Public employers in Texas do not have to grant employees union representation during investigatory interviews, according to a recent decision by the Texas Supreme Court. In reversing a lower court’s decision concerning an employee’s right to union representation in meetings with management, the state’s highest judicial body clarified a previously muddled issue that ultimately puts local public workers at a disadvantage compared to their peers in the private and federal sectors.

At issue was a Round Rock firefighter’s contention that his employer’s prohibition of union representation during an internal, investigatory interview violated his right to union representation under the Texas Labor Code. A trial court issued a summary judgment, agreeing with the firefighter and his union and an appeals court affirmed their decision, but by a vote of six to three, the Texas Supreme Court reversed the decision and ruled for the city.

According to the Court, historical precedent and federal policy do not alter the fact that the Texas legislature alone has the authority to determine what rights attach to a union member once the union is formed, and thus far, state lawmakers have made no law conferring the right to union representation during investigatory interviews.

Lest any of this be too clear, exceptions exist. Meridith Hayes, an attorney for Walsh, Anderson, Gallegos, Green & Trevino, P.C. kindly submitted to some questions in order to unshuffle the deck. “Typically,” she said, “if an employee requests to bring a representative, the principal should communicate with someone in central administration, [who] may choose to call their attorney, [who] will advise as to whether the employee has the right to bring an attorney. Generally, if an employee has filed a grievance or complaint against the district, the employee is entitled to a representative. However, if the principal, as supervisor, has called the employee into a meeting regarding performance, complaints against the employee, discipline, or an investigation, the employee does not have the legal right to bring a representative. That being said, I think it’s important for a district to look [to] its practices: if they’ve historically allowed representation…it’s important to treat all employees the same.”

After confirming that both federal and private employees have the right to union representation during investigatory or disciplinary meetings, Hayes expounded on how it could be that the employees of the greatest state in all the land are not extended the same right. “The U.S. Supreme Court, in NLRB v. Weingarten, held that Section 7 of the National Labor Relations Act grants [those] rights to private sector employees… Later, Congress extended the same rights to federal public-sector employees. The Texas Legislature has not provided those same rights for Texas public-sector employees.” The state Supreme Court was therefore unwilling to do what the legislature had not done by bestowing those rights on public workers.

“I think this is an important ruling for Texas public schools,” said Hayes. It gives clear guidance to administrators regarding what rights employees have for meetings related to performance and investigatory interviews, and distinguishes those meetings from grievances. Along with this distinction, it has the potential to save public schools money by giving districts the right to deny the presence of legal counsel and representation at routine meetings.”

For more information on this and other constitutionally-related money-saving techniques, check out the June issue of Texas School Administrators’ Legal Digest.

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