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TX Supreme Court Limits Union Rights

AP PhotoThe Austin American-Statesman reported Friday that the Texas Supreme Court ruled "unionized government workers in Texas - including firefighters, police and teachers - don't have the right to be accompanied by a union representative while being questioned during internal investigations."

As the article stated, private sector employees and federal government employees who are union members have this right; the Texas Supreme Court held that state law doesn't extend this right to employees for state, county, city, or other local government in Texas.

Specifically, the Supreme Court opinion decided that the Texas Labor Code did not grant "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."  

The court rejected the decision of the Third Court of Appeals in Austin and held that the seminal U.S. Supreme Court case NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) did not apply, as that decision was applying federal law, not Texas law.

The case arose from the internal review of a Round Rock firefighter by the Round Rock Fire Chief. The review concerned the firefighter's alleged "misuse" of his sick leave in order to continue the application process for a job with the Austin Fire Department. Not only was the firefighter refused representation at the internal review, he was barred from discussing the meeting with union leadership and other union members. Notably, as a result of the internal review, the firefighter was given the choice between discharge and a five-day suspension. He accepted the suspension, and as a condition, waived his appellate and grievance rights.

The federal precedent comes from NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).  That case held that the National Labor Relations Board (NLRB) properly construed Section 7 of the National Labor Relations Act (NLRA) to grant private sector employees the right to have a union representative present at an investigatory interview when the employee reasonably believes that the interview could result in disciplinary action.

Notably, the federal law which granted this right states simply:

"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 . . . ." -26 USC § 157

The Texas statute at issue says this:

"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. LAB. CODE § 101.001.

The Texas Supreme Court, however, from extending such rights to Texas government employees, reasoning that the Weingarten decision was not an interpretation of the statute per se, but rather, was a limited judicial review of the grounds for the NLRB's decision. It recognized the right to organize, but did not recognize any other rights emanating from the statute, such as taking actions to effectuate the rights explicitly set out in the law.  

The court cited Chapter 617 of the Texas Government Code as the basis for specific rights for Texas public-sector labor unions, and holding that it did not include the right to representation at such an internal investigation, and specifically pointed out the fact that the Texas legislature has declined to enact any such provision.

Chief Justice Wallace Jefferson dissented; he was joined by Justices Hecht and Lehrmann.  

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