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

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 10-0666
444444444444
THE CITY OF ROUND ROCK, TEXAS AND
ROUND ROCK FIRE CHIEF LARRY HODGE, PETITIONERS,
v.
JAIME RODRIGUEZ AND ROUND ROCK
FIRE FIGHTERS ASSOCIATION, RESPONDENTS
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
Argued December 8, 2011
JUSTICE GREEN delivered the opinion of the Court, in which JUSTICE JOHNSON , JUSTICE
WILLETT , JUSTICE GUZMAN , JUSTICE BOYD , and JUSTICE DEVINE joined.
CHIEF JUSTICE JEFFERSON filed a dissenting opinion, in which JUSTICE HECHT and JUSTICE
LEHRMANN joined.
In this statutory construction case, we are asked to decide whether section 101.001 of the
Texas Labor Code grants unionized public-sector employees in Texas the right to, upon request, have
union representation during an internal investigatory interview when the employee reasonably
believes the interview may result in disciplinary action. The court of appeals held that section
101.001 confers such a right. 317 S.W.3d 871, 875 (Tex. App.—Austin 2010, pet. granted).
Although private-sector employees and federal public-sector employees both possess such a
representation right, we hold that the Texas Legislature has not granted that right to public-sector
employees in Texas. Cf. 5 U.S.C. § 7101(b); NLRB v. Weingarten, Inc., 420 U.S. 251, 260 (1975)
(interpreting 29 U.S.C. § 157). We reverse the judgment of the court of appeals and render judgment
that section 101.001 of the Labor Code does not confer on public-sector employees in Texas the right
to union representation at an investigatory interview that the employee reasonably believes might
result in disciplinary action.
I. Factual Background
In July 2008, Round Rock Fire Chief Larry Hodge called fire fighter Jaime Rodriguez into
a meeting in Chief Hodge’s office. In the room, Chief Hodge was joined by the assistant fire chief
and Rodriguez’s battalion chief. Chief Hodge told Rodriguez that the purpose of the meeting was
to conduct an internal interview of Rodriguez regarding a personnel complaint that Chief Hodge had
filed against him. Chief Hodge alleged that Rodriguez had misused his sick leave earlier that month
to get a physical examination to pursue employment with the Austin Fire Department. The
complaint stated, “Since this is an Internal Interview you may not be represented during our meeting;
however, if a pre-disciplinary meeting is set following our meeting you would be eligible for
representation at that time.” The complaint also prohibited Rodriguez from discussing the complaint
with anyone other than Rodriguez’s attorney, including union leadership and other union members.
Before the interview began, Rodriguez asserted the right to union representation, requesting
to have a representative from the Round Rock Fire Fighters Association (the Association) present
during the interview. Chief Hodge denied Rodriguez’s request and interviewed him without
Association representation. In October 2008, Chief Hodge again met with Rodriguez to discuss
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potential discipline for the conduct alleged in the personnel complaint. Rodriguez did not ask for
a union representative at that meeting. Chief Hodge allowed Rodriguez to choose between being
discharged and accepting a five-day suspension without right of appeal. A few days later, Rodriguez
executed an agreement that opted for the five-day suspension.
Three months later, Rodriguez and the Association filed a declaratory judgment action,
alleging that Chief Hodge and the City of Round Rock violated Rodriguez’s right to union
representation, and asserting that such a right is conferred by section 101.001 of the Texas Labor
Code. Rodriguez and the Association also sought to enjoin Chief Hodge and the City from denying
Rodriguez and other fire fighters their right to representation at future investigatory interviews. The
trial court denied a motion for summary judgment filed by Chief Hodge and the City, and granted
a motion for summary judgment filed by Rodriguez and the Association. In its final judgment, the
trial court declared that Rodriguez was denied his right to union representation under section 101.001
of the Labor Code, and enjoined Chief Hodge and the City from further denying fire fighters the right
to, upon request, be represented by the Association at investigatory interviews they reasonably
believe might result in discipline. The court of appeals affirmed the decision. 317 S.W.3d at 875.
II. The Weingarten Decision
The right to union representation in an investigatory interview derives from the United States
Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), the seminal case regarding
private-sector employee representation rights. In that case, an employer challenged the National
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Labor Relations Board’s (NLRB) determination that Section 7 of the National Labor Relations Act
(NLRA) granted private-sector employees the right to have a union representative present at an
investigatory interview when the employee reasonably believes that the interview could result in
disciplinary action. Id. at 260. The NLRB determined that this right inhered in Section 7’s
guarantee of the right of employees to engage in “concerted activities for . . . mutual aid or
protection.” Id. at 252; see 29 U.S.C. § 157. The Supreme Court held that the NLRB permissibly
construed Section 7 to confer the representation right, noting that the NLRB’s construction may not
be required by the statute’s text. Weingarten, 420 U.S. at 266–67. In doing so, the Supreme Court
explained that the NLRB’s decisions are “subject to limited judicial review” because of the NLRB’s
“special function” in interpreting Section 7 and its “special competence” in the field of labor-
management relations. Id. at 267. Following Weingarten, Congress extended the representation
right to federal public-sector employees. 5 U.S.C. § 7101(b). Thus, the right to union representation
during investigatory interviews currently applies nationally to all private-sector employees and
federal public-sector employees.
III. Statutory Construction
Statutory construction is a question of law, and review is conducted de novo. Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). Our ultimate purpose when construing
a statute is to discover the Legislature’s intent. Id. We examine the statute’s text, as it provides the
best indication of legislative intent. Id.
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A. The Plain Language of Section 101.001 Does Not Confer
the Representation Right Asserted by Rodriguez
Section 101.001, captioned “Right to Organize,” 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 § 101.001; see also Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 809 (Tex. 2010) (“[T]he title of [a statute] carries no weight, as
a heading does not limit or expand the meaning of a statute.” (internal quotation marks omitted)).
While the statute is broad, we do not read it as conferring, by its plain language, the specific right
to have a union representative present at an investigatory interview that an employee reasonably
believes might result in disciplinary action. In fact, on its face, the statute confers only one explicit
right: the right to organize into a trade union or other organization. By its plain terms, the statute
makes it lawful for employees to form labor unions or other organizations, and specifically, those
organizations created to protect them in their employment. It says nothing about any rights that may
attach once such unions are formed.
Indeed, this Court has previously recognized this construction of section 101.001 when
discussing the joint purpose of a former codification of section 101.001 and section 101.002 of the
Labor Code, which addresses the rights of individuals to influence others in employment matters.
See Best Motor Lines v. Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,
Local No. 745, 237 S.W.2d 589, 598 (Tex. 1951). We stated that these statutes are “the very statutes
which give the unions life” and that, “[u]nder these statutes, labor unions are permitted to organize
and work for the betterment of their members.” Id. We clearly delineated the specific roles of each
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statute: Section 101.001 confers the right to organize into a union, and section 101.002 then
provides substance to that right by allowing employees to influence other employees to enter, refuse,
or quit employment. Id.; see also TEX . LAB. CODE §§ 101.001, .002; Connell Constr. Co. v.
Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 636 n.18 (1975) (noting that a former
codification of sections 101.001 and 101.002 “declare that it is lawful for workers to associate in
unions and to induce other persons to accept or reject employment”); United Mine Workers of Am.
v. Coronado Coal Co., 259 U.S. 344, 386 n.1 (1922) (describing a former codification of section
101.001 as being enacted for the purpose of “[l]egalization of labor unions and labor combinations”);
Webb v. Cooks’, Waiters’ & Waitresses’ Union, No. 748, 205 S.W. 465, 469 (Tex. Civ. App.—Fort
Worth 1918, writ ref’d) (stating that a former codification of section 101.001 “provid[es] that it shall
be lawful for persons engaged in any kind of labor to associate themselves together and form unions”
and that a former codification of section 101.002 then makes a “declaration relating to the rights and
privileges of such associations”). Our sister court, the Court of Criminal Appeals, has also
recognized the limited scope of a former codification of section 101.001, stating that it “grants the
right to a person to organize or become a member of a labor union.” Ex parte Waltrip, 207 S.W.2d
872, 874 (Tex. Crim. App. 1948).
This reading of section 101.001 comports with other labor-related provisions in the Texas
statutes, which are premised on section 101.001’s right to form unions. While section 101.001
protects the right of employees to organize into labor unions, section 101.052 of the Labor Code
protects the “right to work.” See TEX . LAB. CODE § 101.052; see also Lunsford v. City of Bryan, 297
S.W.2d 115, 117 (Tex. 1957) (describing a former codification of section 101.052 as our “right-to-
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work” statute). This Court has recognized that the “intent [of the right-to-work statute] seems
obvious to protect employees in the exercise of the right of free choice of joining or not joining a
union.” Lunsford, 297 S.W.2d at 117 (emphasis added); see also McNatt v. Lawther, 223 S.W. 504,
505 (Tex. Civ. App.—Amarillo 1920, no writ) (holding that, prior to enactment of the right-to-work
statute, a previous codification of section 101.001 protected only the right of employees to organize,
and thus it allowed employers to fire employees for joining a union).
Similarly, our construction of section 101.001—as conferring the right to organize into
unions— is in accord with Chapter 617 of the Texas Government Code, which defines specific rights
of Texas public-sector labor unions. See TEX . GOV ’T CODE §§ 617.001–.003 (expressly disarming
public-sector unions of rights usually enjoyed in the private sector, such as striking and collective
bargaining); id. § 617.005 (granting public-sector unionized employees the limited right “to present
grievances concerning their wages, hours of employment, or conditions of work either individually
or through a representative that does not claim the right to strike”); see also Tex. Att’y Gen. Op. No.
H-422 (1974) (determining that implicit in section 617.005 “is the notion that public officials should
meet with public employees or their representatives at reasonable times and places to hear their
grievances concerning wages, hours of work, and conditions of work”). Chapter 617, while
conferring the right to present grievances, does not confer the right to union representation during
investigatory interviews.
B. Section 7 of the NLRA Differs Significantly from Section 101.001
Although we look to federal statutes and case law when a Texas statute and federal statute
are “animated in their common history, language, and purpose,” see Barr v. City of Sinton, 295
7
S.W.3d 287, 296 & n.42 (Tex. 2009), key differences between the NLRA and the state statutes here
compel a different result from that reached by the United States Supreme Court in Weingarten. See
Weingarten, 420 U.S. at 260.
Section 7 of the NLRA states, in relevant part:
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 . . . .
29 U.S.C. § 157. In contrast, 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 § 101.001. Although Rodriguez and the dissent argue that the language is
“substantially similar,” ___ S.W.3d at ___, we read the statutes as substantially dissimilar.
Section 7 confers four rights that union members can invoke for their protection: (1) “self-
organization”; (2) “form, join, or assist labor organizations”; (3) “bargain collectively through
representatives of their own choosing”; and (4) “engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. The Weingarten right
recognized by the Supreme Court is rooted in that fourth right—“the individual right of the
employee, protected by [Section] 7 of the Act, ‘to engage in . . . concerted activities for . . . mutual
aid or protection.’” Weingarten, 420 U.S. at 252 (omissions in original). Because Section 7
guarantees private-sector employees the specific right to collective bargaining and the more general
right to engage in other concerted activity toward collective bargaining or some other sort of aid or
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protection—rights that attach once unions are formed—the Supreme Court concluded that the
language of Section 7 could include the Weingarten right. See id at 260–61. While section 101.001
mirrors Section 7 in conferring the first right—a right to organize—and part of the second—a right
to form unions and other organizations—granted to private-sector employees, nothing in section
101.001 allows us to reach the same conclusion. See TEX . LAB. CODE § 101.001. Just as the Fifth
Circuit declined to find a representation right for railway employees because the Railway Labor Act
lacks the “concerted activities” language found in the NLRA, see Johnson v. Express One Int’l Inc.,
944 F.2d 247, 251 (5th Cir. 1991), we cannot find a representation right in section 101.001 without
similar “concerted activities” language. See id. (warning against applying NLRA case law to statutes
with language that “differs substantially” from the NLRA). Cf. N.Y.C. Transit Auth. v. N.Y. State
Pub. Emp’t Relations Bd., 864 N.E.2d 56, 56 (N.Y. 2007) (holding that a state statute that differed
materially from the text of NLRA Section 7 and lacked “concerted activities for . . . mutual aid or
protection” language did not give a representation right to public-sector employees).
The dissent suggests that the mere inclusion of the word “protect” in the statute indicates the
Legislature’s intent to grant unionized public-sector employees specific rights to enable them to seek
protection in their employment, including the right to union representation during investigatory
interviews.1 ___ S.W.3d at ___. But, as explained above, there is nothing in the statute to indicate
1
To reach this conclusion, the dissent’s construction impliedly requires “associate” to mean “to join together
for the purpose of representing each other.” In other words, the dissent’s construction of section 101.001 would read
that employees may “join together for the purpose of representing each other . . . to protect themselves.” However,
“associate” means “to come together as partners, fellow workers, colleagues, friends, companions, or allies” and does
not include a right of representation. See, e.g., W EBSTER ’S T H IR D N EW I N TERNATIO N AL D IC TIO N ARY (2002). It is unclear
what limits, if any, the dissent believes the statute imposes on that right to representation, or whether the dissent would
somehow judicially impose limits on the statutory language to recognize only the narrow representation right at issue
in this case. The plain language of section 101.001 supports our holding in this case, negating the necessity to impose
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such an intent. We read “protect” as describing the purpose around which individuals would
organize and form unions, pursuant to the right conferred under section 101.001. The Legislature
grants and denies rights to unionized public-sector employees by specific enactment. See, e.g., TEX .
GOV ’T CODE § 617.002(a) (denying public-sector employees the right to bargain collectively); id.
§ 617.003 (denying public-sector employees the right to strike); id. § 617.005 (granting public-sector
employees the right to present their grievances concerning wages, hours, or conditions of work
through a union representative). At most, the inclusion of “protect” serves as a limitation on the type
of union or organization—those formed to protect employees in their employment—whose members
are subject to those specific enactments that grant rights, such as the right to present work-related
grievances, and deny rights, such as collective bargaining and the right to strike. This reading does
not deprive section 101.001 of meaning; rather, when read in connection with the grants and denials
of specific rights, it gives section 101.001 precisely the meaning the plain language indicates the
Legislature intended: Texas public employees have the right to band together and form labor unions.
C. The Supreme Court’s Analysis in Weingarten Does Not Apply
Weingarten provides little guidance for important reasons. First, there is no question that
Section 7 of the NLRA and the Weingarten decision apply only to private-sector employees. See 29
U.S.C. § 152(2) (excepting from the definition of “employer” “the United States . . . or any State or
political subdivision thereof”). It was not until after the Weingarten decision that Congress
specifically extended the representation right to federal public-sector employees. See 5 U.S.C.
any such limitations under section 101.001— a task that, even if it were required, is better suited for the Legislature.
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§§ 7101(b), 7114(a)(2)(B). In the thirty-eight years since Weingarten was decided, the Texas
Legislature has declined to enact similar legislation.
Second, Section 7 does not expressly confer the Weingarten right, and the Supreme Court
recognized that. See Weingarten, 420 U.S. at 266–67. In Weingarten, the Court merely determined
that the NLRB had permissibly construed Section 7 to find the Weingarten right rooted in the
“concerted activities” portion of that statute, although the language of Section 7 may not actually
grant the right. See id. (stating that even though the NLRB’s construction “may not be required by
[Section 7, it] is at least permissible under it”). The Court afforded the NLRB’s construction
considerable deference because, with its “special competence,” the NLRB is entrusted with
“responsibility to adapt the [NLRA] to changing patterns of life,” and its construction of the NLRA
is therefore “subject to limited judicial review.” See id. at 264–68; see also Pattern Makers’ League
of N. Am., AFL-CIO v. NLRB, 473 U.S. 95, 100 (1985) (“Because of the [NLRB]’s ‘special
competence’ in the field of labor relations, its interpretation of the [NLRA] is accorded substantial
deference.” (citing Weingarten, 420 U.S. at 266)); Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500
(1978) (noting, when construing a different statute, that “[e]ven if the legislative history arguably
pointed toward a contrary view, the [NLRB]’s construction of the statute’s policies would be entitled
to considerable deference” (citing Weingarten, 420 U.S. at 251)). In Texas, we have no NLRB
equivalent. Instead, labor policy and regulation is determined exclusively by the Texas Legislature
and the language of its legislative enactments. And, unlike the United States Congress, the Texas
Legislature has not enacted legislation to confer the right to union representation on Texas public-
sector employees during investigatory interviews.
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Third, as explained above, the Weingarten decision was based on language in Section 7 that
is absent from section 101.001. Without anything resembling Section 7’s “concerted activities”
language, section 101.001 cannot confer on Texas public-sector employees a right to have union
representation during investigatory interviews they reasonably believe may result in disciplinary
action.
D. Related State and Federal Statutory Enactments
Support This Construction of Section 101.001
When a statute is clear and unambiguous, we do not resort to extrinsic aides such as
legislative history to interpret the statute. Entergy, 282 S.W.3d at 442; see Molinet v. Kimbrell, 356
S.W.3d 407, 414 (Tex. 2011) (“[T]he Legislature expresses its intent by the words it enacts and
declares to be the law.”). In construing a statute, however, we presume that the Legislature acted
with knowledge of the background law and with reference to it. See Tex. Parks & Wildlife Dep’t v.
Dearing, 240 S.W.3d 330, 351 (Tex. 2007).
The Legislature enacted the first codification of section 101.001 in 1899, long before
Congress enacted the NLRA or the Supreme Court decided the Weingarten case. See Act of May
27, 1899, 26th Leg., ch. CLIII, 1899 Tex. Gen. Laws 262, 262. The original 1899 provision stated:
[I]t 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.
Id. At the time this provision was enacted, unions were attempting to clarify their position under
recent state and federal antitrust legislation. See Allen Bradley Co. v. Local Union No. 3, Int’l Bhd.
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of Elec. Workers, 325 U.S. 797, 803 (1945) (discussing this “well known history of the era between
1890 and 1914”). In 1890, Congress passed the landmark Sherman Antitrust Act, which included
language broad enough to consider labor unions to be trusts. Sherman Act, ch. 647, 26 Stat. 209,
209–10 (1890) (codified as amended at 15 U.S.C. §§ 1–7); see also Allen Bradley Co., 325 U.S. at
801 (“The Sherman Act as originally passed contained no language expressly exempting any labor
union activities. Sharp controversy soon arose as to whether the Act applied to unions.”); WILLIAM
HOWARD TAFT , THE ANTI-TRUST ACT AND THE SUPREME COURT 2 (1914) (“Whether Congress
intended it or not, it used language [in the Sherman Antitrust Act] that necessarily forbade the
combination of laborers to restrain and obstruct interstate trade.”). By 1889, Texas had enacted
similar comprehensive antitrust legislation, and the Legislature amended Texas antitrust laws in
1899. See Act of May 25, 1899, 26th Leg., ch. CXLVI, 1899 Tex. Gen. Laws 246, 246; Act of
March 30, 1889, 21st Leg., ch. 117, 1889 Tex. Gen. Laws 141, 141–42. Two days after passing
those amendments, the Legislature enacted the 1899 right-to-organize statute, which included
language clarifying labor’s role under Texas’s antitrust laws. See Act of May 27, 1899, 26th Leg.,
ch. CLIII, 1899 Tex. Gen. Laws 262, 262 (“[N]othing herein contained shall be construed to repeal,
affect or diminish the force and effect of any statute now existing on the subject of trusts,
conspiracies against trade, pools and monopolies.”); see Connell Constr. Co., 421 U.S. at 636 n.18
(citing the 1899 right-to-organize statute as “a good example” of state antitrust laws that tend to
make labor activities more likely to violate state antitrust laws).
Courts of appeals have acknowledged this historical context when discussing the former
codification of section 101.001. For example, the Seventh Court of Appeals surmised:
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It was probably the purpose of this legislation to make it clear that the early English
decisions, which held labor unions under certain circumstances to be unlawful, and
our own laws against trusts and combinations in restraint of trade, did not apply to
labor unions. The act merely announced that there was no prohibition of law against
such unions.
McNatt, 223 S.W. at 505; see Webb, 205 S.W. at 469 (harmonizing former codifications of sections
101.001 and 101.002 with Texas antitrust statutes).
As the Texas Legislature had done with the 1899 right-to-organize statute, the United States
Congress enacted legislation in 1914 to exempt labor unions from antitrust laws. See Md. & Va.
Milk Producers Ass’n v. United States, 362 U.S. 458, 464 (1960) (explaining that “Congress in 1914
inserted § 6 in the Clayton Act [to exempt] agricultural organizations, along with labor unions, from
the antitrust laws.”). The Clayton Act provides:
Nothing contained in the antitrust laws shall be construed to forbid the existence and
operation of labor . . . organizations, instituted for the purposes of mutual help . . .
or to forbid or restrain individual members of such organizations from lawfully
carrying out the legitimate objectives thereof; nor shall such organizations, or the
members thereof, be held or construed to be illegal combinations or conspiracies in
restraint of trade, under the anti-trust laws.
15 U.S.C. § 17 (emphasis added). This language from the Clayton Act uses terminology similar to
that in Texas’s 1899 right-to-organize statute, the predecessor to today’s section 101.001. See Act
of May 27, 1899, 26th Leg., ch. CLIII, 1899 Tex. Gen. Laws 262, 262 (“[T]he foregoing sections
shall not be held to apply to any combination or combinations . . . for any other purpose in restraint
of trade . . . .” (emphasis added)). In this historical context, it is clear that the 1899 right-to-organize
statute aligns more closely with the Clayton Act of 1914, which partially exempted labor unions
from violating federal antitrust laws, than with Section 7 of the NLRA, which was not enacted until
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much later. The Supreme Court has recognized as much, listing a former codification of section
101.001 alongside the Clayton Act as legislation for the “[l]egalization of labor unions and labor
combinations.” See United Mine Workers of Am., 259 U.S. at 386 n.1; see also Connell Constr. Co.
421 U.S. at 636 n.18 (noting that a former codification of section 101.001 “declare[s] that it is lawful
for workers to associate in unions”).
This legislative context supports a reading of the statute in line with the plain meaning of the
statute—section 101.001 allows individuals to lawfully organize and form labor unions without
violating antitrust laws.
E. If Representation Rights Are to Be Conferred on Texas Public-Sector Employees,
The Legislature Must Make That Policy Determination
We recognize, as the dissent does, that there are good reasons for Texas public-sector
employees to have the same access to union representation in investigatory interviews as private-
sector employees and federal public-sector employees. See ___ S.W.3d at ___; see, e.g., Weingarten,
420 U.S. at 262–64. In Texas, however, the Legislature must make this policy determination. See
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000) (explaining that, in
Texas, legislative power includes the power to set public policy as well as “many functions that have
administrative aspects, including the power to provide the details of the law, to promulgate rules and
regulations to apply the law, and to ascertain conditions upon which existing laws may operate”).
Our role in statutory construction is merely to give effect to the Legislature’s intent by examining
the plain meaning of the statute. See Kimbrell, 356 S.W.3d at 414 (“It is the Legislature’s
prerogative to enact statutes; it is the judiciary’s responsibility to interpret those statutes according
15
to the language the Legislature used . . . .”). Here, we must give effect to the statute’s silence on this
issue and the Legislature’s decision not to confer representation rights akin to Weingarten rights on
Texas public-sector employees. See Seay v. Hall, 677 S.W.2d 19, 25 (Tex. 1984) (“While this court
may properly write in areas traditionally reserved to the judicial branch of government, it would be
a usurpation of our powers to add language to a law where the [L]egislature has refrained.”);
Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920) (“[Courts] are not the law-making body. They are
not responsible for omissions in legislation. They are responsible for a true and fair interpretation
of the written law.”).
Although it seems an anomaly for Texas public-sector employees to have to face
investigatory interviews alone, we note that the Legislature may have good reasons for treating
public-sector employees in Texas differently from private-sector employees. See, e.g., Cong. of
Indust. Org. v. City of Dallas, 198 S.W.2d 143, 144 (Tex. Civ. App.—Dallas 1946, writ ref’d n.r.e.)
(“[T]he status of governmental employees, National, State and Municipal, is radically different from
that of employees in private business or industry.”); see also Headquarters Nat’l Aeronautics &
Space Admin., 50 F.L.R.A. 601, 608 n.5 (1995) (noting “Congress’[s] recognition that the
[Weingarten] right to representation might evolve differently in the private and Federal sectors”).
For example, the Legislature may have decided not to extend such a representation right to Texas
public-sector employees because unions in Texas lack authority to engage in collective bargaining,
unlike the union in Weingarten. See TEX . GOV ’T CODE § 617.002.
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IV. Conclusion
We hold that section 101.001 of the Labor Code does not confer on public-sector employees
in Texas the right to union representation when an employee reasonably believes that an
investigatory interview with the employer may result in disciplinary action. Accordingly, the
judgment of the court of appeals is reversed, and we render judgment for declaratory relief consistent
with this opinion. See TEX . R. APP . P. 60.2(c).
__________________________________
Paul W. Green
Justice
OPINION DELIVERED: April 5, 2013
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