City of Sherman, Texas v. Junior Adkins, et al.--Appeal from 15th District Court of Grayson County

IN THE

TENTH COURT OF APPEALS

No. 10-94-132-CV

CITY OF SHERMAN, TEXAS,

Appellant

v.

JUNIOR ADKINS, ET AL.,

Appellees

From the 15th District Court

Grayson County, Texas

Trial Court # 93-0958

O P I N I O N

Junior Adkins and other twenty-year veterans of the Sherman Fire Department (the Fire Fighters) sued the City of Sherman (the City), seeking a declaratory judgment establishing their entitlement to twenty days of vacation per year since January 1, 1991. The City and the Fire Fighters filed cross-motions for summary judgment. The court granted the Fire Fighters' motion, ruling that the City is required to give them twenty days of vacation per year in the future and credit for that much vacation time in the past, or backpay in lieu thereof, and denied the City's motion. The City appeals on two points of error, claiming in point one that the court erred by granting the Fire Fighters' motion and, in point two, by denying its motion. We will affirm.

With the passage of The Fire and Police Employee Relations Act (FPERA) in 1973, fire fighters and police officers obtained the right to collectively bargain with their municipal employers over the terms and conditions of their work. See Kierstead v. City of San Antonio, 636 S.W.2d 522, 524 (Tex. App. San Antonio), aff'd in part, rev'd in part, 643 S.W.2d 118 (Tex. 1982); Tex. Rev. Civ. Stat. Ann. art. 5154c-1, 5(a) (Vernon 1987) (repealed 1993). // After the City voted to adopt the provisions of the statute, the City and the Fire Fighters entered into agreements governing the terms and conditions of the Fire Fighters' employment. The relevant contract applied from October 1, 1989, until September 30, 1993. The contract does not specifically set the number of days of vacation time that the Fire Fighters are entitled to, but instead attempts to retain the City's authority to set vacation time in a general reservation-of-management-rights section of the contract:

ARTICLE 4

MANAGEMENT RIGHTS

It is expressly agreed that all management rights which ordinarily vest in and are exercised by the Employer, except those which are clearly relinquished herein by the Employer, shall continue to vest exclusively in and be exercised exclusively by the Employer. The Employer shall retain all powers, duties, and rights established by Constitutional provisions, State statute, City Ordinance, City Charter or other source of law, and departmental rules, standing orders and/or instructions, and retains the power to act or not to act as it deems appropriate. This shall include the right to:

. . .

6.Set and administer policy regarding wages and fringe benefits including, but not limited to, retirement contribution, scope of insurance, number of days of vacation, sick leave and designated holidays, to the extent not inconsistent with Chapter 143.

. . .

The aforesaid rights are not all inclusive, but enumerate, by way of illustration, the type of rights which belong to Employer. Any other rights, powers, or authority Employer had prior to the signing of this agreement are retained by Employer, except those which are clearly and specifically relinquished in this agreement.

The next article provided for the retention of the "PREVAILING RIGHTS" of the parties:

ARTICLE 5

PREVAILING RIGHTS

All working conditions and other terms and conditions of employment currently in effect for and with respect to the members of the Sherman Fire Department on the effective date of this agreement which are not included in this agreement shall remain in full force and effect, unchanged and unaffected in any manner unless and except as modified or changed by the specific terms of this agreement.

These terms of the contract were nearly identical to the terms of a prior contract, effective from October 2, 1985, to September 30, 1988.

Pursuant to a collective-bargaining agreement with the members of its police force, the City instituted a changed vacation policy for the officers in January 1991. Prior to the agreement, all City employees accrued vacation at a flat rate of fifteen days per year, after their first year of employment. Under the terms of the agreement, vacation days earned by police officers were dependent upon length of service i.e., ten days per year for new officers with less than ten years of service; fifteen days per year for those with between ten and twenty years of service; and twenty days per year for officers with more than twenty years of service. The same month, the City extended the vacation policy to include all city employees other than the fire department. The City claimed it had excluded the fire department from the changed policy because the fire fighters were represented by a union, which could bargain for the vacation benefit as had the police officers, while the other City employees were not so represented.

The Fire Fighters sued the City seeking to have the vacation-days policy extended to them. They claimed in their motion for summary judgment that they had a statutory right to the same number of vacation days as other City employees, subject to a minimum of fifteen days per year, because "[a] member of a fire . . . department in a municipality with a population of more than 30,000 is entitled to 15 vacation days each year with pay," and "[a] fire fighter . . . shall be granted the same number of vacation days . . . granted to other municipal employees." See Tex. Loc. Gov't Code Ann. 142.0013(b), (c) (Vernon Supp. 1995). The Fire Fighters argued that these statutory provisions are read into their contract as "a parol integration of an unwaived term." See Kierstead v. City of San Antonio, 643 S.W.2d 118, 121 (Tex. 1982).

The City asserted in its motion for summary judgment that section 142.0013 was preempted by the provisions of the FPERA. See Tex. Rev. Civ. Stat. Ann. art. 5154c-1, 20(a) (repealed 1993). // This subsection provides:

Sec. 20. (a) This Act shall supersede all conflicting provisions in previous statutes concerning this subject matter; to the extent of any conflict the previous conflicting statutory provisions is hereby repealed; and this Act shall preempt all contrary local ordinance, executive orders, legislation, rules, or regulations adopted by the state or any of its political subdivisions or agents, such as, but not limited to, a personnel board, a civil service commission, or a home-rule municipality.

Id. Additionally, the City claimed that the collective-bargaining agreement between the City and the Fire Fighters also preempted the statute, because "[a] provision of Section 142.0013 . . . does not apply if it is inconsistent with a collective bargaining agreement that was in effect on August 31, 1987 . . . ." See Tex. Loc. Gov't Code Ann. 142.001(b). Because an agreement between the City and the fire department, which was effective on August 31, 1987, contains essentially the same terms as the current agreement, the City contended that section 142.0013 was preempted.

Both parties raise the same arguments on appeal that they asserted in the trial court. We review the court's rulings under the well-established rules relating to summary judgments. See Tex. R. Civ. P. 166a(c); McConnell v. Southside School Dist., 858 S.W.2d 337 (Tex. 1993); Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). Because both parties filed motions for summary judgment, we must "determine all questions presented, and may reverse the trial court judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant." See Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988).

Initially, we note that the collective-bargaining agreement that the City is claiming now preempts the statute was not in effect on August 31, 1989. By its own terms, the agreement is effective beginning October 1, 1989. The exception in section 142.001(b) only applies to contracts that were in existence on a specific date: August 31, 1987. See Tex. Loc. Gov't Code Ann. 142.001(b). The City did not below and does not now supply any reason for ignoring the plain language of the statue and applying the exclusion to an agreement formed later. See id.; Monsanto v. Cornerstones Mun. Utility, 865 S.W.2d 937, 939-40 (Tex. 1993). Thus, we reject the City's reliance on section 142.001(b). See id.

Turning to the City's argument under the provisions of the FPERA, we reject this argument for two reasons. First, the FPERA does not address vacation; thus, it is not inconsistent with or contrary to section 142.0013's provision for equal vacation time. Second, section 20(c) of the FPERA specifically provides that "[n]othing contained in this Act shall be construed as repealing any existing benefit provided by statute . . . concerning firefighters' . . . hours of work [or] conditions of work. [T]his Act shall be cumulative and in addition to the benefits provided by said statutes and ordinances." Tex. Rev. Civ. Stat. Ann. art. 5154c-1, 20(c) (repealed 1993). // Clearly, the right to have the same number of vacation days as other city employees is a "benefit provided by statute . . . concerning firefighter's . . . hours of work [or] conditions of work." Thus, the explicit language of the FPERA indicates that it does not repeal the statutory rights given to the Fire Fighters in section 142.0013. See id.

Because statutes existing at the time a contract is formed become terms of the contract, the City agreed to provide the Fire Fighters with the same number of days of vacation as earned by the other city employees. See Kierstead, 643 S.W.2d at 120-21. The contract between the City and the Fire Fighters will not eliminate this promise unless the agreement "specifically so provides." See Tex. Rev. Civ. Stat. Ann. art. 5154c-1, 20(b) (repealed 1993). // The contract does not unambiguously reject the promise of section 142.0013, and, so, it is effective in this agreement. See Kierstead, 643 S.W.2d at 121. Thus, the court did not err by granting the Fire Fighter's motion for summary judgment and denying the City's motion. Points one and two are overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 27, 1995

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