Court Finds Weingarten Rights Exist Under Texas Law, Even In Absence Of Collective Bargaining

Unlike most populous states, Texas has no mandatory statewide collective bargaining law. Though local jurisdictions can choose to adopt collective bargaining, most have not.

Section 101.001 of the Texas Labor Code does allow employees the right to form “unions and other organizations,” and provides that “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.”

The Texas Court of Appeals recently addressed whether, even in the absence of collective bargaining, Section 101.001 grants employees the right to representation in disciplinary interviews. Put another way, the Court had to answer whether representational rights along the lines of those described by the Supreme Court in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975) exist for public sector employees in Texas.

The case involved a firefighter working for the City of Round Rock. When the Fire Chief summoned the firefighter for a disciplinary interview, the firefighter asked that he be represented by the local firefighters’ association. The Chief’s denial of the right to representation led to a lawsuit filed by the Association.

The Court first had to address whether Section 101.001 created rights analogous to those described in Weingarten. The Court found that it did: “A statute is presumed to have been enacted by the Legislature with complete knowledge of the existing law and with reference to it. Further, Texas courts examine federal labor law to interpret state labor provisions. At the time the Legislature enacted Section 101.001, the federal interpretation of the ‘literal wording’ of the National Labor Relations Act had been in existence for over 20 years.

“The language of Section 101.001 substantively mirrors the language in the NLRA providing employees the right to engage in other concerted activities for the purpose of mutual aid or protection. Although not identical, the language is substantially similar with both statutes protecting the same rights – employees’ rights to join together to protect themselves in their employment.”

Since Round Rock has not chosen to collectively bargain with its employees, the next question the Court faced was whether Weingarten rights existed even in the absence of collective bargaining. Turning now to the differences between federal law and Section 101.001, the Court found that the right to representation did not depend upon the existence of collective bargaining: “The plain language of Section 101.001, however, is not limited to collective bargaining settings. The statute allows ‘all persons to associate and form trade unions and other organizations to protect themselves.’ By including ‘and other organizations,’ the Legislature’s intent as expressed in the plain language was to allow representation by a broader category of organizations than trade unions with collective bargaining rights.”

City of Round Rock, Texas v. Rodriguez, 2010 WL 2867385 (Tex. App. 2010).

This article appears in the September 2010 issue