-            .




                                             The Attorney          General of Texas
                                                           December 31, 1982
    MARK WHITE
    Attorney General


                                            Honorable Gibson D. (Gib) Lewis        Opinion No.FlW-557
    Supreme      Court Building
                                            Chairman
    P. 0. BOX 12546
    Austin,    TX. 76711. 2548              Committee on Intergovernmental         I&: Constr"ction of article
    512,475.2501                               Affairs                             5154c-1, V.T.C.S.
    Telex    910/674-1367                   House of Representatives
    Telecopier      5121475.0266            Room 114, John H. Reagan Bldg.
                                            Austin, Texas   78711
    1607 Main St., Suite 1400
    Dallas,   TX. 75201-4709                Dear Representative Lewis:
    2141742.6944
                                                 You have requested our opinion whether as a part of its duty of
                                            fair representation, a police association recognized under article
    4624 Alberta       Ave., Suite    160
    El Paso, TX.       799052793            5154c-1, V.T.C.S., is required to extend to non-association members of
    91W533.3464                             a bargaining unit the opportunity to vote on contract ratification.

                                                 Policemen and firemen employed by cities that have adopted the
    1220 Dallas Ave., Suite 202
    Houston.   TX. 77002-6966
                                            provision of article 5154c-1, V.T.C.S., have the right to organize and
    7131650-0666                            bargain collectively. If after election it is shown that a majority
                                            of policemen working for a department desire to organize, the public
                                            employer must recognize the organization as "the sole and exclusive
    606 Broadway,        Suite 312          bargaining agent" for all the policemen in that department. V.T.C.S.
    Lubbock.  TX.       79401-3479
                                            art. 5154c-1(6)(b).
    8061747-5236

                                                 A careful reading of the statute reveals no language requiring an
    4309 N. Tenth. Suite B                  association to permit non-members of the bargaining "nit to vote on
    McAllen, TX. 76501.1665                 contract ratification. Nor, for that matter, does the statute require
    5121662-4547
                                            the association to extend this right to its members. Section 8
                                            provides in part:
    200 Main Plaza. Suite 400
    San Antonio,  TX. 76205.2797                     Whenever a public employer and an association
    5121225-4191                                     reach an agreement on compensation and/or other
                                                     terms and conditions of employment.... [tlhe
    An Equal       Opportunity/                      agreement shall be enforceable and shall be
    Affirmative      Action     Employer             binding upon the public employer, the association,
                                                     and the firefighters or policemen covered therein.

                                                 While the right to vote on contract ratification could be
                                            extended to members and/or non-members through an organization's
                                            constitution or by-laws, the statute does not mandate this result. It
                                            is clear from the language found in section 8 that an agreement need




                                                                    p. 2040
Honorable Gibson D. Lewis - Page 2 (MW-557)




only be reached between the association, i.e., its bargaining agent,
and the employer to legally bind all members of the unit.

     In your request you cite the duty of fair representation and ask
whether or not this duty, article 5154c-1 notwithstanding, requires
public employee associations to seek contract ratification from
non-members.

     The duty of fair representation had its origins and has been
chiefly defined through a series of federal court decisions
interpreting the National Labor Relations Act, 29 U.S.C. section 151
et seq. See, e.g., Steele v. Louisville and Nashville RR Company, 324
U.S. 192 (1944); Ford Motor Company v. Huffman, 345 U.S. 330 (1952).

     Simply stated, the duty of fair representation imposes upon a
labor organization granted exclusive bargaining status under federal
statutes an obligation to serve the interests of all members of the
bargaining unit "without hostility or discrimination... to exercise
its discretion with complete good faith and honesty, and to avoid
arbitrary conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967). The
duty extends to members and non-members alike, Steele v. Louisville
and Nashville RR Company, supra, and encompasses both the collective
bargaining process and the enforcement of the collective bargaining
agreement. Vaca v. Sipes, supra. Although this doctrine has not been
invoked in a reported case in Texas, those jurisdictions having public
employee bargaining statutes similar to our own uniformly have held
that the duty of fair representation does not require a public
emnlovee
  .  _    association to submit contracts for the approval of
non-members. Pennsylvania Labor Relations Board v. Eastern-Lancaster
County Education Association, 427 A.2d 305 (Pa. 1981); Daigle v.
Jefferson Parish School Board, 345 So.2d 583 (La. 1977); Wald V.
Nassau Chapter Civil Service Employees Association, Inc., 340 N.Y.S.2d
45 (N.Y. SUP.   1973). This result stems from the very nature and
purpbse of cbllectiie bargaining statutes, which is to prbvide for the
orderly resolution of labor disputes by vesting exclusive authority to
negotiate contracts in the representative organization chosen by a
majority vote of the members of a bargaining unit.

     We concur with the holdings of other jurisdictions and find that
the duty of fair representation would not require that a public
employee association recognized under article 5154c-1 extend to
non-association members the opportunity to vote on contract
ratification.

                            SUMMARY

             Article 5154c-1 does not require that a public
          employee association extend to non-association
          members of a bargaining unit the opportunity to




                                  p. 2041
Honorable Gibson D. Lewis - Page 3      (MW-557)




         vote on contract ratification. The duty of fair
         representation does not require that a public
         employee association extend to non-association
         members of a bargaining unit the opportunity to
         vote on contract ratification.




                                         MARK      WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by William 0. Goodman
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger




                                     p. 2042
