Texas Law Prohibits Collective Bargaining at State Universities Federal District Court in Houston holds that Faculty Rights Coalition may "present grievances"
DISTRICT COURT'S HOLDING
The Constitutional Challenge to the Texas Statutory Restrictions on Unionizing Public Employees
[Named Plaintiff De Mino] asserts that he informed UHD officials of his intent to “form a labor union representing adjunct faculty.” (Docket Entry No. 61, p. 2). He also asserts that he registered a name with the Harris County Clerk’s Office for an advocacy organization for adjunct faculty.
In his declaration, De Mino asserts that the “Faculty Rights Coalition” is an advocacy “vehicle.” De Mino asserts that in response to his efforts to “collectively pursue the betterment of the adjuncts’ working conditions,” UHD officials referred him to the“Texas Labor Code and a UH system policy purporting to prohibit unionization at UH.” (Docket Entry No. 50, p. 5).
Under Texas Government Code § 617.002, “a political subdivision . . . may not enter into a collective bargaining agreement with a labor organization regarding wages, hours, or conditions of employment of public employees” and “a political subdivision . . . may not recognize a labor organization as the bargaining agent for a group of public employees.” Id.(b). “Public employees may not strike or engage in an organized work stoppage.” Id.§ 617.003(a). Further, “[a]n individual may not be denied public employment because of the individual's membership or non membership in a labor organization.” Id. § 617.004.
Texas law also makes it clear that these provisions do “not impair the right of public employees to present grievances . . . either individually or through a representative.” Id. § 617.005.“Representative” as used in the statute includes, but is not limited to, unions or union members. Sayre v. Mullins, 681 S.W.2d 25 (Tex. 1984). The UH System Administrative Memorandum 02.A.32 is based on these sections. De Mino alleges that the Texas Government Code provisions, and the UHD policy based on those provisions, are unconstitutional.
As the Fifth Circuit explained in Moreau v. Klevenhagen, 956 F.2d 516, 520 (5thCir.1992), aff'd, 508 U.S. 22, 113 S.Ct. 1905, 1909 n.10, 123 L.Ed.2d 584 (1993):
Presentation of grievances is acceptable under Texas law because it is a unilateral procedure under which the employee can be represented by anyone he or she chooses, be it a lawyer, clergyman, union or some other person or organization. Texas law prohibits any bilateral agreement between a city and a bargaining agent, whether the agreement is labeled a collective bargaining agreement or something else. Under Texas law, the County could not enter into any agreement with the Union. See also Communication Workers of America v. Ector County Hosp. Dist., 392 F.3d 733,753 (5th Cir. 2004); see Sayre v. Mullins, 681 S.W.2d 25, 28 (Tex. 1984). The restriction is on bilateral negotiations and agreements between a division or agency of the State and a bargaining agent; there is no restriction on the ability of public employees to present grievances, either individually or through representatives.
The Texas law does not appear to preclude De Mino or the Faculty Rights Coalition from presenting grievances on behalf of adjunct professors or organizing to advocate for change in the pay and working conditions of adjunct professors.
Because de Mino is not precluded from pursuing his advocacy or organizational efforts by the Texas statute, he lacks standing to assert its unconstitutionality. See Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 301 (5th Cir. 2005) (“Standing,one of the doctrines arising under the case and controversy requirement, requires a plaintiff‘to demonstrate: they have suffered an “injury in fact”; the injury is “fairly traceable” to the defendant’s actions; and the injury will “likely . . . be redressed by a favorable decision.”’”);Delta Commercial Fisheries Ass’n v. Gulf of Mexico Fishery Mgmt. Council, 364 F.3d 269,272 (5th Cir. 2004) (upholding dismissal because of lack of actual injury).
De Mino separately alleges and seeks partial summary judgment that section 101.109 of the Texas Labor Code, which states that a person “may not serve as a labor union officer or as a labor organizer if the person . . . .is an alien,” is unconstitutional. A review of the case law reveals no case resting on this provision since 1945. American Federal of Labor v. Mann, 188 S.W.2d 276 (1945).
UHD’s motion for summary judgment dismissing de Mino’s challenges to the Texas statutory provisions on the basis of lack of standing is granted.
SIGNED on July 13, 2005, at Houston, Texas. Lee H. Rosenthal United States District Judge
Under Texas Government Code § 617.002, “a political subdivision . . . may not enter into a collective bargaining agreement with a labor organization regarding wages, hours, or conditions of employment of public employees” and “a political subdivision . . . may not recognize a labor organization as the bargaining agent for a group of public employees.” Id.(b). “Public employees may not strike or engage in an organized work stoppage.” Id.§ 617.003(a). Further, “[a]n individual may not be denied public employment because of the individual's membership or non membership in a labor organization.” Id. § 617.004.
The UH System Administrative Memorandum 02.A.32 is based on these sections. The Faculty Rights Plaintiffs challenged the Texas Government Code provisions restricting labor unions, and the UHD policy based on those provisions, as unconstitutional.