collective bargaining agreement

Well, the Texas Supreme Court surprisd me. They rejected the City of San Antonio’s appeal regarding the fire fighter’s union contract. I mentioned in 2015 that the City seemed to be relying on an appeal to the Texas Supreme Court. See my prior post here. The Supreme Court rejected the City’s appeal with no comment. That can mean the Supreme Court did not believe the issue was worthy of their time. Or, it could mean it did not disagree with the Fourth Court of Appeals decision. We do not know what the denial of the appeal means. When a Supreme Court rejects an appeal, the rules do not require an explanation.

The issue concerned the evergreen clause in the firefighter’s contract. When the Collective Bargaining Agreement ends, the provisions stay in effect for another ten years. That sort of clause is known as an “evergreen clause.”

For the City, whatever the meaning of the denial, the result is the same. They must now deal with a fire fighter union that feels vindicated. See San Antonio Express News report.

What control does an employer have over a worker after work hours and away from the job? In Texas, as in most states, the employer can have a great deal of control, if it wishes. We are an “at will” state in Texas, as are most states. In an at-will state, an employer can fire a worker for any reason, so long as the reason does not violate any discrimination statute. Unless some law exists to limit what the employer can do, the employer can do as it pleases. There is no law that prevents an employer from requiring a worker to do or not do something on his/her own time. So, when Capt. Shawn Ury says the City of San Antonio was wrong to tell him he cannot work a second job after hours, that does not make a lot of sense.

As a union member, he may have different rights. The Collective Bargaining Agreement may have some limitation on what the City can do or not do regarding union member after hours. But, absent some provision in the CBA, the City can indeed tell him he cannot work a second job. The only enforcement mechanism is to discipline him and perhaps, terminate him. But, sure, they an ask him to do anything that does not conflict with discrimination statutes or various penal statutes. According to the San Antonio Express-News, Capt. Ury has had a hearing in front of an arbitrator regarding this issue. The ultimate decision is up to the arbitrator. But, in Texas, yes indeed, an employer can tell an employee not to work a second job – or not to wear a green shirt or whatever-  on his/her off-time. The employee, after all, can always choose to quit. See San Antonio Express News report.

The Fourth Court of Appeals denied the appeal of the City of San Antonio regarding its labor agreement with the San Antonio Firefighters Union. See San Antonio Express News report here. The City had argued that the evergreen clause in the Collective Bargaining Agreement made the contract an unconstitutional “debt.” This is the second time the city has lost on that issue before the Fourth Court of Appeals here in San Antonio. I mentioned the prior loss when the issue was the CBA with the San Antonio police officers. It is the same issue in both labor agreements, the “evergreen” clause that keeps the contract in place even while a new pact is being negotiated. See that prior post here.

As before, the City surely knows its chances for success increase dramatically when it appeals to the Texas Supreme Court.

I frequently tell my clients or potential clients that if they want fairness at work, then they need to form a union.  The case of Lt. Joseph Salvaggio of the San Antonio Police Department illustrates why.  Lt. Salvaggio took the exam for promotion to captain in 2010.  One of the instructions was that if a candidate needed a restroom break, s/he should cover the answer sheet and not take any test materials with him to the restroom.  No definition of "test materials" was offered.  Between the morning and afternoon test sessions, the candidates were allowed to study for the test.  In past exams, the test proctors had allowed the candidates to use scratch paper during the exam and did not collect the scratch paper at the end of the same.

Lt. Salvaggio had a post-it note the day of the test with notes on it.  He had recorded topics he wanted to review during the mid-day break.  As he left to go to the restroom, he took the post-it note with him.  The proctor noticed the post-it note.  He told the on-site San Antonio PD officer.  The officer told a higher-up who eventually told the Chief of Police, William McManus.  Several months later, a scandal developed regarding a detective exam.  Some detective candidates had removed a test booklet from the testing site.  During the subsequent Internal Affairs investigation, the post-it note with Lt. Salvaggio was mentioned and a separate investigation was launched.  A couple of months later, the Lieutenant was notified that he was accused of violating a Civil Service Commission rule prohibiting a police officer from bringing discredit upon himself or the department.  He was accused of removing test materials from the test site. 

The Chief is advised by two advisory boards, one civilian and one composed of police officers appointed by the Chief of Police.  The civilian board advised that no action should be taken against Lt. Salvaggio.  The police advisory board recommended a thirty day suspension.  The Chief, however, chose to place the lieutenant on indefinite suspension, tantamount to termination.  

Under the terms of the Collective Bargaining Agreement, the captain candidate filed a grievance.  The grievance was heard by an arbitrator in December, 2010 and the lieutenant won.   The arbitrator found that Lt. Salvaggio did not violate any established rule.  The city filed suit as its appeal.  Arbitral findings are difficult to overturn.  The whole point of union arbitration is to reach a quick, decisive result.  The city challenged the finding based on a lack of jurisdiction, arguing that the arbitrator was enforcing a rule created not by the Civil Service Commission, but by the arbitrator himself.  That is, the City seems to be arguing that since there was no rule regarding what was test materials, the arbitrator in effect created one in some way.  I find their argument confusing. 

The City lost in district court.  It lost again before the Fourth Court of Appeals.  The Fourth Court found that the arbitrator did not create a rule.  Only the Civil Service Commission could define "test materials."  And, the Commission did not promulgate any such definition.  So, the Chief cannot then employ his particular definition.  Indeed, said the Fourth Court, the Chief had effectively created a new rule by defining post-it notes as "test materials."  

Now, the City has filed an appeal with the Texas Supreme Court making essentially the same argument.  See notice and petition for review.  The Texas Supreme Court is rather friendly to employers, so perhaps this appeal is not completely futile.  But, the City’s argument is based on logic that seems to make little sense.  It is unfortunate that this employer has chosen to spend tens of thousands of dollars on what some would describe as a "frivolous" appeal. 

And, it all started with a chief executive who did not accept the recommendation of his own advisory boards.  Yes, we should terminate employees who break the rules, even 23 year employees like Lt. Salvaggio.  But, we, as employers, should be very certain that our rules are clear before we end a 23 year career.  

If the lieutenant was not a union member, he would have no recourse.  Under the at-will doctrine, an employer can indeed terminate an employee for a silly reason or for a mis-perception.  Lt. Salvaggio must really appreciate his union membership, now.