                      The Attorney                General         of Texas
                                          March     20,    1978
JOHN L. HILL
Attorney General


                   The Honorable Lynn Tate                   Opinion No. H-1139
                   Commissioner
                   Texas Department of Labor                 Re:     Whether one year irrevocable
                    and Standards                            union dues checkoff provisions in union
                   Sam Houston State Office                  contracts violate state law prohibiting
                    Building                                 compulsory unionism.
                   Austin, Texas 107R

                   Dear Commissioner   Tate:

                          You have requested our opinion concerning the legality of a one year
                   irrevocable union dues checkoff agreement by which an employer, at the
                   employee’s request, deducts union dues from an employee% paycheck and
                   transfers such sums to the labor union. You ask whether such an agreement
                   violates prohibitions concerning compulsory union membership.       V.T.C.S.
                   art. 5207a; see also V.T.C.S. art. 5154c, S 4; art. 5154g, S 1. Your precise
                   question is:

                              Does an employee in Texas whose employment              is
                              governed by a union contract containing typical lan-
                              guage for a one-year irrevocable dues checkoff agree-
                              ment with the contracting employer, have a right to
                              terminate that agreement because of the prohibition
                              under Texas law against compulsory           unionism in
                              Article 5207a, V.T.C.S., so as to be entitled to receive
                              a payment of wages which would exclude the amounts
                              that otherwise would have been withheld as union dues
                              during the remaining term of the one-year agreement
                              so as to support a wage complaint under the Texas
                              Semi-Monthly Pay Day Law, or, would this type of
                              one-year irrevocable     dues checkoff agreement pre-
                               clude the employee under such circumstances         from
                              claiming that additional amount as wages in connec-
                               tion with a complaint filed with our office under the
                              Texas Semi-Monthly Pay Day Law? In this regard,
                               please consider the provision for dues checkoff con-
                               tained in Article 5154e, V.T.C.S.




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        The Honorable Lynn Tate     -    Page 2      (H-1139)




             Article 5207a provides in part:

                   Sec. 3. Any contract which requires or prescribes that
                   employees or applicants for employment in order to work for
                   an employer shall or shall not be or remain members of a
                   labor union, shall be null and void and against public policy.

        In discussing article 5207a and the related statements of public policy contained in
        article 5154~ and 5154g, the Supreme Court of Texas has stated:

                   The intent seems obvious to protect employees in the
                   exercise of the right of free choice of ]oining or not joining
                   a union.    The purpose of the statute is to afford equal
                   opportunity to work to both classes of employees.

        Lunsford v. Citv of Brvan, 297 S.W.2d 115, ll7 (Tex. 1957). Thus the proscription of
        -. .----                 ?ibligations and actions on the part of employers; they are
        required to afford “equal opportunity.”     See also Construction and General Labor
        Union Local No. 688 v. Stephenson, tST33K2d 958 (T .                 50) Sh t M tai
        Workers Local No. 175 v. Walker, 236 S.W.2d 683 (Tex. Ciz’App . d JIas?and li51,
        -pinions
        wrtt re    .                                WW-1018 (1961); S-224 (1956). We do not
        believe that article 5207a therefore is dispositive of your question. ‘lhe controlling
        statute does appear to be article 5154e, V.T.C.S., to which you refer in the final
        sentence of your inquiry.

              Article 5154e, V.T.C.S., provides in part:

                      Any contract     which permits, requires, prescribes or
                    provides for the retention of any part of the compensation
                    of an employee for the purpose of paying dues or assess-
                    ments on his part to any labor union, without the written
                    consent of the employee delivered to the employer authoriz-
                    ing the retention or the withholding of such sum shall be null
                    and void and against public policy.

        The provisions of article 5154e are to our mind very clear. The key to determining
        whether or not contractual provisions for so called one year “irrevocable dues
        checkoff” are legal is to ascertain if the employee has given written consent to
        such a provision.    Obviously, a provision which provides solely for a union dues
        checkoff agreement would be valid under article 5154e so long as the employee
        affected has given and delivered to the employer his written consent thereto. -See
        also
        -     29 U.S.C. S 186 (c)(4).

              Your question arose from the possibility that an employee could file a
        complaint under articles 5155-5159, V.T.C.S., for unpaid wages which were deducted
        pursuant to a checkoff agreement.    ln our opinion such a complaint under the semi-
        monthly payday laws would not be upheld if it were demonstrated             that the



                                               p.   4638
The Honorable Lynn Tate    -   Page 3    (H-11391



employee had timely delivered a written consent to the employer    authorizing   the
retention or withholding of such deduction.

                                 SUMMARY

           A provision for a one year irrevocable union dues checkoff
           agreement between a union and a member thereof is made
           valid by the Legislature under article S154e, V.T.C.S., so
           long as the employee affected has given and delivered to the
           employer his written consent for such a provision.

                                          Very truly yours,




                                          Attorney General of Texas




Opinion Committee




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