In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00090-CR ______________________________
NANCY R. WRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 276th Judicial District Court Titus County, Texas Trial Court No. CR13,948
Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius
O P I N I O N
Nancy R. Wright pleaded guilty before a jury to possession of cocaine in an amount less than one gram. The punishment range for the offense was enhanced by two prior felony convictions. The jury assessed her punishment at five years' imprisonment.
Wright does not challenge the sufficiency of the evidence. Rather, she contends the trial court erred by interrupting her voir dire of the jury panel and commenting on her prior criminal record. She contends the error caused her to plead guilty rather than not guilty, as she originally intended.
The first instance about which Wright complains occurred when, on voir dire, she asked whether the venire members could set aside evidence they concluded was illegally obtained if the trial court instructed them to do so. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2002). One of the venire members asked, "Who's going to tell me to sit [sic] it aside?" Defense counsel answered, "If you find that it was illegally obtained there will be an instruction from the Court to sit [sic] that aside, not consider it." The trial court then explained that if the facts of the case warranted, the court would instruct the jury not to consider evidence it found beyond a reasonable doubt was obtained illegally. The trial court explained that the venire members needed to answer whether they could follow such an instruction. Wright did not object to the trial court's interjection.
The second instance about which Wright complains occurred when she asked the venire members whether they could consider the full range of punishment. Possession of less than one gram of cocaine is a state jail felony. Tex. Health & Safety Code Ann. § 481.115(b) (Vernon Supp. 2002). The punishment range for a state jail felony is not more than two years or less than 180 days' imprisonment. Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). However, Wright pleaded true to the enhancement allegations, which raised the punishment range for the offense to that of a second-degree felony, i.e., not more than twenty years or less than two years' imprisonment. See Tex. Pen. Code Ann. § 12.33(a) (Vernon 1994), § 12.42(a)(2) (Vernon Supp. 2002).
Wright asked whether the venire members could "consider giving somebody twenty years for [possessing] less than one gram of cocaine." One of the venire members asked, "Would we know if this was the first offense?" The trial court explained that in a bifurcated trial, the jury first considers
the sole issue of whether a defendant is guilty or not guilty [and] . . . [i]f a defendant is found guilty, then we go into what's called the second part or the punishment phase of the trial, [at which] . . . one of the things, if it's available, that could be introduced . . . is the prior criminal history of the defendant.
Again, Wright did not object to the trial court's statements.
The third instance about which Wright complains occurred just after the second. Wright asked the panel:
[Defense Counsel]: Is there anybody that thinks a hundred eighty days is just not long enough?
I'll ask one last question. Does anybody feel -
THE COURT: Let me go back. I need to rephrase, because I don't want to leave a false impression. One of the things that may be introduced is the prior criminal history of the Defendant, if any. Okay?
Go ahead, [defense counsel].
[Defense Counsel]: Anybody feel like there's any other things, that for whatever reason, they ought not to be on the this [sic] jury? If you don't want to talk about it, if the Judge will let us, we'll walk up and talk about it at the bench and discuss it there.
I thank you very much. I appreciate your time. I appreciate it.
Wright contends the trial court erred because, by interrupting defense counsel and not interrupting the State, it communicated to the panel a disrespect for defense counsel and an opinion that he (defense counsel) was not to be believed. She also contends the trial court's references to the prior criminal history of "the defendant" in its second and third interjections communicated to the panel that Wright indeed had a prior criminal record.
To preserve an issue for review, the record must demonstrate that (1) the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the requested ruling with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (2) the trial court ruled on the request, objection, or motion either explicitly or implicitly or refused to rule on the request, objection, or motion and the complaining party objected to the refusal. Tex. R. App. P. 33.1(a). In the present case, Wright did not make any objection, either at the time of the trial court's interjections or outside the jury's presence. Therefore, she has not preserved the issue for our review.
The judgment is affirmed.
William J. Cornelius
Chief Justice
Date Submitted: January 28, 2002
Date Decided: February 15, 2002
Do Not Publish
160;
Original Mandamus Proceeding
Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross
O P I N I O N
Vernon Moore filed suit for retaliatory discharge and discrimination against his former employer, Paris Packaging, Inc. Paris Packaging successfully moved the trial court to order the parties to arbitration pursuant to a collective bargaining agreement. Months later, Moore claimed he could not afford to pay for the arbitrator and, on that basis, successfully moved the trial court to reconsider its prior order of arbitration. Paris Packaging is now before this Court seeking a writ of mandamus ordering the Honorable Jim D. Lovett to vacate his order granting Moore's motion to reconsider, to order the parties to arbitration, and to stay all proceedings in the trial court pending resolution of the arbitration.
Factual and Procedural History
Paris Packaging operates a unionized facility in Paris, Texas. The employees at Paris Packaging are represented by the United Food and Commercial Workers International Union, Local 540 (the Union). Paris Packaging and the Union entered into a collective bargaining agreement (the CBA) effective June 30, 1998. In the CBA, the parties formally recognized that "should the company re-instate either the over-the-road truck drivers or truck maintenance departments . . . UFCW Local 540 would retain jurisdiction." In November 1998, in a memorandum of understanding, Paris Packaging and the Union specifically modified the CBA to include in the bargaining unit over-the-road truck drivers and truck maintenance employees.
Paris Packaging hired Moore in January 1999 as an over-the-road truck driver. Moore sustained an on-the-job injury January 31, 2000. He applied for and received worker's compensation benefits for the injury sustained. He stayed absent from work for more than 180 days. On October 17, 2000, Paris Packaging terminated Moore.
On April 1, 2002, Moore sued Paris Packaging for retaliatory discharge and discrimination. Relying on Texas common law and federal labor law, Paris Packaging moved to stay the proceeding and compel arbitration in accordance with the following provisions in the CBA:
[S]hould dispute arise between an employee and the Company as to the application and interpretation of . . . this Agreement, it shall be filed and processed through the procedure outlined herein.
. . . .
The notice of appeal to arbitration shall be given in writing by the party appealing the case to the other party within fifteen (15) working days after presentation to the Plant Manager or his representative in Step 3 of GRIEVANCE PROCEDURE.
On February 18, 2003, the trial court heard Paris Packaging's motion to compel arbitration and granted such motion.
On September 5, 2003, Moore filed a motion to reconsider the prior order. For the first time, Moore argues that forcing him to proceed with arbitration would violate his guarantee to due process of law because he is unable to pay for the arbitration services. At the hearing on Moore's motion to reconsider, held February 19, 2004, Paris Packaging urged the trial court to overrule Moore's motion on the basis of the following provision in the CBA that obligated Paris Packaging and the Union to bear the cost of the arbitrator:
Any expenses incident to the services of the impartial arbitrator and the Association shall be borne equal[ly] by the Company and the Union. All other costs incidental to the arbitration proceedings shall be borne by the party incurring the cost.
Moore testified that, at the time of the hearing, he was not a member of the Union. He acknowledged he had never contacted the Union regarding payment of its part of the cost for the arbitrator under the CBA.
The trial court agreed with Moore's argument and granted his motion to reconsider. After it found that Moore did not have the means to pay for the arbitration services, the trial court rendered the following three conclusions of law:
1. It is unconstitutional and unconscienable [sic] to compel [Moore] to arbitration, when [he] does not have sufficient funds to pay the arbitrator.
2. Requiring payment from someone who cannot afford to pay arbitration fees undermines remedial and deterrent function of the anti-discrimination law.
3. [Moore] has no standing to request the union to pay his arbitration expenses as provided in the collective bargaining agreement.
Mandamus
Mandamus will issue when a trial court commits a clear abuse of discretion for which the relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus review of a trial court's legal conclusions is much less deferential than its review of the trial court's findings of fact. Id. at 840. A trial court has no discretion in determining what the law is or in its application of the law to the facts. Id. Therefore, a trial court abuses its discretion if it misapplies the law to the facts of the case before it. See Prudential Sec., Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995) (orig. proceeding).
Because the agreement at issue here is a collective bargaining agreement, it falls outside the scope of the Texas Arbitration Act. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(a)(1) (Vernon Supp. 2004); United Parcel Serv., Inc. v. McFall, 940 S.W.2d 716, 718 (Tex. App.—Amarillo 1997, orig. proceeding). Thus, the trial court's decision to deny arbitration is not appealable under Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (Vernon Supp. 2004), and mandamus is the appropriate procedure for review of that decision. See Cantella & Co. v. Goodwin, 924 S.W.2d 943, 945 (Tex. 1996) (orig. proceeding); United Parcel Serv., Inc., 940 S.W.2d at 718.
Analysis
Initially, we must focus our analysis on the relevant issue. Moore's response to Paris Packaging's petition addresses issues that are not before us. For instance, Moore argues that resolution of this matter will not involve interpretation of the CBA and that, at any rate, the CBA cannot apply to him because he is an at-will employee and because he did not sign the CBA or the modification. Rather, argues Moore, he signed another document which attempted to bind him to arbitration, a document which bound him only and, thus, was unenforceable. The trial court made its determination, however, based on three conclusions of law, none of which discuss the subject matter of the dispute as it relates to the arbitration agreement or the relevance of Moore's failure to sign the CBA. The trial court expressly limited its decision to one based on Moore's argument that he was unable to pay for the arbitration.
Unions are obligated to represent the interests of all employees in a bargaining unit governed by a collective bargaining agreement, regardless of whether the employee is a union member. See Quesnel v. Prudential Ins. Co., 66 F.3d 8, 11 (1st Cir. 1995); Roscello v. Southwest Airlines Co., 726 F.2d 217, 224 (5th Cir. 1984); Smith v. Sheet Metal Workers Int'l Ass'n, 500 F.2d 741, 749 (5th Cir. 1974); Turner v. Air Transp. Dispatchers' Ass'n, 468 F.2d 297, 301 (5th Cir. 1972). This means union membership is irrelevant to the applicability of a collective bargaining agreement. See Saunders v. Amoco Pipeline Co., 927 F.2d 1154, 1156 (10th Cir. 1991); Hodges v. Atchison, T. & S.F. Ry., 728 F.2d 414, 417 (10th Cir. 1984). Rather, an individual employed in a craft governed by a collective bargaining agreement is bound by the terms of that agreement, regardless of his or her union membership. See Saunders, 927 F.2d at 1156; Baker v. Amsted Indus., Inc., 656 F.2d 1245, 1248–49 (7th Cir. 1981). Contractual provisions of a collective bargaining agreement, including those covering wages and conditions, apply equally to all employees, whether union or nonunion. See Wallace Corp. v. Nat'l Labor Relations Bd., 323 U.S. 248, 255 (1944); Hammons v. Adams, 783 F.2d 597, 601 (5th Cir. 1986); Holley v. Painters Local Union No. 318, 376 S.W.2d 44, 47 (Tex. Civ. App.—Fort Worth 1964, writ ref'd n.r.e.).
Moore's testimony that, at the time of the hearing on his motion to reconsider, he was not a member is irrelevant. In fact, Moore's membership status is entirely irrelevant in that, regardless of whether he was a member, even at the time of his injury and termination, the CBA would apply because Moore belonged to the bargaining unit for which the CBA specifically provided. By the terms of the modified CBA, Moore, as an over-the-road truck driver, falls within the parameters of the CBA between his employer and the Union. Therefore, Section 3 of Article 5 of the CBA expressly requires Paris Packaging and the Union to pay for the services of the arbitrator in this dispute.
Conclusion
The trial court's conclusion that Moore had no standing to enforce the payment provisions in the CBA represents a misapplication of the law to these facts and, thus, constitutes an abuse of discretion. Having determined that Paris Packaging has no adequate remedy at law for the trial court's decision, we conditionally grant Paris Packaging's petition for writ of mandamus. The writ will issue only if, within thirty days of this opinion, Respondent, Honorable Jim D. Lovett, has failed to vacate the order reconsidering his prior order, to order the parties to arbitration, and to stay the proceedings in the trial court pending resolution of the arbitration.
Donald R. Ross
Justice
Date Submitted: May 24, 2004
Date Decided: May 25, 2004