Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-12-00783-CV
THE CITY OF SAN ANTONIO,
Appellant
v.
International Association of Fire Fighters, Local 624Appellee
INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, Local 624,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-CI-16015
The Honorable Laura Salinas, Judge Presiding
No. 04-13-00109-CV
IN RE THE CITY OF SAN ANTONIO
Original Mandamus Proceeding 1
Opinion by: Catherine Stone, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: October 2, 2013
Because I believe the Union’s pleadings sufficiently raise a statutory claim under Chapter
174 allowing for judicial review, I respectfully dissent.
1
The proceeding in Cause No. 04-13-00109-CV arises out of Cause No. 2012-CI-16015, styled Int’l Ass’n of Fire
Fighters, Local 624 v. City of San Antonio, pending in the 45th Judicial District Court, Bexar County, Texas, the
Honorable Martha Tanner presiding. However, the orders complained of were signed by the Honorable Laura Salinas,
presiding judge of the 166th Judicial District Court, Bexar County, Texas.
Dissenting Opinion 04-12-00783-CV; 04-13-00109-CV
Article 25 of the CBA provides that “Healthcare benefits for active Fire Fighters shall not
be terminated, altered, modified or reduced, during the term of the Agreement, except by
Amendment or Successors to this Agreement.” The Master Contract Document, an attachment to
the CBA, provides that coverage for Fire Fighters’ dependents may not be terminated unless the
covered employee is terminated from employment or the dependent ceases to be eligible as defined
by the Plan. Despite these provisions, the City unilaterally sent a postcard to fire department
employees informing them that they were required to participate in “active enrollment” in order to
participate in the City’s 2013 health care plan. The City demanded additional documentation by
Fire Fighters for their already-covered dependents and threatened cancellation of dependent health
care coverage for refusal or failure to comply. Thus, the Union filed a petition for declaratory
relief seeking a declaration that the City violated sections 174.023 and 175.015 of the Local
Government Code. See TEX. LOC. GOV’T CODE ANN. § 174.023 (West 2008) (providing that fire
fighters are entitled to “organize and bargain collectively with their public employer regarding
compensation, hours, and other conditions of employment”); id. § 174.105(b)(2) (West 2008)
(providing that the duty to bargain collectively in good faith requires the public employer and
union to “confer in good faith regarding compensation, hours, and other conditions of
employment or the negotiation of an agreement or a question arising under an agreement”)
(emphasis added). In essence, the Union asked for a declaration that the City violated the Union’s
statutory right to negotiate the terms of the health plan by failing to confer with the Union in good
faith before unilaterally implementing the above-mentioned procedures.
The petition does not seek the enforcement of rights or obligations contained within the
CBA; rather, it alleges that the City’s actions in unilaterally changing the terms of the CBA are a
direct violation of Chapter 174. I respectfully disagree with the majority that the Union’s claims
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Dissenting Opinion 04-12-00783-CV; 04-13-00109-CV
are based solely on case law. Further, I do not agree that any declaration that the City violated
state law by failing to negotiate the terms of the health plan necessarily involves an interpretation
of the CBA. Our review need not even weigh in on whether the City’s actions (requiring active
enrollment for continued health care coverage and threatening termination on grounds not within
the CBA’s specified provisions for termination) evidence the City’s alleged violation of its duty to
“confer in good faith regarding compensation, hours, and other conditions of employment or the
negotiation of an agreement . . .” To the contrary, the only issue that must be determined at this
juncture is whether the City conferred with the Union in good faith regarding the changes to the
2013 health plan. I believe the trial court could make this determination without interpreting the
provisions of the CBA relating to health care benefits.
Article 30 of the CBA does not make arbitration the exclusive means for resolving disputes
between the City and the Union, or between employer and employee. The parties provided for a
“just, equitable, and expeditious method for resolving disputes between the City and the Union (or
employees) . . . concerning the bargaining relationship between the City and the Union.” The City
does not mention in its Original Answer or, more importantly, the motion to abate, that it agreed
to exempt certain state and federal claims from the “grievance/arbitration procedure,” and
particularly stipulated to a trial court’s authority to decide “claims of violation of statutory or
constitutional rights.” The parties recognized that such claims “may be included with related
claims of contract violations.” Notably, the City agreed to waive any right to abatement of a suit
involving contract claims related to the asserted statutory claim, and that “all issues raised by the
dispute or claim will be resolved in such lawsuit[.]” Unfortunately, the majority finds more notable
the “repeated” references to the CBA as a fact to “bolster” the conclusion that it requires
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Dissenting Opinion 04-12-00783-CV; 04-13-00109-CV
“interpretation” by an arbitrator as the exclusive method to resolve the Union’s dispute with the
City. I believe more weight should be given to the language of the Union’s petition.
The CBA recognizes other scenarios that may be subject to judicial review, and the parties
further stipulate that an arbitrator “shall have no authority to add to, subtract from, or modify the
terms of this Agreement as negotiated between the parties.” Yet at oral argument, the City failed
to provide an example of a claim “of violation of statutory or constitutional rights” which “may be
pursued by means of judicial and/or administrative appeal.”
Unlike the Steelworkers opinion relied on by the majority, this case does not concern a
complaint that an employer unilaterally changed a heretofore unspecified detail contained within
the CBA, i.e., the deductible required under the group health insurance plan. See United
Steelworkers of Am., AFL-CIO-CLC, Local No. 164 v. Titan Tire Corp., 204 F.3d 858, 861 (8th
Cir. 2000). Here, the Union’s complaint will not be solved by having an arbitrator simply “fill in
the gaps” and give “meaning and content” to the CBA. See id. Rather, the complaint lodged by
the Union is that the City violated its obligation to negotiate all terms of the CBA in good faith as
required by Chapter 174. The issue of whether the City performed its statutory duty of conferring
in good faith with the Union before making changes to the health plan can, and should be,
determined in a judicial forum. Accordingly, I would affirm the judgment of the trial court denying
the City’s motion to abate for arbitration.
Rebeca C. Martinez, Justice
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