      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00546-CV



  The City of Round Rock, Texas, and Round Rock Fire Chief Larry Hodge, Appellants

                                                 v.

           Jaime Rodriguez and Round Rock Fire Fighters Association, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT
     NO. D-1-GN-09-000370, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I believe that the absence of collective-bargaining rights by the Round Rock

Fire Fighters Association (the “Association”) forecloses any potential claim to Weingarten rights,

I respectfully dissent from the opinion by the majority. See National Labor Relations Bd.

v. Weingarten, Inc., 420 U.S. 251 (1975).


Preliminary Concerns

               As mentioned above, I believe that the absence of collective-bargaining rights by the

Association necessitates a conclusion contrary to that reached by the majority. Because that

conclusion would be dispositive in this case, I need not exhaustively detail my opinion regarding the

majority’s determinations forming the basis for their ultimate conclusion that Jaime Rodriguez, as

a member of the Association, had the right to request representation by the Association at the

investigatory interview.
               However, I do note that many of the majority’s preliminary determinations seem

potentially problematic and that the majority’s decision seems to overlook crucial distinctions

between the case before this Court and Weingarten. For example, I question the applicability of the

mootness doctrine or the exception to that doctrine to this case. In addressing this issue, the majority

seems to have conflated waiver with the exception to mootness. The act that potentially affected the

ability of a court to address the union-representative issue was the waiver signed by Rodriguez in

which he agreed to waive his rights to appeal the determination made by his supervisors. Had

Rodriguez not signed the waiver, the propriety of the denial could have been determined in a

subsequently filed complaint or lawsuit in a manner similar to the way that the denial of

representation is considered in other contexts. Accordingly, the issue that should be determined is

whether that waiver was properly and freely given or whether Rodriguez was improperly coerced

into signing the agreement. If the majority is correct and Rodriguez was entitled to union

representation during the meeting, resolution of the waiver issue could address what effect the denial

of a union representative had on the validity of the waiver.

               Instead of addressing waiver, the majority contorts the mootness exception to

conclude that the Weingarten issue should be addressed because “the denial of a request for

representation at an investigatory interview . . . is an act of short duration” and is likely to occur

again. See Williams v. Huff, 52 S.W.3d 171, 184 (Tex. 2001) (explaining that exception to mootness

applies only in rarest of circumstances). In other words, the majority effectively ignores the fact that

Rodriguez signed a document agreeing to the suspension imposed by his supervisors and agreeing

to waive his right to appeal that determination.



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                  Unquestionably, the denial of representation is an act of short duration because the

act occurs at the moment a supervisor prohibits an employee from having access to a union

representative.     Given that this type of denial is likely to be made immediately before an

investigatory interview begins, I agree that it would be nearly impossible to obtain legal review of

the denial before the interview starts. I also agree that there is a reasonable likelihood that the

appellants will deny union representation at future investigatory interviews. However, the issue will

only escape review if employees attending investigatory interviews also voluntarily waive their

appellate rights. If an employee does not sign a waiver or if it is determined that the waiver was

ineffective, the propriety of the denial of a union representative may properly be addressed in a later

proceeding.

                  In addition to side-stepping jurisdictional inquiries, the majority unflinchingly

analogizes the language in section 101.001 of the labor code to the language in a provision of the

National Labor Relations Act (the “Act”). However, there are significant obstacles undermining the

majority’s decision to essentially equate those statutory provisions. For example, the language of

the two statutes is dissimilar. See 29 U.S.C.A. § 157 (1998); Tex. Labor Code Ann. § 101.001 (West

2006). The federal provision reads, in relevant part, as follows:


       Employees shall have the right to self-organization, to form, join, or assist labor
       organizations, to bargain collectively through representatives of their own choosing,
       and to engage in other concerted activities for the purpose of collective bargaining
       or other mutual aid or protection.


29 U.S.C.A. § 157. The Texas provision, on the other hand, provides, in relevant part, as follows:




                                                   3
       All persons engaged in any kind of labor may associate and form trade unions and
       other organizations to protect themselves in their personal labor in their respective
       employment.


Tex. Labor Code Ann. § 101.001. Even a cursory reading of the two statutes reveals significant

differences in the words used and in the subjects covered.

               When confronted with similar differences in language between the Act and other

labor statutes, courts have found that those differences render reliance on Weingarten inappropriate.

For example, in Johnson v. Express One International, the court concluded that railway employees

do not have Weingarten rights because the Railway Labor Act does not contain the “concerted

activities” clause found in the Act. 944 F.2d 247, 252 (5th Cir. 1991). In reaching its conclusion,

the court warned against applying case law regarding the Act to other statutes with language that

“differs substantially” from the language of Act. See id. at 251.

               In addition to not addressing the dissimilar nature of the language contained in section

101.001, the majority’s decision to equate the two statutes also ignores crucial temporal information.

The Texas statute was not modeled after the Act because the Texas statute was promulgated well

before the federal one. See Act of May 27, 1899, 26th Leg., ch. CLIII, 1899 Tex. Gen. Laws 262,

262 (allowing employees to form unions “for the purpose of protecting themselves in their personal

work, personal labor, and personal service, in their respective pursuits and employments”).

Moreover, although the Texas statute has been modified since its original enactment, the legislature

has elected not to adopt the language of the Act. See Tex. Labor Code Ann. § 101.001 (containing

current version of union provision). For these reasons, reliance on the language of the Act and cases




                                                  4
interpreting the Act does not seem particularly pertinent to a determination of whether the Texas

statute provides the types of rights at issue in this case.

                Further, when determining whether the Texas statute applies to Rodriguez, the

majority essentially concludes that because section 101.001 contains the phrase “All persons,” the

provision must apply to both public and private-sector employees. The majority reaches this

decision even though the legislature promulgated separate labor-union provisions for public

employees, which afford public employees more limited rights than private-sector employees. See

Tex. Gov’t Code Ann. §§ 617.001-.005 (West 2004) (allowing public employees to join labor unions

but prohibiting them from engaging in collective bargaining, strikes, or work stoppages).

Furthermore, the majority reaches this decision despite the fact that the Weingarten decision did not

apply to public employees. See Karahalios v. Federal Employees, 489 U.S. 527, 532 (1989);

United States Dep’t of Justice, Immigration & Naturalization Serv. v. Federal Labor Relations Auth.,

975 F.2d 218, 221 n.6 (5th Cir. 1992); see also National Aeronautics & Space Admin. v. Federal

Labor Relations Auth., 527 U.S. 229, 231 (1999) (explaining that Congress adopted counterpart to

Act for employees working for federal government). In fact, the federal right to representation for

public employees was created by Congress after the Supreme Court’s decision in Weingarten, see

5 U.S.C.A. § 7114(a)(2) (West 2007), but there has been no similar promulgation by the Texas

legislature. In reaching their decision, the majority also ignores the well-established practice of

treating public employees differently than private-sector employees. See Congress of Indust. Org.

v. City of Dallas, 198 S.W.2d 143 (Tex. Civ. App.—Dallas 1946, writ ref’d n.r.e.) (explaining that

status of governmental employees “is radically different” from that of employees “in private business



                                                   5
or industry”); see also Headquarters Nat’l Aeronautics & Space Admin., 50 F.L.R.A. 601, 608 n.5

(1995) (explaining that Congress has recognized that “the right to representation might evolve

differently in the private and Federal sectors, and that Board decisions would not necessarily be

controlling in the Federal sector”).

               More importantly, the majority has disregarded the different procedural postures

between the present case and Weingarten. In Weingarten, the Supreme Court was confronted with

determining whether an interpretation by the Board was reasonable. See 420 U.S. at 252.

Specifically, the Board determined that an employee may refuse to submit to an investigative

interview without union representation, and the Court concluded that the Board’s interpretation of

the statutes was “at least permissible” and, therefore, upheld it. Id. at 266-67. When upholding the

interpretation, the Court thoroughly discussed the Board’s duty to interpret the Act and to adapt their

interpretations in response to “changing patterns of industrial life.” Id. at 264-68; see also National

Labor Relations Bd. v. City Disposals Systems, 465 U.S. 822, 829-30, 830 n.7 (1984) (explaining

that construction of Act by Board is entitled to “considerable deference”); Slaughter v. National

Labor Relations Bd., 876 F.2d 11, 13 (3rd Cir. 1989) (noting that review of interpretations by Board

is “highly deferential” because Board is in better position to determine what interpretation will best

promote purpose of facilitating employees’ rights to joint action and collective bargaining).

Accordingly, the Supreme Court did not actually determine whether the Act bestowed the right

asserted by the Board, and in fact, the Court specifically acknowledged that the statute itself might

not require union representation at all. Weingarten, 420 U.S. at 266-67; see Slaughter, 876 F.2d at




                                                  6
13 n.4 (stating that holding in Weingarten only stated that Board’s construction was permissible,

not mandatory).

               Unlike the Weingarten case, there has been no construction by an agency charged

with interpreting and enforcing the various labor code provisions at issue. Accordingly, we are not

asked to determine whether an interpretation is a permissible construction of section 101.001;

instead, we are asked to determine as a matter of law whether the actual language of section 101.001

bestows the representational rights asserted in this case. Given the absence of any language in the

statute pertaining to rights to union representation, I fail to see how the majority can conclude that

those rights are mandated by section 101.001.

               Finally, the majority fails to address the fact that decisions regarding when and under

what circumstances employees should have access to union representatives necessarily involve

important public-policy considerations. As noted by the Board, there have been significant changes

in the nature of the relationship between employers and employees since Weingarten that have led

to “a rise in the need for investigatory interviews.” See IBM Corp., 341 N.L.R.B. 1288, 1291 (2004)

(listing changes in workplace due to new security concerns “raised by terrorist attacks on our

country,” workplace violence, corporate abuse, and harassment by co-workers). Resolution of those

public-policy issues should be left to the body of government specifically designed to address those

types of issues.


Collective Bargaining

               Having highlighted potential problems with the opinion by the majority, I now turn

to what is, in my estimation, the fundamental flaw in the majority’s analysis: the conclusion that

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section 101.001 of the labor code bestows Weingarten rights on employees belonging to a labor

union regardless of whether the union has the authority to engage in collective bargaining. Even

assuming that section 101.001 could be read as bestowing Weingarten rights on employees, I believe

that the absence of the right to collectively bargain by the Association would foreclose their

application to this case.

                Perhaps the greatest support for the proposition that collective bargaining is a

necessary prerequisite can be found in the Weingarten opinion itself. That case involved a labor

union with the authority to engage in collective bargaining on behalf of its members. Weingarten,

420 U.S. at 254. Before the case was appealed to the Supreme Court, the Board construed the Act

as creating a “right in an employee to refuse to submit without union representation to an interview

which he reasonably fears may result in his discipline.” Id. at 256.

                In upholding the Board’s interpretation of the governing statutory scheme, the

Supreme Court relied heavily on the fact that the union had the right to collectively bargain. First,

the Court noted that the statutory language at issue specified that employees “‘shall have the right

. . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid

or protection.’” See id. at 253 n.2 (quoting 29 U.S.C.A. § 157 (emphasis added)). When

determining whether the Board’s interpretation of the statute was permissible, the Supreme Court

stated that allowing representation for employees belonging to labor unions with collective-

bargaining powers serves the interests of the “entire bargaining unit by exercising vigilance to make

certain that the employer does not initiate or continue a practice of imposing punishment unjustly.”

Id. at 260-61 (emphasis added). The Court also explained that the presence of the representative



                                                    8
would be an assurance “to other employees in the bargaining unit” and made reference to benefits

to “the entire bargaining unit” accorded by the presence of a union representative. Id. at 261, 261

n.6 (emphases added). Finally, the Court noted that the Board’s interpretation is consistent with

“actual industry practice” because “[m]any important collective-bargaining agreements” include

provisions allowing employees union representation at “investigatory interviews.” Id. at 267

(emphasis added).

               Several years later, the Board also indicated that the right by employees to collectively

bargain with their employers was a foundational element to the imposition of Weingarten rights. See

IBM Corp., 341 N.L.R.B. 1288. In that case, a nonunionized employee requested the presence of

a co-worker during an investigational interview, and the Board ultimately determined that

Weingarten rights do “not extend to a workplace where, as here, the employees are not represented

by a union.” Id. at 1288; see id. at 1291. Although the case did not involve a union without

collective-bargaining powers like the one in the present case, the Board articulated that the lack of

collective-bargaining authority was a crucial factor in its analysis. For example, when discussing

prior cases dealing with the issue presented in IBM, the Board noted that a representative who is a

fellow employee “has no obligation to represent the entire work force as does a union

representative.” Id. at 1291. Further, when describing the basis for their determination, the first

reason listed by the Board was the fact that “Coworkers do not represent the interests of the entire

work force.” Id. After discussing the importance that the Court in Weingarten placed on collective

bargaining, the Board noted that representatives designated by collective-bargaining agreements act

on and represent “the entire unit” but that a co-worker could not represent the entire work force



                                                  9
because there is no “bargaining unit with common interests defined by a collective-bargaining

agreement.” Id. at 1291. Finally, the Board explained that the presence during an informal

investigation of a representative from a union with collective-bargaining rights helps level the

“playing field” between the employee and an employer because the “representative has the full

collective force of the bargaining unit behind him.” Id. at 1292.

               The issue of Weingarten rights in a non-union context was also addressed by a federal

appellate court several years before the IBM decision, and that court also relied heavily on the

absence of a collective-bargaining agreement in its analysis. See Slaughter, 876 F.2d 11. In

Slaughter, the employee refused to attend a meeting with his supervisors unless he was allowed to

ask a fellow employee to attend the meeting as well. Id. at 12. Ultimately, the Board determined

that “absent an exclusive collective bargaining representative, an employer may discipline an

employee who conditions his willingness to discuss potential disciplinary matters on the

presence of a fellow employee of his choosing,” and the court upheld that interpretation. Id. at 13

(emphasis added).

               The primacy of a collective-bargaining agreement when determining the types of

rights employees possess was also extensively discussed by the Supreme Court in a case decided

after Weingarten. See City Disposal, 465 U.S. at 824. The employee in City Disposal belonged to

a union that had a collective-bargaining agreement with his employer. Id. Under the agreement, the

employer was prohibited from requiring its employees to operate unsafe vehicles. Id. at 824-25. The

employee refused to drive what he considered an unsafe truck, and the Board concluded that the

employee’s assertion of his right under the agreement to not have to drive unsafe trucks constituted



                                                10
“concerted activity” under the provision of the Act authorizing employees to engage in “concerted

activities for the purpose of collective bargaining or other mutual aid or protection.” Id. at 825; see

29 U.S.C.A. § 157.

                In upholding the Board’s interpretation, the Court noted that an employee’s

invocation of a right guaranteed under a collective-bargaining agreement “affects all the employees

that are covered by the collective-bargaining agreement.” City Disposal, 465 U.S. at 830. Further,

the Court explained that the “generalized effect” on all employees to the agreement “can be sufficient

to bring the actions of an individual employee within the ‘mutual aid or protection’ standard,

regardless of whether the employee has his own interests most immediately in mind.” Id. Stated

differently, the Court explained that “when an employee invokes a right grounded in the collective-

bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power

and resolve of all his fellow employees.” Id. at 832. For these reasons, the Court determined that

a single employee’s invocation of a right under a collective-bargaining agreement is “a concerted

activity in a very real sense.” Id.

                In light of the preceding, I would hold that even assuming that Weingarten rights have

any applicability in Texas law, Weingarten rights are not available to employees who do not belong

to a union with collective-bargaining rights. Accordingly, I would conclude that the district court

erred when it determined that the appellants violated section 101.001 and, therefore, sustain the

appellants’ second issue. For those same reasons, I would also conclude that the district court abused

its discretion when it permanently enjoined the appellants from denying the Association’s members

the right to representation “at investigatory interviews they reasonably believe might result in



                                                  11
discipline.” Accordingly, I would sustain the appellant’s seventh issue on appeal. Because I would

sustain the appellant’s first and third issues, I would not reach the issue of whether the district court

erred by imposing contingent appellate attorney’s fees on the appellants if they did not prevail on

appeal.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Filed: July 21, 2010




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