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Texas Statutes
Relating to Union Representation
by Mike Higgins, Chief of Staff
Texas State Association of Firefighters
AFL-CIO-CLC Does
a firefighter or other public employee have the right to representation
by a union and/or does a union have the right to represent such employee
on the employee’s request concerning conditions of employment? The
answer in both cases is yes. This question has been answered many times
in the affirmative.
In this regard, the Texas Legislature has seen fit to enact state
statutes which serve to give public employees certain rights to be
represented by labor organizations. It has long been established that
all persons employed in any kind of work have the right to organize and
be represented. Texas Government Code, Section 101.001 (Formerly Art.
5152, VTCS) states:
Section
101.001 RIGHT TO ORGANIZE.
“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.” |
Texas courts have
clearly held that a public employee is entitled to representation when
that employee is facing possible disciplinary action, presenting a
grievance or other matters. Under authority of this Act, the Texas 3rd
Court of Appeals held that public employees are entitled to union
representation even at an investigatory hearing. This case analogizes
Section 101.001 to the National Labor Relations Act (NLRA), which has
long been held to bestow such rights of representation to employees. In
this regard, the Texas Court specifically cited in the U.S. Supreme
Court decision that an employee has the right to have a union
representative present at an investigatory interview conducted by the
employer. See N.L.R.B. vs. Weingarten, 420 U.S. 251 (1975). The
court held, in reaffirming the decision of the State District Court,
that public employees in Texas have a right to union representation at
employer investigatory interviews or investigations. See Glen et al.
vs. Texas State Employees Union No. 13,723 (Tex. App. –Austin, Sept
1, 1982) (Not published). Therefore, under Section 101.001, any public
employee has the right to organize and be a member of a union, and the
employee and union each have rights of representation.
Another Texas Statute, TEXAS GOVERNMENT CODE, Chapter 617, (formerly
Article 5154c T.C.R.S.) forbids public employees from striking. However,
Section 617.005 of the Act reinforces the employee’s right to be
represented by a union, concerning wages or conditions of work. Several
court cases and Attorney General opinions support the interest of this
section.
In Dallas Independent School District vs. American Federation of
State, County, and Municipal Employees (AFSCME) Local #1442, 330
S.W.2d 702, the Court of Appeals held that Section 617.005 gives public
employees the right to present grievances through representatives not
claiming right to strike. Another court held that “teachers had absolute
rights under the statute to be represented by the president of the local
union which did not claim the right to strike”, in Corpus Christi
Independent School District, 572 S.W.2d 663.
A case involving the termination of a person employed by a public
hospital, Sayre vs. Mullins, 681 S.W.2d 25, was decided by the Texas
Supreme Court. In its findings, the court ruled that:
1. Public hospital
employee’s firing was a proper subject for the grievance process.
2. Statue prohibiting collective bargaining or strikes by public
employees during hospital grievance procedure, and she was not
limited to a labor organization for representation; and attorney
might represent her or any other grievance.
3. Where public hospital employee’s firing was a proper subject of
the grievance process, and hospital denied her request that her
attorney be present during the hospital’s grievance procedure, the
hospital violated her rights as a public employee. |
In Lubbock Professional Fire Fighter a.k.a. International Association
of Fire Fighters, Local 972, and Charles Alexander vs. City of
Lubbock and Lubbock Fire Department, 742 S.W. 2d 413, the Court of
Appeals held and the Texas Supreme Court upheld that “the city cannot
deny Local 972 the right to represent an aggrieved city employee at any
stage of the grievance procedure, so long as the employee designates the
local as this representative, and the local does not claim the right to
strike”. In this case, both requirements were met. “Thus, the city’s
refusal to permit representatives at the ‘informal’ state of the
grievance procedures and its refusal to permit Local 972 to provide that
representation at every stage violated Chapter 617, Section 617.005, by
denying the employee his right to representation.”
Several Texas Attorney General opinions have support this same position.
Opinion H-422 by Attorney General John Hill; JM 177 by Attorney General
Jim Mattox; and M-77 by Attorney General Crawford Martin; each explore
the language of Section 617.005 and applicable Texas case law as
presented to the Attorney General by the parties. In each opinion, the
Attorney General ruled that public employees have the right to be
represented during grievance procedures, and this representative may be
a labor union that does not claim the right to strike.
Thus, your local union and its members have the absolute right to
represent and be represented under Texas law. However, when presented
with a challenge to this right, contact the IAFF or TSAFF office for a
more detailed analysis of your rights.
Mike Higgins, Chief of Staff
Texas State Association of Fire Fighters (AFL-CIO-CLC)
627 Radam Lane
Austin, Texas 78745
Office: 512.326.5050
Cell: 512.750.6131
Facsimile: 512.326.5040
E-Mail: mhiggins@tsaff.org
This information was
distributed on February 25, 2004 during a training seminar for TSAFF to
Local 624. Please contact Mike Higgins, or, the Local 624 Chief Steward
if you have any questions. |
