                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-236-CV


FORT WORTH TRANSPORTATION                                         APPELLANTS
AUTHORITY AND MCDONALD
TRANSIT, INC.

                                       V.

RICKY C. THOMAS                                                      APPELLEE

                                   ------------

        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                                 Introduction

      Appellants Fort Worth Transportation Authority (FWTA) and McDonald

Transit, Inc. appeal the trial court’s order granting appellee Ricky C. Thomas’s

motion for summary judgment in this breach of contract case. In two issues,

appellants contend that the trial court improperly granted Thomas’s summary

judgment motion because he failed to exhaust contractual remedies before filing
his lawsuit and because a collective bargaining agreement unambiguously

permitted the termination of his employment. We affirm.

                              Background Facts

Thomas’s employment with appellants

      Thomas began working for appellants 1 as a bus driver in January 1989.

He injured his back in 2001 and was unable to work for an extended period of

time. Thomas requested and received twelve weeks’ leave under the federal

Family and Medical Leave Act (FMLA), 2 from July 13 through October 3, 2001.

Appellants classified Thomas’s absences on his Operator Work Record as

“FMLA” from July 13 through October 3, 2001. One of appellants’ employees

wrote in an e-mail on October 3, 2001, that “[t]oday is the last day of FMLA

for Ricky. Starting tomorrow, 10/4, he is just out sick.” Appellants thereafter

changed the classification of Thomas’s absences on his Operator Work Record

to “ill/sickness” beginning October 4, 2001.


      1
        McDonald manages the public transportation bus system owned by
FWTA, which is a political subdivision of the state. McDonald and FWTA do
not argue on appeal that their liability should be considered separately. Thus,
we refer to McDonald and FWTA, collectively, as appellants.
      2
        See 29 U.S.C.A. §§ 2601–2654 (West 2009). The FMLA guarantees
qualifying employees twelve weeks of unpaid leave each year for disabling
health problems, family members’ serious illnesses, or the birth of a new son
or daughter; employers are prohibited from interfering with such leave.
See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 84–86, 122 S. Ct.
1155, 1158–60 (2002).

                                      2
      While he was unable to work, Thomas collected workers’ compensation

benefits and received a series of approximately seven injections as treatment

for his back injury. Thomas was initially released to return to work in April

2002, but appellants did not allow him to return to work because he failed an

April 16, 2002 performance evaluation. 3 In the interim, Thomas received a

verbal warning, on April 5, and a written warning, on April 30, regarding his

absences. The written warning stated, in part, “You now have 146 absences.

Please keep in contact with the ‘T’ every two weeks.”

      Appellants terminated Thomas’s employment by letter dated August 1,

2002. The letter cited a provision in a Union Contract Agreement 4 that required

automatic termination for an absence from work lasting greater than one year

when such an absence was caused by anything other than military leave.

      Thomas filed a grievance with appellants on August 5, 2002, asking for

reinstatement because he alleged that his performance evaluation was not

required for all of appellants’ employees. Appellants denied the grievance four

days later. Thomas proceeded through two more unsuccessful steps in the




      3
           Thomas again failed a performance evaluation in June 2002.
      4
       The parties refer to this agreement as a collective bargaining
agreement, and we will refer to the agreement as the “CBA” in this opinion.

                                       3
grievance process,5 and the union did not thereafter pursue arbitration on his

behalf.

The CBA and the Operator Handbook

      Effective October 1, 2000, appellants entered into the CBA with

Teamsters Local Union No. 997. 6     The provision in Article 20 under which

appellants terminated Thomas’s employment states in relevant part:        “the

following shall be cause for immediate dismissal without prior warnings: . . .

being on light duty status and/or absence [sic] from work for any reason other

than military leave for a period of more than one (1) year.” 7

      Appellants also issued employees an Operator Handbook, effective July

2001. The Operator Handbook included, among other things, appellants’ FMLA

and attendance control policies.      Concerning FMLA leave, the Operator

Handbook stated: “The T complies with the Family and Medical Leave Act



      5
       During the grievance process, appellants gave Thomas another
opportunity to pass the performance evaluation and be reinstated. It is unclear
from the record whether Thomas accepted appellants’ offer to retake the
performance evaluation.
      6
        Thomas affirmed during deposition testimony that he was a member
of this union; he also filed an affidavit stating that he was “covered by the
[CBA].”
      7
        Appellants have maintained throughout the proceedings in the trial
court and on appeal that this provision of the CBA was the sole basis of the
termination of Thomas’s employment.

                                       4
(FMLA) for serious health problems” and that “[a]s with holidays, vacation

leave, personal days, funeral leave and jury duty, FMLA is not counted as

absenteeism.” The attendance control policy in the Operator Handbook stated

that it should be “constructed [sic] in accordance with” the CBA and outlined

a progressive disciplinary process for excessive absenteeism. The Operator

Handbook also specifically defined “absence” under its attendance control

policy:

      Definition of “Absence”

      The term “absence” means every absence from work, regardless of
      the reason, except for the following:

      1.    vacations
      2.    holidays
      3.    floating holiday
      4.    jury duty
      5.    court appearance as defined in Article 37 of the labor
            agreement
      6.    military leave
      7.    approved union business
      8.    approved bereavement
      9.    approved administrative leave
      10.   leave of absence approved under Article 19
      11.   absences protected by the Family and Medical Leave
            Act of 1993
      12.   absent from assigned work for no more than sixty (60)
            minutes [Emphasis added.]

The proceedings in the trial court

      Thomas filed suit against appellants in January 2003, alleging in his

original petition that they violated Texas labor laws when they terminated his

                                      5
employment. Thomas filed a second amended petition in August 2006 that

included a breach of contract claim and claims of retaliation and discrimination

under the labor code. 8

      Thomas filed a motion for summary judgment in November 2007,

contending that appellants breached the CBA. 9 Thomas argued that because

the Operator Handbook’s definition of “absence” excluded FMLA leave, he was

actually “absent” for less than one year; appellants therefore breached the CBA

by terminating his employment when they did.         Appellants responded to

Thomas’s summary judgment motion by asserting that his contractual claim

was precluded because he did not seek arbitration before bringing suit, that the

Operator Handbook could not be treated as a contract, and that the CBA

justified his termination. The trial court granted Thomas’s summary judgment

motion in January 2008.       Thomas then nonsuited his other claims, and

appellants timely filed their notice of appeal.




      8
        Thomas’s only pleaded theory of recovery at this time is his theory
that appellants breached the terms of the CBA. Thomas nonsuited all of his
other claims.
      9
        Thomas also sought summary judgment on his discrimination claim,
but the trial court denied the motion as to that claim. Thomas does not
challenge that ruling in this appeal.

                                        6
                              Standard of Review

      We review the trial court’s grant of summary judgment de novo. See

Gray v. Nash, 259 S.W.3d 286, 289 (Tex. App.—Fort Worth 2008, pet.

denied). A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See Tex. R. Civ. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). In other

words, the plaintiff meets the summary judgment burden by establishing that

no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 678 (Tex. 1979).

      When reviewing the trial court’s grant of a plaintiff’s summary judgment

motion, we take as true all evidence favorable to the defendant, and we indulge

every reasonable inference and resolve any doubts in the defendant’s favor.

See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d

794, 798 (Tex. 2004). Evidence that favors the plaintiff’s position will not be

considered unless it is uncontroverted. See Great Am. Reserve Ins. Co. v. San

Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). However, we

must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc.

                                       7
v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168

S.W.3d 802, 822–24 (Tex. 2005). Summary judgment is proper where, as

here, the parties do not dispute the relevant facts. Havlen v. MacDougall, 22

S.W.3d 343, 345 (Tex. 2000).

                     Exhaustion of Contractual Remedies

      In their first issue, appellants contend that the trial court’s summary

judgment was improper because Thomas waived his breach of contract claim

by failing to fully comply with the CBA’s grievance procedure. Specifically,

appellants assert that Thomas failed to pursue arbitration after the three-step

grievance procedure, thus waiving his breach of contract claim.        Thomas

contends, in response, that the CBA specifically exempts “management rights”

from mandatory arbitration and that the decision to terminate Thomas’s

employment was one of the “management rights.” 10

      “Where there is a labor contract between a union and an employee which

provides procedures for settlement of disputes between the employee and

employer, an employee is not entitled to redress in the courts where he fails to



      10
          Appellants contended in their reply brief and at oral argument that
Thomas failed to assert the “Management Rights” exclusion from the arbitration
requirement in the trial court and that this exclusion cannot be raised for the
first time on appeal. We disagree. The record indicates that Thomas raised the
“Management Rights” issue in his reply to appellants’ response and objections
to his amended summary judgment motion.

                                       8
exhaust his remedies under the contract.” Lindsey v. Gen. Dynamics Corp.,

450 S.W.2d 895, 895–96 (Tex. Civ. App.—Waco 1970, no writ); see Int’l

Union United Auto. Aerospace & Agric. Implement Workers of Am. Local 119

v. Johnson Controls, Inc., 813 S.W.2d 558, 565 (Tex. App.—Dallas 1991, writ

denied) (op. on reh’g) (indicating that claims may be barred because of a

plaintiff’s failure to comply with the grievance process in a collective bargaining

agreement); Roberts v. City of Corpus Christi, 744 S.W.2d 214, 215–16 (Tex.

App.—Corpus Christi 1987, no writ) (“[A]n employee generally must exhaust

the grievance remedies provided for in a collective bargaining agreement or

other contract before bringing suit.”). Here, Article 12 of the CBA indicates

that “any controversy” concerning the application of any of the CBA’s

provisions “shall be treated as a grievance and shall be settled, if possible.”

Appellants relied on a provision of the CBA to justify Thomas’s termination, and

Thomas has contested the application of this section; thus, his complaints were

subject to the CBA’s grievance procedure.

      The parties agree that Thomas proceeded through the three steps of the

CBA’s grievance process described above. They also agree that the union did

not demand arbitration following the three-step grievance process. Thomas

asserts, however, that his discharge was not subject to arbitration under the

CBA. We agree.

                                        9
      Article 13 (titled “Arbitration”), Section A of the CBA provides: “Should

any grievance remain unsettled after exhausting [the three-step grievance

procedure],   either    party   hereto   shall,   if   the   party   desires,   demand

arbitration . . . .    Otherwise, the grievance shall be considered settled.”

However, Article 13, Section C of the CBA states in part, “Issues arising out

of the exercise of the rights reserved to management under the title Rights of

Management above, including management’s determination of the facts

underlying its exercise of such rights, shall not be subject to arbitration.”

Article 3 of the CBA, titled “Management Rights,” 11 states,

      Except to the extent expressly abridged by a specific provision of
      [the CBA], the Company reserves and retains, solely and
      exclusively, all of its Common Law rights to manage its business,
      as such rights existed prior to the execution of [the CBA].
      Prominent among such unqualified rights . . . are the following: . . .
      to hire, lay-off, assign, transfer, and promote employees . . .[;] to
      adopt and enforce working rules; to discipline and discharge
      employees for just cause. 12 [Emphasis added.]

      We conclude that the unambiguous cumulative effect of Article 13,

Section C and Article 3 is that appellants’ “unqualified” decision to discharge

Thomas based on what they allege was just cause under the CBA was not


      11
        While there is no provision of the CBA titled “Rights of Management”
as denoted by Article 13, Section C, we conclude that Article 3, pertaining to
“Management Rights,” is the title to which Article 13, Section C refers.
      12
        Appellants have not asserted that any provision of the CBA expressly
abridged its “management right” to discharge Thomas’s employment.

                                         10
subject to arbitration because this decision was one of their “Management

Rights.”   Therefore, we hold that Thomas complied with the Article 12

grievance procedure, although not successfully demanding arbitration, by

proceeding through all three grievance steps and that the CBA did not require

Thomas to also seek arbitration. 13 We overrule appellants’ first issue.

                      Thomas’s Discharge Under the CBA
                         and the Operator Handbook

      In their second issue, appellants argue that the trial court improperly

granted summary judgment because the Operator Handbook should not have

been considered to alter the CBA’s unambiguous language. Thomas argues that

the definition of “absence” in the Operator Handbook, which excludes FMLA

leave from an “absence,” must be considered with Article 20 of the CBA

because the CBA does not define “absence.” 14 Neither party argues that the


      13
          Thomas also contends that appellants forfeited any right to arbitration
by violating the grievance procedure and by their litigation conduct and that any
failure to arbitrate was harmless error. Because we conclude that the
arbitration requirement did not apply to Thomas’s discharge, we do not address
these other assertions.
      14
         Thomas also argues on appeal that his FMLA leave cannot be counted
as an “absence” under Article 20 because doing so violates the FMLA.
Because “[t]he assertion of new grounds before the appellate court in support
of summary judgment may prejudice the nonmovant’s ability to demonstrate
that the issue raises a genuine issue of material fact,” we cannot affirm a
summary judgment “on grounds not expressly set out in the motion or
response.” Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).
Thomas did not include this argument in his amended motion for summary

                                       11
CBA is ambiguous. Instead, they offer competing contentions as to whether

the definition of “absence” in the Operator Handbook may be considered when

interpreting Article 20 of the CBA.

      Lack of clarity or a disagreement among the parties does not necessarily

create an ambiguity. See Universal Health Servs., Inc. v. Renaissance Women’s

Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003). Rather, whether “a contract

is ambiguous is a question of law that must be decided by examining the

contract as a whole in light of the circumstances present when the contract

was entered.” Id.

      When construing contracts and other written instruments, our primary

concern is to ascertain the true intent of the parties as expressed in the

instrument. See NP Anderson Cotton Exch., L.P. v. Potter, 230 S.W.3d 457,

463 (Tex. App.—Fort Worth 2007, no pet.); see also City of San Antonio v.

Scott, 16 S.W.3d 372, 377 (Tex. App.—San Antonio 1999, pet. denied)

(applying general principles of contract construction to the interpretation of a



judgment or in any other document filed with the trial court. Thomas cited the
applicable federal regulation, 29 C.F.R. § 825.220 (2009), in his reply to
appellants’ response and objections to his first amended motion for summary
judgment, but only for the proposition that he was not required to arbitrate his
claim against appellants. We are therefore prohibited from affirming the
summary judgment on this ground. See Stiles, 867 S.W.2d at 26; Franco v.
Slavonic Mut. Fire Ins. Ass’n, 154 S.W.3d 777, 786 (Tex. App.—Houston
[14th Dist.] 2004, no pet.).

                                      12
collective bargaining agreement).    To ascertain the parties’ intent, we may

consider together all writings relating to the same transaction, even if they were

executed at different times.     DeWitt County Elec. Coop., Inc. v. Parks, 1

S.W.3d 96, 102 (Tex. 1999).         We must examine and consider the entire

contract in an effort to harmonize and give effect to all provisions so that none

are rendered meaningless. Potter, 230 S.W.3d at 463; see also J.M. Davidson,

Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). “We construe contracts

‘from a utilitarian standpoint bearing in mind the particular business activity

sought to be served’ and ‘will avoid when possible and proper a construction

which is unreasonable, inequitable, and oppressive.’” Frost Nat’l Bank v. L &

F Dist., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (quoting Reilly v. Rangers

Mgmt., Inc., 727 S.W.2d 527, 530 (Tex.1987)). “If, after the pertinent rules

of construction are applied, the contract can be given a definite or certain legal

meaning, it is unambiguous and we construe it as a matter of law.” Id. (citing

Webster, 128 S.W.3d at 229).

      To resolve appellants’ second issue, we must determine whether the

parties intended to exempt FMLA leave from a one-year absence under Article

20 of the CBA. The provision at issue permits termination of employment for

an absence exceeding one year and specifically exempts military leave; it does

not expressly reference FMLA leave.         In fact, the CBA does not define

                                       13
“absence” and does not set forth appellants’ FMLA policy. Appellants’ FMLA

policy and a definition of “absence” are instead contained in the Operator

Handbook.15 The question, then, is whether the Operator Handbook should be

considered with the CBA to determine if Thomas’s “absence” exceeded one

year.

        “Under generally accepted principles of contract interpretation, all writings

that pertain to the same transaction will be considered together, even if they

were executed at different times and do not expressly refer to one another.”

Parks, 1 S.W.3d at 102. The CBA became effective October 1, 2000, and the

Operator Handbook is dated July 2001, so they were not contemporaneously

executed. They may nevertheless be considered together if they relate to the

same transaction and the surrounding circumstances do not indicate that they

should not be considered together. Id.; see also Miles v. Martin, 321 S.W.2d

62, 65 (Tex. 1959).

        The CBA set forth the agreements between appellants and the union with

regard to the terms and conditions of employment for the union’s members.




        15
         Federal law requires appellants to include their FMLA policies in the
Operator Handbook. See 29 C.F.R. § 825.300(a)(1), (3) (West 2009) (requiring
FMLA-covered employers to provide its eligible employees with a notice
explaining the provisions of the FMLA and to “includ[e] the notice in employee
handbooks . . . if such written materials exist”).

                                         14
It addressed, among other things, rights reserved to management, strikes and

lockouts, uniforms, work schedules, discipline, termination for “just cause,” and

grievance procedures. The Operator Handbook similarly set forth appellants’

personnel policies, generally with more specificity than the CBA, and included

policies relating to employee benefits, health and safety, FMLA leave, and

absenteeism. The Operator Handbook referenced the CBA, and its attendance

control policy provided that it was to be “constructed [sic] in accordance with”

the CBA. Under the circumstances of this case, the CBA and the Operator

Handbook related to the same transaction because they set forth the terms and

conditions of Thomas’s employment with appellants.

      We must next consider whether the surrounding circumstances prevent

the CBA and the Operator Handbook from being considered together. In this

regard, the CBA stated in Article 42: “This Agreement together with its Exhibits

constitutes the only agreement between the parties hereto, and no previous

addenda, memoranda[,] understandings or practices, whether written or oral,

shall be binding upon either party.” 16 [Emphasis added.]     The CBA did not,


      16
         This type of contractual provision is commonly referred to as a
“merger clause.” “Merger occurs when the same parties to an earlier
agreement later enter into a written integrated agreement covering the same
subject matter.” Texas A&M Univ.–Kingsville v. Lawson, 127 S.W.3d 866,
872 (Tex. App.—Austin 2004, pet. denied). This merger clause does not
prevent consideration of the Operator Handbook because the CBA pre-dates the
Operator Handbook.

                                       15
however, state that subsequent documents, such as the Operator Handbook,

cannot be considered with the CBA. The Operator Handbook, on the other

hand, stated that its attendance control program was “intended to be and

should be constructed [sic] in accordance with” the CBA and any successor

CBAs.      The Operator Handbook also stated, however, that “[i]t is not an

employment contract,” that it “is not intended to create contractual obligations

of any kind,” and that it is “not intended to disagree in word or intent with the

current Labor Agreement.”         Even though the Operator Handbook does not

purport to create contractual rights, we find that we may consider its terms in

determining whether the parties intended to exempt FMLA leave from the

provision    in   Article   20   under   which   appellants   terminated   Thomas’s

employment.       The CBA and the Operator Handbook related to the same

transaction, and their terms do not clearly prevent them from being considered

together. See Parks, 1 S.W.3d at 102; Miles, 321 S.W.2d at 65. Thus, we

will consider the CBA and Operator Handbook together to determine the parties’

intent with respect to FMLA leave and absences exceeding one year. 17



      17
         Our precedent establishes that as a general rule, employee handbooks
and policy manuals constitute general guidelines in the employment relationship
and do not create implied contracts between the employer and employee that
alter the at-will employment relationship. Brown v. Sabre, Inc., 173 S.W.3d
581, 585 (Tex. App.—Fort Worth 2005, no pet.). Our decision today does not
conflict with Brown. Thomas was not an at-will employee; the CBA governed

                                          16
      Appellants terminated Thomas’s employment under the provision in

Article 20 that states: “the following shall be cause for immediate dismissal

without prior warnings: . . . being on light duty status and/or absence [sic] from

work for any reason other than military leave for a period of more than one (1)

year.” The provision does not expressly exempt FMLA leave from an absence

justifying termination. 18   However, the Operator Handbook states: “The T

complies with the Family and Medical Leave Act (FMLA) for serious health

problems.”    The Operator Handbook also provides that “[a]s with holidays,

vacation leave, personal days, funeral leave and jury duty, FMLA is not counted

as absenteeism.” [Emphasis added.] The Operator Handbook further defines

“absence” as “every absence from work, regardless of the reason, except for

the following: . . . (11) absences protected by the Family and Medical Leave

Act of 1993.” 19 Considering the CBA and the Operator Handbook together, we


the terms and conditions of his employment with appellants. And, contrary to
the dissent’s characterization of our holding, we do not say that the Operator
Handbook created contractual rights. We consider the CBA with the Operator
Handbook only to determine the intent of the parties concerning FMLA leave in
the context of Article 20 of the CBA.
      18
        This provision also does not exempt bereavement leave from an
absence justifying termination, but we note that Article 36 of the CBA provides:
“Employees taking approved bereavement leave shall not be charged with an
absence.”
      19
        There is no dispute in this case that Thomas was in fact eligible for
leave under appellants’ FMLA policy as stated in the Operator Handbook.

                                       17
conclude that FMLA leave cannot be counted as an “absence” under Article 20

of the CBA when terminating an employee for an absence exceeding one year. 20

      Based on the foregoing, we hold that Article 20 of the CBA must be

interpreted to exclude FMLA leave when calculating whether Thomas was

absent from work for more than one year. The summary judgment evidence

establishes that Thomas first missed work on July 13, 2001, when his FMLA

leave began, and that his FMLA leave ended on October 3, 2001.            The

summary judgment evidence also establishes that appellants terminated

Thomas’s employment on August 1, 2002. Excluding Thomas’s FMLA leave,

Thomas was actually “absent” from work for less than one year when

appellants terminated his employment on August 1, 2002. Appellants therefore

breached the CBA by terminating Thomas’s employment when they did. The

trial court properly granted summary judgment to Thomas on his breach of

contract claim. We overrule appellants’ second issue.




      20
         Although “a court may conclude that a contract is ambiguous even
in the absence of such a pleading by either party,” McCreary v. Bay Area Bank
& Trust, 68 S.W.3d 727, 730–31 (Tex. App.—Houston [14th Dist.] 2001, pet.
dism’d), we do not find that the CBA is ambiguous. Instead, after applying the
pertinent rules of construction and considering the CBA and the Operator
Handbook together, we find that the provision in Article 20 under which
Thomas was terminated is susceptible to only one reasonable interpretation:
FMLA leave cannot be counted as an absence when terminating an employee
for an absence exceeding one year.

                                     18
                                Conclusion

      Having overruled each of appellants’ issues, we affirm the judgment of

the trial court.




                                          ANNE GARDNER
                                          JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

LIVINGSTON, J. filed a dissenting opinion.

DELIVERED: October 29, 2009




                                     19
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-236-CV


FORT WORTH TRANSPORTATION                                         APPELLANTS
AUTHORITY AND MCDONALD
TRANSIT, INC.

                                       V.

RICKY C. THOMAS                                                      APPELLEE

                                   ------------

        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                          DISSENTING OPINION

                                   ------------

      The majority holds that a unilateral, nonbargained employee handbook

may create contractual rights (thus serving as the basis of a breach of contract

claim) and alter the unambiguous language of a collective bargaining agreement

(CBA) even though the handbook specifically and plainly says that it cannot do

so. For this and other reasons, I respectfully dissent.
         The CBA unambiguously required the immediate termination of Thomas’s

employment if he was absent “from work for any reason other than military

leave for a period of more than one (1) year.”           [Emphasis added.]     The

undisputed evidence shows that Thomas did not work from July 2001 until

August 2002 (a period of more than one year) and that he did not take military

leave.        Despite the evident justification for Thomas’s termination when

connecting those facts, the majority holds that Thomas may succeed on his

sole claim—which must focus on a breach of the CBA itself, the only agreement

between the parties—because his twelve weeks’ leave under the federal Family

and Medical Leave Act (FMLA) must expand the one-year absence limitation.

See Majority op. at 18. 21      The record and the law preclude the majority’s

holding for several reasons.

         First, although the majority correctly explains that in some circumstances

documents related to the same transaction may be considered together, we

should not rely on that manner of construction when the documents themselves

prohibit such reliance. See Jones v. Kelley, 614 S.W.2d 95, 99 (Tex. 1981)



         21
         As the majority explains, Thomas relies on portions of the handbook
that state that FMLA leave is “not counted as absenteeism” and exclude FMLA
leave from the handbook’s definition of “absence.” Majority op. at 18. Those
portions of the handbook are relevant to the handbook’s Attendance Control
Program, which sets forth increasing disciplinary actions for employees
accumulating several absences during a rolling twelve-month period. The
program does not explicitly relate to absences lasting longer than one year, as
does the CBA.

                                          2
(explaining that the principle of construing writings together is a “device for

ascertaining and giving effect to the intention of the parties and cannot be

applied arbitrarily and without regard to the realities of the situation”) (quoting

Miles v. Martin, 159 Tex. 336, 341, 321 S.W.2d 62, 65 (1959)).

      Here,    the    handbook     indicates    that    it   does    not      enlarge

collectively-bargained provisions; its first textual page states that it is

      intended to provide employees with a general understanding of
      [appellants’] personnel policies. Employees are encouraged to
      familiarize themselves with the contents of the handbook, as it will
      answer many common questions concerning employment with
      [appellants].

            However, this handbook cannot anticipate every situation or
      answer every question about employment. It is not an employment
      contract and it is not intended to create contractual obligations of
      any kind. . . .

             . . . These policies and/or benefits are not intended to
      disagree in word or intent with the current Labor Agreement.
      [Emphasis added.]

Other parts of the CBA and the handbook also weigh against the majority’s

conflated construction of those two documents. For instance, while the CBA

references work rules and rule books, it limits an employee’s duty to follow

such provisions to “rules and regulations of [appellants] which are not in

conflict with [the CBA],” which dictates the superiority of the CBA’s provisions.

Also, the CBA’s reference to such rules does not provide that any definitions

from the rules should be incorporated into the CBA’s provisions. The CBA



                                         3
further states that it is the “only agreement between the parties.”      Finally,

although the handbook indicates that it is to be construed in accordance with

the CBA in use at the time of Thomas’s termination, it does not state the

inverse—that the CBA is to be construed in accordance with the handbook.

      Second, as the majority recognizes, our precedent establishes that as a

general rule, employee handbooks and policy manuals constitute general

guidelines in the employment relationship and do not create implied contracts

between the employer and employee that alter the at-will employment

relationship. Majority op. at 16; see Brown v. Sabre, Inc., 173 S.W.3d 581,

585 (Tex. App.—Fort Worth 2005, no pet.) (describing that the rule particularly

applies where, as here, “a specific disclaimer in the employee handbook warns

the employee that the manual is intended to provide guidelines only, and does

not create contractual rights”); see also Fed. Exp. Corp. v. Dutschmann, 846

S.W.2d 282, 283 (Tex. 1993); Day & Zimmermann, Inc. v. Hatridge, 831

S.W.2d 65, 69 (Tex. App.—Texarkana 1992, writ denied) (explaining that

“[u]nder Texas law . . . a statement of company policy, unaccompanied by an

express agreement, does not create contractual rights”). In the same way,

although Thomas’s employment was not at-will, the handbook should not be

construed to alter the provisions of the collectively-bargained contract on which

Thomas bases his claim without an expressed intention to do so. The majority

has failed to explain why the precept that guided our decision in Brown, that


                                       4
unilateral employment manuals cannot per se constitute written employment

contracts, should not also apply to the ability of such manuals to alter

preexisting contractual employment relationships. See Brown, 173 S.W.3d at

586 (citing Aiello v. United Air Lines, Inc., 818 F.2d 1196, 1198 (5th Cir.

1987)).

      Third, Thomas’s argument that the handbook’s “absence” definition

should be incorporated into the CBA to excuse FMLA leave does not make

sense when considering the CBA’s specific and limited designation of military

leave as an excused absence because military leave is also excluded as an

absence in the handbook. In other words, if appellants and Thomas’s union had

intended to add FMLA leave to an “absence” lasting greater than one year in

the CBA by tacitly incorporating the handbook’s definitional provision, there

would be no need to specifically mention military leave in the CBA, which is

also excluded in that same definitional provision. If that had been their intent,

the specific mention of military leave in the CBA’s termination provision would

amount to unnecessary surplusage. And, of course, by the majority’s decision

that indicates its opinion of the contracting parties’ intent to tacitly incorporate

the handbook into the CBA, the “for any reason other than military leave”

phrase in the CBA’s termination provision is rendered wholly inconsequential.

      Thus, the majority’s decision to alter the CBA’s language by the

handbook’s provisions defeats its stated goal of giving effect to “all provisions


                                         5
so that none are rendered meaningless.” Majority op. at 13; see NP Anderson

Cotton Exch., L.P. v. Potter, 230 S.W.3d 457, 463 (Tex. App.—Fort Worth

2007, no pet.). For the same reason, the decision also weighs against the

entitlement of parties to a contract to select their own obligations—rather than

having a court create obligations for them—by carefully choosing the words

they select to include in the contract. 22 See Doe v. Tex. Ass’n of Sch. Bds.,

Inc., 283 S.W.3d 451, 458 (Tex. App.—Fort Worth 2009, pet. filed) (citing

Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo

2000, no pet.)).

      Fourth, the majority’s decision that the handbook adds an employee’s

FMLA leave to the one-year limitation in the CBA makes even less sense when

considering the other types of leave that are mentioned in the handbook and are

also necessarily added to the one-year period under the majority’s reasoning,

such as holidays and vacations. The CBA provides appellants’ employees with

eleven holidays. Because Thomas had been employed by appellants for more

than nine years, he also received three weeks’ paid vacation. Thus, under the

majority’s reasoning, when considering Thomas’s twelve weeks of FMLA leave,



      22
         In accordance with that entitlement, the CBA expresses that in
crafting that document, Thomas’s union and appellants each “had the unlimited
right and opportunity to make demands and proposals with respect to all proper
subjects of collective bargaining and that all such subjects [had] been discussed
and negotiated upon and the agreements contained in this contract [had been
arrived upon] after the free exercise of such rights and responsibilities.”

                                       6
his more than two work weeks of combined holidays, and his three weeks of

vacation, appellants could not have terminated Thomas’s employment until

more than seventeen weeks (about four months), at a minimum, had passed

after he had already been unable to work for a year. Appellants would then

have to further add to that time any days off related to his jury duty,

bereavement or administrative leave, or “approved union business.” As can be

seen, the majority’s decision has turned a simple phrase—“absence from work

for any reason other than military leave for a period of more than one (1)

year”—into a mathematical enigma that could justify Thomas’s absence from

work for close to a year and a half.

      Finally, the majority’s holding that the handbook adds to the CBA’s

contractual language becomes further strained when considering that in the

handbook, appellants “reserve[d] the right to change, revise, or eliminate any

of the [handbook’s] policies.” Under the majority’s reasoning, although FMLA

leave must be added to the CBA’s one-year limitation today, it may not be

added to that limitation tomorrow if appellants choose to modify the handbook.

Such fluidity is obviously at odds with our task of interpreting the parties’

contractual bargain. See Gamble v. Gregg County, 932 S.W.2d 253, 255 (Tex.

App.—Texarkana 1996, no writ) (indicating that an employee handbook does

not express an intent to vest contractual rights when it “expressly provides that

the [employer] may unilaterally change the policies and practices”); Ryan v.


                                       7
Superior Oil Co., 813 S.W.2d 594, 596 (Tex. App.—Houston [14th Dist.]

1991, writ denied) (holding that a vacation plan that stated that it could “be

terminated or modified at any time” did not create a contractual obligation).

      For all of these reasons, the handbook, as a matter of law, cannot enlarge

or modify the CBA’s provisions, and it cannot serve as the basis for Thomas’s

breach of contract claim. And even if the handbook’s provisions created doubt

on interpreting the CBA’s termination language, the majority should have

resolved those doubts in appellants’ favor. See IHS Cedars Treatment Ctr. of

DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).

      Because the trial court improperly granted summary judgment on

Thomas’s claim for breach of the CBA, I would sustain appellants’ second issue

and reverse this case. Because the majority affirms the trial court, I respectfully

dissent.




                                            TERRIE LIVINGSTON
                                            JUSTICE


DELIVERED: October 29, 2009




                                        8
