiebargaining statutes,which is to prbvide for the orderly resolutionof labordisputesby vesting exclusiveauthority to negotiate contracts in the representative organization chosen by a majorityvote of themembers of a bargainingunit.
We concurwith the holdings of other jurisdictionsand find that the duty of fair representation would not require that a public employee association recognized under article 5154c-1 extend to non-association members the opportunity to vote on contract ratification. SUMMARY

Article 5154c-1 does not require that a public employee association extend to non-association members of a bargaining unit the opportunity to

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vote on contract ratification. The duty of fair representation does not require that a public employee association extend to non-association members of a bargaining unit the opportunity to vote on contractratification.

MARK WHITE Attorney General of Texas JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby William 0. Goodman AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Rick Gilpin Jim Moellinger

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