ATTORNEY GENERAL OF TEXAS GREG ABBOTT

May 7,2008

The Honorable Joe Driver Chair, Committee on Law Enforcement Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910
Dear Representative Driver: Opinion No. GA-0625
Re: Authority of a Type A general-law city to permit employee payroll deduction as part of a collective bargaining agreement (RQ-0647-GA)

You explain that the City ofBalcones 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 agreementprovides that the city will payroll deduct dues for members ofthe police officers['] association."! We assume, based on arguments set out in your request letter, thatthis agreementwas made pursuantto the Fire and Police Employee Relations Act ("FPERA"), codified at chapter 174, Local Government Code. Request Letter, supra note 1, at 1.2 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 ofBalcones Heights, Texas is 3,016), available at http://www.factfinder.census.govl) (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-lawmunicipalitypossesses those powers andprivileges expressly conferredupon it by state law or necessarily implied therefrom. Tex. Dep 't ofTransp. v. City of Sunset Valley, 146

ISee Letter from Honorable Joe Driver, Chair, Committee on Law Enforcement, Texas House of Representatives, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Nov. 9, 2007) (on file with the Opinion Committee, also available athttp://www.oag.state.tx.us) [hereinafter Request Letter].
2AccordBrieffromMichaelL. Rickman, SeniorAttorney, CombinedLawEnforcementAssociations ofTexas, to Nancy S. Fuller, Chair, Opinion Committee, Office ofAttorney General, at 3 (Jan. 31, 2008) ("The citizens of Balcones Heights voted to give the police officers the right to bargain for benefits and privileges granted in Chapter 174.001 et. seq., Texas Local Government Code."). The briefalso explains that the "[C]ity and its fire and police employees were never covered by Chapter 143" ofthe Texas Local Government Code, which provides for a municipal civil service system. Id. at 4.The Honorable Joe Driver

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S.W.3d 637, 645 (Tex. 2004); City ofWest Lake Hills v. WestwoodLegal De! Fund, 598 S.W.2d 681,683 (Tex. Civ. App.-Waco 1980, no writ); Tex. Att'y Gen. Ope No. GA-0084 (2003) at 8. "[A] power will be implied only when suchpower is reasonably incidentto those expressly granted or is essential to the object and purposes ofthe corporation." Westwood Legal De! Fund, 

### 598 S.W.2d at 683.
As you point out, section 141.008, Local Government Code, expressly provides that "[t]he governing body of a municipality with a population of more than 10,000 may deduct from a municipal employee's monthly salary or wages an amount requested in writing by the employee in payment ofmembership dues to abona fide employee's associationnamedbythe employee." TEX. Loc. GOV'T CODE ANN. 

### § 141.008(a) (Vernon 2008). We find no express authority or express prohibition in state law for a municipality with a population of 10,000 or fewer to provide the type ofpayroll deductions you ask about. We consider then whether a general-law municipality with a population of 10,000 or fewer that is operating under the FPERA has implied authority to provide payroll deductions for association dues.
We begin the search for implied authority under the FPERA by examining a city's duties underthe Act. Section 174.105 ofthe FPERAprovides that whenpolice officers are represented by an association, "thepublic employerandthe association shallbargaincollectively." Id 

### § 174.1 05(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 ofemployment." Id. § 174.105(b)(2).
Theterms "compensation, hours, and otherconditions ofemployment" are notdefinedinthe FPERA, andwe find no Texas casethataddresses whetherpayroll deductions like those atissue here are encompassed within these terms. But the Corpus Christi Court ofAppeals has explained that [t]he statutory duty imposedbythe 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 eitherthe employerorthe employeefromtakingunilateral action on the subject. 3 Corpus Christi Fire Fighters Ass'n v. City of Corpus Christi, 10 S.W.3d 723, 726 (Tex. App.-Corpus Christi 1999, pet. denied) (citation omitted) (footnote added). In other words, "compensation, hours, and other conditions ofemployment" are mandatory subjects ofbargaining under the FPERA, just as they are under the NLRA. See id.; TEX. Loc. GOV'T CODE ANN. 

### § 174.105(b)(2) (Vernon 2008).

3See Nat'l LaborRelations Bd. v. BASF Wyandotte Corp., 798 F.2d 849,852-53 (5th Cir. 1986) (explaining the three general categories of subjects ofbargaining under the NLRA: (1) mandatory subjects ofbargaining; (2) permissive subjects ofbargaining; and (3) illegal subjects ofbargaining).The Honorable Joe Driver

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The determination ofwhether 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 ofbargaining [under the NLRA], the Court has stated in broad terms that 'the limitation includes only issues that settle an aspect ofthe relationship between the employer and the employees. ,,, Corpus Christi Fire Fighters Ass 'n, 10 S.W.3d at 726 (quoting Allied Chern. & Alkali Workers of Am., Local Union No.1 v. Pittsburgh Plate Glass Co., Chern. Div., 404 U.S. 157, 178 (1971)).
"Under state employment laws related to public employees, a recognized limitation on mandatorybargaining is the conceptof managementprerogative, whichinvolves issues of policythat shouldbe exclusivelyreservedto agovernment's discretion." Id. at726-27 (footnote deleted).4 The Corpus Christi Court ofAppeals 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 ofemployment under the FPERA only ifit 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 ofwhether grooming standards constitute a condition ofemployment as a matter oflaw. 

### 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 ofthe grooming standards policy was to improve the image ofthe 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**is~ues** addressed in the grooming policy had little to do with the fire fighter's ability to perform his or herjob. Id.
We find no Texas cases to guide us in the application ofthis balancing test to the question you pose. Thus, we look to otherjurisdictions that have applied a balancing test to the question of whether payroll deductions are a managementprerogative excluded from collective bargaining. In National EducationAssociation-Topeka, Inc., v. USD 501, Shawnee County, the Kansas Supreme Court considered whether the "payroll deduction ofNEA-Topeka dues," among other things, was a mandatorily negotiable "term[] and condition[] ofprofessional service." 592 P.2d 93,97 (Kan. 1979). The test the court applied to make this determination was whether the deductions had a greater direct impact onthe well-being ofthe individual teachers than onthe operation ofthe school system. Id. Although payroll deductions worked· to benefit directly the teacher association in transacting its affairs, the court recognized that the teacher association is simply an agent for the teachers and "stands in the shoes ofthe teacher" underthe test. Id. at 98. The court noted that there was no evidence that payroll deduction had any significant impact on the operation ofthe school

4"Perhaps the single greatest, and almost universally recognized, limitation on the scope ofbargaining or negotiation by state public employees is the concept ofmanagerial prerogative[;]

... the concept creates a dichotomy between 'bargainable' issues, that is, those issues which affect conditions ofemployment, and issues of'policy' which are exclusively reserved to government discretion and cannot be made mandatory subjects ofbargaining." Deborah Tussey, Annotation, Bargainable orNegotiable Issues in State Public EmploymentLaborRelations, 84 A.L.R.3d 242, 255-56 § 3[a] (1978).The Honorable Joe Driver

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district but did have considerable impact on the teachers. Id. The court held that the payroll deduction ofNEA-Topeka dues was a mandatory subject ofnegotiation. Id.
We believethe samereasoning applies here andthatthepayroll deductionofassociationdues has a greater effect on police officers' working conditions than on City management prerogatives. A payroll deduction is ofdirect 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 CODEANN. 

### § 174.102 (Vernon 2008). Unlike the grooming standard considered by the Corpus Christi court, the issue ofpayroll deductions for association dues does not impact public safety or the public's perception ofthe police department. See Corpus Christi Fire Fighters Ass'n, 10 S.W.3d at 728. A payroll deduction does not, in our opinion, implicate the type of subjective policy issues. that have been held by other**jurisdict~ons** to fall within the management prerogative. See, e.g., Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 609 So.2d 31, 34-35 (Fla. 1992) (holding that random drug testing is a management prerogative when there is evidence ofdrug involvementby specific officers); Town of Billerica v. Int 

### 'IAssoc. of Firefighters, Local 

### 1495, 615 N.E.2d 564, 565-66 (Mass. 1993) (holding that a minimum staffing provision was a nondelegable right ofmanagement); Frackville Borough Police Dep't v. Penn. Labor Relations Bd., 701 A.2d 632,635 (Pa. Commw. Ct. 1997) (holding thatthe selection ofamanagerfor apolice pension fund was a management prerogative). In sum, we conclude that the payroll deduction of association dues is not a managerial prerogative and thus, is a proper subject of bargaining or negotiation. 5 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 otherconditions ofemployment"-mandatory subjects ofbargaining under the FPERA. Because Texas courts have indicated that the statutory duty under the FPERA is the same duty imposedbythe NLRA, we lookto theNLRA and cases interpretingthat Act to resolve this issue. See McAllen Police Officers Union 

### v. Tamez, 81 S.W.3d 401, 409 (Tex. App.-Corpus Christi 2002, pet. dism'd) (looking to the NLRA, and the cases interpreting the NLRA, to resolve issues under the FPERA); Int 

### 'IAssoc. of Firefighters, Local 

### 399, Beaumont, v. City of Beaumont, 610 S.W.2d 543, 545-46 (Tex. Civ. App.-Beaumont 1980, no writ) (looking to the NLRA to support the notion that vacation time is a condition ofemployment and legitimate subjectfor collectivebargainingunderthe FPERA). The FifthCircuitCourtofAppeals has heldthat a dues checkoffis a condition ofemployment and a mandatory subject ofbargaining. Nat 

### 'ILabor Relations Bd. 

### v. J.P. Stevens 

### & Co., Gulistan Div., 538 F.2d 1152, 1165 (5th Cir. 1976); Sweeney & Co. 

### v. Nat 

### 'ILaborRelationsBd., 437 F.2d 1127, 1134 (5th Cir. 1971). Like the payroll deduction here, a dues checkoffis the deduction ofunion dues from the company's wage payments to the employees. HK. Porter Co. v. Nat 

### 'ILabor Relations Bd., 397 U.S. 99, 100 (1970); see also In re NJ. TransitBus Operations, Inc., 592 A.2d 547, 555 (N.J. 1991) (discussing the fact thatthe phrase

5We note that ifsuch a payroll deduction would require an appropriation ofmoney by any governing body, an association must "serve on the public employer a written notice ofits request for collective bargaining at least 120 days before the date on which the public employer's current fiscal operating budget ends." TEX. Lac. GOV'T CODE ANN. § 174.107 (Vernon 2008).The Honorable Joe Driver

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"check-offrights" is associated with private sector collective bargaining while "payroll deduction" is the languagetraditionally associatedwithpublic sectorcollective negotiation). Basedonthis Fifth Circuitprecedentwe conclude thatthe payroll deduction ofassociation dues is a mandatory subject ofbargaining under the FPERA.
Because we conclude that the payroll deduction ofassociation dues is a mandatory subject ofbargaining under the FPERA, we believe the City'sduty under section 174.105 ofthe FPERA to bargain collectively with a police officers' association implicitly gives the City authority to provide this type ofpayroll deduction. TEX. 

### Loc. GOV'TCODEANN. 

### § 174.105 (Vemon2008). Suchpower is fairly impliedin orincidentto the duty expresslyimposed onthe Cityto collectivelybargainunder the FPERA. Our conclusionhere comports withthe policy objectives articulated inthe FPERA and the legislative mandate to construe the FPERA liberally. TEX. 

### Loc. GOV'TCODEANN. 

### §§ 174.002 (Vernon 2008) (setting out the policy objectives ofthe FPERA); 174.004 ("This chapter shall be liberally**construed.")~**The Honorable Joe Driver

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### SUMMARY
The issue of payroll deduction of association dues is a mandatory subject ofbargaining underthe Fire and Police Employee Relations Act("FPERA"), codifiedatchapter 174, Local Government Code. Thus, we conclude that a general-law municipality with a populationof10,000 orfewer and adutyto bargaincollectivelyunder section 174.105 of the FPERA has implied authority to provide payroll deductions for association dues. Very truly yours,

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