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 of Balcones 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 agreement provides that the city will payroll deduct dues for

members of the police officers['] association."! We assume, based on arguments set out in your

request letter, that this agreement was made pursuant to 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 of Balcones 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-law municipality possessesthose powers and privileges expressly conferred upon

it by state law or necessarily implied therefrom. Tex. Dep 't ofTransp. v. City ofSunset 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 at http://www.oag.state.tx.us) [hereinafter Request Letter].

2AccordBrieffrom Michael L. Rickman, SeniorAttorney, Combined Law Enforcement Associations ofTexas,

to Nancy S. Fuller, Chair, Opinion Committee, Office of Attorney 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 brief also 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 - Page 2 (GA-0625)

S.W.3d 637, 645 (Tex. 2004); City ofWest Lake Hills v. Westwood Legal 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 such power is reasonably incident to those expressly granted

or is essential to the object and purposes of the 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 a bona fide employee's association named by the 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

of payroll 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

under the Act. Section 174.105 ofthe FPERA provides that when police officers are represented by

an association, "the public employer and the association shall bargain collectively." Id § 174.105(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).

The terms "compensation, hours, and other conditions ofemployment" are not defined in the

FPERA, and we find no Texas case that addresses whether payroll deductions like those at issue here

are encompassed within these terms. But the Corpus Christi Court ofAppeals has explained that

[t]he statutory duty imposed by the 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 employer orthe employee from taking unilateral

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 of employment" are mandatory subjects of bargaining

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 Labor Relations Bd. v. BASF Wyandotte Corp., 798 F.2d 849,852-53 (5th Cir. 1986) (explaining

the three general categories of subjects of bargaining under the NLRA: (1) mandatory subjects of bargaining; (2)

permissive subjects of bargaining; and (3) illegal subjects of bargaining).
The Honorable Joe Driver - Page 3 (GA-0625)

The determination of whether 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

of bargaining [under the NLRA], the Court has stated in broad terms that 'the limitation includes

only issues that settle an aspect of the 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

mandatory bargaining isthe concept ofmanagement prerogative, which involvesissues ofpolicy that

should be exclusively reserved to a government's discretion." Id. at 726-27 (footnote deleted).4 The

Corpus Christi Court of Appeals 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 of employment 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 of whether 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 her job. Id.

We find no Texas cases to guide us in the application ofthis balancing test to the question

you pose. Thus, we look to other jurisdictions that have applied a balancing test to the question of

whether payroll deductions are a management prerogative excluded from collective bargaining. In

National Education Association-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[] of professional 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 on the well-being ofthe individual teachers than on the 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" under the 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 of bargaining 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 of employment, and issues of 'policy' which

are exclusively reserved to government discretion and cannot be made mandatory subjects of bargaining." Deborah

Tussey, Annotation, Bargainable orNegotiable Issues in State Public Employment Labor Relations, 84 A.L.R.3d 242,

255-56 § 3[a] (1978).
The Honorable Joe Driver - Page 4 (GA-0625)

district but did have considerable impact on the teachers. Id. The court held that the payroll

deduction ofNEA-Topeka dues was a mandatory subject of negotiation. Id.

We believe the same reasoning applies here and that the payroll deduction ofassociation dues

has a greater effect on police officers' working conditions than on City management prerogatives.

A payroll deduction is of direct 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 CODE ANN. § 174.102 (Vernon 2008). Unlike the grooming standard considered

by the Corpus Christi court, the issue of payroll 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 ofPolice, Miami Lodge 20 v. City ofMiami, 609 So.2d 31,

34-35 (Fla. 1992) (holding that random drug testing is a management prerogative when there is

evidence ofdrug involvement by specific officers); Town ofBillerica v. Int 'I Assoc. ofFirefighters,

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 that the selection ofamanager for a police

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 other conditions ofemployment"-mandatory subjects

ofbargaining under the FPERA. Because Texas courts have indicated that the statutory duty under

the FPERA isthe same duty imposed by the NLRA, we look to the NLRA and cases interpreting that

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 'I Assoc. ofFirefighters, Local 399, Beaumont, v.

City ofBeaumont, 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 of employment and legitimate

subjectfor collective bargaining underthe FPERA). The Fifth CircuitCourt ofAppeals has held that

a dues checkoffis a condition of employment and a mandatory subject of bargaining. Nat 'I Labor

Relations Bd. v. J.P. Stevens & Co., Gulistan Div., 538 F.2d 1152, 1165 (5th Cir. 1976); Sweeney

& Co. v. Nat 'I Labor Relations Bd., 437 F.2d 1127, 1134 (5th Cir. 1971). Like the payroll deduction

here, a dues checkoff is the deduction of union dues from the company's wage payments to the

employees. HK. Porter Co. v. Nat 'I Labor Relations Bd., 397 U.S. 99, 100 (1970); see also In re

NJ. Transit Bus Operations, Inc., 592 A.2d 547, 555 (N.J. 1991) (discussing the fact that the 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 - Page 5 (GA-0625)

"check-offrights" is associated with private sector collective bargaining while "payroll deduction"

isthe language traditionally associated with public sector collective negotiation). Based on this Fifth

Circuit precedent we conclude that the payroll deduction ofassociation dues is a mandatory subject

of bargaining under the FPERA.

Because we conclude that the payroll deduction of association dues is a mandatory subject

ofbargaining under the FPERA, we believe the City's duty 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 implied in or incident to the duty expressly imposed on the City to collectively bargain under

the FPERA. Our conclusion here comports with the policy objectives articulated in the 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 - Page 6 (GA-0625)

SUMMARY

The issue of payroll deduction of association dues is a

mandatory subject ofbargaining under the Fire and Police Employee

Relations Act("FPERA"), codified at chapter 174, Local Government

Code. Thus, we conclude that a general-law municipality with a

population of10,000 orfewer and a duty to bargain collectively under

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