                                Fourth Court of Appeals
                                        San Antonio, Texas
                                      DISSENTING OPINION
                                            No. 04-12-00783-CV

                                    THE CITY OF SAN ANTONIO,
                                             Appellant

                                                v.
                  International Association of Fire Fighters, Local 624Appellee
              INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Local 624,
                                            Appellee

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-16015
                            The Honorable Laura Salinas, Judge Presiding

                                            No. 04-13-00109-CV

                                IN RE THE CITY OF SAN ANTONIO

                                     Original Mandamus Proceeding 1

Opinion by: Catherine Stone, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: October 2, 2013

           Because I believe the Union’s pleadings sufficiently raise a statutory claim under Chapter

174 allowing for judicial review, I respectfully dissent.


1
 The proceeding in Cause No. 04-13-00109-CV arises out of Cause No. 2012-CI-16015, styled Int’l Ass’n of Fire
Fighters, Local 624 v. City of San Antonio, pending in the 45th Judicial District Court, Bexar County, Texas, the
Honorable Martha Tanner presiding. However, the orders complained of were signed by the Honorable Laura Salinas,
presiding judge of the 166th Judicial District Court, Bexar County, Texas.
Dissenting Opinion                                                    04-12-00783-CV; 04-13-00109-CV


        Article 25 of the CBA provides that “Healthcare benefits for active Fire Fighters shall not

be terminated, altered, modified or reduced, during the term of the Agreement, except by

Amendment or Successors to this Agreement.” The Master Contract Document, an attachment to

the CBA, provides that coverage for Fire Fighters’ dependents may not be terminated unless the

covered employee is terminated from employment or the dependent ceases to be eligible as defined

by the Plan. Despite these provisions, the City unilaterally sent a postcard to fire department

employees informing them that they were required to participate in “active enrollment” in order to

participate in the City’s 2013 health care plan. The City demanded additional documentation by

Fire Fighters for their already-covered dependents and threatened cancellation of dependent health

care coverage for refusal or failure to comply. Thus, the Union filed a petition for declaratory

relief seeking a declaration that the City violated sections 174.023 and 175.015 of the Local

Government Code. See TEX. LOC. GOV’T CODE ANN. § 174.023 (West 2008) (providing that fire

fighters are entitled to “organize and bargain collectively with their public employer regarding

compensation, hours, and other conditions of employment”); id. § 174.105(b)(2) (West 2008)

(providing that the duty to bargain collectively in good faith requires the public employer and

union to “confer in good faith regarding compensation, hours, and other conditions of

employment or the negotiation of an agreement or a question arising under an agreement”)

(emphasis added). In essence, the Union asked for a declaration that the City violated the Union’s

statutory right to negotiate the terms of the health plan by failing to confer with the Union in good

faith before unilaterally implementing the above-mentioned procedures.

        The petition does not seek the enforcement of rights or obligations contained within the

CBA; rather, it alleges that the City’s actions in unilaterally changing the terms of the CBA are a

direct violation of Chapter 174. I respectfully disagree with the majority that the Union’s claims



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Dissenting Opinion                                                    04-12-00783-CV; 04-13-00109-CV


are based solely on case law. Further, I do not agree that any declaration that the City violated

state law by failing to negotiate the terms of the health plan necessarily involves an interpretation

of the CBA. Our review need not even weigh in on whether the City’s actions (requiring active

enrollment for continued health care coverage and threatening termination on grounds not within

the CBA’s specified provisions for termination) evidence the City’s alleged violation of its duty to

“confer in good faith regarding compensation, hours, and other conditions of employment or the

negotiation of an agreement . . .” To the contrary, the only issue that must be determined at this

juncture is whether the City conferred with the Union in good faith regarding the changes to the

2013 health plan. I believe the trial court could make this determination without interpreting the

provisions of the CBA relating to health care benefits.

        Article 30 of the CBA does not make arbitration the exclusive means for resolving disputes

between the City and the Union, or between employer and employee. The parties provided for a

“just, equitable, and expeditious method for resolving disputes between the City and the Union (or

employees) . . . concerning the bargaining relationship between the City and the Union.” The City

does not mention in its Original Answer or, more importantly, the motion to abate, that it agreed

to exempt certain state and federal claims from the “grievance/arbitration procedure,” and

particularly stipulated to a trial court’s authority to decide “claims of violation of statutory or

constitutional rights.” The parties recognized that such claims “may be included with related

claims of contract violations.” Notably, the City agreed to waive any right to abatement of a suit

involving contract claims related to the asserted statutory claim, and that “all issues raised by the

dispute or claim will be resolved in such lawsuit[.]” Unfortunately, the majority finds more notable

the “repeated” references to the CBA as a fact to “bolster” the conclusion that it requires




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Dissenting Opinion                                                    04-12-00783-CV; 04-13-00109-CV


“interpretation” by an arbitrator as the exclusive method to resolve the Union’s dispute with the

City. I believe more weight should be given to the language of the Union’s petition.

        The CBA recognizes other scenarios that may be subject to judicial review, and the parties

further stipulate that an arbitrator “shall have no authority to add to, subtract from, or modify the

terms of this Agreement as negotiated between the parties.” Yet at oral argument, the City failed

to provide an example of a claim “of violation of statutory or constitutional rights” which “may be

pursued by means of judicial and/or administrative appeal.”

        Unlike the Steelworkers opinion relied on by the majority, this case does not concern a

complaint that an employer unilaterally changed a heretofore unspecified detail contained within

the CBA, i.e., the deductible required under the group health insurance plan.            See United

Steelworkers of Am., AFL-CIO-CLC, Local No. 164 v. Titan Tire Corp., 204 F.3d 858, 861 (8th

Cir. 2000). Here, the Union’s complaint will not be solved by having an arbitrator simply “fill in

the gaps” and give “meaning and content” to the CBA. See id. Rather, the complaint lodged by

the Union is that the City violated its obligation to negotiate all terms of the CBA in good faith as

required by Chapter 174. The issue of whether the City performed its statutory duty of conferring

in good faith with the Union before making changes to the health plan can, and should be,

determined in a judicial forum. Accordingly, I would affirm the judgment of the trial court denying

the City’s motion to abate for arbitration.


                                                  Rebeca C. Martinez, Justice




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