December 31, 1986 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston. Suite 634 

Eouston, Texas 77002 

Opinloo No. .JM-614 

Be: Whether Harris County may adopt 

a policy that prohibits supervisory 

personnel in the Adult Probation 

Department from belonging to the same 

union as rank-and-file employees 

Daar Mr. Driscoll: 

Pou ask the following question: 

May the board of judges over the Harris County 

Adult Probation Department and/or the Harris 

County Adult Probation Department adopt a policy 

which prohibits all supervisory personnel within 

the department from joining and/or belonging to 

the same union or association as the employees 

they supervise? 

The district judge or judges trying criminal cases In a judicial 

district are required to establish a probation office and employ 

personnel necessary to carry on the work of the office. Code. Grim. 

Proc. art. 42.12, $10(a), (b). A necessary concomitant of a governmental body's statutory authority to employ personnel is the power to 

adopt reasonable employment policies calculated to achieve the governmental body's objectives. Attorney General Opinions JM-93 (1983); 

JM-188 (1984). Such employment policies may not, however. conflict 

with general state law.- See generally City- of Brookside Village V. 

Comeau , 633 S.W.Zd 790. 796 (Tex. 1982) (ordinance of political 

subdivision cannot conflict with state law). 

We think that the rule you ask about is impermissible because it 

conflicts with the following statutory provision: 

It is declared to be the public policy of the 

State of Texas that no person shall be denied 

public employment by reason of membership or 

nonmembership in a labor organization. 

p. 2762 
Honorable Mike Drlscoll - Page 2 (JM-614) 

V.T.C.S. art. 5154~. $4. That provision gives public employees the 

right to be members of labor unions. Lunsford v. City of Bryan, 297 

S.W.Zd 115 (Tex. 1957). But see art. 5154~. 551, 2, and 3 (public 

awolovees may not strike or ensage in collective bargaining). In 

Beverly v. City of Dallas, 292 S-.cZd 172, 176 (Tex. Civ. App. - El 

Paso 1956, writ ref'd n.r.e.), the court held that an ordinance 

prohibiting city employees from belonging to a labor union conflicted 

with article 5154~. section 4. Article 5154c, section 4. applies to 

all public employaes. It makes no exception for supervisory 

employees. Nor is there any limitation or qualification In article 

5154c, section 4. that would allow a rule that prohibits membership in 

a particular union. Accordingly, article 5154~. %4. prohibits the 

board of judges in charge of a probation office from adopting a rule 

prohibiting supervisory employees from belonging to the same union as 

rank-and-file employees. 

A brief submitted on behalf of the Harris County Adult Probation 

Department argues that such a rule would be valid for the following 

reasons : (1) the United States Supreme Court has held that the 

National Labor Relations Act has preempted state laws that prohibit 

supervisors from belonging to the same union as rank-and-file 

employees; (2) the Fifth Circuit has held that the First Amendment 

right to freedom of association does not give public employees who are 

supervisors the right to belong to the same union as the rank-and-file 

employees; (3) article 5154~ is ambiguous; and (4) management should 

be able to demand undivided loyalty from its agents. We will address 

each of those arguments. 

In Beasley v. Foodfalr of North Carolina, Inc.. 416 U.S. 653 

(1974). the Supreme Court held that section 14(a) of the National 

Labor Relations Act [NLBAI. 29 U.S.C. 1164(a), precluded an action 

under state law to recover damages for the discharge of supervisory 

employees because of their union membership. Enforcement of the state 

law, the court held, would flout the policy underlying section 14(a), 

which is to allow employers to treat supervisors differently from 

rank-and-file employees. Beasley is inapposite to the question at 

hand, however, because Beasley involved private employers, who are 

subject to the NLRA. State and political subdivisions thereof are 

not "euclovers" for ournoses of the NLRA and are therefore exempt 

from the provisions df ;he NLRA. 29 U.S.C. 6152(Z); National Labor 

Relations Board v. Natural Gas Utility District of Hawkins County, 402 

U.S. 600 (1971). Because the NLRA specifically exempts public 

employers -- and therefore public employees - from its coverage, it 

can hardly be argued that section 14(a) of the NLRA preempts article 

5154~. which deals solely with the rights of public employees. See 

City of Alcoa v. International Brotherhood of Electrical Workers Loa 

Union 760, AFL-CIO. 308 S.W.Zd 476, 478 (Term. 1957) (since NLRA 

exempts political subdivisions. doctrine of preemption cannot apply to 

adjudication of labor disputes involving municipal workers). 

p. 2763 
Ronorable Mike Driscoll - Page 3 (JM-614) 

The second argument raised in the brief is that supervisors in 

the public sector have no constitutionally protected right to belong 

to the same union as the employees they supervise. We do not argue 

with the premise of that argument. The Fifth Circuit has held that 

prohibiting firefighters properly characterized as supervisors from 

belonging to labor organizations composed of rank and file serves a 

legitimate and substantial goverment interest in maintaining 

efficient and dependable firefighting services. Therefore, the First 

Amendment right to freedom of association does not give supervisors 

the right to belong to the same union as the employees they supervise. 

Vicksburg Firefighters Association, Local 1686 International Assoclation of Firefighters, AFL-CIO, CLC v. City of Vicksburg, 761 F.2d 1036 

(5th Cir. 1985); see also York County Fire Fighters Association, Local 

2498 V. York County, 589 F.2d 775 (4th Cit. 1978). The holding in 

Vicksburg, however, does not lead to the conclusion that a Texas 

public employer must prohibit supervisors and rank-and-file employees 

from belonging tohe same union. Vicksburg simply stands for the 

proposition that there is no federal constitutional impediment to the 

type of rule proposed by the Rarris County Adult Probation Department. 

Vicksburg has no bearing ou the issue before us, which is whether 

Texas law prohibits such a rule. 

The third.argument is that article 5154~ is ambiguous. A statute 

is ambiguous when it is susceptible of more than one interpretation. 

See Standard Fire Insurance Company v. Griggs, 567 S.W.Zd 60; 63 (Tex. 

civ. App. - Amarillo 1978, writ ref'd n.r.e.). We find no ambinuitv 

in article 5154~. section 4. on the Question before us. The broad 

language cannot be read as applying to'some public employees and not 

others. See Beverly v. City of Dallas, 292 S.W.Zd 172. 176 (Tex. Civ. 

APP. - ElPaso 1956, writ ref'd n.r.e.) (article 5154~. section 4, 

applies to public employees and is clear and unequivocal in its 

terms). The ,department's objection to article 5154~ stems from its 

breadth, not its ambiguity. The language is so broad that it 

encomuasses oerhaos more than the lenislature intended when it enacted 

articie 5154;. See Morris, Every thing - You Always Wanted to Know About 

Public EmployeeBargaining in Texas - But Were Afraid to Ask, 13 

Houston L. Rev. 291, 293 (1976). However, it is for the legislature, 

not this office, to make exceptions to the broad language if article 

5154c. See State v. Millsap, 605 S.W.Zd 366, 369 (Tex. Grim. App. 

1980) (iris improper to add to or subtract from an unambiguous 

statute). 

The fourth argument is that the proposed rule is a necessary one 

because management should be able to demand undivided loyalty from its 

agents. Congress has determined that employers should be able to 

demand loyalty from supervisory employees. See 29 U.S.C. 9164(a); 

Beasley v. Foodfair of North Carolina, Inc.,-6 U.S. 653 (1974). 

Furthermore, the federal courts have recognized the Importance to 

employers of loyalty from supervisory employees for the purpose of 

p. 2764 
Honorable Mike Driscoll - Page 4 (m-614) 

weighing the interests of employers against employees' rights to 

freedom of association. Vicksburg Firefighters Association, Local 

1686 International Association of Firefighters, AFL-CIO, CLC v. City 

of Vicksburg, 761 F.2d 1036 (5th Cir. 1985); see also York County Fire 

Fighters Association, Local 2498 v. York County, 589 F.2d 775 (4th 

Cir. 1978). The argument that management should be able to demand 

undivided loyalty from its agents 1s. however, a matter for the 

legislature to consider. 

We cannot ignore the plain language of article 5154~. section 4. 

Accordingly, the Harris County Adult Probation Department may not 

adopt a rule that prohibits supervisory employees from belonging to 

the same union as rank-and-file employees. Arguments about the wisdom 

of article 5154~. section 4, should be directed to the legislature. 

SUMMARY 

Article 5154~. section 4, prohibits a county 

adult probation department from prohibiting supervisory employees from belonging to the same union 

as rank-and-file employees. 

JACRRIGRTOWRR 

First Assistant Attorney General 

MAFXRELLER 

Executive Assistant Attorney General 

RICR GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

Very tr LJ ly yours, 

JIM M A T T 0.X 

Attorney General of Texas 

p. 2765