the City of Round Rock, Texas and Round Rock Fire Chief Larry Hodge v. Jaime Rodriguez and Round Rock Fire Fighters Association

support good- authority supervisor’s enforcement if This evidence does not power ensuring faith belief Moreno that Juarez had extends no further than authority “regulate governmental body complies under or enforce the itself alleged law to be violated” or to “investi- the law.” Id. at 689. Juarez made the or a violation of criminal gate prosecute university on behalf of the decision 554.002(b). law.” Tex. Gov’t Code As Saban needed to reimburse the university, Gentilello, Act, unlike we hold Texas entity but “an capable only disciplining jurisdic- whistleblower statutes internally its employees ‘appro- is not an tions, not protect purely does internal re- priate authority law enforcement under Act, ports. Under our a law-enforcement the Act.” Id. at 687.2 enforce, authority authority “must have Accordingly, hearing argu- without oral prosecute investigate, or violations of law Tex.R.App. ment, 59.1, see grant P. we against parties entity third outside of the review, petition for reverse the court of itself, authority it must have promul- appeals’ judgment, and dismiss the case. gate regulations governing the conduct of parties.” such third 398 S.W.3d at 686. A

supervisor is not an appropriate law-en- authority supervisor

forcement where the authority alleged- lacks “to enforce the law ROCK, The CITY OF ROUND Texas ly against violated ... parties gener- third Larry and Round Rock Fire Chief “Indeed, ally.” Id. at 686. holding other- Petitioners, Hodge, every governmental wise would transform entity subject that is regulation

that conducts internal investigations or im- Jaime RODRIGUEZ Round Rock internal poses discipline into law-enforce- Association, Fighters Fire ment authorities under the Act. Such a Respondents. result would collide head-on with the Act’s No. 10-0666. definition interpret- limited and our cases Supreme Court of Texas. ing that definition.” Id. at 686. Argued Dec. 2011. only Moreno offered evidence that April Decided 2013. university Juarez oversaw internal compli Rehearing Denied June ance with the requirement. in-state tuition whistleblower cannot reasonably “[A] be supervisor

lieve his appropriate is an law- fired for reasons unrelated to the pres- in-state tu- where a of the Board was ent, ition incident. posed and that she made statements and questions governing about the rules in-state 2. Moreno contends that she also made disclo- tuition for children of administrators that Higher sures to the Texas Education Coordi- teaching positions, including hold a comment nating protected by Board that were the Act. perceived practice about the at another cam- Assuming might qualify the Board sometimes pus. Her affidavit does not indicate that she "appropriate as an law enforcement authori- stated at the conference a belief that a viola- Act, ty” requires under the the Act that the tion of law had occurred at TAMUKor else- plaintiff report "a violation of law” to the deposition testimony where. Her confirmed authority. 554.002(a). Tex. Gov't Code report perceived that she did not what she Moreno’s affidavit is clear that she did not report illegal anyone a violation of law be the tuition waiver to to the Board. She outside only attested university. she attended a conference Alexander,

Douglas Anna Meredith W. Baker, Warr, Amy Alexander Dubose Townsend, LLP, Austin, TX, Jones & Julia Gannaway, Bettye Lynn, Lynn Pham & J. Ross, LLP, Worth, TX, L. Stephan Fort Sheets, PC, & Round Sheets Crossfield Rock, Rock, TX, of Round for Texas. Deats, Durst, Deats Craig Philip

B. P.L.L.C., Austin, TX, Levy, Durst Owen & Rodriguez. for Jaime Dierdorf, City At- Elizabeth T. Sr. Asst. City of Fort torney, for Amicus Curiae Worth, Texas. Richards, Rodriguez

David R. Richards TX, LLC, Austin, for Amicus & Skeith AFL-CIO, Texas Texas State As- Curiae Fighters. sociation of Fire Mueller, Municipal F. Texas Laura Austin, TX, Amicus League, Curiae Municipal League. Texas opinion Justice GREEN of had his sick leave earlier that delivered misused Court, JOHNSON, get physical month to examination to which Justice WILLETT, GUZMAN, pursue employment with the Fire Austin Justice Justice stated, BOYD, Department. complaint and “Since Justice Justice DEVINE may Internal not joined. you this is an Interview during meeting; how- represented be our case, statutory In this construction we ever, meeting a is pre-disciplinary if set are asked to decide whether section following meeting you eligi- our would of the grants 101.001 Texas Labor Code representation ble for at that time.” public-sector in Texas employees unionized complaint prohibited also from Rodriguez to, right upon request, rep- have union discussing complaint anyone with during investigato- an internal resentation Rodriguez’s attorney, including than union interview when the ry employee reason- leadership and other union members. ably believes the interview result began, Rodriguez Before the interview appeals action. The court right to union representation, that asserted held section 101.001 confers such a requesting to have a from right. (Tex.App.- Rock Fighters the Round Fire Association pet. granted). Although pri- Austin (the Association) present inter- employees public- during the vate-sector and federal Hodge view. Rodriguez’s Chief denied re- possess rep- sector both such a quest interviewed him Associ- and without right, resentation we the Texas hold that Legislature representation. ation In October granted right has not that Hodge again Rodriguez met Chief public-sector employees in Texas. 5Cf. 7101(b); potential discipline § discuss conduct U.S.C. NLRB v. Inc., alleged personnel in the Rodri- complaint. guez did ask for a union representative L.Ed.2d 171 (interpreting U.S.C. 157). meeting. that Hodge Chief allowed judgment We reverse the of the Rodriguez being choose between dis- appeals judgment court and render charged accepting and five-day suspen- 101.001 of the a section Labor Code does not right appeal. days on sion without A public-sector employees confer in Texas few later, Rodriguez an right agreement to union executed representation an for the investigatory opted five-day suspension. interview that the reasonably might believes result in disci- later, Three months Rodriguez plinary action. filed a declaratory judgment Association action, alleging that and the Hodge Chief Background

I. Factual City Rodriguez’s of Round Rock violated July In Round Fire representation, Rock Chief union and assert- Larry Hodge fighter called fire Jaime a ing by that such sec- conferred Rodriguez into a in Chief meeting Hodge’s tion Texas Labor Code. room, office. Hodge Chief was and the Rodriguez sought Association also joined by the assistant fire chief and Rod- to enjoin Hodge City Chief and the from riguez’s Hodge battalion Rodriguez fighters chief. Chief told denying and other fire Rodriguez that meeting representation in- at future was to conduct an internal interview of vestigatory de- interviews. The trial court Rodriguez regarding personnel com- summary judgment nied a motion for filed plaint that Hodge Chief filed against by Hodge City, had and the granted Chief him. Hodge Chief alleged Rodriguez for summary judgment motion filed Following Weingarten, the Association. In its final 95 S.Ct. 959. Rodriguez and Con- declared that gress representation right the trial court extended the judgment, was denied his Rodriguez public-sector employees. federal 5 U.S.C. 7101(b). section 101.001of the Thus, under to union repre- Code, enjoined Hodge Chief Labor during investigatory sentation interviews denying from further fire and the currently applies nationally private- to all to, request, be upon fighters public-sector sector and federal at investi- by the Association represented employees. they reasonably believe

gatory interviews discipline. in The court of might result Statutory III. Construction affirmed the decision. 317 S.W.3d appeals Statutory ques construction is a at 875. law, tion of and review is conducted de States, Entergy novo. Inc. v. Sum Gulf Weingarten Decision II. The mers, (Tex.2009). 282 437 S.W.3d in an representation Our ultimate when construing the investigatory interview derives from Legislature’s statute is to discover the in in Supreme States Court’s decision United text, tent. Id. We examine the statute’s as Weingarten, NLRB v. provides it the best indication of legislative (1975), regard- the seminal case S.Ct. 959 intent. Id. employee representation ing private-sector case, an chal- rights. employer In that Language A. The Plain of Section the National Labor Relations lenged Repre- 101.001 Does Not the Confer (NLRB) determination that Sec- Board’s by Right sentation Asserted Rodri- Act tion 7 of the National Labor Relations guez (NLRA) granted private-sector 101.001,captioned “Right Section to Or- the to have a union ganize,” provides: persons engaged “All in investigatory an interview when present at any may kind of labor associate and form reasonably believes that the employee the organizations trade unions and other disciplinary interview could result in ac- protect personal themselves in their labor 959. The NLRB tion. Id. at 95 S.Ct. respective employment.” in their TEX. that this inhered in Sec- determined 101.001; LAB. see also CODE guarantee 7’s tion Waffle Williams, House, Inc. v. in engage ees to “concerted activities (Tex.2010) (“[T]he statute] title of [a protection.” ... mutual aid or Id. at weight, heading carries no as a does not 959; see 29 U.S.C. 157. expand meaning limit or the of a statute.” per- held that the NLRB Supreme Court omitted)). (internal quotation marks missibly Section 7 to confer the construed broad, While the statute is we do not read right, noting that conferring, by plain language, it its as may required NLRB’s construction not be specific right representa- to have a union text. statute’s investigatory interview present tive at an so, In doing reasonably believes that an explained Court fact, action. In might result “subject NLRB’s decisions are to limited face, only the statute confers one on its judicial review” because of the NLRB’s organize into a explicit right: “special interpreting function” Section organization. By its trade union or other “special competence” and its the field terms, lawful for plain the statute makes it labor-management relations. Id. persons form labor unions or other that it shall be lawful for vid[es] or- organizations, specifically, engaged those kind of labor to associate ganizations created to them together themselves and form unions” and employment. says nothing It about a former codification of section un- any rights attach once such relating 101.002then makes a “declaration ions are formed. rights privileges to the of such associa tions”). court, Our sister

Indeed, previously recog this has Appeals, recognized has also Criminal nized this construction of section 101.001 scope limited of a former codification discussing joint purpose when of a 101.001, stating “grants section that it former codification of section 101.001 and person organize to a or become Code, 101.002 of the Labor which section member of a union.” Ex parte labor Wal rights to influ addresses individuals trip, 151 Tex.Crim. in employment ence others matters. See Int’l Best Motor Lines v. Bhd. Team sters, Chauffeurs, & Help Warehousemen reading comports This of section Am., 745, 95, ers Local No. 150 Tex. 237 of provisions other labor-related 589, 598 We stated that statutes, premised Texas which are on sec- very these statutes are “the statutes which right tion 101.001’s to form unions. While that, give the unions life” and “[u]nder protects right section 101.001 of em- statutes, permitted these labor unions are unions, to ployees organize into labor sec- organize to and work for the betterment of protects tion 101.052 of the Labor Code clearly their members.” Id. We delineated the “right to work.” See Tex. Lab.Code specific roles of each statute: Section 101.052; § also v. City see Lunsford of right organize 101.001confers the into a 520, 115, Bryan, 156 Tex. 117 union, provides and section 101.002 then (1957) (describing a former codification of right by allowing substance to that em section “right-to-work” 101.052as our stat- ployees to influence other ute). This recognized Court has that the enter, refuse, Id.; quit employment. or “intent the right-to-work [of seems statute] 101.001, .002; §§ see also Tex. Lab.Code to protect employees obvious in the exer- & Connell Constr. Co. Plumbers Steam joining cise of free choice of or of 100, 616, Local Union No. fitters joining Lunsford, a union.” 297 18, 1830, 686 n. 95 44 L.Ed.2d 418 added); (emphasis S.W.2d at 117 see also (1975) (noting that a former codification of Lawther, 503, McNatt v. 223 S.W. sections 101.001 and 101.002 “declare that writ) 1920, (Tex.Civ.App.-Amarillo no it for is lawful workers to associate in that, (holding prior to enactment of the to induce persons unions and to ac statute, right-to-work previous codifica- cept reject employment”); United Mine protected only tion of section 101.001 Co., Am. v. Workers Coronado Coal right of employees organize, and thus it n. 66 L.Ed. employers allowed to fire (1922)(describing a former codification union). joining a being of section 101.001as enacted for the Similarly, purpose “[ljegalization our construction of section of labor unions combinations”); Cooks’, conferring orga- and labor Webb v. 101.001—as Union, Chapter Waiters’ & nize into unions—is in accord with Waitresses’ No. Code, 205 S.W. (Tex.Civ.App.-Fort 617 of the Texas Government which 'd) Worth writ (stating ref that a for specific rights public-sec- defines of Texas mer codification “pro- of section 101.001 tor labor unions. See Tex. Gov’t Code contrast, § disarming pub- U.S.C. section (expressly §§ 617.001-.008 usually enjoyed 101.001 rights provides: unions of lic-sector sector, striking such as private in the persons engaged All kind of labor § id. bargaining); collective may associate and form trade unions public-sector unionized (granting organizations and other them- present griev- limited “to ees the personal selves in their labor in their concerning wages, hours ances respective employment. either or conditions work employment, Although 101.001. Rodri- Tex. Lab.Code

individually through guez argue and the dissent that the lan- strike”); that does not claim similar,” guage “substantially No. H-422 Att’y Op. also Tex. Gen. see S.W.3d at we read the statutes as (1974) (determining implicit section substantially dissimilar. public officials 617.005 “is notion rights Section 7 confers four that union or their public employees should meet with protection: members can invoke for their representatives at reasonable times and (1) (2) “form, “self-organization”; join, or grievances concerning hear their places to (3) organizations”; “bargain assist labor work, and conditions of wages, hours collectively through representatives work”). Chapter conferring while choosing”; their own “engage con- present grievances, does not other concerted activities for the dur- fer the bargaining of collective or other mutual ing investigatory interviews. protection.” aid or 29 U.S.C. 157. The Weingarten right recognized by the Su- B. 7 of the NLRA Differs Section preme is rooted in that fourth Significantly from Section right right individual —“the 101.001 ee, Act, protected by 7 of the ‘to [Section] we look to federal statutes and Although engage in ... concerted activities for ... law when a Texas statute and federal case protection.’” Weingarten, mutual aid or in their common his statute are “animated (omissions 95 S.Ct. 959 in tory, language, Barr v. purpose,” and see original). guarantees Because Section 7 Sinton, 296 & n. right private-sector employees specific the (Tex.2009), key differences between the bargaining gen- the to collective and more compel NLRA and the state statutes here right engage eral to in other concerted result from that reached the different activity bargaining toward collective Supreme Weingar States in United protection— some other sort of aid or ten. See 420 U.S. at unions are rights that attach once S.Ct. 959. Supreme formed —the Court concluded states, in rele- Section of the NLRA in- language the of Section 7 could part: vant id. at Weingarten right. clude the section Employees right shall have the to self- While form, conferring mirrors Section 7 in organization, join, to or assist la- 101.001 collectively right right organize the first to organizations, bargain bor to —a —and part right own of the second—a to form unions through representatives of their pri- to organizations granted in other con- and other choosing, engage to — nothing in employees, of col- vate-sector section certed activities for the us to reach the same con- bargaining lective or other mutual aid or 101.001 allows § 101.001. clusion. See Tex. Lab.Code protection.... spe- public-sector employees by a unionized Just as the Fifth Circuit declined to find See, railway representation right employ e.g., cific enactment. Tex. Gov’t Code 617.002(a) Railway § (denying public-sector ees because the Labor Act lacks em- language collectively); found ployees bargain “concerted activities” to right NLRA, in Express see Johnson v. (denying em- public-sector id. 617.003 (5th Inc., 247, 251 strike); One Int'l 944 F.2d Cir. ployees id. 617.005 1991), we cannot find a (granting public-sector in section 101.001 without similar grievances their present concern- language. “concerted activities” See id. hours, or work ing wages, conditions of (warning against applying NLRA case law most, through representative). a union At language to statutes with that “differs “protect” limi- inclusion of serves as a NLRA). substantially” from tation type organiza- on the union or Cf. v. N.Y. N.Y.C. Transit Auth. State Pub. tion—those formed Bd., Emp’t 8 N.Y.3d Relations employment their are members —whose N.Y.S.2d 864 N.E.2d specific subject to those enactments statute that (holding a state differed grant rights, such as the to present materially from the text of NLRA Section rights, grievances, deny work-related 7 and lacked “concerted activities for ... bargaining such as collective and the protection” language mutual aid or did reading deprive to strike. does not This give representation right public- rather, meaning; section when 101.001 of sector employees). grants read connection with the specific rights, gives denials of it section suggests

The dissent that the mere in- precisely meaning plain clusion of the “protect” word the statute Legislature indicates intent indicates intend- Legislature’s grant public employees ed: Texas public-sector employees specific unionized have the rights together to seek to band and form protection enable them labor unions. employment, including the right Analysis C. The Court’s union representation during investigatory Weingarten Apply Does Not But, at 141. interviews.1 399 as above, explained is nothing Weingarten provides guidance there the little First, important statute to indicate such an intent. We reasons. there is no “protect” describing question read as the 7 of purpose that Section the NLRA and organize Weingarten pri- around which individuals would the decision apply only to unions, and form to the vate-sector pursuant employees. See 29 U.S.C. 152(2) conferred under section 101.001. The from the (excepting definition Legislature grants rights “employer” and denies “the United States conclusion, 1. To reach the this dissent's con- It is unclear Dictionary International limits, requires any, impliedly struction what the "associate” to if dissent believes the join together purpose imposes mean "to for the representa- statute tion, on that words, representing In each other.” or whether the dissent would somehow judicially impose dissent’s statutory construction section 101.001 limits on the lan- employees may "join together guage recognize only would read represen- the narrow representing plain for the each other ... tation issue this case. The However, language supports themselves.” "associ- our of section case, together holding negating necessity ate” partners, means "to come as this friends, workers, colleagues, impose fellow compan- any such limitations under section ions, that, required, allies” and not include a 101.001—a even if it does task were See, representation. e.g., Legislature. is better suited for Webster’s Third New 959)). thereof’). Texas, equiv- In we have no It NLRB political subdivision State or Instead, deci- Weingarten policy regulation after the alent. labor not until was extended specifically Congress exclusively by determined the Texas sion public- to federal representation right Legislature language legisla- and the of its 5 U.S.C. employees. And, sector tive enactments. unlike the United 7114(a)(2)(B). 7101(b), thirty- In the §§ Congress, Legislature States the Texas decided, Weingarten was years since eight legislation has not to confer the enacted has declined to en- Legislature the Texas representation on Texas legislation. act similar public-sector employees during investiga- tory interviews. Second, expressly not Section 7 does Weingarten right, Su confer Third, above, explained Weingar as recognized that. See Wein preme Court ten decision was based on 266-67, 95 S.Ct. 959. garten, 420 U.S. Section 7 that is absent from section merely deter anything resembling 101.001. Without permissibly had mined that the NLRB language, Section 7’s “concerted activities” construed Section to find section 101.001 cannot confer on Texas in the “concerted activities” right rooted to have public-sector employees statute, although the lan portion of representation during investigatory union actually grant may of Section 7 not guage they reasonably interviews re believe (stating that even right. See id. action. sult “may NLRB’s construction though the by is at least required [Section it] D. Related and Federal State Statuto- it”). The afford permissible under ry Support Enactments This Con- considerable ed the NLRB’s construction struction of Section 101.001 because, “special compe with its deference tence,” with “re the NLRB is entrusted is clear and un When statute chang adapt sponsibility [NLRA] ambiguous, we do not resort to extrinsic life,” construction of ing patterns of and its history to inter legislative aides such as “subject the NLRA is therefore to limited Entergy, the statute. 282 S.W.3d at pret judicial review.” See id. at Kimbrell, 442; Molinet v. see 959; Pattern see also Makers’ (Tex.2011) (“[T]he Legislature ex NLRB, Am., League N. AFL-CIO its intent the words it enacts presses law.”). be the In constru and declares to (1985) (“Because of the L.Ed.2d 68 statute, however, presume we ing a ‘special competence’ in the field [NLRB]’s Legislature knowledge acted with the relations, interpretation its labor background law and with reference is accorded substantial defer [NLRA] v. Dep’t Parks & it. See Tex. Wildlife 266, (citing Weingarten, 420 at ence.” U.S. 330, (Tex.App. 240 351 Dearing, 959)); Hosp. Beth Israel 95 S.Ct. 2007). -Austin NLRB, 2463, 483, 500, 437 98 S.Ct. 57 U.S. Legislature enacted the first codifi- (1978) (noting, 370 when constru L.Ed.2d 1899, long be- cation of section 101.001 statute, if ing “[e]ven different the NLRA or Congress fore enacted history arguably pointed toward legislative decided view, Supreme Court contrary construc [NLRB]’s 27, 1899, Leg., May Act of 26th case. See would be enti policies tion of the statute’s 262, CLIII, Laws ch. 1899 Tex. Gen. (citing deference” tled to considerable stated: original provision 1899 420 95 S.Ct. U.S. 27, 1899, any per- May shall be lawful for and all [I]t trust laws. See Act of 26th - engaged any sons kind of work or CLIII, Leg., ch. 1899 Tex. Gen. Laws labor, mental, both, manual or (“[N]othing herein contained shall be together associate themselves and form construed to repeal, affect or diminish the trade unions organizations and other existing force and effect of statute now purpose of protecting themselves in trusts, subject conspiracies on the work, labor, personal their personal trade, against pools monopolies.”); see service, personal in their respective pur- Co., Connell Constr. U.S. at 636 n. employments. suits and (citing right-to- the 1899 enacted, provision Id. At the time this was organize good example” statute as “a attempting clarify unions were state antitrust laws that tend to make position under recent state and federal labor likely activities more to violate state legislation. antitrust See Allen Bradley laws). antitrust v.Co. Local Union No. Int’l Bhd. of of appeals acknowledged Courts have Workers, 797, 803, Elec. discussing this historical context when 1533, 89 L.Ed. 1939 (discussing this former codification of section 101.001. For “well history known of the era between example, Appeals the Seventh 1914”). 1890 and Congress surmised: passed the landmark Sherman Antitrust Act, language which included broad probably It leg- was of this enough to consider labor unions to be islation to make it clear that early Act, trusts. Sherman ch. 26 Stat. decisions, English which held labor un- (1890) (codified 209-10 as amended at 15 ions under certain circumstances 1-7); §§ U.S.C. see Bradley also Allen unlawful, and our own against laws Co., (“The 65 S.Ct. 1533 trusts and combinations restraint of Sherman Act as originally passed con trade, apply did not to labor unions. tained no language expressly exempting merely The act announced that there any labor union Sharp activities. contro was no prohibition against of law such versy soon arose as to whether the Act unions. applied unions.”); William Howard Taft, The Anti-Trust Act and the McNatt, 505; Webb, 223 S.W. at see (1914) (“"Whether Congress in (harmonizing S.W. at 469 former codifica- not, tended it or it used [in tions of sections 101.001 and 101.002 with Sherman Antitrust necessarily Act] statutes). Texas antitrust forbade the combination of laborers to re Legislature As the Texas had done with trade.”). strain and obstruct interstate By statute, the 1899 right-to-organize 1889, Texas had compre enacted similar Congress United States legislation enacted hensive antitrust legislation, and the Leg exempt 1914 to labor unions from anti- islature amended Texas antitrust laws in trust laws. See Md. & Va. Milk Produc- 1899. See Act of May 26th Leg., States, 458, ers Ass’n v. United CXLVI, ch. 246, 1899 Tex. Gen. Laws 464, 847, 80 S.Ct. 4 L.Ed.2d 880 246; 30, 1889, Act of March Leg., 21st ch. (explaining “Congress in 1914 insert- 1889 Tex. Gen. Laws 141-42. §ed 6 in the Clayton exempt] Two Act days amendments, [to after passing those agricultural the Legislature organizations, along right-to- enacted the 1899 with labor organize statute, unions, laws.”). which from the language included antitrust clarifying labor’s role under Clayton provides: Texas’s anti- Act

139 lawfully organize to in the antitrust laws allows individuals Nothing contained violating form labor unions without anti- forbid the be construed to exis- shall trust laws. organi- of labor ... operation tence and

zations, the -purposes instituted for ... or restrain help or to forbid

mutual Representation Rights E. If Are to Be organiza- members of such individual on Texas Conferred Public-Sector lawfully carrying out the le- tions from Employees, Legislature Must thereof; nor shall gitimate objectives Policy Make That Determination organizations, or the members such does, recognize, We as the dissent thereof, to ille- be held or construed good there are public- reasons for Texas conspiracies in re- gal combinations sector to have the same access trade, under the anti-trust straint of in investigatory laws. private-sector employees interviews as added). This (emphasis 15 17 U.S.C. public-sector employees. federal See 399 termi- Clayton from the Act uses language see, 133; e.g., Weingarten, at 420 S.W.3d to that in Texas’s 1899 nology similar Texas, 95 U.S. S.Ct. statute, predecessor right-to-organize however, the must make Legislature this May 101.001. See Act of today’s to section FM policy Props. Op- determination. See CLIII, Austin, Tex. Leg., 26th ch. erating Co. v. (“[T]he (Tex.2000) that, foregoing (explaining Laws sec- Gen. Texas, includes the apply any legislative power pow- not be held to tions shall “many as well as public policy er to set or combinations combination ” aspects, functions that have administrative trade.... restraint of provide including power details added)). In this historical con- (emphasis law, promulgate regula- rules and text, right-to- it clear that the 1899 is law, apply tions to ascertain aligns closely more organize statute upon existing conditions which laws Clayton partially Act of which operate”). statutory Our role construc- violating labor unions from fed- exempted merely give Legisla- tion is effect to the laws, than with Section 7 of eral antitrust by examining plain ture’s intent mean- NLRA, until which was not enacted Kimbrell, 356 ing of the statute. See has rec- much later. The (“It the Legislature’s S.W.3d at 414 much, ognized listing a former codifica- as statutes; it prerogative to enact is the Clay- alongside tion of section 101.001 judiciary’s responsibility interpret those “[legalization legislation ton Act as for the according statutes to the of labor unions and labor combinations.” used....”). Here, we must Legislature Am., 259 See United Mine Workers effect to the statute’s silence on this give 570; n. see also Connell not to Legislature’s issue and the decision 421 U.S. at 636 n. Constr. Co. akin to representation rights confer Wein- (noting that a former codification of public-sector Texas em- garten rights on that it is lawful “declare[s] section Hall, Seay ployees. unions”). for workers associate (“While (Tex.1984) may prop- this court legislative supports This context a read- traditionally reserved to erly write areas plain in line with the it would ing judicial government, of the statute branch of lan- powers of our to add usurpation the statute —section 101.001 be a meaning of guage to a law [Legislature representation where the has when an reason- refrained.”); Arnim, ably Simmons v. 110 Tex. investigatory believes that an inter- (1920) (“[Courts] 220 S.W. employer may are view with the result in disci- law-making body. They not the plinary are not action. Accordingly, judgment responsible reversed, legislation. for omissions in of the court of appeals is and we They are responsible judgment for a true and fair render for declaratory relief law.”). interpretation opinion. of the written consistent with this See Tex. R.App. P. 60.2(c). Although anomaly it seems an for Texas public-sector employees to have to face Chief Justice JEFFERSON filed a alone, investigatory interviews we note dissenting opinion, in which Justice Legislature may good that the have rea joined. HECHT and Justice LEHRMANN treating public-sector sons for differently in Texas private-sector from JEFFERSON, Chief Justice joined by See, employees. e.g., Cong. Org. Indust. Justice HECHT and Justice Dallas, City LEHRMANN, dissenting. (Tex.Civ.App.-Dallas 1946, writ ref'd n.r.e.) (“[T]he status of governmental em fighter Fire Rodriguez Jaime learned National, ployees, Municipal, State and employer, Rock, that his of Round radically different from that of planned to interview him person- about a private industry.”); business or see also nel complaint his chief1 against had filed Headquarters Nat’l Space Aeronautics & that, him. The chief Rodriguez told Admin., 50 F.L.R.A. 608 n. best, alleged his misreporting of 2.5 hours (noting “Congresses] recognition that the of sick leave could in discipline, result in- [Weingarten ] cluding termination employment. of his might differently evolve private worst, and At Rodriguez could face criminal sectors”). Federal example, For the Leg charges.2 The battalion chief ordered islature have decided not to Rodriguez extend not to discuss the investigation such a representation right president with his union pub Texas of its mem- bers; lic-sector employees so, if Rodriguez because unions in did he would be Texas lack authority engage subject collective action for violating a bargaining, direct unlike the order. The chief Weingar Rodriguez union ordered to appear person, ten. See Tex. unrepresented, 617.002. for an Gov’t Code

interview in the fire chiefs office. At that interview, chief, chief, the assistant fire IV. Conclusion and the battalion chief interrogated Rodri- We hold that section 101.001 of the La- guez for forty-five Rodriguez minutes. bor Code does not confer on public-sector asked that a union representative per- employees in the right Texas to union mitted to meeting, attend the but the chief noted, (1967), 1. Unless otherwise references to the Court held that state- Larry ‘'chief” are to Hodge. Fire Chief ments obtained from law enforcement officers public employees and other under threat of 2. The Rodriguez although chief advised discharge subsequent could not be used in his against answers could not be used him in proceedings against criminal those individu- case, they criminal could affect his als. ment Garrity Jersey, status. v. New 17 L.Ed.2d 562 Later, grants public I. the chief met once more The Labor Code em- refused. ployees right, upon request, (still and Rodriguez unrepresented) representation union at an interview agree to a him that he either had to told reasonably employee at which the appellate and waive suspension five-shift may subject believes he be to disci- discharged. grievance rights, and pline. Rodriguez chose the former. Largely unchanged since its passage guarantees employees A statute Texas century ago, more than a Labor sec- Code job protection.3 to unionize for tion 101.001 persons states en- “[a]ll whether that includes a We must decide gaged any may in kind of labor associate right,”4 permits which an “representation organiza- and form trade unions and other to have a union employee protect person- tions to themselves in their employer him when con- accompany his al labor in their respective employment.”6 ducts an interview that foreshadows disci- § The 101.001. statute does Tex. Lab.Code decades, For and plinary private action. not state that employees right, have the have exercised this federal upon request, to have a union representa- right, public as have Texas sector participate tive in an internal interview only our statute and the acting ees under employee when the reasonably believes Texas, existing precedent.5 But in after that the interview lead to disciplinary today, government employ- state and local action. question is whether such a go ees must it alone. The concedes in employee’s inheres an freedom to unionization, permits that the but “associate form statute and trade unions personal that makes the themselves their labor precludes prime attribute in their respective employment.” Id. union worthwhile. Precedent does not anomaly. proper this Nor does a compel Despite age, only the statute’s two Tex- reading of the relevant law. I would hold as have question cases answered this —the grants public that the statute Texas em- appeals’ court of decision this case and ployees representation right, much as earlier, unpublished an decision from the Supreme Court of the United States same court.7 Both held that the statute under a law. has concluded similar federal gives rep- an otherwise, I Because the Court holds re- during resentation internal interviews that spectfully might disciplinary repercussions. dissent. have together selves and form trades unions and 3. Tex. Lab.Code 101.001. organizations pro- for work, tecting personal themselves their 4. The is also known as the labor, personal personal service in right, based on the Court’s decision respective pursuits employments. Inc., in NLRB v. J. R.S., May Leg., Act of '26th ch. 95 S.Ct. 959 (amended 1899 Tex. Gen. Laws 1993)(current version at Tex. Lab.Code Emps. 5. See Glen v. Tex. State Union — CWA/ 101.001). a nonsub- statute underwent AFL-CIO, 13,723 (Tex.App.-Austin Sept. No. May Act of stantive codification 1993. See 1, 1982, (not writ) designated publica no R.S., 1,§ Leg., ch. 73rd tion). Tex. Gen. Laws original 6. The text stated: 871; Glen, 13,723, slip 7. See 317 S.W.3d No. (holding gave any persons op. all at 8 that Texas statute Rusk [I]t shall be lawful for labor, engaged Hospital employees right to union of work or man- State kind mental, both, interviews). patient abuse ual or to associate them- 142 investigatory the

Both States Su- attend an interview that cases relied on United reasonably employee might believed result preme interpreting Court decision similar Weingarten, disciplinary Labor Relations in action. 420 the National Inc., Weingarten, NLRB v. 252, J. Act. 420 at 959. The U.S. United (1975). 251, Appeals for Cir- U.S. 95 S.Ct. 959 States Court of the Fifth cuit held that the NLRB’s construction Weingarten involved judicial review of Supreme was the re- wrong, but Court course, Of an NLRB decision. we are not 253, Id. at versed. 95 S.Ct. 959. Weingarten. by Our statute was bound NLRA, not based on the nor does this case “clearly that The Court held the appeal involve an of an administrative deci- literal wording within the [the of falls sion, Nonetheless, did. as ‘[employees] that shall have statute] Supreme interpretation of a stat- Court’s in ... engage to concerted activi- very ute similar to our own is instructive. or ties for the of ... mutual aid Mullins, See, 25, ” e.g., Sayre v. (em- Id. protection.’ at 95 959 S.Ct. (Tex.1984) Supreme 28 (applying Court’s added). phasis although It reasoned that interpretation of “condition of work” impli- the employee’s predicament may not governing griev- NLRA to Texas statute rights, cate he collective nevertheless City Bryan, rights); ance of Lunsford protection” against per- seeks “aid or 156 Tex. 117 S.W.2d Id. The union job. ceived his threat (interpreting “right Texas’s to work” stat- representative protects only partic- light ute in of the Coürt’s deter- employee’s ular interest but that prohibited firing mination that NLRA em- bargaining vigi- “entire unit exercising see ployees membership); because of union lance that the employer to make certain also, Sinton, e.g., Barr v. or practice does not initiate continue a (Tex.2009) (consid- 296 & n. Id. imposing punishment unjustly.” at ering decisions federal applying statutes 260-61, 95 959. The noted because those statutes and Texas law were that “the inheres [the statute’s] history, “animated in their common lan- guarantee act guage, purpose”). and protection.” concert for mutual aid and Id. private The NLRA grants at 95 S.Ct. 959. The also form, self-organization, “the right emphasized right’s It limited nature. join, organizations, only employee assist labor to bar- arises when the requests gain collectively through representatives representation is a member of a labor other union. See id. at engage own choosing, and 95 S.Ct. 959. More- concerted the purpose over, activities employee’s right col- to do so limit- mutual aid or lective bargaining or ed to he reasonably situations that believes protection....” (emphasis will lead U.S.C. action and when added). Weingarten, exercising National La- does not with interfere bor Relations Id. at held that an employer legitimate employer prerogatives.8 Board violated the Act it denied an employ- Finally, when 95 S.Ct. 959. request ee’s union er representative duty bargain her has no union employer having unaccompanied by The Court also noted an interview his refuse, explanation, representative, having could without to allow no interview carry union inquiry forgoing any might on its benefits be derived Inc., interviewing employee, without "thus from one." NLRB v. J. leaving] to the the choice between S.Ct. 959 informed decision.9 Id. mote a more investigato- attends an who Id. 95 S.Ct. 959. 95 S.Ct. 959. ry interview. Texas, repre- that union representation right

The observed In the would sentation, legal representation, like much even exist without the case interests. The may parties’ both advance and the federal statute it construed. Our employee an form help can representative says may employees statute unionize for defense, “may be too a because § “protection].” 101.001. Tex. Lab.Code accurately relate or inarticulate to fearful This case asks what that word describes. ig- or too being investigated, the incident omitting concept that have Statutes been Id. extenuating factors.” norant to raise convey right par- held not to the 268, Representation 959. at interviews;10 ticipation employer laws a preferable pursuing interview is to the include it that do.11 afterwards, in- as “it becomes grievance perplexed by I am the conclu- Court’s to vin- difficult for the creasingly that “Section 7 the does sion [of NLRA] himself, representa- the value of dicate and Weingarten right, expressly not confer the The correspondingly tion is diminished. Supreme recognized and the that.” may then be more concerned employer fact, 399 at 137. the than re-examin- justifying his actions right “clearly Court held that Id. 95 S.Ct. 959. ing them.” falls § wording within the literal 7 well, ‘[em- The benefit as because employer of ployees] right engage shall have the to can knowledgeable in ... for may pro- purpose concerted activities investigation streamline the 11. See, Lewis, private employ e.g., City applies only to Clearwater 9. The NLRA of 152(2). 1156, After (Fla.Dist.Ct.App.1981) ers. 29 U.S.C. So.2d 1161-63 Congress passed granting Weingar a law holding (applying Weingarten and that Florida government employees. right federal ten to granting public employees statute to 7114(a)(2)(B). 7101(b), §§ Our stat U.S.C. engage in concerted activities for "mutual aid ute, broadly applicable persons en to "[a]ll language protection,” contained "similar” labor,” predated all gaged in kind of of 7);§ NLRA v. Labor Rela to Town Hudson City con these. Tex. Lab.Code cedes, 101.001. 549, Comm’n, Mass.App.Ct. tions purposes appeal, that section of this 618, (2007) (applying & n. 4 N.E.2d 620-21 applies public employees. to Weingarten to Massachusetts statute that Int'l, Inc., See, e.g., Express "engage One granted employees Johnson v. (5th Cir.1991) (holding that lawful, 944 F.2d purpose concerted activities for the engage explicit 'to "the absence of the protection”); Wayne-West ... mutual aid or purpose activities for the other concerted Wayne-Westland land Educ. Ass'n v. Commu protection' in the ... other mutual aid or Schools, nity Mich.App. 439 N.W.2d proves petition- [Railway Labor fatal” to Act] (1989) (affirming state labor com granted Weingarten that the Act er’s claim application Weingarten un mission’s right); City v. N.Y. State N.Y. Transit Auth. Michigan granting public employ der statute Bd., Employment 8 N.Y.3d Pub. Relations engage in "lawful concerted ees 864 N.E.2d 57-58 832 N.Y.S.2d purpose ... mutual aid activities for the (2007) (holding that New York statute that protection”); Admin. v. Pa. La "form, Office of gave public Bd., 176, 916 A.2d bor Relations 591 Pa. any employee join, participate in ... or- Pennsylvania (holding 548-49 ganization choosing” of their own did not authorizing activi "lawful concerted Weingarten right; the ‘mu- statute confer the "Since protection’ bargaining is absent tual aid or collective ties for the statute], Weingarten New does from York granted [the protection” other mutual aid and holding support a cre- [the statute] not Weingarten right). Weingarten right”). ates ” of ... mutual aid or protection.’ Wein similar with protecting both statutes (em garten, 420 U.S. at 95 S.Ct. 959 same rights-employees’ rights join to- added). Here, phasis the Court declines gether themselves their em- recognize a representation right part ployment.”). because the Labor Code does not include “ and the suggest chief that a the NLRA’s ‘concerted activities’ lan representation right is inconsistent with guage.” 399 S.W.3d at 136. But Texas has legislative more recent restrictions on Tex- given employees just ability unionize-already public as right12— employees’ activity. a constitutional collective right Texas, but the to do protect so “to them for example, public forbids employ- selves in their personal labor in their re ees from striking or bargaining collective- spective employment.” Tex. Lab.Code ly.13 617.002, §§ .003. Tex. Gov’t Code added). (emphasis How can un restrictions, But in enacting those Leg- ions employees’ jobs they if cannot islature specified also that it did not intend engage in conduct protect employees’ to “impair to the right public of employees to jobs? Rodriguez only was not rep denied present grievances concerning ... condi- during resentation the meeting; his em tions of work either individually through ployer prohibited him from even seeking a representative that does not claim the advice, his union’s meeting, before right to strike.” Id. 617.005. Rather about how to against defend a than eliminating right, matter that could culminate termination these (passed restrictions decades after employment his proceed and criminal 101.001) section demonstrate that Leg- ings. oasis; To Rodriguez, the union is an islature public knows how to limit Court, to the only mirage. a The Wein- ee union activity when it wants to. In- garten agreed view, court Rodriguez’s stead, it left Labor Code section 101.001 holding that employee may bring a untouched, even in the face of a decision union “ to the meeting for from the United States Supreme Court ‘aid or protection’ against perceived thoroughly that dissected the scope of the threat employment his security.” representation right. year, Just last we 260, 420 U.S. at 95 S.Ct. 959. adopted that interpretation Court’s of a hold, I did, would as the court of appeals federal statute because Legisla- the Texas statute, that the Texas whose is ture did not amend its similar state law in substantially law, similar to the federal conveys response the same to that right Weingarten decision. See Prairie recognized. Chatha, View A & M (“Although Univ. v. identical, (Tex.2012) the language substantially is 506-07 (holding Legis- Connell, (5th 12. See Hitt v. 301 F.3d exceptions 13. There are to the ban on collec- Cir.2002) ("The protects First Amendment (and bargaining. tive political Cities public employee’s right to associate with a subdivisions) may fighters authorize their fire union."); Columbus, Miss., City Boddie v. police bargain officers to collectively. (5th Cir.1993) (" 989 F.2d 'This 174.023, §§ Tex. Loc. Gov’t Code .051. encompasses of association public of Round Rock has not authorized join unions and the of their Fighter’s the Fire collectively Association to engage advocacy unions to petition and bargain, although adopted it Local Govern- government ”) (quoting in their behalf.' 'l Prof chapter ment Code which allows the Educators, Ass'n Coll. Elv. Paso TSTA/NEA negotiate City. Association to with the See id. Dist., (5th Cnty. Cmty. Coll. 730 F.2d 142.101, §§ .110. Cir.1984), denied, cert. (1984)). 83 L.Ed.2d 186 protection to amend Texas statute is rooted [the NLRA’s] lature’s failure applying activity, that decision meant concerted not [the statute’s] precedent governed). guarantee still the right bargain collec- apply NLRB, here. reasoning tively.” same should Slaughter v. 794 F.2d (3d Cir.1986). Conversely, the Fifth the dissent be- suggests The Court —and concluded that a granting Circuit statute agreed14 Weingarten prem- low was —that bargain collectively but not the bargain employee’s right ised on the engage “to in other concerted activi- (“[T]he at 140 collectively. 399 S.W.3d ties for the of ... other mutual have not to ex- Legislature may decided protection” aid or did not convey the public- representation rights tend to Texas Johnson, Weingarten right. 944 F.2d at lack sector because their unions 251 (holding omission of that “[t]he bargain- authority engage collective language is critical because the rule of Weingarten”). unlike the union in ing, it”).16 grounded upon They public that because Texas em- assert bargaining Texas collective ban does ability, lack our statute’s ployees public employee’s right not affect a to un- interpreted be protection should not protection, pro- ionize for and it not does disagree. the same manner. I denying representation vide a basis for Weingarten grounded was not in the right. employee’s bargaining rights collective but “§ guarantee fight 7’s of the rejects The Court right largely be- for mutual aid ees to act concert and ], cause our statute does not by its “eonfer[ Weingarten, 420 protection.” plain language, the specific right to have a Although Weingarten 95 S.Ct. 959. union representative present at an investi- unit” phrase “bargaining court used the to gatory interview that an reason- particular at that describe ably might believes result they workplace,15 it did so because were action.” 399 S.W.3d at 133. Neither does parties bargaining agree- to a collective process” by plain “due its lan- “confer[] ment, phrase not because the itself had guage” specific right to notice and a significance. special legal hearing. long Yet courts have said those applying are to effectuate appeals

Federal courts characteristics essential See, Weingarten rejected e.g., have the notion that that constitutional mandate. bargain it was founded on the Mullane v. Cent. Hanover Bank & Trust Co., “it ... collectively. The Third Circuit held (1950) beyond Weingarten (“Many controversies, cavil that L.Ed. 865

plain J., (Puryear, (rejecting dis- the lower court’s determina 14. See 317 S.W.3d senting). bargaining formed the ba tion that collective right; stating Weingarten that "we sis of the 420 U.S. at rights Weingarten were find it clear that (noting representation that union at inter- grounded pro in the NLRA’s Section 7 which bargaining by views assists the "entire unit employee to tects the of an individual exercising vigilance certain to make that the engage in for mutual aid concerted activities employer prac- initiate or continue a does not Glen, protection”); and No. at 8 imposing punishment unjustly” tice of and ("While guarantee [the the federal act does provide that the would an as- bargain collectively], impli it bargain- was surance "to other in the unit”). ing Supreme cated in and it.”). did not discuss 16. See Admin. v. Pa. Labor Relations also Officeof ., Pa. 916 A.2d Bd raged cryptic protection have about the abstract trade unions for is to be more rhetoric, there rights words of the Due Process Clause but than it must include like they here, can be that at a minimum no doubt the one at issue and courts must life, require deprivation liberty This scope language. decide the such property by adjudication preceded granted was true when Texas first opportunity hearing appro- notice and and when the Court decid- case.”). rely To priate to the nature Weingarten thirty-eight years ago. ed expressly on the absence of an articulated deny is to II. Conclusion law obligation Court’s to state what the

means. passed The Texas statute was upheaval orga- time of national labor “protection,” process,” Words like “due activity. nized Between 1881 and “equal protection” require judges 22,000 more than labor strikes occurred expound. Legislature' cannot antici Depart- throughout country. See U.S. pate every eventuality, and statutes often Report Labor, Sixteenth ment Annual “embody purposeful ambiguity or are ex Labor, of the Commissioner of Strikes pressed generality with a for future un Five [1881-1905] Frankfurter, folding.” Felix Lookouts Some Reflec seventy-four hundred were in Of Texas. Statutes, Reading tions on the in Views those, forty involved workers (Mark striking W. Can From the Benoh “[a]gainst being compelled sign 1985).17 [an] O’Brien, eds., non & David M. agreement employers to deal with as indi- routinely meaning Courts decide the of through viduals instead of union”—the [a] such terms. What is a “reasonable time” (a third most common complaint, following phrase that appears 599 times our statutes)? (176 wage hour disputes.21 Id. at 406-07. A “reasonable effort” times)? Association, Rodriguez, the and a number (thirty)? “Best efforts” What is provide of amici extensive “attempt monopolize,”18 “just an historical detail division, about right”19 Texas labor relations at that time. property or the “best here, Without judicial repeating specifics interest of the child”?20 Without it is interpretation, just are clear that empty phras Legislature these was aware of the es. If the associate and form when it also, 15.05(b); e.g., § See A. see also 17. Bryan 18. Tex. Bus. & Com.Code Antonin Scalia & Co., Publ’g Caller-Times Commc’ns, Inc., Inc. v. Triad Reading Interpretation Garner, Law: The of (Tex. 1992) 826 S.W.2d 576 (2012) ("Vagueness Legal Texts 32-33 (deciding predatory pricing, what constitutes intentional, general often as terms ... are 15.05(b) claim). an element of a section adopted to cover a multitude of situations that practicably spelled cannot out in detail or § 19. Tex. Fam.Code 7.001. Posner, foreseen."); even Richard A. Statuto 153.002; Holley see also v. 20. Tex. Fam.Code ry Interpretation the Classroom and in the —in Adams, (Tex. 1976) 371-72 Courtroom, 50 U. Chi. L. Rev. (outlining a nonexhaustive list of nine factors (noting many provisions constitutional ascertaining courts consider in a child’s (e.g. speech, process, "free due and the interest). best counsel”) (like to assistance of and statutes Act) reality the Sherman "are the founda Labor, According Department 21. to the of all tions, perhaps pretexts, in some die cases forty of those were strikes successful. for the evolution of bodies of case law that are Department Labor, Sixteenth Annual starting point usually ending Report Labor, Commissioner Strikes cases”). point analysis for new [1881-1905] and Lockouts ability “to associate granted form trades un- together and

themselves pur- for the organizations

ions and per- themselves in their

pose protecting May Act of 26th

sonal work.” R.S., Gen. Laws ch. 1899 Tex.

Leg., (amended 1993) (current version 101.001). I would not

at Tex. Lab.Code protection today. Because

eliminate that so, I dissent. respectfully does TURRUBIATE, Appellant,

Marcos Texas.

The STATE of

No. PD-0388-12. Appeals of Texas. Criminal

April

Case Details

Case Name: the City of Round Rock, Texas and Round Rock Fire Chief Larry Hodge v. Jaime Rodriguez and Round Rock Fire Fighters Association

Court Name: Texas Supreme Court

Date Published: Apr 5, 2013

Citation: 399 S.W.3d 130

Docket Number: 10-0666

Court Abbreviation: Tex.