December 31, 1986

HonorableMike Driscoll Harris CountyAttorney 1001Preston.Suite 634 Eouston,Texas 77002 OpinlooNo. .JM-614

Be: Whether Harris Countymay adopt
a policy that prohibits supervisory personnel in the Adult Probation Department frombelonging to the same union as rank-and-fileemployees

DaarMr. Driscoll:

Pou ask the followingquestion:

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 statutoryauthority to employ personnel is the power to adopt reasonableemploymentpoliciescalculated 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 subdivisioncannotconflictwith state law).

We think that the rule you ask about is impermissiblebecause it conflictswith the following statutoryprovision:

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 nonmembershipin a labororganization.

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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 frombelonging 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. thatwould allow a rule thatprohibitsmembership 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-fileemployees.

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 associationdoesnot givepublic employeeswho are supervisors the right tobelong to the sameunion 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 employeesbecause of theirunionmembership. Enforcementof 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 Boardv. 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 Alcoav. InternationalBrotherhoodof ElectricalWorkers Loa Union 760, AFL-CIO. 308 S.W.Zd 476, 478 (Term. 1957) (since NLRA exemptspolitical subdivisions.doctrineof preemption cannot apply to adjudicationof labor disputes involvingmunicipalworkers).

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The second argument raised in the brief is that supervisors in the public **sector** have no constitutionallyprotected 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 efficientand dependable firefightingservices. Therefore, the First Amendment right to freedom of association does not give supervisors the right tobelong to the sameunion as the employees they supervise. Vicksburg FirefightersAssociation,Local 1686 InternationalAssoclation of Firefighters,AFL-CIO,CLCv. City ofVicksburg, 761 F.2d 1036 (5thCir. 1985);see alsoYork County **Fire** FightersAssociation,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 employermust prohibit supervisorsand rank-and-fileemployees from belonging tohe same union. Vicksburg simply stands for the proposition that there is no federal constitutionalimpediment to the type of ruleproposedby theRarris CountyAdult ProbationDepartment. Vicksburghas no bearing ou the issue before us, which is whether Texas lawprohibits such a rule.

The third.argumentis that article 5154~ is ambiguous. A statute is ambiguouswhen it is susceptible of more than one interpretation. See Standard **Fire** InsuranceCompanyv. 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 Beverlyv. 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'sobjection to article 5154~ stems from its breadth, not its ambiguity. The language is so broad that it
encomuassesoerhaosmore than the lenislatureintendedwhen it enacted articie 5154;. SeeMorris, Every - thingYou AlwaysWanted toKnow 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, tomake 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 fourthargument is that theproposed rule is a necessary one becausemanagement shouldbe able to demandundivided 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

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weighing the interests of employers against employees' rights to freedom of association. Vicksburg Firefighters Association, Local 1686 InternationalAssociation of Firefighters,AFL-CIO, CLC v. City ofVicksburg, 761 F.2d 1036 (5thCir. 1985);see alsoYork 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 sameunion as rank-and-fileemployees. Arguments about thewisdom of article 5154~. section 4, shouldbe directed to the legislature.

SUMMARY

Article 5154~. section 4, prohibits a county adultprobationdepartment fromprohibiting supervisory employees from belonging to the same union

as rank-and-file employees.

JACRRIGRTOWRR FirstAssistantAttorneyGeneral

MAFXRELLER ExecutiveAssistantAttorneyGeneral

RICR GILPIN Chairman,Opinion Committee

Preparedby SarahWoelk AssistantAttorney General Very tr 

# LJ

ly yours,

JIM M A T T 0.X Attorney General of Texas

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