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Monday, July 20, 2015

FLSA & NM Wage Law--What is "Any Week of Seven Days"?

No doubt like similar statutes in other states, the New Mexico Minimum Wage Act (MWA) requires an employer to pay overtime wages for hours worked in excess of forty hours in "any week of seven days."  In 2013, the New Mexico Court of Appeals has concluded that "any week of seven days," which is not defined in the MWA, "means

Monday, May 6, 2013

Two Interestiing NM Public Sector Labor Law Updates

State v. AFSCME 18 and CWA, 2012-NMCA-114 (cert. granted)

In the long-awaited --but still not final-- appellate court decision, the New Mexico Court of Appeals upheld an arbitration award concerning the fiscal year 2009 pay rasies for State employees.

As people who follow these issues will recall, the 2005 collective bargaining agreements (CBA) for both AFSCME and CWA employees provided for specific salary increases for three fiscal years, ending in FY2009.  One FY 2009 provision called for a 2% general salary increase effective July 1, 2008 for employees in each Union's bargaining unit, "subject to the Governor's recommendation."  The second FY2009 provision called for a  2% increase effective January 1, 2009 that would be "compa-ratio based within band" and "subject to legislation appropriate."  If either were not implemented because the Legislature failed to approrpiare sufficient funds, the Unions would have the right to reopen bargaining as to general salary and within band salary increases effective for the fiscal year following the year in which the Legislature failed to appropriate sufficient funds.

The FY2009 budget was passed in the midst of an economic meltdown in 2008.  It is undisputed that the Legislature would have needed to appropriate $8 million to cover the negotiated salary increases for AFSCME and CWA bargaining unit mbers, but $15.9 million to cover all eligible classified employees--"both unrepresented workers as well as Union-represented employees."

At that time, the Unions lobbied for raises for their own bargaining unit members pursuant to the CBA.  The State Personnel Office (SPO), however, took the position that it must give raises to all classified employees, not just those covered by CBA. 

Ultimately, the Legislature appropriated $12.8 million for FY2009 "to provide incumbents in agencies governed by the Personnel Act ... with an average salary increase of two and four-tenths percent ... based on employee job performance as determined by the personnel board," effective July 1, 2008.  Not surprising, SPO argued the appropriation was inadequate to provide a 2.4%  salary increase to all employee, while the Unions argued that appropriation was sufficient to fund the negotiated raises to Union bargaining members since the legislation spoke only of "average" salary increases.

Thereafter, the Unions filed two separate grievance for contract violation and both arbitrators concluded the legislation appropriation was sufficient to fund the negotiated salary increases to bargaining unit members,  SPO appealed the awards, which were upheld by the District Court and then the Court of Appeals.

 Both positions are tenable.  The Union's is supported by the language of the contract and its duty to aggressively represent its bargaining unit members.  However, SPO's position points to a moral argument that many non-union members might find compelling:  that it is unfair for tax payers to fund a raise for only some public employees when the difference in treatment is not related to productivity or other performance standards based criteria.

I foresee the Supreme Court also upholding the arbitration awards because the contract language is what it is.  However, if the dispute ever makes it beyond the radar of public sector agents and labor practitioners, it could a bit of a stink with the general public.  This is not to say the Unions are wrong for pressing their members' rights under the contract even if at the expense of non-bargaining unit members.  This is also not to say that I presume the State is operating in non-bargaining unit members' interests when it appeals the arbitration awards.  It all just is what it is, and not everyone would find this situation peachy.

AFSCME 18, et al. v. City of Albuquerque, 2013-NMCA-012 (cert. granted)

At first blush, this case seems to stand only for the entirely unsurprising conclusion--first stated in Albuquerque v. Montoya, 2012-NMSC-007--that PEBA does not impose an "effectiveness" requirement for labor management relations ordinance (LMRO) provisions to be accorded grandfathered status.   

Here, the Union challenged the impasse provisions as ineffective because it did not result in final, binding arbitration or some other "final" resolution.  The Court of Appeals noted--as it had before--that, to the contrary, the reenacted PEBA removed "effectiveness" related provisions for the very old grandfathered LMROs (pre-October 1991), such as that it have "resulted in the designation of appropriate bargaining units, the certification of exclusive bargaining agents, and the negotiation of existing collective bargaining agreements."  See NMSA 10-7D-26(B) (repealed 1999).

There were some interesting points in the decision, however.  First, nearest and dearest to my heart, the Court seems to have finally acknowledged that there are in fact three layers of local boards:  the very old, those simply pre-dating PEBA I, and newer PELRB approved boards. Prior court decisions have treated 26(B) [previously 26(C)] as applying equally to all but the very old LMROs. PELRB Practice Manual, pp. 97-98.

Second, and likely to be quite significant going forward, the Court concluded that the appropriations limitation in Section 10-7E-17(E) provides equally well to the contract terms continuing in effect under the evergreen provision, Section 10-7E-18(D), as to newly negotiated contract provisions.  This will provide powerful incentive against relying overly much on the evergreen position in the face of negotiation obstacles related to finances.

If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile, P.C.          

Tuesday, April 23, 2013

Workers Compensation--What are "Average Wages" When Wages Overlap?

The New Mexico Court of Appeals recently addressed how to calculate an employee's average weekly wages for purposes of workers' compensation, when the employee was injured on one job but worked two unrelated, overlapping jobs of unequal duration.  See Vinyard v. Palo Alto, Inc. d/b/a Pizza Hut, 2013-NMCA-001.

Friday, January 11, 2013

NLRB & Social Media

As a labor and employment mediator and arbitrator, I have been alternatingly intrigued and concerned about recent NLRB guidelines and ALJ rulings concerning use of and limitations on the use of social media.  See, e.g., Aug. 18, 2011 NLRB Office of General Counsel Report

Sunday, December 23, 2012

Public Sector Woes Part III: Public Sector CBAs & Unilateral Change

As readers may know, I have been doing a series of reviews/commentaries based on the Winter 2012 ABQ Journal of Labor & Employment Law, which is largely devoted to the recent travails of public sector collective bargaining.  One article, by Stephen F. Befort, asks why is unilateral change somehow more acceptable or possible in the public sector.   

Tuesday, November 27, 2012

Public Sector Woes Part II -- Compensation, Pension Etc. Analyzed

In my last blog, I wrote generally about the "upheaval" or "cross roads" that public sector collective bargaining finds itself in today.  See also Unions’ Role in “the New Normal”.  This second blog looks specifically at issues of public sector compensation and reform, particularly pension reform of which I've also written before.   See  Public Sector Pensions -- The Times They are a-Changin'

Such reforms range from attempts to limit the scope of public bargaining as it relates to compensation; the move from defined contribution (DC) to defined benefit (DB)

Monday, November 12, 2012

Public Sector Collective Bargaining Woes

In December 2010, I blogged about the travails facing public sector pension funds, and in March 2011 I wrote a bit about the general "upheaval" in public sector collective bargainingSee Public Sector Pensions -- The Times They are a-Changin' and Unions’ Role in “the New Normal”.  Both of these subjects have now captured the interest of a number of commentators and my next couple of blogs will analyze some recent articles.  This first blog in the series looks at the general climate change and "upheaval," and the idea that public sector labor is at a "crossroads." Review of three articles articles in particular, which represent more moderate, liberal, and conservative views of the issue, are a helpful orientation.