- . 

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 

4309 N. Tenth. Suite B 

McAllen, TX. 76501.1665 

5121662-4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205.2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Gibson D. (Gib) Lewis 

Chairman 

Committee on Intergovernmental 

Affairs 

House of Representatives 

Room 114, John H. Reagan Bldg. 

Austin, Texas 78711 

Opinion No.FlW-557 

I&: Constr"ction of article 

5154c-1, V.T.C.S. 

Dear Representative Lewis: 

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 to non-association members of 

a bargaining unit the opportunity to 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 organize and 

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 reading of the statute reveals no language requiring an 

association to permit non-members of the bargaining "nit to vote on 

contract ratification. Nor, for that matter, does the statute require 

the association to extend this right to its members. Section 8 

provides in part: 

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 firefighters or policemen covered therein. 

While the right to vote on contract ratification could be 

extended to members and/or non-members through an organization's 

constitution or by-laws, the statute does not mandate this result. It 

is clear from the language found in section 8 that an agreement need 

p. 2040 
Honorable Gibson D. Lewis - Page 2 (MW-557) 

only be reached between the association, i.e., its bargaining agent, 

and the employer to legally bind all members of the unit. 

In your request you cite the duty of fair representation and 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 

interpreting the National Labor Relations Act, 29 U.S.C. section 151 

et seq. See, e.g., Steele v. Louisville and Nashville RR Company, 324 

U.S. 192 (1944); Ford Motor Company v. 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 encompasses both the collective 

bargaining process and the enforcement of the collective bargaining 

agreement. Vaca v. Sipes, supra. Although this doctrine has not been 

invoked in a reported case in Texas, those jurisdictions having 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. Pennsylvania Labor 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 Service Employees Association, Inc., 340 N.Y.S.2d 

45 (N.Y. SUP. 1973). This result stems from the very nature and 

purpbse of cbllectiie bargaining statutes, which is to prbvide for the 

orderly resolution of labor disputes by vesting exclusive authority to 

negotiate contracts in the representative organization chosen by a 

majority vote of the members of a bargaining unit. 

We concur with the holdings of other jurisdictions and 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 

p. 2041 
Honorable Gibson D. Lewis - Page 3 (MW-557) 

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 contract ratification. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by William 0. Goodman 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Rick Gilpin 

Jim Moellinger 

p. 2042