No Weingarten Rights In Texas

The right to union representation in an investigatory interview generally derives from the United States Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), the seminal case regarding private-sector employee representation rights. In Weingarten, the Court found that Section 7 of the National Labor Relations Act (NLRA) granted private-sector employees the right to have a union representative present at an investigatory interview when the employee reasonably believed that the interview could result in disciplinary action. The Court determined that this right inhered in Section 7’s guarantee of the right of employees to engage in “concerted activities for…mutual aid or protection.”

Because the Weingarten case involved the NLRA, and since public employers are excluded from coverage under the NLRA, the question whether Weingarten rights exist under state collective bargaining laws has been resolved on a state-by-state basis. Until April 2013, every state to consider the issue had found that Weingarten (or in some cases Weingarten-like rights) were inherent in statewide collective bargaining laws. That trend was broken by a 6-3 decision of the Texas Supreme Court holding that Weingarten rights do not exist under Texas law.

The case originated in July 2008, when Round Rock, Texas Fire Chief Larry Hodge called firefighter Jaime Rodriguez into a meeting in the Chief’s office. In the room, Chief Hodge was joined by the assistant fire chief and Rodriguez’s battalion chief. Chief Hodge told Rodriguez that the purpose of the meeting was to conduct an internal interview of Rodriguez regarding a personnel complaint that Chief Hodge had filed against him. Chief Hodge alleged that Rodriguez had misused his sick leave earlier that month to get a physical examination to pursue employment with the Austin Fire Department.

Before the interview began, Rodriguez asserted the right to union representation, requesting to have a representative from the Round Rock Firefighters Association present during the interview. The Chief denied Rodriguez’s request and interviewed him without Association representation. Eventually, the Chief allowed Rodriguez to choose between being discharged and accepting a five-day suspension without right of appeal. A few days later, Rodriguez executed an agreement that opted for the five-day suspension. Three months later, Rodriguez and the Association filed a declaratory judgment lawsuit, alleging that the City violated Rodriguez’s right to union representation under the Weingarten rule.

The Court’s decision essentially turned on two separate rationales. First, the Court found a distinction between the NLRA and the Texas statute, known as Section 101.001 of the Texas Labor Code. The Court held that “the Weingarten right recognized by the Supreme Court is rooted in the individual right of the employee protected by Section 7 of the NRLA to engage in concerted activities for mutual aid or protection. Nothing in Section 101.001 allows us to reach the same conclusion. We cannot find a representation right in section 101.001 without similar ‘concerted activities’ language.”

The second rationale for the Court’s decision was that there was no equivalent of the NLRB in Texas. As the Court put it, “Second, Section 7 does not expressly confer the Weingarten right, and the Supreme Court recognized that. In Weingarten, the Court merely determined that the NLRB had permissibly construed Section 7 to find the Weingarten right rooted in the ‘concerted activities’ portion of that statute. The Court afforded the NLRB’s construction considerable deference because, with its ‘special competence,’ the NLRB is entrusted with ‘responsibility to adapt the NLRA to changing patterns of life,’ and its construction of the NLRA is therefore ‘subject to limited judicial review.’ In Texas, we have no NLRB equivalent. Instead, labor policy and regulation is determined exclusively by the Texas Legislature and the language of its legislative enactments. And, unlike the United States Congress, the Texas Legislature has not enacted legislation to confer the right to union representation on Texas public-sector employees during investigatory interviews.”

In the end, the Court was convinced that for the right to representation to exist for public sector employees in Texas, the Texas Legislature would have to specifically adopt it: “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. Here, we must give effect to the statute’s silence on this issue and the Legislature’s decision not to confer representation rights akin to Weingarten rights on Texas public-sector employees. While this court may properly write in areas traditionally reserved to the judicial branch of government, it would be a usurpation of our powers to add language to a law where the Legislature has refrained.”

In a fairly vigorous dissenting opinion, the Court’s Chief Justice argued that Texas law indeed supported the adoption of Weingarten rights, and that the failure of the Legislature to act was very likely an implicit conclusion that Weingarten rights did in fact exist under Texas law, and did not have to be specifically adopted. The dissenting judges argued that “the Legislature knows how to limit public employee union activity when it wants to. Instead, it left Labor Code section 101.001 untouched, even in the face of a decision from the United States Supreme Court that thoroughly dissected the scope of the representation right. Just last year, we adopted that Court’s interpretation of a federal statute because the Texas Legislature did not amend its similar state law in response to that decision. The same reasoning should apply here.”

City of Round Rock v. Rodriguez, 2013 WL 1365906 (Tex. 2013)