*1 report days claim, of filing within her in denying appellants’
the trial court erred motion to dismiss.
Conclusion reasons, foregoing For the we reverse trial denying appel- the order of the court dismiss, lants’ motion to judgment render that Dodson’s claims be dismissed with
prejudice, and remand the ease to the trial solely
court on the issue of the appropriate attorney’s award of fees and costs incurred relation to this case. FORT WORTH TRANSPORTATION
AUTHORITY and McDonald
Transit, Inc., Appellants, Ricky THOMAS, Appellee. C.
No. 2-08-236-CV. Texas, of Appeals Court Fort Worth. Oct. Rehearing Overruled Feb. *3 Kinsel, Jr., Tatum,
J. Frank Stephen L. Dowell, David B. Bridget Blinn, Cantey A. LLP, Hanger, Worth, TX, Fort Appel- for lants. Brender, Smith,
Art Jason C.N. Law Brender, Offices of Art Worth, TX, Fort for Appellee. LIVINGSTON,
Panel: DAUPHINOT, GARDNER, JJ. OPINION
GARDNER, ANNE Justice.
Introduction Appellants Fort Worth Transportation (FWTA) Authority Transit, and McDonald appeal Inc. the trial court’s order granting appellee Ricky C. Thomas’s motion for summary judgment in this breach of con- issues, tract In case. two appellants con- tend that the trial court improperly grant- ed summary Thomas’s judgment motion because he failed to exhaust contractual filing remedies before his lawsuit and be- cause a collective bargaining agreement unambiguously permitted the termination employment. of his We affirm. Background Facts Thomas’s began working appellants1 as a bus driver in January 1989. He in- jured his back in 2001 and was unable to 1. manages public McDonald transporta- FWTA, system by tion bus owned which is a keep time. absences. Please contact with the period an extended work for every ‘T’ two weeks.” twelve requested received Family and under the leave federal weeks’ Appellants terminated em- (FMLA),2 July from Leave Act Medical by August letter ployment dated clas- through October The letter cited a Union sified Thomas’s absences on Agreement4 required Contract auto- July 13 as “FMLA” from Work Record matic termination for an absence from appel- 2001. One through October lasting greater year work than one when wrote in an e-mail employees lants’ an absence caused anything such was *4 3, 2001, the last “[t]oday October military other than leave. day Ricky. Starting for tomor- of FMLA grievance appellants filed a Thomas with row, 10/4, just Appellants out he is sick.” 5, 2002, August asking on for reinstate- of changed classification thereafter alleged perform- because he that his ment Operator on his Work Thomas’s absences was for all required ance evaluation of beginning October Record to “ill/sickness” appellants’ employees. Appellants denied 4, 2001. four grievance days later. Thomas work, Thomas unable While he was through more unsuccessful proceeded two compensation benefits workers’ collected steps grievance process,5 and the and a sev- approximately received series pursue union did not thereafter arbitration back injections en as treatment for his on his behalf. initially was released to injury. Thomas Handbook The CBA and 2002, appel- April return in but to work him to work not allow to return 2000, lants did appellants Effective October en- per- failed an April because he Teamsters Local tered into interim, In the formance evaluation.3 in No. 997.6 The Article Union warning, a on received verbal which terminated appellants Thomas 20 under in April warning, April a written on states relevant be cause for part: following The written “the shall regarding absences. stated, prior warn- part, have 146 immediate dismissal without warning “You now agreement political refer to this as a state. McDonald 4. The subdivision argue appeal agreement, that their and we bargaining and FWTA do not on will collective separately. liability should be considered agreement the "CBA” in this refer to the as FWTA, Thus, col- we refer to McDonald and opinion. lectively, appellants. During grievance process, appellants 5. 2009). (West §§ 2. See U.S.C.A. 2601-2654 pass opportunity to gave Thomas another employees guarantees qualifying The FMLA reinstated. performance evaluation and be It year unpaid weeks of leave each twelve whether Thomas is unclear from the record disabling problems, family members' health per- accepted appellants' retake the offer to illnesses, or or the of a new son serious birth evaluation. formance employers prohibited are from in- daughter; Ragsdale v. terfering with such leave. See Wide, Inc., during deposition testimo- U.S. 84- Thomas affirmed Wolverine World 6. union; 1155, 1158-60, 152 L.Ed.2d he ny 122 S.Ct. he was a of this member stating that he was filed an affidavit (2002). by the [CBA].” “covered again performance evalua- 3. failed tion in June 2002. ings: light duty ... being status 7. approved union business and/or absence from [sic] work for reason approved 8. bereavement military other period than leave for a approved 9. administrative leave (1) year.”7 more than one leave of approved absence under employees also issued Op- Article 19 Handbook, July erator effective 2001. The protected absences Family included, Operator Handbook among other and Medical Leave Act things, appellants’ FMLA and attendance policies. leave, control Concerning FMLA 12. absent assigned from work for no the Operator Handbook stated: “The T (60) sixty more than minutes [Em- complies with Family and Medical phasis added.] (FMLA) Leave Act for serious health problems” and that holidays, “[a]s with proceedings in the trial court vacation personal days, funeral leave against filed suit *5 jury duty, FMLA is not counted as 2003, January alleging in original peti- his absenteeism.” The attendance pol- control they tion that violated Texas labor laws icy in Operator the Handbook stated that they when employment. terminated his it should be “constructed in [sic] accor- Thomas filed a second petition amended in dance with” the CBA pro- and outlined a August 2006 that included breach of gressive disciplinary process for excessive contract claim and claims of retaliation and absenteeism. The Operator Handbook discrimination under the labor code.8 also specifically defined “absence” under its policy: attendance control Thomas filed a motion for summary judgment 2007, in November contending
Definition of “Absence” appellants that breached the CBA.9Thom- The term every “absence” means ab- as argued that because Operator work, sence from regardless of the rea- Handbook’s definition of “absence” exclud- son, except for the following: ed FMLA he was actually “absent” 1. vacations for less than year; one appellants there- fore breached by the CBA terminating holidays 2. they when did. Appellants floating holiday 3. responded to summary judgment Thomas’s motion asserting that his contractual jury 4. duty precluded claim was because he did not 5. appearance court as in defined Arti- suit, seek arbitration before bringing that agreement cle 37 of the labor Handbook could not be treat- 6. military leave contract, ed as a and that justi- throughout have maintained ed the terms of the CBA. Thomas nonsuited proceedings in the appeal trial court and on all of his other claims. that this of the CBA was the sole basis of the termination employ- of Thomas's sought summary 9.Thomas judgment on ment. claim, his discrimination but the trial court denied the motion as to that claim. Thomas only pleaded Thomas’s theory recovery of challenge ruling does not appeal. that in this theory appellants this time is his that breach- in jurors and fair-minded could differ their trial court his termination. fied light of all of the evidence mo- conclusions summary judgment granted Stores, Inc. v. presented. See Wal-Mart Thomas then non- January 2008. tion in (Tex.2006); claims, Spates, 186 S.W.3d his other suited Wilson, City Keller v. S.W.3d appeal. their notice timely filed (Tex.2005). Summary judgment is 822-24 where, here, do not proper Review Standard the relevant facts. Havlen dispute grant of sum the trial court’s We review (Tex.2000). McDougall, S.W.3d Gray v. de novo. See mary judgment
Nash, (Tex.App.-Fort Exhaustion of Contractual Remedies denied). A is plaintiff pet. Worth issue, appellants In their first contend judgment on a cause summary entitled summary judgment court’s all that the trial conclusively proves essen action if it improper was because Thomas waived his Tex.R. Civ. of the claim. See tial elements Jones, by failing fully claim (c); MMP, 710 breach of contract 166a(a), Ltd. v. P. words, (Tex.1986). comply grievance proce- with the CBA’s In other appellants assert summary judgment Specifically, dure. plaintiff meets after pursue Thomas failed to arbitration genuine that no by establishing burden procedure, thus three-step grievance it fact exists and that material issue of his breach of contract claim. waiving law. as a matter of judgment entitled contends, 166a(c); response, Power Thomas P. Sw. Elec. Tex.R. Civ. *6 (Tex. 211, exempts “management Grant, specifically 215 73 S.W.3d
Co. v. mandatory arbitration and rights” from 2002); v. Clear Creek City Houston of (Tex. 671, to terminate Thomas’s Auth., that the decision 589 S.W.2d Basin 1979). “management one of the employment was
rights.”10 reviewing the trial court’s When a labor contract ‘Where there is summary judgment plaintiffs a grant of employee which a union and an motion, favor between take as true all evidence we of dis for settlement defendant, provides procedures ev indulge and we able to the employer, and employee the any putes between inference and resolve ery reasonable in to redress is not entitled See IHS in the defendant’s favor. doubts DeSoto, Tex., fails to exhaust his courts where he the Treatment Ctr. Cedars of Lindsey (Tex. Mason, 794, under the contract.” remedies 143 S.W.3d Inc. v. 895, 2004). Dynamics Corp., 450 S.W.2d plaintiffs Gen. Evidence that favors the 1970, writ); no (Tex.Civ.App.-Waco considered unless it is 895-96 position will not be Aerospace Auto. & Int’l United Am. Reserve see Union See Great uncontroverted. Am. Local Agric. Implement Workers Plumbing Supply Antonio v. San Ins. Co. of Controls, Inc., (Tex.1965). 813 S.W.2d 119 v. Johnson Co., Howev writ de- (Tex.App.-Dallas er, whether reasonable we must consider disagree. appeal. We time on reply for the first in their brief contended Thomas raised indicates that argument to The record that Thomas failed and at oral reply to "Management Rights” in his issue “Management Rights” exclusion assert objections to his appellants’ response and requirement in the trial the arbitration from summary judgment motion. amended exclusion cannot be raised court and that this nied) reh’g) (indicating part, that claims tion C of the CBA states “Issues (op. plaintiffs arising rights of a fail- out of the exercise of the may be barred because management reserved to under grievance process the title comply ure to above, Rights Management including bargaining agreement); in a collective Christi, management’s determination of the facts City Corpus Roberts v. underlying its rights, exercise such (Tex.App.-Corpus 215-16 writ) (“[A]n subject shall to arbitration.” Arti- employee gen- Christi CBA, “Management cle 3 of the titled erally grievance must exhaust the reme- 11states, Rights,” provided bargaining dies for a collective agreement bring- or other contract before Except expressly abridged to the extent suit.”). Here, ing Article of the CBA CBA], by specific provision of [the “any controversy” indicates that concern- retains, Company solely reserves and ing application of the CBA’s exclusively, and all of its Law Common grievance “shall be treated as a business, rights manage to its as such settled, if possible.” Appel- and shall be rights prior existed to the execution of lants on a relied of the CBA to among [the CBA]. Prominent such un- termination, justify Thomas’s and Thomas qualified ... rights following: are the application has contested the of this sec- hire, transfer, ... lay-off, assign, to and tion; thus, complaints subject his were [;] promote employees ... adopt grievance procedure. CBA’s rules; working discipline enforce cause.12, discharge employees just parties agree that proceed- [Emphasis added.] through steps ed the three of the CBA’s grievance process They described above. We unambiguous conclude cu- agree that the union did not demand mulative effect of Article Section C and following three-step griev- arbitration appellants’ “unqualified” Article 3 is that asserts, however, process. ance discharge decision to Thomas based on discharge subject was not to arbi- they just what allege was cause under the *7 tration agree. under the CBA. We subject not CBA was to arbitration be-
cause this decision was one of their “Man- (titled “Arbitration”), Article 13 agement Rights.” Therefore, we hold that A provides: Section of the CBA “Should complied griev- with the Article 12 any grievance remain unsettled after ex procedure, although ance not successfully hausting three-step grievance proce [the arbitration, demanding by proceeding dure], shall, party either if hereto the through all grievance steps three and that party desires, demand arbitration.... the require CBA did not Thomas to also Otherwise, grievance the shall be consid seek appel- arbitration.13 We overrule However, 13, ered settled.” Article Sec- lants’ first issue. "management right” While there is no discharge of the CBA to Thomas's “Rights Management” titled by employment. of as denoted 13, C, Article Section we conclude that Article 3, pertaining “Management Rights,” the 13.Thomas also contends that for- 13, any right title to which Article by violating Section.C refers. feited to arbitration grievance procedure litigation and their any pro- any have not asserted that conduct and that failure to arbitrate was expressly abridged vision of the CBA its harmless error. Because we conclude that
857
is to ascertain the true intent of
concern
Discharge
Under
expressed
the instrument.
parties
Operator
Handbook
and
Exch.,
NP
Cotton
L.P. v.
See
Anderson
issue, appellants
In their second
Potter,
457,
(Tex.App.-Fort
463
230 S.W.3d
improperly-
the trial court
argue
2007,
City
pet.);
see also
San
Worth
summary judgment because
granted
(Tex.
Scott,
Antonio v.
16 S.W.3d
not have been
Handbook should
Operator
denied)
1999, pet.
(ap
Antonio
App.-San
unambigu
alter the CBA’s
considered to
general principles of contract con
plying
argues
language.
ous
interpretation
to the
collec
struction
Operator
in the
of “absence”
definition
bargaining agreement).
tive
To ascertain
Handbook,
FMLA leave
which excludes
intent,
may
to
parties’
we
consider
“absence,” must be considered
an
from
relating to the same
gether
writings
all
because the
Article 20 of the CBA
transaction,
if
at
they
even
were executed
Nei
not define “absence.”
does
County
times. DeWitt
Elec.
different
ambigu
that the CBA is
party argues
ther
Parks,
1 S.W.3d
Coop., Inc. v.
Instead,
competing con
they offer
ous.
(Tex.1999).
and consid
We must examine
whether the definition
tentions as to
har-
er the entire contract
an effort to
may
Handbook
“absence”
give
and
effect to all
so
monize
Article 20
interpreting
when
be considered
meaningless. Pot-
that none are rendered
of the CBA.
ter,
463;
see also J.M.
230 S.W.3d
clarity
disagreement
or a
Lack of
Webster,
Davidson,
128 S.W.3d
Inc. v.
necessarily
among
does
(Tex.2003).
construe contracts
“We
ambiguity.
See Universal
create
standpoint bearing in
‘from a utilitarian
Servs., Inc. v. Renaissance Wom
Health
activity
particular
mind the
business
P.A., 121
Group,
en’s
served’ and “willavoid when
sought
(Tex.2003). Rather,
“a contract is
whether
which is
proper
a construction
possible
law that must
question
is a
ambiguous
unreasonable,
inequitable,
oppres-
the contract as a
by examining
be decided
”
Dist.,
L
F
Bank v. &
sive.’ Frost Nat’l
present
circumstances
light
whole in
of the
(Tex.2005)
Ltd.,
(quot-
Id.
when the contract was entered.”
Inc., 727
ing Reilly
Rangers Mgmt.,
(Tex.1987)). “If,
after
construing contracts and S.W.2d
When
applied,
are
instruments,
rules of construction
primary
pertinent
our
other written
summary judgment or in
other
apply
motion for
requirement did not
the arbitration
*8
discharge,
address these
Thomas
we do not
with the trial court.
Thomas’s
document filed
regulation,
other assertions.
applicable federal
29
cited the
(2009),
reply
appel-
§
in his
C.F.R. 825.220
appeal
argues
that his
14. objections
response and
to his first
lants’
an "ab
leave cannot be counted as
FMLA
summary judgment, but
amended motion for
doing
Article 20 because
so
sence” under
was not re-
only
proposition that he
for the
assertion
“[t]he
violates the FMLA. Because
against appel-
claim
quired to arbitrate his
appellate
in
grounds before the
court
of new
prohibited from af-
therefore
lants. We are
summary judgment may prejudice
support of
summary judgment on this
firming the
ability
that
to demonstrate
the nonmovant’s
26;
Stiles,
Franco
ground.
S.W.2d at
See
867
genuine
material
a
issue of
the issue raises
fact,”
Ass’n, 154 S.W.3d
Mut. Fire Ins.
v. Slavonic
summary judgment
we cannot affirm a
(Tex.App.-Houston
Dist.]
[14th
grounds
expressly
out in the mo
"on
set
pet.).
response.”
v. Resolution Trust
tion or
Stiles
1993).
(Tex.
Corp.,
S.W.2d
argument in his amended
did not include this
agreements
given a definite or
The CBA set forth the
be-
can be
the contract
unambiguous
it
tween
the union with re-
meaning,
and
legal
certain
gard
it as a matter of law.”
to the terms and conditions of em-
construe
and we
229).
Webster, 128 S.W.3d at
(citing
Id.
for the union’s members.
It
ployment
addressed, among
things, rights
other
re-
appellants’ second is
To resolve
management,
lock-
served
strikes and
sue,
par
whether the
we must determine
outs, uniforms,
schedules, discipline,
work
exempt FMLA leave from
ties intended to
cause,”
“just
griev-
termination for
one-year
under Article 20 of the
absence
procedures.
Operator
ance
The
Handbook
permits
provision
at issue
termi
CBA.
similarly
appellants’ personnel
set forth
employment for an absence ex
nation of
generally
specificity
with more
policies,
exempts
ceeding
year
specifically
one
CBA,
policies
than the
and included
relat-
leave;
expressly
military
it does not
refer
benefits,
ing
health and safe-
fact,
ence FMLA leave. In
the CBA does
ty, FMLA
and absenteeism. The
and does not set forth
not define “absence”
CBA,
Operator Handbook referenced the
appellants’
policy. Appellants’
FMLA
policy provided
and its attendance control
policy
FMLA
and a definition of “absence”
it
that was to be “constructed
ac-
[sic]
Operator
are instead contained
cordance with” the CBA. Under the cir-
then,
question,
Handbook.15 The
is wheth
case,
cumstances of this
the CBA and the
Operator
er the
Handbook
be con
should
Operator Handbook related to the same
to determine if
sidered with
CBA
they
transaction because
set
forth the
year.
“absence” exceeded one
Thomas’s
terms and conditions of
employ-
appellants.
ment with
accepted princi
generally
“Under
ples
interpretation,
writings
all
contract
must next consider whether
We
pertain
to the
transaction
same
will
surrounding
prevent
circumstances
together,
they
considered
even if
were exe
Operator
CBA and the
Handbook from
cuted at different
times and do not ex
being
together.
regard,
considered
In this
Parks,
pressly refer to one another.”
Agree
stated in Article 42:
“This
S.W.3d at 102. The CBA became effective
ment together with its Exhibits constitutes
1, 2000,
Operator
October
and the
Hand
only agreement
between
July
they
book is dated
so
were not
hereto,
addenda,
previous
and no
memo-
contemporaneously
They may
executed.
understandings
practices,
or
randa^]
together
they
if
nevertheless be considered
oral,
whether written or
shall be binding
relate to the same transaction and the
upon
party.”16 [Emphasis
either
surrounding
added.]
do not
circumstances
indicate
not, however,
The CBA did
state that sub
they
togeth
should not be considered
Id.;
Martin,
documents,
sequent
Operator
er.
see also Miles v.
159 Tex.
such as the
(1959).
Handbook,
cannot be considered with the
requires appellants
type
15. Federal law
to include
16. This
of contractual
is com
policies
monly
"merger
their FMLA
Hand-
referred to as a
clause.”
*9
825.300(a)(1), (3)
"Merger
parties
§
book. See 29 C.F.R.
occurs when the same
to an
(West 2009) (requiring
agreement
FMLA-covered em-
earlier
later enter into a written
employees
ployers
provide
eligible
integrated agreement covering
to
with
its
the same sub
explaining
ject
Kingsville
a notice
the
of the
matter.”
A M
Texas & Univ. —
Lawson,
employ-
(Tex.App.-
FMLA and to
the notice in
127 S.W.3d
"includ[e]
denied).
pet.
merger
ee
...
handbooks
if such written materials
Austin
This
clause
exist").
prevent
Opera
does not
consideration of the
Handbook,
following
on the oth- 20 that states:
“the
shall be
Operator
The
CBA.
hand,
pri-
control
cause for immediate dismissal without
that its attendance
er
stated
warnings:
being
light duty
to be and should or
...
sta-
was “intended
program
with”
absence
any
[sic]
accordance
tus
from work for
[sic]
constructed
and/or
any
military
peri-
successor CBAs. The
reason other than
leave for a
and
the CBA
(1)
stated, however,
year.”
provi-
od of more than one
The
Handbook
Operator
contract,”
expressly
does not
exempt
is not an
sion
FMLA
“[i]t
contractu-
justifying
not intended to create
leave from an absence
termi-
that it “is
kind,”
However,
Operator
and that it is nation.18
the
Hand-
obligations
al
in word or intent
“The T
disagree
complies
“not intended to
book states:
with the
(FMLA)
Agreement.”
Family
the
current Labor
and Medical Leave Act
with
Operator
problems.”
Opera-
Handbook does
for serious health
The
though
Even
rights,
provides
contractual
tor Handbook also
purport
not
to create
with
“[a]s
holidays,
its terms in
may
personal days,
find that we
consider
vacation
fu-
we
jury duty,
determining whether the
intended
neral leave and
FMLA is not
provision
exempt
[Emphasis
FMLA leave from the
counted as absenteeism.”
add-
Operator
termi-
in Article 20 under which
The
Handbook further de-
ed.]
employment.
“every
fines “absence” as
from
nated Thomas’s
CBA
absence
work,
reason,
regardless
related to the
of the
Operator
except
and the
Handbook
(11)
transaction,
following:
protected
and their terms do not
...
same
absences
being
by
Family
from
consid-
and Medical
Act of
clearly prevent
them
Leave
Parks,
Considering
together.
ered
See
1993.”19
the CBA and
Miles,
Thus,
102;
Operator
together,
17.Our establishes justifying rule, leave from an absence eavement policy employee handbooks and manuals termination, we note that Article 36 of the but employ- general guidelines in the constitute "Employees taking approved provides: implied relationship and do not create ment charged with bereavement leave shall not be employ- employer and contracts between the an absence.” employment relation- ee that alter the at-will Sabre, Inc., ship. Brown v. 173 S.W.3d dispute that Thom- 19. There is no in this case pet.). (Tex.App.-Fort Worth appel- eligible for leave under as was in fact today Our decision does not conflict Operator policy FMLA as stated lants’ employee; Brown. Thomas was not an at-will Handbook. governed the terms conditions And, appellants. employment with con- may Although "a court conclude that our trary the dissent’s characterization of ambiguous in the absence of Operator even holding, say that contract we do not party,” McCreary v. pleading either rights. We such a created contractual Handbook Trust, 727, 730- Bay Area Bank & with the Hand- consider the CBA 2001, pet. (Tex.App.-Houston Dist.] only par- [14th to determine the intent of book *10 (thus serving calculating rights FMLA leave when create contractual to exclude claim) Thomas was absent from work for a whether the basis of breach of contract year. summary judg- The unambiguous more than one of a language alter the col- (CBA) that Thomas ment evidence establishes bargaining agreement lective even 13, 2001, July on when first missed work though specifically the handbook began, FMLA leave and that his his plainly says that it cannot do so. For this ended on October 2001. FMLA leave reasons, I respectfully and other dissent. summary judgment evidence also es- The unambiguously required The CBA appellants tablishes that terminated Thom- immediate termination of Thomas’s em- Ex- employment August as’s on ployment if he absent “from work was FMLA cluding Thomas’s military a reason other than leave for actually was “absent” from work for less (1) period year.” of more than one [Em- year than terminated one when phasis undisputed The evidence added.] employment August Appel- on July shows that Thomas did not work from ter- lants therefore breached (a August period 2001 until of more minating they when year) than one and that he did not take properly granted did. The trial court military Despite justifi- leave. the evident summary judgment to Thomas on his cation for Thomas’s termination when con- breach contract claim. We overrule facts, necting majority those holds that appellants’ second issue. may claim— succeed his sole which must focus on a breach the CBA Conclusion itself, only agreement par- between the Having appellants’ overruled each is- ties—because his twelve weeks’ leave un- sues, judgment we affirm the of the trial Family der the federal and Medical Leave (FMLA) court. expand one-year Act must Majority op. absence limitation. See 859-60.1 The preclude record and the law LIVINGSTON, J., dissenting filed a majority’s holding for several reasons. opinion. First, although majority correctly LIVINGSTON, Justice, TERRIE explains that in some circumstances docu- dissenting. ments may related the same transaction unilateral, majority together, rely holds that a be considered we should not nonbargained employee may handbook on that manner of construction when the dism’d), we do not find that the CBA is am- FMLA leave is "not counted as absenteeism” Instead, biguous. applying pertinent after and exclude FMLA leave from the handbook's considering rules of construction and Majority op. definition of "absence.” at 859. together, and the Handbook we find portions Those of the handbook are relevant that the in Article 20 under which to the handbook's Attendance Control Pro- susceptible only Thomas was terminated is gram, increasing disciplinary which sets forth interpretation: one reasonable FMLA leave employees accumulating actions for several cannot be counted as an absence when termi- during rolling peri- absences twelve-month nating exceeding for an absence program explicitly od. The does not relate to year. one lasting longer year, absences than one as does majority explains, 1. As the Thomas relies on the CBA. portions of the that state that handbook *11 provisions. reli rated into the CBA’s The prohibit such themselves documents “only further states that it is the CBA Kelley, 614 S.W.2d v. ance. See Jones agreement parties.” Finally, between the (Tex.1981) principle that the (explaining although the handbook indicates that it is is a “device writings together construing to be construed accordance with the to the ascertaining giving effect in use at the time of Thomas’s termi- CBA ap be and cannot intention of the nation, not it does state the inverse—that regard to the arbitrarily and without plied situation”) is to be construed accordance v. (quoting Miles realities of the 62, with the handbook. Martin, 336, 341, S.W.2d 159 Tex. (1959)). Second, majority recognizes, as the our general that as a precedent establishes
Here, that it the handbook indicates rule, employee policy handbooks and man collectively-bargained enlarge not does general guidelines in the uals constitute page states its first textual provisions; employment relationship and do not create that it is employer implied contracts between employees with provide intended to employee employ that alter the at-will understanding [appellants’] general 858-59; Majority op. at relationship. ment are en- policies. Employees personnel Sabre, Inc., see Brown v. themselves with couraged to familiarize (Tex.App.-Fort pet.) Worth handbook, as it will of the the contents (describing particularly ap that the rule questions con- many common answer where, here, specific “a disclaimer plies employment [appellants]. cerning the em handbook warns pro to However, ployee that the manual is intended handbook cannot antici- this only, every guidelines and does not create every or answer vide pate situation rights”); Exp. see also Fed. It is not contractual question employment. about Dutschmann, 282, 283 Corp. not contract and it is employment an Zimmermann, (Tex.1993); Day Inc. v. obli- & create contractual intended to (Tex.App. Hatridge, 831 S.W.2d any kind.... gations of denied) (explaining writ -Texarkana are policies ... These and/or benefits ... a statement of that Texas law “[u]nder in word or disagree not intended to unaccompanied by an ex company policy, Agree- the current Labor intent with contrac does not create press agreement, [Emphasis added.] ment. way, although In the rights”). tual same at-will, handbook not parts employment of the CBA and the was Other majority’s conflated to alter weigh against the should not be construed handbook collectively-bargained For provisions construction of those two documents. of the instance, claim references work Thomas bases his while the CBA contract on which books, employ- it to do so. expressed rule limits an intention rules and without explain why duty majority ee’s to follow such has failed Brown, [appellants] decision in regulations precept guided “rules and our CBA],” manuals can employment [the which are not in conflict with that unilateral employment superiority of the CBA’s se constitute written per which dictates contracts, to the Also, apply should not also the CBA’s reference provisions. preexisting alter ability such manuals to provide defi- such rules does not relationships. incorpo- contractual nitions from the rules should *12 862 Brown, (citing at Aiel entitlement of to a contract to se
See 173 S.W.3d 586 Lines, Inc., v. Air 818 F.2d obligations lo United lect their own than —rather (5th Cir.1987)). having obligations a court create by carefully choosing the words them — Third, argument that the they select to in include the contract.2 See “absence” definition should be handbook’s Bds., Inc., Doe v. Tex. Ass’n Sch. of incorporated into the CBA excuse (Tex.App.-Fort S.W.3d Worth FMLA leave does not make sense when filed) 2009, pet. (citing Cross Timbers Oil considering specific the CBA’s and limited (Tex. Corp., Co. Exxon designation military leave as an excused App.-Amarillo pet.)). no military because leave is also ex- absence in the handbook. In cluded as absence Fourth, majority’s the decision that the words, appellants if and Thomas’s other employee’s handbook adds an FMLA leave union to add FMLA leave to had intended one-year to the limitation lasting greater year than one an “absence” makes even considering less sense when by tacitly incorporating the CBA types the other of leave are men- provision, handbook’s definitional there tioned the handbook and are also neces- specifically would be no need to mention sarily one-year period added to the under CBA, military leave in the which is also majority’s reasoning, holidays such as in that provi- excluded same definitional and vacations. provides appel- The CBA intent, If that had sion. been their employees holidays. lants’ with eleven Be- specific military mention of leave in the employed by ap- cause Thomas had been provision CBA’s termination would amount pellants for years, more than nine he also And, unnecessary surplusage. received three paid weeks’ vacation. course, by majority’s decision that indi- Thus, majority’s under reasoning, opinion contracting parties’ cates its of the when considering Thomas’s twelve weeks tacitly incorporate intent to the handbook leave, of FMLA his more than two work CBA, any into the the “for reason other holidays, weeks of combined and his three military phrase than leave” in the CBA’s vacation, appellants weeks of could not wholly termination is rendered have terminated Thomas’s un- inconsequential. (about til more than seventeen weeks four months), minimum, at a passed had after
Thus, majority’s decision to alter the already he had been unable to a work for language by provi- CBA’s the handbook’s year. Appellants would then have to fur- goal giving sions defeats its stated effect any days ther add to that time off related to “all so that none are ren- jury duty, to his bereavement or 857; adminis- meaningless.” Majority dered op. Exch., “approved NP trative or union busi- see Anderson Cotton L.P. v. Potter, seen, majority’s ness.” As can be (Tex.App.-Fort deci- pet.). simple phrase Worth For the same rea- sion has turned —“absence son, weighs against the decision also from work for reason than mili- other entitlement, subjects In accordance with that all such [had] been discussed and document, expresses crafting that in negotiated upon agreements and the con- Thomas’s union and each "had the tained in [had this contract been arrived right opportunity unlimited to make de- upon] rights after the free exercise of such proposals respect prop- mands and to all responsibilities.” subjects bargaining er of collective and that CBA, than one claim for tary period leave for a more breach of the I would (1) year” enigma a mathematical appellants’ sustain second issue and re- —into justify Thomas’s absence from that could verse majority this case. Because the af- year court, work for close to a and a half. firms the trial I respectfully dissent. *13 Finally, majority’s holding that the to the contractual
handbook adds CBA’s language becomes further strained when handbook,
considering appel right change, lants re “reserve[d] vise, any or eliminate of the [handbook’s]
policies.” majority’s Under the reasoning,
although FMLA leave must added to one-year today, limitation it CBA’s may not be added to that limitation tomor modify
row if choose fluidity obviously handbook. Such interpreting odds with our task of the par HILL, Appellant, Monterio Desha bargain. ties’ contractual See Gamble v. v. (Tex. 253, Gregg County, 932 S.W.2d writ) 1996, App.-Texarkana (indicating Texas, The STATE of State. that an handbook does not ex press rights an intent to vest contractual No. 2-08-178-CR. “expressly provides when it that the [em Texas, Appeals Court of may ployer] unilaterally change poli Fort Worth. practices”); Ryan Superior cies and v. Oil Co., (Tex.App.-Hous Nov. 2009. denied) ton (holding [14th Dist.] writ that a vacation plan stated that it Rehearing Overruled Dec. could “be terminated or modified at Discretionary Review Refused
time” did not create a contractual obli March gation). reasons, handbook,
For all of these law, a matter enlarge cannot or modi- fy the provisions, CBA’s and it cannot
serve as the basis for Thomas’s breach of
contract claim. And even if the hand- book’s created doubt on inter- preting language, the CBA’s termination majority should have resolved those appellants’
doubts in favor. See IHS Ce- DeSoto, Tex., dars Treatment Ctr. Inc. (Tex.2004). Mason, Because the trial court improperly granted summary judgment on Thomas’s