                                     The Attorney        General of Texas
                                                        ~sy 9, 1984
  JIM MAlTOX
  Attorney General



  Supreme Court Building           Mr. Kenneth H. Ashworth               Opinion No. JM-156
  P. 0. BOX 12548
  Austin, TX. 7871,. 2548
                                   Commissioner of Higher Education
  512/475-2501                     Coordinating Board                    Re: Whether a community college
  Telex 9101874-1367               Texas College & University System     district may create a labor
  Telecooier   51214750285         P. 0. Box 12788, Capitol Station      management committee to conduct
                                   Austin, Texas   78711                 discussions concerning employ-
  714 Jackson, Suite 700
                                                                         ment conditions in the district
  Dallas, TX. 75202.4508
  214ll42-8844                     Dear Mr. Ashworth:

                                        You have asked whether article 5154~. V.T.C.S., prevents the
  4824 Alberta   Ave., Suite 164
  El Paso. TX. 789352783
                                   Alamo Community College District from creating a "labor management
  9151533.3484                     committee" that will discuss general proposals concerning employment
                                   conditions when (1) no official grievance has been filed by any
                                   individual employee and (2) wages, hours of work, and other conditions
,AWl    Texas. Suite 700           of work are established by the duly elected college district board of
     wston. TX. 77002911,
                                   trustees.
  I 1312235886

                                        A letter from the chancellor of the Alamo Community College
  608 Broadway, Suite 312          District states that he
  Lubbock, TX. 79401.3479
  8061747-5238
                                            received a request from the executive director of
                                            the American Federation of State, County, and
  4308 N. Tenth, Suite B                    Municipal Employees (AFSCME), San Antonio Area
  McAllen, TX. 78501-1985                   Public Employees Local 2399, requesting that we
  512/582-4547
                                            'sit and discuss grievances' pertaining to such
                                            matters as a cost of living salary increase, a
  200 MaIn Plaza, Suite 400                 longevity pay plan, increased mileage, funeral
  San Antonio, TX. 78205.2797               leave, and night      shift and   24-hour shift
  512,2254191                               differential pay . . . .    I did not, however,
                                            offer to meet with the union for purposes of
  An Equal OpportunItyI
                                            discussing those matters . . . .
  AffIrmalIve Action Employer
                                                The union replied by indicating that my letter
                                             did not address itself to the union's 'request to
                                             set a date, time and place for a meeting with our
                                             designated Grievance Committee of ACCD Employee
                                             Members . . . .'

                                                I responded to that AFSCME letter by indicating
                                             a willingness to attend any meeting to which I was



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Mr. Kenneth Il.Ashworth - Page 2   (JM-156)




          invited. I also stated that I would not recognize
          the union 'ACCD Grievance Committee' as an
          official group for purposes of discussions of
          wages, hours of work and working conditions within
          the district. I advised the union that I worked
          directly with staff councils which were composed
          of employees who were elected as representatives
          from all levels of our organization. I noted that
          some of the union's members were elected members
          of those councils. Finally, I advised the union
          that grievances which we would consider would be
          those filed by individual employees under our
          grievance procedures. I also recognized the right
          for such employees to choose union representation
          in pursuit of their grievances.

             .   .   .   .

             I view the Texas statutes as requiring the
          college district to deal with unions in connection
          with grievances only when they have been selected
          as a representative of an employee who has filed a
          grievance on a matter of individual concern to him
          or her . . . . Thus, the union would be limited
          to representing an employee with respect to the
          particular item or items of concern to that
          employee as expressed in his/her grievance and
          would not be permitted to raise general issues
          pertaining to wages, hours of work and conditions
          of work within the college district concerning
          which no employee has filed a grievance.

             .   .   .   .

             If the Alamo Community College District and
          other governmental units meet with and discuss so-
          called 'grievances' by the union in the manner and
          under the conditions set forth in the AFSCME
          proposal . . . where the union is not representing
          any particular employee or employees on any
          specific grieved matter, [this] could invite the
          very kind of collective bargaining with the union
          regarding general conditions of employment which
          is prohibited by the statute.

     Article 5154c, V.T.C.S., provides in pertinent part as follows:

             Section 1. It is declared to be against the
          public policy of the State of Texas for any




                                    p. 687
    Mr. Kenneth Il.Ashworth - Page 3   (JM-156)




              official or group of officials of the State, or of
              a County, City, Municipality or other political
              subdivision of the State, to enter into a
              collective bargaining contract with a labor
              organisation respecting the wages, hours, or
              conditions of employment of public employees, and
              any such contracts entered into after the
              effective date of this Act shall be null and void.

                 Sec. 2. It is declared to be against the
              public policy of the State of Texas for any such
              official or group of officials to recognize a
              labor organization as the bargaining agent for any
              group of public employees.

                 . . . .

                Sec. 5. The term 'labor organization' means
             any organization of any kind, or any agency or
             employee, representation committee or plan, in
             which employees participate and which exists for
             the purpose, in whole or in part, of dealing with
             one or more employers concerning grievances, labor
r            disputes, wages,    rates    of  pay,   hours   of
             employment, or conditions of work.

                 Sec. 6. The provisions of this Act shall not
              impair the existing right of public employees to
              present grievances concerning their wages, hours
              of work, or conditions of work individually or
              through a representative that does not claim the
              right to strike.

    To answer your question, we must first construe sections 1 and 2 of
    this article.

         Section 1 prohibits officials of political subdivisions from
    entering into "a collective bargaining contract with a labor
    organization respecting the wages, hours, or conditions of employment
    of public employees."      In our opinion, the term "collective
    bargaining" necessarily contemplates a process in which officials of a
    political subdivision and representatives of a labor organization
    conduct negotiations with an eye towards reaching a binding,
    enforceable, bilateral agreement between the subdivision and the
    organisation. Case law supports this view. In Consolidated Edison v.
    National Labor Relations Board, 305 U.S. 197, 236 (19381, for example,
    the United States Supreme Court described Congress's provision for
    collective bargaining in the National Labor Relations Act of 1935 as
    having the "manifest objective" of "the making of contracts" between
r



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Mr. Kenneth H. Ashworth - Page 4   (JM-156)




employers and labor organizations.     Similarly, National Labor
Relations Board v. Sands Manufacturing Company, 306 U.S. 332, 342
(1938) states that

          [t]he legislative history of the Act goes far to
          indicate that the purpose of the statute was to
          compel employers to bargain collectively with
          their employees to the end that employment
          contracts binding on both parties should be made.
          (Emphasis added).

Finally, in Beverly v. City of Dallas, 292 S.W.2d 172, 176 (Tex. Civ.
APP. - El Paso 1956, writ ref'd n.r.e.), the court stated that

          a contract or agreement resulting from    collective
          bargaining must of necessity be a          bilateral
          procedure culminating in a meeting of      the &nds
          involved and binding the parties to the   agreement.

     Section 2 prohibits the recognition of a labor organization as
the "bargaining agent" for any group of public employees. The term
"bargaining agent" is clearly a term of art.           Webster's New
Intercollegiate Dictionary, p. 89 (1981) defines a "bargain" as "an
agreement between parties settling what each gives or receives in a
transaction between them or what course of action or policy each
pursues in respect to the other."           "Bargaining," therefore,
necessarily contemplates negotiations conducted with the intent of
reaching a "bargain." Discussions which do not have this objective do
not constitute "bargaining" within the meaning of section 2.

     One kind of discussion which, in our opinion, would not
necessarily constitute "bargaining" is a "consultation." Webster's
New Intercollegiate Dictionary, p. 241 (1981) defines 'consult" as,
inter alla, "to ask the advice or opinion of" or "to deliberate
together."    "Consultation" or "meeting and       conferring" about
employment conditions is. we believe, perfectly permissible under
article 5154~.     As long as the political subdivision merely
"discusses" such conditions, it is in no way obligated to implement
anything discussed during the consultations, and it retains the right
unilaterally to prescribe employment conditions in the district. See
a      Beverly v. City of Dallas, supra; Attorney General OpinG
MW-130 (1980).

     In our opinion, it is clear that under these two sections,
although political subdivisions may not recognize a labor organization
as the "bargaining" agent for any group of public employees, they may
certainly allow such an organization to act as spokesman for employees
in "consultations." Indeed, the Texas Supreme Court has held that
public employees have an "absolute right" to be represented in           ?




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Mr. Kenneth H. Ashworth - Page 5   (~~-156)




grievance presentations by a union which does not claim the right to
strike. See Corpus Christ1 American Federation of Teachers v. Corpus
Christ1 Independent School District, 572 S.W.2d 663 (Tex. 1978). The
grievance in the Corpus Christ1 case concerned membership on what was
essentially a consultation committee.

     The final issue to be addressed is whether the filing of a
"grievance" is a prerequisite to the initiation of "consultations"
between a political subdivision and a labor organization. We conclude
that nothing in article 5154~ supports this proposition.

     In Dallas Independent School District v. American Federation of
State, County and Municipal Employees, Local Union No. 1442, 330
S.W.2d 702, 706 (Tex. Civ. App. - Dallas 1959, writ ref'd n.r.e.1, the
appellants complained that the trial court had issued a ruling that
was a declaration that the School Board was thereby "required to treat
with the [plaintiffl labor organisations on all employees as a class,"
and that article 5154~ only contemplated "individual grievances."

     In overruling this point, the court of civil appeals made some
pertinent observations:

          The judgment in this respect is identical with the
          language of the Statute, limiting the authority of
          plaintiff-unions    to    the   presentation    of
          grievances . . . . And     though, at    times a
          plaintiff local may be desirous of acting as
          spokesman for fellow public employees as a group
          rather than individually, still its role or right
          to be heard by the School Board in no event
          extends beyond the presentation of grievances.

330 S.W.2d at 707.

     The clear import of the court's discussion and its action in
overruling the appellants' point is that article 5154~ does not
contemplate only individual grievances. Thus, we do not believe the
Texas courts would share your view that the Texas statutes require the
district to deal with employee grievances only on "matters of
individual concern." At the same time, we believe it is equally clear
that a local organization such as the one at issue here has a "right"
to be heard by a political subdivision only in instances in which
"grievances" have been raised. Thus, if the question before us were
whether a political subdivision is obligated to meet with a local
organization when no grievance is filed, we would answer in the
negative. As we understand it, however, the question is really
whether a political subdivision is permitted to meet with a local
organization when no formal grievance has been filed, for the purpose
of "consulting" about working conditions. We find nothing in article




                                p. 690
Mr. Kenneth H. hshworth - Page 6   (JM-156)




5154~. applicable case law, or prior Attorney General Opinions that
supports anything other than an affirmative answer to this question.

     To   summarize:     (1) article   5154c   prohibits   "collective
bargaining" as well as the recognition of any labor organization as
the "bargaining agent" for any group of public employees; (2)
"consultations" between a labor organization, acting as spokesman for
employees, and officials of a political subdivision regarding
employment conditions are permissible, and such political subdivision
does not violate the prohibition against recognizing a labor
organization as the "bargaining agent" for public employees if it
merely confers with such organization regarding employment conditions;
(3) public employees have the right to present grievances concerning
employment conditions, and may present such grievances through a legal
representative, but the filing of a grievance is not a prerequisite to
the initiation of "consultations" between a labor organization and a
political subdivision. Of course, in applying these conclusions in
any particular fact situation, two other factors must be kept in mind:
(1) local policies will have a bearing on how these matters are to be
handled; and (2) "representatives" of employees who file grievances
under section 6 may not claim the right to strike.

     We therefore conclude that article 5154~. V.T.C.S., does not
prohibit a comnity     college district from establishing a "labor
management cowaittes" which will discuss general proposals concerning
employment conditions. The filing of a grievance is not a pre-
requisite for such general discussions. The board of trustees must
retain the right unilaterally to establish employment conditions in
the district.

                             SUMMARY

             Article 5154c, V.T.C.S.. does not prohibit the
          Alamo CosnnunityCollege District from establishing
          a "labor management committee" which will discuss
          general     proposals     concerning     employment
          conditions.    A   formal   grievance  is    not  a
          prerequisite for such discussions.    The  board of
          trustees must retain the right unilaterally to
          dictate employment conditions in the district.




                                       JIM     MATTOX
                                       Attorney General of Texas




                                    p. 691
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            Mr. Kenneth H. Ashworth - Page 7   (JM-156)




            TOM GREEN
            First Assistant Attorney General

            DAVID R. RICBARDS
            Executive Assistant Attorney General

            Prepared by Jon Bible
            Assistant Attorney General

            APPROVED:
            OPINION COMMITTEE

            Rick Gilpin, Chairman
            Colin Carl
            Susan Garrison
            Jim Moellinger
            Nancy Sutton




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