                       December 31, 1986




Honorable Mike Driscoll         Opinloo No. .JM-614
Harris County Attorney
1001 Preston. Suite 634         Be: Whether Harris County may adopt
Eouston, Texas   77002          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 govern-
mental body's statutory authority to employ personnel is the power to
adopt reasonable employment policies calculated to achieve the govern-
mental 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.




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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).




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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 Assocla-
tion 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, Everything
                                    - 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




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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 super-
          visory employees from belonging to the same union
          as rank-and-file employees.

                                        Very tr ly yours,


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

JACRRIGRTOWRR
First Assistant Attorney General

MAFXRELLER
Executive Assistant Attorney General

RICR GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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