The Supreme Court of Texas has ruled that firefighters who are being interrogated for misconduct do not have the right to have union representation during questioning.

The 6-3 ruling was handed down on April 5, 2103 in the case of the City of Round Rock v. Rodriguez.  In deciding the case, the Texas Supreme Court went against the great weight of legal authority in the United States on what is widely referred to as the Weingarten Rule.

The National Labor Relations Board, the United States Supreme Court, and most courts that have addressed the issue have concluded that the right to have a union representative present during questioning that could lead to discipline is inherent in the right of employees to organize for their mutual protection. The Weingarten Rule is about as well established as any principle in American labor law.

The case involved Round Rock firefighter Jaime Rodriguez, who was suspected of calling in sick in order to take a physical examination for the Austin Fire Department back in 2008. When called in for questioning he asked for a union representative, but the request was denied. Rodriguez subsequently received a five-day suspension.

Rodriguez and his union, IAFF Local 3082, sought a declaratory judgment challenging the city’s action as violating Section 101.001 of the Texas Labor Code. The trial court and the Texas Court of Appeals ruled in favor of Rodriguez. The city appealed to the Texas Supreme Court.

Let’s review the supreme court’s majority ruling in the court’s own words:

[W]e are asked to decide whether section 101.001 of the Texas Labor Code grants unionized public-sector employees in Texas the right to, upon request, have union representation during an internal investigatory interview when the employee reasonably believes the interview may result in disciplinary action….

Although private-sector employees and federal public-sector employees both possess such a representation right, we hold that the Texas Legislature has not granted that right to public-sector employees in Texas. …

By its plain terms, the statute makes it lawful for employees to form labor unions or other organizations, and specifically, those organizations created to protect them in their employment. It says nothing about any rights that may attach once such unions are formed.

In essence the court concluded that the Texas legislature may have granted employees the right to form unions for their “protection”… but it did not expressly give employees or unions any other rights… In fact, even though the statute references the term “protection” … protection does necessarily mean that an employee has a right to a union representative present when being interrogated.

That rationale is odd – maybe even bizarre compared to the way most authorities interprete the right of employees to work together for their mutual protection. What is particularly concerning to me is the calavier attitude of the court toward the denial of mutual protection when it is needed the most. There is no time when an employee needs "protection" more urgently than when being questioned initially. Most legal scholars recognize that if an accused’s legal rights are compromised during an initial interrogation, it can be virtually impossible to rectify the mistakes later in the proceeding. For Exhibit A, see Miranda v. Arizona!!!! For Exhibit B consider the reasoning of the US Supreme Court in Weingarten!!!

Pardon my cynicism, but it hard for me to remain silent over what seems to be a blatant anti-union anti-employee and anti-firefighter ruling… the pre-Christmas Eve Ebenezer Scrooge would indeed be proud of the Texas Supreme Court!!! But I digress…

Continuing with its “reasoning” the court’s majority added:

This Court has recognized that the "intent [of the right-to-work statute] seems obvious to protect employees in the exercise of the right of free choice of joining or not joining a union."

Yes… obviously the purpose of “right to work” statutes are to protect the Bob Cratchets of the world… because we all know how awful those dreadful unions can be.  When Bob Cratchet is being called before Scrooge to account for his misdeeds the last thing he needs is a union representative. I am certain the firefighters in Texas are grateful to the Supreme Court for standing steadfast behind the state’s right to work law so as to “protect” them.

We read "protect" as describing the purpose around which individuals would organize and form unions, pursuant to the right conferred under section 101.001.

Say what? Whatever…

Then, sounding almost apologetic that the Supreme Court of Texas is powerless to go against the obvious “intent” of the legislature, the court continues:

We recognize, as the dissent does, that there are good reasons for Texas public-sector employees to have the same access to union representation in investigatory interviews as private sector employees and federal public-sector employees.

However, the court concludes that its hands are tied and only the state legislature has the ability to grant such a right.

The dissenting opinion written by the Chief Justice Wallace B. Jefferson and joined by two other judges, is extremely well reasoned and hopefully will prompt the legislature to take action to reverse the ruling. The Chief Judge starts out by asking a very simple question:

How can unions protect employees' jobs if they cannot engage in conduct to protect employees' jobs?

Sounding even more frustrated with the majority than I am, the Chief Justice continued: 

I am perplexed by the Court's conclusion that "Section 7 [of the NLRA] does not expressly confer the Weingarten right, and the Supreme Court recognized that.” … In fact, the Supreme Court held that the right “clearly falls within the literal wording of § 7 that ‘[employees] shall have the right … to engage in … concerted activities for the purpose of … mutual aid or protection." Weingarten, 420 U.S. at 260 .…

The [majority] rejects the right largely because our statute does not “confer[], by its plain language, the specific right to have a union representative present at an investigatory interview that an employee reasonably believes might result in disciplinary action.” … Neither does “due process” “confer[] by its plain language" the specific right to notice and a hearing. Yet courts have long said those characteristics are essential to effectuate that constitutional mandate. …

Words like "protection, " "due process, " or "equal protection" require judges to expound. The Legislature cannot anticipate every eventuality, and statutes often "embody purposeful ambiguity or are expressed with a generality for future unfolding." Felix Frankfurter …  Courts routinely decide the meaning of such terms. What is a "reasonable time" (a phrase that appears 599 times in our statutes)? A "reasonable effort" (176 times)? "Best efforts" (thirty)? What is an "attempt to monopolize, " a "just and right" property division, or the "best interest of the child"? Without judicial interpretation, these are just empty phrases. If the right to associate and form trade unions for protection is to be more than rhetoric, it must include rights like the one at issue here, and courts must decide the scope of such language. This was true when Texas first granted the right and when the Supreme Court decided Weingarten thirty eight years ago.

Amen.

Incidentally, one of the few other state supreme courts not to recognize Weingarten Rights for public employees, was the New York Court of Appeals. In New York City Transit Authority v. New York State Public Employment Relations Bd., 864 N.E.2d 56 (N.Y., Feb. 20, 2007), the Court of Appeals ruled that Weingarten Rights were not applicable to public employees under state labor laws. By July, 2007 the New York state legislature reversed the ruling by enacting the Weingarten Rights Bill, Ch. 244, L. 2007, signed into law on July 18, 2007. Five months… Let’s see if the Texas legislature can find a way to do the right thing faster than the state of New York did.

Here is a copy of the ruling: Round Rock et al v