The City of Houston and Texas Supreme Court Could End Collective Bargaining for Firefighters. Here’s What’s At Stake

By Rob B. and Cerena E.

On November 29th, the Texas Supreme Court will hear final arguments on collective bargaining and pay parity for Houston Professional Fire Fighters Association (HPFFA). This hearing follows a five-year long contract impasse between Mayor Sylvester Turner and the Houston Firefighters, during which Turner has refused to negotiate a new contract with the firefighters. The Texas Supreme Court will likely issue a ruling in early 2023.

If Turner and the City of Houston prevail at the Republican-controlled Texas Supreme Court, the ruling will deny Houston firefighters a contract and continue the impasse indefinitely. Even worse, it could also open the door for other cities in Texas and beyond to roll back legal rights of public sector workers by no longer compelling cities to bargain in good faith with their employees.

Collective Bargaining & Public Sector Worker Rights

Collective bargaining allows workers, represented by a trade union, to negotiate with an employer (in some cases, a group of employers) to reach a collective bargaining agreement (CBA). CBAs are contracts which are agreed upon between the employer and employees that establishes wages, work hours, grievance procedures, and other working conditions. CBAs give workers the necessary leverage to negotiate and dictate the conditions of their employment rather than leaving this up to the whims of management. As such, the right to collective bargaining is a powerful tool workers can wield in the workplace and it's even recognized as part of international human rights law.

In the United States, the National Labor Relations Act (NLRA) of 1935 regulates collective bargaining in the private sector. Workers in the private sector have the right to join labor unions and employers must negotiate in good faith. If employers and employees cannot reach an agreement, employees have the right to go on strike and withhold their labor from their employer.

However, the NLRA does not establish universal rights for workers in the public sector to unionize. John F. Kennedy’s ​​Executive Order 10988 gave federal workers the right to unionize and collectively bargain in 1962. Yet, state and local workers union rights are still not federally mandated, meaning state legislatures are responsible for establishing these regulations.

The (new and limited) Rights for Public Sector Collective Bargaining in Texas

Texas has fewer rights for public sector employees than many other states. More than half of US states have comprehensive collective bargaining laws for public sector employees, while most other southern states, including Texas, do not. Texas state law denies teachers and municipal workers collective bargaining rights. In 1993, the Texas Legislature passed the Fire and Police Employee Relations Act, which created a process for police and firefighters to collectively bargain. The act later became Chapter 174 of the Texas Local Government Code, which recognizes that “denying firefighters and police officers the right to organize and bargain collectively would lead to strife and unrest, consequently injuring the health, safety, and welfare of the public.” Through this recognition, Texas voters may approve collective bargaining for police or fire employees. It further clarifies that police and firefighters are not allowed to strike. A process for fines, restricting union dues, and placing employees on probation for participating in strikes or work slowdowns is defined in this chapter.

If a collective bargaining agreement with a firefighters union or police association cannot be reached within 60 days of formal negotiations, the parties reach an "impasse," as outlined in Chapter 174. Once the impasse is established, arbitration is initiated through a selected negotiation board. The board issues a binding resolution where collective bargaining has failed to reach an agreement. The catch is Chapter 174 does not require binding arbitration. Houston voters approved collective bargaining rights for firefighters in 2003 because they wanted firefighters, who serve a life-saving function in their communities, to earn decent wages and benefits and have decent working conditions. However, there is no legal mechanism to enforce these arbitrations, so the law has no teeth. Without binding arbitration, unions facing an impasse, like the Houston Firefighters, are put in a bind.

Although the NLRA allows private sector workers to strike when facing an employer who refuses to negotiate in good faith, the NLRA does not protect the same activity for public sector workers. Furthermore, Chapter 174 mandates that police and fire are not allowed to strike. A regime of fines, union dues restrictions, and probations for firefighters who engage in strikes or work slowdowns, creates a situation where striking is not just technically illegal, but threatening to fire fighters' livelihoods. As a result, Houston Firefighters do not have legal recourse out of this impasse and must rely on a ruling handed down by the Texas Supreme Court.

The Heart of the Legal Arguments

The core of City of Houston’s argument is that a process where arbitrators set compensation for public employees violates the Texas Constitution. If the Texas Supreme Court rules in favor of Turner and the City of Houston such that arbitration is not required to resolve impasses, firefighters have no recourse when city management refuses to bargain. This ruling would make the intent of Texas legislation and Houston voters giving firefighters the right to have a contract wholly dependent on whether city management wants it to happen.

In May 2021, the 14th Court of Appeals found the arguments made by the City of Houston unconvincing, and the Court ruled in favor of the HPFFA. However, City of Houston appealed this ruling to the Texas Supreme Court, which resulted in the hearing of oral arguments this November.

Collective Bargaining Rights for Firefighters in Texas

The geography of what municipalities have in terms of collective bargaining rights and binding arbitration for firefighters has changed dramatically across Texas over the last five years. Last year, voters in the Jefferson County Communities of Port Neches and Groves approved collective bargaining for their firefighters, which lead to Groves reaching their first contract in August and Port Neches in September. In San Antonio, where firefighters have collective bargaining rights and binding arbitration, firefighters used binding arbitration to end a six-year contract impasse in 2020.

Austin voters approved collective bargaining with binding arbitration at the ballot box in 2021. However, the City of Austin is using Houston Mayor Sylvester Turner's lawsuit against collective bargaining rights to request that Austin Firefighters Association forgo their right to binding arbitration as they began bargaining this year.

The Bigger Picture for the Labor Movement

CEOs, Republicans, and corporate Democrats are leading a concerted attack on labor from boardrooms, statehouses, and the Supreme Court. In the private sector, multinational corporations like Amazon and Starbucks are aggressively attacking union drives with very little intervention from a deeply underfunded NLRB. In the public sector, the Supreme Court's Janus v. AFSCME (2018) ruling landed a tremendous blow on public sector organizing by forcing right-to-work upon the entire industry. In right-to-work Texas, the ramifications of this assault on workers are especially evident in the few rights that public sector workers have in the workplace. It is absurd that municipal workers, state employees, and teachers workers essential to the functioning of our cities and state -are even denied collective bargaining rights in Texas.

The labor movement must fight for expanded collective bargaining rights for all, especially in Texas. We need to protect our current rights while further expanding workers' ability to bargain for better wages, working conditions, and have a voice on the job. However, this fight won't be as simple as electing the right people and finding the right legal solutions. We need to build a fighting rank-and-file labor movement and organizations capable of winning these rights, whether it be through solidarity with workers across industries and communities or forcing the hand of management through strikes.

The visionary efforts of the Chicago Teachers Union and United Teachers of Los Angeles exemplify this political militancy through "bargaining for the common good." CTU and UTLA are leading the public sector union movement by showing creative ways to utilize existing public sector labor law to fight for the kinds of public investments in education, housing, public safety, and more that our communities need and deserve."

While it is difficult to imagine that Firefighters in Texas will be doing this type of bargaining in the short term, we can learn from fellow workers in Europe with more powerful public sector unions and broaden our political horizons for the movement here. We can look to France, where videos of firefighters fighting police on picket lines are quite popular on US firefighter message boards. We can look to the efforts of the Fire Brigades Union in London, which is fighting austerity and building more comprehensive links to the union and tenant's rights movements.

The Bottom Line

If the Texas Supreme Court finds on the side of firefighters, it will establish case law upholding workers' rights that will benefit first responders and hopefully strengthen the labor movement in fighting for an expansion of collective bargaining rights for all public employees. Whatever happens at the Texas Supreme Court, the labor movement needs to continue to fight to expand workers' collective bargaining rights in Texas.

In Houston, the city at the heart of this case, voters have a shot at changing the system that led to this crisis. A pressing short-term goal among a variety of local organizations is to change the ‘strong mayor’ system, which will give us the possibility to elect council members that can champion labor and other social justice causes and allow for a more democratic local government. This charter reform will be on the ballot in 2023, and a broad coalition including Houston Professional Firefighters Association and Houston DSA, will be part of the effort to pass it.

Rob B. is a Firefighter/EMT and member of IAFF Local 341 and Houston DSA.
Cerena E. is a staff member of Teamsters Local 988 and rank-and-file member of Houston DSA.