the City of Houston v. Houston Professional Fire Fighters' Association, Local 341

Affirmed and Memorandum Opinion filed March 31, 2020.

In the

Fourteenth Court of Appeals

NO. 14-18-00418-CV

CITY OF HOUSTON, Appellant

v.

HOUSTON PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION,
LOCAL 341, Appellee

On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2016-19307

MEMORANDUM OPINION

The trial court rendered summary judgment confirming an arbitration award
in favor of appellee Houston Professional Fire Fighters’ Association, Local 341
(the Association) and dismissing a declaratory judgment action appealing the
arbitration award brought by appellant City of Houston. The City contends the trial
court erred in granting the Association’s summary-judgment motion because the
arbitrator (1) lacked jurisdiction when the Association’s grievance was untimely,
(2) exceeded her jurisdiction by deciding a question that was not before her,
(3) modified the law and terms of the collective bargaining agreement (CBA) at
issue, and (4) exceeded her jurisdiction by ordering reinstatement of three
firefighters. We affirm.

I. BACKGROUND

The City and the Association entered a CBA which included an agreement
to arbitrate certain disputes. In cases proceeding to arbitration, CBA article 14
vested the arbitrator with the following authority:

The arbitrator’s authority shall be limited to the interpretation and
application of the terms of this Agreement and/or any supplement
thereto. The arbitrator shall have no jurisdiction or authority to
establish provisions of a new agreement or variations of the present
Agreement or to arbitrate away, in whole or in part, any provisions of
amendments thereof.

The matter decided by the arbitrator in this case stemmed from a grievance filed by
the Association after the Houston Fire Department terminated the employment of
several permanent, non-probationary firefighters for failure to achieve paramedic
certification.

II. ANALYSIS

A. Standard of review

We first address the law governing our review of the arbitration award
underlying the trial court’s summary judgment. Neither the parties nor the CBA
invokes the Federal Arbitration Act. See 9 U.S.C. §§ 1–16 (2018). Whether the
Federal Arbitration Act applies to collective bargaining agreements is not clear
under federal law. See Int’l Ass’n of Machinists & Aerospace Workers Local Lodge
2121 AFL–CIO v. Goodrich Corp., 410 F.3d 204, 207 n.2 (5th Cir. 2005). The
Supreme Court of Texas recently applied common-law arbitration principles to an
2
arbitration provision in a collective bargaining agreement involving constables in
Jefferson County. See Jefferson Cty. v. Jefferson Cty. Constables Ass’n, 546
S.W.3d 661, 665 (Tex. 2018). Though the supreme court did not expressly address
whether the Federal Arbitration Act applied, the court necessarily concluded that
the Act did not apply, because courts only apply common-law arbitration
principles if no arbitration statute applies. See Beldon Roofing Co. v. Sunchase IV
Homeowners’ Ass’n, Inc., 494 S.W.3d 231, 237 (Tex. App.—Corpus Christi 2015,
no pet.). Because in a similar circumstance the supreme court concluded that the
Federal Arbitration Act did not apply, we reach the same conclusion in today’s
case. See Jefferson Cty., 546 S.W.3d at 665.

By its own terms, the Uniform Arbitration Act does not apply, as it explicitly
exempts collective bargaining agreements from its scope. See Tex. Civ. Prac. &
Rem. Code Ann. § 171.002(a)(1). The Fire and Police Employee Relations Act
cited in the City’s brief applies only to arbitrations concerning an impasse in
collective-bargaining negotiations, not disputes arising under an executed
agreement. See Tex. Loc. Gov’t Code Ann. § 174.153(a). Accordingly, we review
the award under Texas common law. See Jefferson Cty., 546 S.W.3d at 665
(reviewing arbitration award stemming from executed CBA under common law
when no statute otherwise covered dispute). “‘All reasonable presumptions are
indulged in favor of the award, and none against it.’” CVN Grp., Inc. v. Delgado,
95 S.W.3d 234, 238 (Tex. 2002) (quoting City of San Antonio v. McKenzie Constr.
Co., 150 S.W.2d 989, 996 (Tex. 1941)). Accordingly, “[c]ommon-law grounds for
vacating an arbitration award are exceedingly narrow and do not include an
arbitrator’s mere error in applying the law.” Jefferson Cty., 546 S.W.3d at 674.

B. Timeliness of grievance

The City’s first issue hinges on its position that the Association’s grievance

3
was untimely. The grievance procedure outlined in CBA article 14 provided that
the Association was required to file a grievance within 30 days of the date “upon
which the association knew or should have known of the facts or events giving rise
to the grievance.” The City asserts the Association knew or should have known of
the facts underlying its grievance as early as October 29, 2014, but did not file its
grievance until January 14, 2015. The City concludes that, in ruling that the
grievance was timely, the arbitrator exceeded her authority under the CBA, as the
untimeliness of the grievance deprived the arbitrator of jurisdiction under the
CBA’s grievance procedures, which state that no further action may be taken if a
grievance is not timely filed.

The common law allows vacatur of an arbitration award if the arbitrator
exceeds the scope of her authority. See Jefferson Cty., 546 S.W.3d at 665; Gulf Oil
Corp. v. Guidry, 327 S.W.2d 406, 408 (Tex. 1959) (“[T]he authority of arbitrators
is derived from the arbitration agreement and is limited to a decision of the matters
submitted therein either expressly or by necessary implication.”). Here, however,
the CBA specifically tasked the arbitrator with “the interpretation and application
of the terms” of the CBA. The plain language of this provision encompasses the
terms in CBA article 14 concerning when a grievance must be filed, placing it
squarely within the arbitrator’s authority to determine the fact-bound question of
whether the grievance was timely. See Jefferson Cty., 546 S.W.3d at 674 (“The
arbitrator’s analysis . . . may or may not be correct, but it is precisely within the
scope of his contractual authority to resolve ‘[a]ll disputes concerning the proper
interpretation and application of’ the CBA.”).1 We accordingly conclude that the

1
The City argues that Jefferson County does not apply to this case because the
Association “has not shown that the agreement in Jefferson County Constables is the same as the
agreement here, so there can be little or no comparison regarding the Arbitrator’s jurisdiction.”
We note that the above-quoted portion of the CBA in Jefferson County reveals that the arbitrator
in that case was authorized to decide “[a]ll disputes concerning the proper interpretation and
4
arbitrator did not exceed her authority by deciding the timeliness issue.

The City also argues that the arbitrator’s determination that the grievance
was timely constitutes a “clear and manifest error of law.” To the extent this
argument may be construed as an invocation of the common-law standard of
“gross mistake,” the argument fails. Gross mistake is a mistake that implies bad
faith or failure to exercise honest judgment. See Callahan & Assocs. v. Orangefield
Indep. Sch. Dist., 92 S.W.3d 841, 844 (Tex. 2002). The City does not direct us to
any evidence that the arbitrator acted dishonestly or in bad faith, precluding this
argument.2 See id. We overrule the City’s first issue.

C. Scope of issue before arbitrator

In its second issue, the City asserts the arbitrator exceeded her jurisdiction
by deciding an issue that was not made the basis of the Association’s grievance—
that the terminated firefighters had a right to an administrative appeal. The City
asserts the Association never sought a determination of whether the terminated
individuals had a right to an administrative appeal of their terminations, but the
arbitrator found they were “improperly terminated without appeal.”

The grievance read as follows:

application of” the CBA—strikingly similar to CBA article 14 in this case, which grants the
arbitrator authority regarding “the interpretation and application of the terms” of the CBA.
Regardless, Jefferson County stands for the general proposition that the arbitrator may act within
the scope of authority granted by the CBA, which is the basis of our analysis here.
2
To the extent the City argues that the arbitrator’s decision on timeliness constitutes a
“manifest disregard of the law,” this court has characterized that theory as a creature of federal
common law that applies only in FAA proceedings, and even in that context has been disavowed.
See Action Box Co., Inc. v. Panel Prints, Inc., 130 S.W.3d 249, 252 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). In any event, even if “manifest disregard of the law” were a common-law
vacatur ground, the result would be the same. Manifest disregard of the law is more than mere
error or misunderstanding with respect to the law; rather, the standard requires a showing that the
arbitrator clearly recognized the applicable law but chose to ignore it, a showing the City has not
made. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 252 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied).

5
 The City of Houston has unilaterally changed the working conditions
of certain Houston firefighters by unilaterally implementing new job
requirements regarding paramedic credentialing. Specifically, the City
is now requiring members to successfully complete paramedic school,
paramedic certification from the Texas Department of State Health
Services (TDSHS), and be credentialed by a Physician Director as a
Paramedic.

The arbitrator framed the issue as follows:

Has the City impermissibly violated the Maintenance of Standards
article of the CBA, which retains all unenumerated privileges and
working conditions enjoyed by Houston firefighters as of ratification
of the CBA, when it unilaterally denied the appeal rights of permanent
members by summarily terminating them for failure to satisfy the
paramedic job requirement?

The arbitrator ultimately found:

Therefore, we find that . . . the working conditions were changed
because the consequences of failing to qualify now resulted, for the
first time, in termination without hearing rights. We find that this
indeed violated Article 5, Maintenance of Standards. 3

The issue the arbitrator decided was the issue submitted for her
consideration—were working conditions changed by the new job requirements
regarding paramedic credentialing? The arbitrator determined that the new job
requirements changed working conditions because the consequences of failing to
meet the paramedic requirements changed, thereby violating CBA article 5. The

3
CBA article 5, section 1 (Maintenance of Standards) reads:
All economic benefits, privileges, and working conditions which are properly and
lawfully in effect in the Houston Fire Department, as to matters subject to
mandatory bargaining under Chapter 174 [The Fire and Police Employee
Relations Act], and enjoyed by the Firefighters of the bargaining unit as of the
effective date of this Agreement, but which are not included in this Agreement
(including the foregoing Management Rights Article), shall remain unchanged for
the duration of this Agreement, so long as those benefits, privileges, and working
conditions do not interfere with the operation of the Department.

6
inability to “appeal,” or have a hearing, concerning termination was one of the
changed consequences under article 5. As this analysis of the terms of the CBA
was within the scope of the arbitrator’s authority, we overrule the City’s second
issue. See Jefferson Cty., 546 S.W.3d at 674.

D. Modification of state law

In its third issue, the City asserts that Local Government Code chapter 143
does not provide a right of administrative appeal to a firefighter who is terminated
for failing to meet conditions of employment. Tex. Loc. Gov’t Code Ann.
§§ 143.001–.363 (municipal civil service for firefighters and police officers). The
City then argues that, because chapter 143 controls over a CBA unless the CBA
specifically provides otherwise, see Tex. Loc. Gov’t Code Ann. § 174.006(a), and
because this CBA did not specifically modify chapter 143 to provide for such an
administrative hearing, the arbitrator exceeded her jurisdiction by determining that
the terminated individuals should have a post-termination hearing, “result[ing] in a
modification of state law that was not contracted for by the parties.”

The City’s argument that the arbitrator “modified” state law, however, boils
down to a contention that the arbitrator got the law wrong. Such an argument is
beyond the scope of our review. “A complaint that the arbitrator decided the issue
incorrectly or made mistakes of law, however, is not a complaint that the arbitrator
exceeded her powers.” Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc.,
294 S.W.3d 818, 830 (Tex. App.—Dallas 2009, no pet.) (citing Pheng Invs., Inc. v.
Rodriquez, 196 S.W.3d 322, 329 (Tex. App.—Fort Worth 2006, no pet.)). As
above, the arbitrator based her award on the fact that working conditions changed
in violation of CBA article 5 because “never before had a permanent employee
been terminated without hearing rights for failure to pass the paramedic
credentialing requirement.” This analysis of the terms of the CBA was within the

7
scope of the arbitrator’s authority, and we accordingly overrule the City’s third
issue. See Jefferson Cty., 546 S.W.3d at 674.

E. Remedy of reinstatement

In its fourth issue, the City asserts the arbitrator had no jurisdiction to order
reinstatement of the terminated employees because the CBA did not specifically
grant the arbitrator the authority to reinstate. The City cites United Steelworkers of
America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960), as its sole case in
support of this assertion. In that case, however, the United States Supreme Court
rejected the argument that, because the collective bargaining agreement did not
provide for a specific remedy, the award was not based on the contract. See 363
U.S. at 598–99. Rather, Enterprise Wheel and its progeny “make it abundantly
clear that where the contract is not explicit concerning the proper remedy, the
arbitrator is given wide latitude in fashioning an appropriate remedy.” Mogge v.
Int’l Ass’n of Machinists, 454 F.2d 510, 514–15 (7th Cir. 1971) (citing Enterprise
Wheel, 363 U.S. at 597, among other cases).

Texas courts likewise have reached the conclusion that “an arbitrator has
broad discretion in fashioning an appropriate remedy.” Forest Oil Corp. v. El
Rucio Land & Cattle Co., Inc., 446 S.W.3d 58, 82 (Tex. App.—Houston [1st Dist.]
2014), aff’d, 518 S.W.3d 422 (Tex. 2017); see Daniewicz v. Thermo Instrument
Sys., Inc., 992 S.W.2d 713, 718 (Tex. App.—Austin 1999, pet. denied)
(“[A]rbitrators have traditionally enjoyed broad leeway to fashion remedies.”). In
the CBA, the parties do not prohibit reinstatement as a remedy. The common-law
grounds for vacating an arbitration award are exceedingly narrow and do not
include an arbitrator’s error in applying the law. See Jefferson Cty., 546 S.W.3d at
674. We conclude that the arbitrator did not exceed her authority in ordering
reinstatement of the terminated employees. See id. (holding that arbitrator did not

8
exceed his authority in ordering reinstatement of terminated deputy constables on
seniority basis).

We overrule the City’s fourth issue.

III. CONCLUSION

We affirm the trial court’s judgment.

/s/ Charles A. Spain
Justice

Panel consists of Chief Justice Frost and Justices Spain and Poissant.

9