A few months ago I posted an article about Weingarten Rights only to pull it until we could confirm that despite Texas being a "Right to Work" State, we do indeed have these rights. The following article is written by me from information gathered at the Texas City Attorneys Association Website.
Weingarten Rights in Texas (aka; Right to Union/Association Representation)
Between June 8 & 10 of 2011, The Texas City Attorneys Association held a Summer Conference in South Padre Island. Per the attendee list posted on the Associations website (TSAA 2011 Summer Conference), Irving City Attorney Charles Anderson was in attendance.
On June 9th, a presentation was made titled “Recent Cases of Interest to Cities”. On page 11 of the presentation, a case titled “The City of Round Rock, Texas, v Rodriguez, Court of Appeal of Texas, Austin, No. 01-09-00546-CV, July 21, 2010” was presented and distributed.
Here is that case excerpt from the presentation:
Employment - Collective Bargaining
The City of Round Rock, Texas, v Rodriguez, Court of Appeals of Texas, Austin, No. 01-09-00546-CV, July 21, 2010.
Rodriguez sued Round Rock when he was denied association representation at an internal investigatory interview. The Round Rock Fire Fighters Association also sued the city to gain the right to represent fire fighters at investigations. The city argued that:
(1) the fire fighter and association did not have standing; and that
(2) Section 101.001 of the Labor Code does not provide“WeingartenRights”since the city is a public employer.
The city argued that the fire fighter and the Association did not have standing because:
(1) the case is moot because the firefighter accepted the discipline that resulted from the hearing;
(2) the fire fighter failed to exhaust his administrative remedies; and
(3) the association does not have associational standing.
Mootness and Exhaustion of Administrative Remedies: The court held that the firefighter’s case is not moot because it is “capable of repletion yet evading review.” See Blum v. Lanier, 997S.W.2d259,264(Tex.1999); Lakey v.Taylor, 278S. W. 3d 6, 12-13 (Tex. App.— Austin 2008, no pet.). Because the city would deny representation at the hearing and then the hearing would go forward, all of the cases would become moot prior to review. Additionally, the court held that the fire fighter was not objecting to the discipline he received, but instead due to his lack of representation, thus there were no other administrative remedies to exhaust.
Associational standing. An association, such as the Round Rock Fire Fighters Association has standing to sue if:
(1) its members have an individual right to sue;
(2) the interests the individual seeks to protect are part of the association’s purpose; and
(3) the association’s claim and relief request does not require the participation of individual members to the lawsuit. Tex. Asso’n of Bus.v.Tex. Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). The court held that the individual fire fighter in this case had standing. Representing members at investigatory hearings is something the association is designed to do. Thus, the association has standing.
Representation at investigatory hearings. The city argued that the individual fire fighter does not have the right to representation at investigatory hearings because:
(1) the city was not a collective bargaining city; and
(2) Section 101.001 does not provide the right to representation, known as a“Weingarten right.”
In1975, the Supreme Court held that an employee has a right to union representation when involved in an interview that may lead to discipline under Section 7 of the National Labor Relations Act. National Labor Relations Board v.J. Weingarten, Inc.,420 U.S.251.However, the National Labor Relations Act does not apply to public employees.
The issue in this case became whether Section 101.001 of theTexas Labor Code gives the same or similar rights asSection 7of the National Labor Relations Act to both public and private employees. The court held that Section101.001 applies to public employees because the plain language of the statute says“all persons;” the legislature did not distinguish between private and public employees in the statute.
The right to representation at investigatory hearings is available to all public employees, and this right exists despite the lack of a collective bargaining agreement.
NOTE: The City of Round Rock is appealing this ruling to the State Supreme Court however; until overturned, this is the law in Texas.
Based on Mr. Anderson’s participation in this seminar, the losing attorney in this case is the Law Firm of Lynn, PHam & Ross (outside counsel hired by the City of Irving) and the explicitness of the ruling and this presentation; we have every reason to belive the City of Irving and all employees in supervisory positions over persons belonging to Unions or Associations should now be aware of and comply with this ruling.