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

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00546-CV

The City of Round Rock, Texas, and Round Rock Fire Chief Larry Hodge, Appellants

v.

Jaime Rodriguez and Round Rock Fire Fighters Association, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 419TH JUDICIAL DISTRICT

NO. D-1-GN-09-000370, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

O P I N I O N

This employment dispute stems from appellant Round Rock Fire Chief Larry Hodge's

denial of appellee fire fighter Jaime Rodriguez's request for representation by appellee the Round

Rock Fire Fighters Association (the "Association") at an internal investigatory interview in which

Rodriguez was being questioned concerning a complaint against him. Rodriguez and the

Association filed suit against appellants, the City of Round Rock (the "City") and Hodge, alleging

that denying Rodriguez's request for Association representation and continuing with the interview

violated Rodriguez's rights under section 101.001 of the labor code. (1)

Facing cross motions for summary judgment, the district court found in favor of

Rodriguez and the Association. The trial court thereafter declared that the City and Hodge violated

Rodriguez's rights under section 101.001, permanently enjoined the City and Hodge from further

violating section 101.001, and awarded contingent appellate attorney's fees. In eight issues, the City

and Hodge appeal the trial court's judgment, challenging the trial court's subject matter jurisdiction,

its interpretation of section 101.001, and its awards of injunctive relief and contingent appellate

attorney's fees.

This appeal presents a question of statutory construction: whether section 101.001

of the labor code provides municipal employees represented by a labor organization with rights

equivalent to so-called "Weingarten rights"--a private employee's right, upon request, to

representation by a labor organization during an internal investigatory interview when the employee

reasonably believes the interview may result in disciplinary action. See National Labor Relations

Board v. J. Weingarten, Inc ., 420 U.S. 251, 260 (1975). For the reasons that follow, we hold that

section 101.001 affords rights equivalent to so-called "Weingarten rights." Because we also

conclude that the trial court had jurisdiction over appellees' causes of action and did not abuse its

discretion in the relief awarded, we affirm the trial court's judgment.

BACKGROUND

The relevant facts are undisputed. Rodriguez is a fire fighter employed by the Round

Rock Fire Department, and Hodge is the Round Rock Fire Chief. Rodriguez is a member of the

Association. The Association is an organization that represents fire fighters employed by the City.

It is a local chapter of the International Association of Fire Fighters, AFL-CIO-CLC.

On July 29, 2008, Hodge called Rodriguez into a meeting concerning suspected

disciplinary offenses by Rodriguez. The assistant fire chief and the battalion chief also were present

at the meeting. At the outset of the meeting, Hodge advised Rodriguez that the purpose of the

meeting was to conduct an "internal interview" of Rodriguez concerning a personnel complaint that

Hodge had filed against him. (2) Hodge warned Rodriguez that he was required to answer questions

put to him on "pain of discipline or discharge" and that his answers could be used as a basis for

discipline but that they could not be "used against him" in a criminal prosecution. After receiving

this warning, Rodriguez requested representation by the Association. Hodge denied the request,

proceeded with the meeting, and questioned Rodriguez concerning the complaint.

In October 2008, Hodge again met with Rodriguez concerning the complaint. Hodge

gave Rodriguez the choice of accepting a suspension of five shifts based upon the complaint and the

waiver of appeal rights or face discharge. Rodriguez accepted the suspension of five shifts and

waived his appeal rights.

Several months later, Rodriguez and the Association filed suit against the City and

Hodge seeking declaratory and injunctive relief concerning Hodge's denial of Rodriguez's request

for Association representation at the July 2008 meeting. They contended that the denial of an

Association member's request for representation at an investigatory interview with management

when the interview was continued without representation violated section 101.001. The City and

Hodge responded by filing a plea to the jurisdiction and original answer. Among their defenses, they

asserted that the Association and Rodriguez lacked standing, the controversy was moot, the City

had "sovereign and governmental immunity," Rodriguez failed to exhaust his administrative

remedies, his claims were barred due to waiver and estoppel, and section 101.001 "does not apply

to public employees."

The parties filed cross motions for summary judgment and responses. See Tex. R.

Civ. P. 166a(c). The Association and Rodriguez asserted that (i) governmental immunity did not

deprive the court of jurisdiction, (ii) the controversy was not moot, (iii) section 101.001 applied to

public employees represented by a labor organization, and (iv) Rodriguez's rights under section

101.001 were violated when Hodge denied Rodriguez's request for representation and continued

with the July 2008 investigatory interview. The Association and Rodriguez also sought attorney's

fees and injunctive relief.

Appellees' summary judgment evidence included affidavits from Rodriguez, the

Association's president, and the Association's attorney who averred concerning attorney's fees.

Rodriguez averred concerning the complaint against him, the investigatory interview in July 2008,

his request for representation at the interview, Hodge's denial of his request, and his subsequent

choice to accept the suspension of five shifts. The written complaint and suspension memorandum

were attached to Rodriguez's affidavit. Rodriguez signed the suspension memorandum,

acknowledging and agreeing to the terms and conditions of his suspension including the waiver of

his appeal rights.

The Association's president averred that the Association is a labor organization that

specifically disavows the right to strike and that, on "multiple prior occasions," the Association had

informed Hodge that its members had the right, upon request, to representation by the Association

at investigatory interviews when they reasonably feared discipline as a result of the interview but that

Hodge had "ignored these requests and ha[d] on multiple occasions concluded such investigatory

interviews without affording fire fighters union representation as requested."

The president also averred concerning two scheduled investigatory interviews with

management in April 2006 and Hodge's stated position to him from that time forward. The president

appeared to represent two fire fighters during the interviews in April 2006 but was not allowed to

attend the interviews. From that time forward, Hodge has not recognized the Association members'

right to representation at investigatory interviews. In his affidavit, the president averred:

At all times since 2006, the Fire Chief has refused to recognize a right to union

representation upon request at investigatory interviews where the fire fighter fears

discipline might result. Despite being advised that our attorney feels we have such

a right under Texas statutes, the Fire Chief said based on advice from the City's

attorney that no such right exists. He therefore declines to allow a union

representative to attend investigatory interviews of fire fighters.

A letter from Hodge to the president was attached to the president's affidavit. In the letter,

Hodge states, "[n]otwithstanding our opinions on representation during investigatory hearings,"

that the Association should provide access to an attorney for members preparing for

"investigatory meetings." (3)

Attached to the response of the Association and Rodriguez was a further affidavit

from the president concerning the purpose and role the Association plays in representing its

members. The president averred:

The Round Rock Fire Fighters Association exists for the purposes articulated in its

bylaws, and for the purpose of promoting its members' employment rights and

improving their working conditions. The Round Rock Local . . . attempts to provide

representation for its members in all manner of hearings in which their employment

interests are implicated, including grievances and matters affecting discipline. One

of the benefits of Association membership is representation by trained union

representatives in such meetings.

In their motion for summary judgment, the City and Hodge contended that the trial

court lacked subject matter jurisdiction based upon lack of standing, mootness, waiver, estoppel, and

governmental immunity. They further contended that the Association did not have so-called

"Weingarten rights" because the City is a public employer. They also sought attorney's fees. Their

summary judgment evidence included affidavits from Hodge, their attorney who averred to

attorney's fees, and responses to discovery by the Association and Rodriguez.

Hodge averred concerning the complaint he filed against Rodriguez and his interview

of Rodriguez in July 2008. He stated: "Plaintiff Rodriguez asserted that he had a right to have

someone from the Association present during the investigatory interview. Based on legal advice and

my familiarity with municipal civil service law, I denied his request." Hodge also averred

concerning the resulting agreement with Rodriguez of a suspension of five shifts and the interviews

in 2006 in which the Association's president "asserted each member's entitlement to union

representation during each interview." Hodge further averred that "no other Round Rock fire fighter

had asserted any entitlement to union representation during administrative investigations." A copy

of the Association's constitution and by-laws was attached to his affidavit.

Following a hearing, the trial court granted the summary judgment motion of the

Association and Rodriguez. The trial court thereafter entered final judgment, declaring that the City

and Hodge had violated section 101.001, permanently enjoining the City and Hodge from further

violations, and awarding appellate attorney's fees in the event of an unsuccessful appeal. The trial

court declared that the City and Hodge violated section 101.001 "by denying Plaintiff Rodriguez,

upon request, the right to representation by Plaintiff Association at the July 29, 2008 investigatory

interview conducted by Defendants for the purpose of interrogating Rodriguez about a personnel

complaint filed by Defendant Hodge." The trial court permanently enjoined the City and Hodge

from violating section 101.001 "by denying Plaintiff Rodriguez, and Plaintiff Association's

members, the right, upon request, to representation by Plaintiff Association at investigatory

interviews they reasonably believe might result in discipline." This appeal followed.

ANALYSIS

In eight issues, the City and Hodge challenge the trial court's subject matter

jurisdiction over the causes of action brought by the Association and Rodriguez, the trial court's

interpretation of section 101.001 and grant of summary judgment in favor of the Association and

Rodriguez, and the awards of injunctive relief and contingent appellate attorney's fees. We begin

by addressing the jurisdictional issues.

Did the trial court have subject matter jurisdiction over appellees' causes of action?

In their third, fourth, fifth, and sixth issues, the City and Hodge urge that the trial

court lacked subject matter jurisdiction over the causes of action brought by the Association and

Rodriguez. They contend that (i) appellees do not have standing to assert their claims because their

claims are moot, they suffered no injury in fact, and there is no causal connection between Hodge's

actions and their "harm," (ii) the Association does not have associational standing, and

(iii) Rodriguez failed to exhaust his administrative remedies. (4)

"Subject matter jurisdiction is essential to the authority of a court to decide a case,"

and a plaintiff's standing to bring his causes of action "is implicit in the concept of subject matter

jurisdiction." Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 443-45 (Tex. 1993).

"The general test for standing in Texas requires that there '(a) shall be a real controversy between

the parties, which (b) will be actually determined by the judicial declaration sought.'" Id . at 446

(quoting Board of Water Eng'rs v. City of San Antonio , 283 S.W.2d 722, 724 (1955)). Whether the

district court had subject matter jurisdiction over appellees' causes of action presents a question of

law that we review de novo . Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998).

A) Are the claims of the Association and Rodriguez moot?

Given Rodriguez's acceptance of the five-shift suspension and agreement to waive

appeal rights, the City and Hodge contend that appellees do not have standing and their claims are

moot because there is no "live controversy" between the parties. Camarena v. Texas Employment

Comm'n , 754 S.W.2d 149, 151 (Tex. 1988). The mootness doctrine limits courts to deciding cases

in which an actual controversy exists. Id.

By his signature in October 2008 on the interoffice memorandum, Rodriguez

acknowledged and agreed to the terms and conditions of the five-shift suspension, including waiving

his appeal rights:

By my signature above, I acknowledge and agree to the above terms and conditions

of my temporary suspension of five (5) shifts, including but not limited to my waiver

of all my appeal rights, as set out in Chapter 143 of the Texas [Local] Government

Code, to either the Civil Service Commission or a third party hearing examiner, or

to any court, as well as any appeal or grievance rights I may have under the City's

Local Civil Services Rules and/or applicable Fire Department and City of Round

Rock policies and procedures.

Because Rodriguez accepted the suspension and waived appeal rights, the City and Hodge urge that

there is no longer a controversy between the parties concerning Rodriguez. As to other Association

members, Hodge averred that other than Rodriguez's request and the two requests in 2006, "no other

Round Rock fire fighter has asserted any entitlement to union representation during administrative

investigations."

In response, the Association and Rodriguez argue that, although the denial of

Rodriguez's request to have representation at the investigatory interview has already occurred and he

did not appeal the suspension that resulted from the complaint that was the subject of the July 2008

interview, the trial court had jurisdiction under an exception to mootness, the "capable of

repetition yet evading review" doctrine. See Blum v. Lanier , 997 S.W.2d 259, 264 (Tex. 1999);

Lakey v. Taylor , 278 S.W.3d 6, 12-13 (Tex. App.--Austin 2008, no pet.). "This exception applies

to claims where (1) the challenged act is of such short duration that the appellant cannot obtain

review before the issue becomes moot and (2) there is a reasonable expectation that the same action

will occur again if the issue is not considered." Blum , 997 S.W.2d at 264 ; Lakey , 278 S.W.3d

at 12-13 .

The challenged act here--the denial of a request for representation at an investigatory

interview that may result in the imposition of discipline--is an act of short duration that precludes

the employee from obtaining review before the issue becomes moot. The representation issue

becomes moot as soon as the investigatory meeting goes forward with or without a representative. (5)

There also is a reasonable expectation that the City and Hodge will deny requests for representation

at investigatory interviews again if the issue is not considered here. See Blum , 997 S.W.2d at 264 ;

Lakey , 278 S.W.3d at 12-13 . It was undisputed that Hodge denied the requests for representation

at investigatory interviews in 2006 and July 2008 and conveyed the City's "opinion" to the

Association that any Association members' requests would be denied. The City and Hodge further

continue to assert that Association members have no right to representation during investigatory

interviews. See also Lubbock Prof'l Firefighters v. City of Lubbock , 742 S.W.2d 413, 419 (Tex.

App.--Amarillo 1987, writ ref'd n.r.e.) (complaint concerning denial of union representative at a

grievance hearing not mooted by grievance being fully heard). We conclude that the "capable of

repetition yet evading review" exception, therefore, is applicable here. (6)

B) Did the Association and Rodriguez suffer an injury in fact?

The City and Hodge also contend that Rodriguez and the Association lacked standing

to bring their claims because any alleged injury is speculative, Rodriguez and the Association have

suffered no "injury in fact," there is no causal connection between their actions and any alleged

"harm," and "[n]o individual fire fighter has an entitlement or a 'legally protected interest'

in dictating how the Department conducts its internal investigations or who may be present

during those interviews. Certainly, there exists no statutory language that grants municipal fire

fighters this 'right.'"

To have standing, a party must suffer an injury that is a result of the defendant's

actions and will be remedied by the court's action. See Texas Ass'n of Bus ., 852 S.W.2d at 444-45 .

In the context of standing under Article III of the United States Constitution, the Supreme Court

defines "injury in fact" as "an invasion of a legally protected interest which is . . . concrete and

particularized" and "'actual or imminent.'" Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992)

(citation omitted); see also U.S. Const. art. III; Walker v. City of Georgetown , 86 S.W.3d 249, 253

(Tex. App.--Austin 2002, pet. denied) (discussion of standing and "injury in fact").

Although the City and Hodge assert that no fire fighter has a "'legally protected

interest' . . . in dictating . . . who may be present during those [investigatory] interviews" and that

there "exists no statutory language that grants municipal fire fighters this 'right,'" that is the precise

dispute between the parties--whether section 101.001 provides a right of representation at

investigatory interviews. The Association and Rodriguez have alleged harm caused by appellants'

actions--the denial of Association members' rights, including the denial of Rodriguez's right, to

representation upon request at investigatory interviews and the Association's right to represent its

members at investigatory interviews upon a member's request. Their harm is not speculative and

may be remedied by injunctive relief. See Texas Ass'n of Bus ., 852 S.W.2d at 444-45 . We conclude

that the Association and Rodriguez satisfy the injury-in-fact component of standing to bring their

causes of action concerning the alleged violations of statutory rights under section 101.001. See id. ;

Walker , 86 S.W.3d at 253 .

C) Does the Association have associational standing?

The City and Hodge further contend that the Association lacks associational standing.

"[A]n association has standing to sue on behalf of its members when '(a) its members would

otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to

the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit.'" Texas Ass'n of Bus. , 852 S.W.2d at 447

(quoting Hunt v. Washington State Apple Adver. Comm'n , 432 U.S. 333, 343 (1977)).

Given our conclusion that Rodriguez has standing to sue in his own right, the

Association satisfies the first element of associational standing. As to the second element,

representing members at investigatory interviews is germane to the Association's purposes. The

Association's constitution and by-laws provide that its objectives include to "promote a high level

of safety and fairness," and "to elevate and improve the morale, intellectual, social and economic

conditions of its members." The Association's president also averred that one of the Association's

purposes is to "provide representation for its members in all manner of hearings in which their

employment interests are implicated, including . . . matters affecting discipline." As to the final

element, the determination of whether or not section 101.001 provides the Association's members

the right to representation--a question of statutory construction--does not require the participation

of individual members. We conclude that the Association has associational standing. See Texas

Workers' Comp. Comm'n v. Garcia , 893 S.W.2d 504, 518-19 (Tex. 1995) (union had standing to

seek declaratory relief regarding facial validity of provisions of Texas workers' compensation act).

D) Did Rodriguez fail to exhaust his administrative remedies?

The City and Hodge further contend that the trial court did not have subject matter

jurisdiction because Rodriguez failed to exhaust his administrative remedies. The undisputed

evidence was that Rodriguez did not request a representative at the October 2008 meeting in which

he agreed to the five-shift suspension and that he waived his appeal rights and did not file an appeal

with a civil service commission.

The Association and Rodriguez agree that chapter 143 of the local government code

provides the exclusive method for fire fighters to appeal disciplinary suspensions. See Tex. Loc.

Gov't Code Ann. §§ 143.010 , .053, .057 (West 2008); City of Waco v. Bittle , 167 S.W.3d 20, 28

(Tex. App.--Waco 2005, pet. denied). But Texas courts recognize the limited nature of a civil

service commission's jurisdiction. Bittle , 167 S.W.3d at 29 (string citation to cases recognizing

limited nature of civil service commission's jurisdiction). The issue in an appeal of disciplinary

suspension pursuant to section 143.053 is the "propriety of a disciplinary suspension or the length

of the suspension." Id . at 30.

Here Rodriguez does not challenge the propriety or length of his suspension. He does

not claim that the suspension was due to the assertion of his right to representation at

the investigatory meeting. He also does not contend that he was entitled to representation at the

October 2008 meeting with Hodge because it was not an investigatory interview. His complaint

against the City and Hodge is confined to the denial of his request for Association representation

during the July 2008 investigatory interview. His claim then is distinct from claims that would have

been available to him had he appealed his suspension pursuant to chapter 143 of the local

government code. See id . Because Rodriguez's claim was not within a civil service commission's

jurisdiction pursuant to chapter 143, Rodriguez did not fail to exhaust administrative remedies before

filing this suit. See id . (fire fighter properly sought relief in courts without seeking further

administrative relief when municipality failed to restore compensation and benefits as a result of an

improper suspension because chapter 143 did not authorize the civil service commission to

determine these issues).

We conclude that the trial court had subject matter jurisdiction over appellees' causes

of action and overrule appellants' third, fourth, fifth, and sixth issues. We turn to appellants' issues

challenging the merits of the trial court's judgment.

Does section 101.001 afford a right of representation at investigatory interviews equivalent to

so-called "Weingarten rights"?

In their first and second issues, the City and Hodge challenge the trial court's

summary judgment ruling interpreting section 101.001 and its corollary declaration that the City and

Hodge violated section 101.001 by denying Rodriguez's request for Association representation at

the July 2008 interview. The City and Hodge contend that section 101.001 does not apply to

municipal workers in a non-collective bargaining environment and that, even if it did apply, that

section 101.001 does not provide the same rights as so-called "Weingarten rights." See Weingarten ,

420 U.S. at 260 .

A) Standard of Review

We review the trial court's decision to grant summary judgment de novo . Valence

Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a summary judgment

motion, the movant must demonstrate that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); City of Houston v. Clear Creek

Basin Auth ., 589 S.W.2d 671, 678 (Tex. 1979) (movant must conclusively prove all "essential

elements of his cause of action or defense as a matter of law"). In deciding whether there is a

disputed material fact issue precluding summary judgment, we must take evidence favorable to the

nonmovant as true, indulge every reasonable inference in favor of the nonmovant, and resolve any

doubts in the nonmovant's favor. Dorsett , 164 S.W.3d at 661 ; Nixon v. Mr. Prop. Mgmt. Co. ,

690 S.W.2d 546, 548-49 (Tex. 1985).

We also consider questions of statutory construction de novo . See City of

San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003). When construing a statute, our

primary goal is to determine and give effect to the legislature's intent. Id. ; McIntyre v. Ramirez ,

109 S.W.3d 741, 745 (Tex. 2003). To determine legislative intent, we look to the statute as a whole,

as opposed to isolated provisions. City of San Antonio , 111 S.W.3d at 25 (citing State v. Gonzalez ,

82 S.W.3d 322 , 327 (Tex. 2002)). We begin with the plain language of the statute at issue and apply

its common meaning. Id. ; see also In re City of Georgetown , 53 S.W.3d 328, 331 (Tex. 2001)

(starting point for construing statute is the language of the statute itself). Where the statutory text

is unambiguous, we adopt a construction supported by the statute's plain language unless that

construction would lead to an absurd result. See City of Rockwell v. Hughes , 246 S.W.3d 621,

625-26 (Tex. 2008) (statutory text construed according to plain and common meaning unless

contrary intention is apparent from context or unless such a construction leads to absurd result).

Declaratory judgments are reviewed under the same standards as other judgments or

decrees. Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (West 2008); Hawkins v. El Paso First Health

Plans, Inc. , 214 S.W.3d 709, 719 (Tex. App.--Austin 2007, pet. denied). We must uphold the

judgment of the trial court if it can be sustained upon any legal theory supported by the evidence.

See Rosen v. Wells Fargo Bank Tex., N.A. , 114 S.W.3d 145, 149 (Tex. App.--Austin 2003, pet.

filed); Bell v. Katy Indep. Sch. Dist. , 994 S.W.2d 862, 864 (Tex. App.--Houston [1st Dist.]

1999, no pet.); Oak Hills Props. v. Saga Rests., Inc. , 940 S.W.2d 243, 245 (Tex. App.--San Antonio

1997, no writ).

B) " Weingarten Rights "

In National Labor Relations Board v. J. Weingarten, Inc ., the United States Supreme

Court held that an employee covered by the National Labor Relations Act (NLRA) who reasonably

fears discipline may result from an investigatory interview has a right, upon request, to union

representation at that interview. 420 U.S. at 260 . (7) The Supreme Court upheld the Board's

interpretation of section 7 of the NLRA, concluding that the right to representation at investigatory

interviews falls within the "literal wording of § 7 that '[employees] shall have the right . . . to engage

in . . . concerted activities for the purpose of . . . mutual aid or protection.'" Id . (ellipses in original)

(quoting 29 U.S.C.A. § 157 (1998) ("section 7")). (8)

Focusing on the meaning of the critical phrase "mutual aid and protection," the

Supreme Court explained,

This is true even though the employee alone may have an immediate stake in the

outcome; he seeks "aid or protection" against a perceived threat to his employment

security. The union representative whose participation he seeks is, however,

safeguarding not only the particular employee's interest, but also the interests of the

entire bargaining unit by exercising vigilance to make certain that the employer does

not initiate or continue a practice of imposing punishment unjustly. . . . The

representative's presence is an assurance to other employees in the bargaining unit

that they, too, can obtain his aid and protection if called upon to attend a like

interview.

Id . at 260-61. The right of union representation in the context of an investigatory interview

"effectuates the most fundamental purposes of the [NLRA]," including "'the exercise by workers

of full freedom of association, self-organization, and designation of representatives of their own

choosing, for the purpose of . . . mutual aid and protection'" and the elimination of "'the inequality

of bargaining power between employees . . . and employers.'" Id . at 260-62 (ellipses in original)

(quoting 29 U.S.C.A. § 151 (1998)). The Supreme Court further explained:

Requiring a lone employee to attend an investigatory interview which he reasonably

believes may result in the imposition of discipline perpetuates the inequality the Act

was designed to eliminate, and bars recourse to the safeguards the Act provided "to

redress the perceived imbalance of economic power between labor and

management."

Id . at 262 (citation omitted).

The Supreme Court also defined the parameters of this right of representation. The

right arises only when the employee requests representation at an investigatory interview and "is

limited to situations where the employee reasonably believes the investigation will result in

disciplinary action." Id . at 257. An objective standard applies to the determination of an employee's

reasonable belief. Id . at 257-58. Further, upon an employee's request for a representative, the

employer may forego the interview and, in that event, would be free to continue its investigation

without interviewing the employee:

[E]xercise of the right may not interfere with legitimate employer prerogatives. The

employer has no obligation to justify his refusal to allow union representation, and

despite refusal, the employer is free to carry on his inquiry without interviewing the

employee, and thus leave to the employee the choice between having an interview

unaccompanied by his representative, or having no interview and forgoing any

benefits that might be derived from one.

Id . at 258. (9)

Moreover, the employer has no duty to bargain with a union representative who is

permitted to attend an investigatory interview. Id . at 259-60. The representative is there to assist

the employee. While the representative may attempt to clarify the facts or suggest other employees

who may have knowledge of them, the employer is "free to insist" that it is "only interested, at that

time, in hearing the employee's own account of the matter under investigation." Id . at 260.

With this background, we turn to the issue at hand--whether section 101.001

provides equivalent rights to public employees such as the Association members here.

C) Scope of Section 101.001

The City and Hodge argue that section 101.001 does not apply to public employees

and that, even if it does, section 7 is not similar "textually" to section 101.001 so as to support

interpreting section 101.001 to provide rights equivalent to the rights recognized in Weingarten .

Further, the City and Hodge contend that, even if the language of section 101.001 was identical to

section 7, the right of representation would not be available here because the Association is not a

"designated collective bargaining representative." We address each of appellants' arguments.

1) Does section 101.001 apply to public employees?

The City and Hodge urge that the legislature did not intend for section 101.001 to

apply to public employees based upon the legislative history of the section and separate provisions

in the government code that are applicable only to public employees. See Tex. Gov't Code Ann.

§ 311.023 (6) (West 2005) (whether or not statute ambiguous, court may consider legislative history).

To determine whether section 101.001 applies to municipal employees, we begin with

the section's plain language. See City of San Antonio , 111 S.W.3d at 25 . Section 101.001 provides:

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.

Tex. Lab. Code Ann. § 101.001 . Section 101.001 expressly applies to "[a]ll persons engaged in any

kind of labor." Id . The legislature did not limit the class of persons but broadly modified "persons"

with the adjective "all," a word of ordinary meaning. (10) Section 101.001 contains no limiting

language of any kind.

Appellants' proposed interpretation that section 101.001 affords rights only to

private employees would significantly modify the section's plain language. See City of San Antonio ,

111 S.W.3d at 25 . "Courts must not give the words used by the Legislature an 'exaggerated,

forced, or constrained meaning.'" Presidio Indep. Sch. Dist. v. Scott , 309 S.W.3d 927, 931

(Tex. 2010) (quoting Cities of Austin, Dallas, Fort Worth, & Hereford v. Southwestern Bell

Tel. Co. , 92 S.W.3d 434, 442 (Tex. 2002)). "Only when it is necessary to give effect to the clear

legislative intent can we insert additional words or requirements into a statutory provision."

Cameron v. Terrell & Garrett, Inc ., 618 S.W.2d 535, 540 (Tex. 1981); see City of Rockwall ,

246 S.W.3d at 629 . Here the legislature did not distinguish between public and private employees.

If the legislature had intended section 101.001 to apply only to private employees, it could have

written such a restriction into the statute. See City of Rockwall , 246 S.W.3d at 629 ; Cameron ,

618 S.W.2d at 540 .

Interpreting section 101.001 to apply in both the public and private sector context

conforms with other sections in chapter 101. For example, similar to the inclusive class

of employees who have the right to associate and form trade unions under section 101.001,

section 101.101 defines a "labor union" broadly:

"Labor union" means an "incorporated or unincorporated association, group, union,

lodge, local, branch, or subordinate organization of a union of working persons

organized and existing to protect those persons and to improve their working

conditions, wages, or employment relationships, but does not include an organization

not commonly regarded as a labor union."

Tex. Lab. Code Ann. § 101.101 ; see also id . § 101.051 (same) (West 2006). If the legislature

intended chapter 101 not to apply in the public sector context, it could have defined a labor union

more narrowly. See City of Rockwall , 246 S.W.3d at 629 ; Cameron , 618 S.W.2d at 540 .

As to the legislative history of section 101.001, the underlying legislation was first

enacted in 1899 and became article 5152 of the revised civil statutes in 1947. (11) Act of May 27, 1899,

26th Leg., H.B. No. 97, 11 Laws of Texas 262, 262; Tex. Rev. Civ. Stat. Ann. art. 5152 (current

version at Tex. Lab. Code Ann. § 101.001 ). In 1947, the legislature also enacted article 5154c of the

revised civil statutes, which specifically addressed public employees in the context of labor

organizations, prohibiting them from engaging in strikes or work stoppages but affording them the

right to form and join a labor organization. Tex. Rev. Civ. Stat. Ann. art. 5154c (current version at

Tex. Gov't Code Ann. §§ 617.001 -.005 (West 2004)); Act of April 29, 1947, 50th Leg., R.S.,

ch. 135, 1947 Tex. Gen. Laws 231 , 231-32. (12) Appellants argue that the legislature addressed the

rights of private and public employees concerning labor organizations separately in the two articles. (13)

The legislative history, however, is silent on any intent for article 5152 or section 101.001 to apply

only to private employees. Further, the existence of a statute specifically addressing public

employees in the context of labor organizations does not preclude section 101.001 from affording

public employees protections that apply to "all persons" for "all labor." (14) See Tex. Lab. Code Ann.

§ 101.001 revisor's note.

To support their interpretation of section 101.001, the City and Hodge rely on

Congress of Industrial Organizations v. City of Dallas , 198 S.W.2d 143 (Tex. Civ. App.--Dallas

1946, writ ref'd n.r.e.), and McNatt v. Lawther , 223 S.W. 503 (Tex. Civ. App.--Amarillo 1920, no

writ). (15) Neither case, however, is instructive here. Both cases upheld city ordinances that subjected

city employees to discharge for becoming union members. Congress of Indus. Org. , 198 S.W.2d

at 147-48 ; McNatt , 223 S.W. at 505 . Both cases were decided before section 4 of article 5154c (now

section 617.004) was enacted. Section 4 of article 5154c provides that "no person shall be denied

public employment by reason of membership . . . in a labor organization." Tex. Rev. Civ. Stat. Ann.

art. 5154c, § 4. Although article 5152 (now section 101.001) protected an employee's right to

organize and join a union, it did not prevent an employer from discharging an employee for union

membership. Article 5154c then made clear that a public employer could not discharge an employee

for union membership. To the extent our sister court in Congress of Industrial Organizations held

that article 5152 of the revised civil statutes (now section 101.001) did not apply to public

employees, we find our sister court's analysis in a case refusing temporary injunctive relief

unpersuasive to support interpreting section 101.001 in a manner that contradicts the plain language

of the statute. See City of Rockwall , 246 S.W.3d at 629 ; Congress of Indus. Org. , 198 S.W.2d at

147-48 . (16) There is no justification for departing from the plain text of a constitutional statute. And

any such departure flows from a strained reading unsupported by relevant precedent. See Lunsford

v. City of Bryan , 297 S.W.2d 115, 117 (Tex. 1957).

The Texas Supreme Court's opinion in Lunsford v. City of Bryan guides our review.

In that case, the court held that the City of Bryan's discharge of a fire fighter based upon his union

membership violated section 4 of article 5154c and section 2 of article 5207a of the revised civil

statutes. Tex. Rev. Civ. Stat. Ann. arts. 5154c, § 4; 5207a, § 2 (current version at Tex. Lab. Code

Ann. § 101.052 (West 2006)). Broader than section 4 of article 5154c, section 2 of article 5207a

provided that: "No person shall be denied employment on account of membership or

nonmembership in a labor union." Interpreting the articles, the court held that the city violated both

statutes and did not distinguish between public and private employment. 297 S.W.2d at 117 . The

court looked to the purpose of the "right-to-work" statutes in holding that the city violated

the statutes:

The intent seems obvious to protect employees in the exercise of the right of free

choice of joining or not joining a union. The purpose of the statute is to afford equal

opportunity to work to both classes of employees.

Id . Consistent with the supreme court's analysis in Lunsford , we conclude that the plain language

of "all persons" in section 101.001 includes public employees.

2) Does section 101.001 provide a right to representation at

investigatory interviews?

The City and Hodge next argue that, even if section 101.001 applies to public

employees, it is not textually similar to section 7 of the NLRA so as to support an intent by the Texas

legislature to provide equivalent rights to so-called "Weingarten rights" and that only the legislature

should create these rights for public employees such as municipal fire fighters. The City and Hodge

argue that the legislature did not intend to "engraft federal private sector labor law onto Texas

municipal employer/employee relationships when it codified section 101.001 in 1993" and it could

not have done so in 1899, when the predecessor statute was enacted, because the federal law did not

exist at that time.

A statute is presumed to have been enacted by the legislature with

complete knowledge of the existing law and with reference to it. Acker v. Texas Water Comm'n ,

790 S.W.2d 299, 301 (Tex. 1990). Further, Texas courts examine federal labor law to interpret state

labor provisions. See, e.g. , Sayre v. Mullins , 681 S.W.2d 25, 28 (Tex. 1984) ("conditions of work"

interpreted with reference to federal interpretation of term as used in NLRA); Lunsford , 297 S.W.2d

at 117 (state labor law interpreted by examining federal analysis of NLRA); Dallas Indep. Sch.

Dist. v. American Fed'n. of State, County and Mun. Employees, Local Union No. 1442 ,

330 S.W.2d 702, 707 (Tex. Civ. App.--Dallas 1959, writ ref'd n.r.e.) (construing "representative"

as used in state labor statute by referencing federal labor law). (17) At the time the legislature enacted

section 101.001, the federal interpretation of the "literal wording" of section 7 and expressed

parameters of the rights afforded under section 7 had been in existence for over twenty years, as well

as case law interpreting articles 5154c and 5152, including this Court's opinion in Glen . We

presume then that the Texas legislature was aware of the right to representation afforded under the

"literal wording" of section 7 and enacted section 101.001 with reference to it. See id .

Comparing the wording in section 7 with section 101.001, section 101.001 expressly

provides employees the right to "associate . . . to protect themselves in their personal labor in their

respective employment." Tex. Lab. Code Ann. § 101.001 . This language substantively mirrors the

language in section 7 providing employees the right to "engage in other concerted activities for the

purpose of . . . mutual aid or protection." 29 U.S.C.A. § 157 . Although not identical, the language

is substantially similar with both statutes protecting the same rights--employees' rights to join

together to protect themselves in their employment. (18)

Interpreting section 101.001 to provide rights equivalent to so-called "Weingarten

rights" conforms with the plain language of the titles of title 3, chapter 101, subchapter A, and

section 101.001 of the labor code and the statute as a whole. See City of San Antonio , 111 S.W.3d

at 25 ; Tex. Gov't Code Ann. § 311.023 (7) (West 2005) (when construing a statute whether or

not ambiguous on its face, courts may consider title). Title 3 of the labor code is entitled

"Employer-Employee Relations," chapter 101 is titled "Labor Organizations," subchapter A is titled

"Rights of Working Persons," and section 101.001 is titled "Right to Organize." The legislature's

chosen title for title 3 broadly identifies the subject area of the legislation--the relationship between

employers and employees. Within that subject area, the focus of chapter 101 is on "labor

organizations." Subchapter A of chapter 101 then addresses the rights of employees in the context

of labor organizations, and section 101.001 of subchapter A specifically provides the right to

organize and "associate" to "[a]ll persons" in the state "to protect themselves." See Tex. Lab. Code

Ann. § 101.001 . (19)

Interpreting section 101.001 to afford public employees rights equivalent to those

rights recognized in Weingarten fosters the same stated policy grounds. See Weingarten , 420 U.S.

at 262-64 . Public employees, like their private counterparts, may be too fearful or inarticulate to

relate the incident being investigated accurately when confronted by an employer investigation. See

id . at 262-63. Deferring the right to representation until a later point in time may also make it more

difficult for the employee to vindicate herself or himself and the value of later representation may

be diminished just as in the private sector. Id . at 263-64. Moreover, allowing an employee to have

a representative from a labor organization present may also assist the employer "by eliciting

favorable facts, and save the employer production time by getting to the bottom of the incident

occasioning the interview." Id . at 263. "[T]he representative may be able, through informal

discussion and persuasion conducted at the threshold, to serve as the catalyst in the amicable

resolution of disputes, and, in the union context, be able to discourage unjustified grievances."

DuPont v. NLRB , 724 F.2d 1061, 1065 (3d Cir. 1983), vacated , 733 F.2d 296 (3rd Cir. 1984) (citing

Weingarten , 420 U.S. at 262-63 , 262 n.7).

We find the analysis in Johnson v. Express One International, Inc ., 944 F.2d 247, 251

(5th Cir. 1991), instructive. In that case, the Fifth Circuit compared the rights granted to employees

under the Railway Labor Act (RLA) and section 7. The relevant provision of the RLA provides:

Employees shall have the right to organize and bargain collectively through

representatives of their own choosing. The majority of any craft or class of

employees shall have the right to determine who shall be the representative of the

craft or class for the purposes of this chapter. No carrier, its officers or agents, shall

deny or in any way question the right of its employees to join, organize, or assist in

organizing the labor organization of their choice, and it shall be unlawful for any

carrier to interfere in any way with the organization of its employees . . . ."

45 U.S.C.A. § 152 (2007). Comparing the two statutes, the Fifth Circuit declined to afford

equivalent rights under the RLA to the rights afforded under section 7. 944 F.2d at 252 . Crucial to

the Fifth Circuit was the omission in the RLA of similar language to section 7's "concerted activities

for the purpose of . . . mutual aid or protection." Id . at 251. The court reasoned that both statutes

provided the right to establish a union but absent from the RLA was the additional right "to engage

in other concerted activities." Id . at 251-52. In contrast to the RLA, section 101.001 provides both

the right to organize and establish unions and also the right to associate to protect themselves in their

employment. See Tex. Lab. Code Ann. § 101.001 .

Consistent with the federal interpretation of section 7, we conclude that an

equivalent right to representation at investigatory interviews falls within the "literal wording" of

section 101.001. See Weingarten , 420 U.S. at 260 ; see also City of Rockwall , 246 S.W.3d at 629 .

3) Does section 101.001 apply outside the context of collective

bargaining settings?

The City and Hodge next argue that, even if section 101.001 provides a right to

representation at investigatory interviews to public employees, the section does not apply here

because the Association does not have collective bargaining rights. The plain language of section

101.001, however, is not limited to collective bargaining settings. The statute allows "[a]ll persons"

to "associate and form . . . other organizations to protect themselves." See Tex. Lab. Code Ann.

§ 101.001 . By including "and other organizations," the legislature's intent as expressed in the plain

language was to allow representation by a broader category of organizations than trade unions with

collective bargaining rights. See City of Rockwall , 246 S.W.3d at 629 .

Further, in the public employment context, whether or not there is a collective-bargaining right is not how the legislature has divided up the right to representation. See Tex. Gov't

Code Ann. §§ 617.002 , .005 (collective bargaining by public employees prohibited but chapter "does

not impair" existing right to representation to present grievances); see also Sayre , 681 S.W.2d at 28

(public employee had right to be represented by an attorney in grievance proceeding under article

5154c, section 6); Corpus Christi Am. Fed'n of Teachers v. Corpus Christi Indep. Sch. Dist. ,

572 S.W.2d 663, 665 (Tex. 1978) (teacher had "an absolute right" under article 5154c, section 6 to

be represented in a grievance matter by the president of the local union, which did not claim the right

to strike); Lubbock Prof'l Firefighters , 742 S.W.2d at 416 (although article 5154c prohibits

collective bargaining, section 6 of article 5154c "makes clear . . . the legislature's intent that the

prohibition should not be interpreted broadly to deny public employees their existing right to present

grievances" through a representative); Beverly v. City of Dallas , 292 S.W.2d 172, 176 (Tex. Civ.

App.--El Paso 1956, writ ref'd n.r.e.) (concluding that protection of representative concerning

grievances in section 6 of article 5154c does not conflict with the prohibition of collective bargaining

in sections 1 and 2; drawing a distinction between the former ("a unilateral proceeding resulting in

no loss of sovereignty by the municipality") and the latter ("a bilateral procedure . . . binding the

parties to an agreement")). That the Association does not have the right to engage in collective

bargaining with the City then does not preclude section 101.001's application here.

Appellants rely on the NLRB's analysis in IBM Corporation , 341 N.L.R.B. 1288

(2004), to support their argument that section 101.001 only applies in collective bargaining settings.

We find the NLRB's analysis, however, not inconsistent with our holding here. That case

specifically addresses whether a non-union employee has Weingarten rights and makes no distinction

between union employees with collective-bargaining rights versus union employees without

collective bargaining rights. In IBM Corporation , the NLRB was concerned with the difference

between a union representative and a co-worker chosen on an "ad hoc basis" in a workplace where

no union was present. Id . at 1291-92. In that context, the NLRB held that an employer whose

employees were not represented by a union did not violate its employees' rights by denying their

requests to have a co-worker present during investigatory interviews. Id . at 1294. In contrast,

Rodriguez is a member of the Association, a labor union, and Rodriguez did not request a co-worker

but a representative of the Association to be present. See Tex. Lab. Code Ann. § 101.101 (labor

union defined); see also Tex. Gov't Code Ann. §§ 617.001 (labor organization defined), .005

(chapter 617 "does not impair the right of public employees to present grievances . . . through a

representative that does not claim the right to strike"). (20)

In Weingarten , the Supreme Court specifically held that the right to a representative

is derived from the right to engage in concerted activity under section 7, as opposed to a union's right

to act as a collective-bargaining representative, which is protected under section 9 of the NLRA. See

Weingarten , 420 U.S. at 260 ; see also 29 U.S.C.A. §§ 157 , 159 (1998). Consistent with the analysis

and interpretation of section 7 in Weingarten , we conclude that the plain language of section 101.001

provides Association members rights equivalent to the rights afforded under section 7--the right to

request representation by the Association at investigatory interviews when the employee reasonably

fears disciplinary action--and that the trial court did not err in declaring that the City and Hodge

violated Rodriguez's rights under section 101.001. We overrule appellants' first and second issues.

Injunctive Relief

In their seventh issue, the City and Hodge contend that, because the trial court erred

on the merits, the permanent injunction must be dissolved. The City does not otherwise challenge

the substance or scope of the injunctive relief awarded. The trial court permanently enjoined the City

from violating section 101.001 "by denying Plaintiff Rodriguez, and Plaintiff Association's

members, the right, upon request, to representation by Plaintiff Association at investigatory

interviews they reasonably believe might result in discipline." We review the granting or denial of

a permanent injunction for an abuse of discretion. See Operation Rescue-Nat'l v. Planned

Parenthood , 975 S.W.2d 546, 560 (Tex. 1998). A trial court abuses its discretion when it

acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. ,

701 S.W.2d 238, 241-42 (Tex. 1985). Given the City's limited ground for challenging the award of

injunctive relief and our conclusion that the trial court did not err in its interpretation and declaration

of rights under section 101.001, we conclude that the trial court did not abuse its discretion by

granting permanent injunctive relief. We overrule appellants' seventh issue.

Attorney's Fees

In their eighth issue, the City and Hodge contend that the trial court erred by awarding

contingent appellate attorney's fees when it denied fees for work done at the trial court level.

Appellants urge that the trial court was improperly attempting to influence them from asserting their

lawful right to appeal the trial court's decision. The trial court did not award any fees at the trial

court level but awarded contingent appellate attorney's fees in the event of an unsuccessful appeal

by the City and Hodge. The trial court awarded $9,750 in the event that appellants unsuccessfully

appealed to this Court, and an additional amount of $9,750 in the event appellants unsuccessfully

appeal to the Texas Supreme Court if the petition for review is refused or denied without oral

argument or $14,625 if the petition is refused or denied after oral argument.

Section 37.009 of the uniform declaratory judgments act (the "Act") provides that

"the court may award costs and reasonable and necessary attorney's fees as are equitable and just."

See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). We review the award of attorney's

fees under the Act for abuse of discretion. Bocquet v. Herring , 972 S.W.2d 19, 20-21 (Tex. 1998);

Oake v. Collin County , 692 S.W.2d 454, 455 (Tex. 1985); see Downer , 701 S.W.2d at 241-42 (abuse

of discretion standard of review). The City and Hodge do not contest the reasonableness or necessity

of the fees, limiting their argument to whether the award of contingent appellate attorney's fees was

"equitable and just."

Appellants, however, have failed to cite any authority, and we have found none, that

precludes a trial court from finding that contingent appellate attorney's fees would be "equitable and

just" when the trial court finds that the award of trial court attorney's fees would not be "equitable

and just." On this record, we cannot conclude that the trial court abused its discretion by only

awarding contingent appellate attorney's fees. Herring , 972 S.W.2d at 20-21 . We overrule

appellants' eighth issue.

CONCLUSION

We conclude that the trial court had jurisdiction over appellees' causes of action, that

it did not err in its interpretation of section 101.001, and that it did not abuse its discretion in

awarding injunctive relief and contingent appellate attorney's fees. We therefore affirm the trial

court's judgment, declaring that the City and Hodge violated Rodriguez's rights under section

101.001, permanently enjoining them from further violations, and awarding contingent appellate

attorney's fees.

__________________________________________

Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Dissenting opinion by Justice Puryear

Affirmed

Filed: July 21, 2010

1. Section 101.001 of the labor code provides:

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.

Tex. Lab. Code Ann. § 101.001 (West 2006) ("section 101.001").

2. Hodge alleged in the complaint that Rodriguez "took 2.5 hours sick leave on July 10, 2008,

in order to take part in the hiring process for a Fire Fighter's position with the Austin, Texas, Fire

Department." He further alleged that "to cover up for the true reason for reporting to duty 2.5 hours

late on July 10, 2008," that Rodriguez made "false statements" and "falsified" his time sheet.

3. Hodge sent the letter to the Association's president after Association members disclosed

to others details of an investigation concerning alleged drug use. In the letter, Hodge recognized that

employees subject to investigatory interviews need assistance:

I am writing to urge the Union to establish a procedure providing your members'

access to legal counsel to prepare for investigatory meetings. . . . The need for a legal

access procedure became clear during recent investigatory meetings. . . .

Notwithstanding our opinion on representation during investigatory hearings, I

believe that it is in the best interest of your members to come to the Union and say:

"I need to speak to an attorney about an investigatory meeting I am required to attend.

I have been ordered not to discuss the investigation with anyone other than my

attorney" and access to an attorney would be provided without further discussion.

4. Although they contended to the trial court that Rodriguez's claims were barred by waiver

and estoppel and that governmental immunity and sovereign immunity deprived the trial court of

jurisdiction, the City and Hodge do not assert these grounds on appeal. See City of El Paso

v. Heinrich , 284 S.W.3d 366, 369-70 (Tex. 2009) (discussion of sovereign and governmental

immunity); Ulico Cas. Co. v. Allied Pilots Ass'n , 262 S.W.3d 773, 778 (Tex. 2008) (discussion of

doctrines of waiver and estoppel).

5. The dissent takes the position that the representative issue only "evaded review" because

Rodriguez supposedly waived his appellate rights, as he could have presented his complaint that he

was not allowed a representative during an appeal from his initial disciplinary proceeding. We agree

with the trial court's sound reasoning in its letter to the parties on this issue. The trial court

explained:

The challenged action is likely to repeat yet evade review. First, the

challenged action is denial of a representative at an employer-employee meeting.

The plaintiffs "cannot obtain review before the issue becomes moot," because it

becomes moot as soon as the meeting goes forward, with or without a representative.

What the employee says in the absence of representation cannot be put back in the

bottle. Second, the Round Rock Fire Department, like most employers, is entitled

to insist that its employees participate in an investigatory or disciplinary meeting

whenever it chooses to call one, without prior notice. An employee cannot insist on

a delay in the meeting in order to seek even emergency ex parte relief. Third, even

if there were time for a court to act before the meeting, were the court to issue

temporary relief preventing the meeting from going forward without a representative,

the employer could choose to go forward in that instance, and in any other instance

litigated, with a representative, repeatedly mooting each case. The only means of

assuring a preservation of its jurisdiction would be for the court to preclude the

employer-employee meeting from going forward until the matter could be "fully

litigated." See Blum v. Lanier . Particularly with regard to employment in public

safety, precluding resolution of disciplinary matter[s] for that length of time is an

unacceptable option. An allegation of a denial of Weingarten rights should be

divorced from the particular disciplinary matter, which should go forward, and

should be addressed by a separate request for prospective relief, as plaintiffs have

done here.

6. We find appellants' reliance on Williams v. Lara , 52 S.W.3d 171 (Tex. 2001), misplaced.

In that case, the supreme court found that the "capable of repetition" element was not met by two

former inmates that sought declaratory and injunctive relief from the establishment of a Christian

education unit within a jail. Id . at 184-85. Given their release from the jail and their duty to avoid

recidivism, the court concluded that there was no reasonable expectation that they would be again

subject to the same allegedly unconstitutional operations within the jail. Id . In contrast, avoidance

of disciplinary offenses by Association members does not preclude the City and Hodge from

subjecting Association members to investigatory interviews without representation.

7. The parties agree that the NLRA does not apply to public employees, such as the fire

fighters here. See 29 U.S.C.A. § 152 (1998).

8. The text of section 7 of the NLRA provides in full:

Employees shall have the right to self-organization, to form, join, or assist labor

organizations, to bargain collectively through representatives of their own choosing,

and to engage in other concerted activities for the purpose of collective bargaining

or other mutual aid or protection, and shall also have the right to refrain from any or

all of such activities except to the extent that such right may be affected by an

agreement requiring membership in a labor organization as a condition of

employment as authorized in section 158(a)(3) of this title.

Id . § 157 (1998) ("section 7").

9. But see Tex. Gov't Code Ann § 614.023 (West Supp. 2009). Section 614.023 of the Texas

Government Code prohibits disciplinary action against a fire fighter employed by a political

subdivision of this state without the fire fighter first receiving a copy of a signed complaint and

further prohibits the fire fighter's indefinite suspension or termination based upon the subject matter

of the complaint unless "the complaint is investigated" and "there is evidence to prove the allegation

of misconduct." See id .

10. "All" commonly means "the whole amount or quantity of." Webster's Third

New International Dictionary 54 (2002); see also City of Austin v. Hyde Park Baptist Church ,

152 S.W.3d 162, 167 (Tex. App.--Austin 2004, no pet.) (interpreting use of "all" in municipal

ordinance according to plain meaning of "all").

11. Article 5152 was titled "Right to organize" and provided:

It shall be lawful for any and all persons engaged in any kind of work or labor,

manual or mental, or both, to associate themselves together and form trade unions

and other organizations for the purpose of protecting themselves in their personal

work, personal labor, and personal service in their respective pursuits and

employments.

Tex. Rev. Civ. Stat. Ann. art. 5152 (current version at Tex. Lab. Code Ann. § 101.001 ).

12. Chapter 617 of the government code was enacted in 1993 as a non-substantive revision

of article 5154c as part of the codification process. See Tex. Gov't Code Ann. §§ 617.001 -.005

(West 2004). Chapter 617 is titled "Collective Bargaining and Strikes." Consistent with article

5154c, chapter 617 prohibits collective bargaining and strikes by public employees, prohibits the

denial of public employment because of an individual's membership or nonmembership in a labor

organization, and makes clear that the chapter does not impair the right of public employees to

present grievances either individually or through a representative that does not claim the right to

strike. See id. §§ 617.002-.005.

13. Section 101.001 also was enacted in 1993 as a non-substantive revision of article 5152 as

part of the codification process. See Act of May 24, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex.

Gen. Laws 987 , 1028.

14. For example, section 617.001 of the government code defines "labor organization" in the

public employment setting:

In this chapter, "labor organization" means any organization in which employees

participate and that exists in whole or in part to deal with one or more employers

concerning grievances, labor disputes, wages, hours of employment, or working

conditions.

Tex. Gov't Code Ann. § 617.001 . This definition overlaps with the definition of "labor union" in

the labor code. See Tex. Lab. Code Ann. §§ 101.051 , .101 (West 2006).

15. The City and Hodge also cite San Antonio Fire Fighters' Local Union No. 84 v. Bell ,

223 S.W. 506, 508 (Tex. Civ. App.--San Antonio 1920, writ ref'd), but they concede that the court

there expressly declined to decide whether public employees had the right "to associate themselves

and form trade unions and other organizations for the purpose of protecting themselves together in

their personal work, personal labor, and personal service, in their respective pursuits and

employments."

16. Compare Glen v. Texas State Employees Union , No. 13,723 (Tex. App.--Austin 1982,

no writ) (mem. op., not designated for publication). In that case, this Court interpreted article 5152

to apply in the public employment context and upheld a temporary injunction enjoining the

superintendent and others of a state hospital from denying a union the "right to represent its members

in patient-abuse investigations." Id . at 1, 8. Although we are not bound by this Court's opinion in

Glen , the analysis is similar. This Court addressed whether article 5152 affords rights similar to

Weingarten rights and concluded article 5152 "probably confers upon appellees the right to

representation at patient-abuse interviews" at the hospital. See id . at 8.

17. In construing state statutes, it is well established that Texas courts may be guided by

federal cases construing similar or counterpart federal statutes. See Barr v. City of Sinton ,

295 S.W.3d 287 , 296 n.42 (Tex. 2009) (string citation to cases in which court guided by federal cases

construing a similar or counterpart federal statute to the state statute at issue); see also Glen , supra ,

at 6. In Glen , this Court examined the Supreme Court's opinion in Weingarten and analyzed article

5152 by comparing its language to section 7's language:

Although, admittedly, the language of art. 5152 is not identical to that of [section 7

of] the National Labor Relations Act, the interests protected by the respective statutes

are similar--the right to associate with other employees to protect themselves in their

work. In fact, it would seem the language of the Texas "right-to-work" statute may

be construed to allow any employee, whether member of the labor union or not, to

have a representative appear with him at an investigatory hearing or interview.

Id . at 7 (emphasis in original).

18. The plain language in former article 5152 further supports that the legislature intended to

afford similar protections to employees as those provided under section 7. Article 5152 provided

employees the right to "associate themselves together and form trade unions and other organizations

for the purpose of protecting themselves in their personal work, personal labor, and personal service

in their respective pursuits and employments." Tex. Rev. Civ. Stat. Ann. art. 5152.

19. Interpreting section 101.001 to provide a right of representation is consistent with other

provisions in chapter 101. For example, in subchapter C titled "Regulation of Labor Unions,"

section 101.103 provides that the subchapter is to be "liberally construed" to "protect the rights of

working persons to work and to organize for their mutual benefit in connection with their work."

See Tex. Lab. Code Ann. § 101.103 (West 2006). Affording all "working persons," whether they

work in the private or public sector, the right to representation by their labor union at investigatory

interviews is consistent with subchapter C's stated purpose of protecting the rights of working

persons "to organize for their mutual benefit in connection with their work." Id .

20. An employer's right to the presence of a union representative is not without limits. Our

opinion should not be read to permit an employee to demand that a fellow participant in the incident

giving rise to the investigation be permitted to act as his representative. In IBM Corporation , the

NLRB warned against the dangers of allowing a "coconspirator" to act as an employee's

representative, stating, "It can hardly be gainsaid that it is more difficult to arrive at the truth when

employees involved in the same incident represent each other." 341 N.L.R.B. 1288 , 1292 (2004).