Happy Belated Birthday, NLRB

Collective bargaining has been increasingly in the news in the last year, and has even made its way back into popular consciousness.  As I've written elsewhere, a number of states are trying to put limitations on public sector collective bargaining, in response to budgetary difficulties  Additionally, there has been a renewed push to pass the federal Employee Free Choice Act, which would permit certification without a secret ballot election over the employer's objection, among other things, and the NLRB has taken several controversial actions of late that have been reported widely.  They have proposed new rules to expedite elections and to require the posting of notice of labor rights, and also filed a charge against Boeing for its attempt to open a plant in right-to-work state South Carolina (the latter issue has now been settled).  

Despite this present heightened public awareness of collective bargaining issues, however, many people do not know that 2010 marked the National Labor Relations Act's (NLRA) 75th anniversary.  In honor of this significant milestone, the National Labor Relations Board (NLRB) and George Washington University had co-sponsored a seminar in October 2010 on the Act and "Its Legacy and Its Future," to which the Winter 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 26, No. 2, was largely dedicated. 

In light of this milestone, and the level of popular attention garnered to collective bargaining in the last year or so, it seems to me it is a good time to review what collective bargaining scholars, professionals and advocates have to say about the Act.  

DOL to Require Disclosure of Confidential Client Info?

The U.S. Department of Labor proposes a rule change, concerning the disclosures required of consulting or law firms who advise management regarding union organization.  Many of these firms, and the ABA, say the new rules will impermissibly intrude on the attorney-client relationship, and particularly chill the relationships between small-business owners and their attorneys.

Workers Comp—Travelers v. Mere Commuters Covered

In a recent New Mexico workers compensation case, the State Supreme Court addresses an exception to the state Act, NMSA §§ 52-1-1 et al., that permits compensation for injuries incurred in travel by employees when those injuries “aris[e] out of and in the course of employment.“  Pete Rodriguez et al v. Permian Drilling Corp. et al, 2011-NMSC-032.

Objection to New Labor Board Member Rejected

I have previously written about the Supreme Court ordering N.M. Governor Susana Martinez to reinstate several members of the Public Employee Labor Relations Board.  I have also written about AFSCME, AFT and other Unions threatening to sue the Governor again for having replaced one reinstated members upon expiration of his latest term.  Finally, however, the Governor appears to have "won" one before the Supreme Court.

PELRB to be Sued Again Soon? And What of the Albuquerque Labor Board?

Today I review events at the State and City of Albuquerque labor boards.

First, the PELRB met again today, this time to discuss the replacement of Juan B. Montoya, who had previously be re-hired in violation of the state anti-double dipping laws.  At the same meeting, the PELRB introduced their newest member, Roger Bartosiewicz, who replaced labor representative John Boyd, whose term ended in June of 2011, as I've written in a previous blog.

PELRB Update -- Ex Parte Contacts Alleged and Elections in Limbo

The 7/19/11 PELRB meeting covered a lot of ground. Although I missed some of the meeting, I do still have some news to report, regarding stated agenda items, the proposed re-hire of Juan Montoya, and the AFT/CYFD and United Mineworkers/Gallup representation petition debacles.

AFSCME et al v. Hon. Susana Martinez, Governor, 2011-NMSC-018

Back in April, I wrote that the N.M. Supreme Court had ordered the Governor to reappoint several PELRB members.  That decision was reduced to writing until May 13, and thereafter published in the N.M. Bar Bulletin on June 1. Now that some time has passed and the Board is back to functioning (well, sort of, but that's for another post), I'd like to look at that decision in a little more detail, as I think the decision's reasoning and background raises some serious questions about its fitness.

PELRB News - OMA and PERA Violations Alleged

On June 30, a lively New Mexico Public Employee Labor Relations Board meeting was held in which a State Personnel Office (SPO) representative accused the Board of OMA and PERA violations by the PELRB. 

Employee Deemed Constructively Discharged After Successful Mediation

In a recent employment law case, the New Mexico Court of Appeals affirmed a jury verdict awarding an NMSU employee almost $125,000 in damages for retaliation and constructive discharge claims. The decision was largely unremarkable in its analysis and discussion:  that actions occurring before the statute of limitations can be considered under the continuing violation doctrine; and that the sufficiency of evidence is a high standard of review under which the appellate courts will not substitute their judgment for that of the fact-finder.

Far more intriguing to me, however, what was left unsaid in the decision:  how the Court came to conclude that an employee was constructively discharged in spite of obtaining an apparently successful and agreeable settlement through mediation that altered the original, offenses conditions of employment.

Retaliation Claims Up and Robust, Discrimination/Harassment Claims Struggling

In the June 2011 issue of the ABA Journal, David L. Huston Jr. observes a trend of the U.S. Supreme Court being more favorably inclined to employment retaliation claims, than underlying discrimination claims.  Of all discrimination-related charges filed in 2010, retaliation charges were up to 36.3 percent, from 27.1 percent in 2000.  Some recent retaliation highlights:

NM Labor Boards - Updates

Some days I feel like--in the words of my youngest son's hero, Buzz Lightyear--"I have landed on a strange planet."  Nowhere is that feeling stronger these days than when considering the current state of the Albuquerque and New Mexico Labor boards, and their various travails.

Bullying Legislation, Revisited.

I have previously written about bullying legislation with considerable suspicion. To summarize, "I'm not a fan." Specifically, I expressed the view that it's impractical, over-burdensome on business, concerns a fuzzy, subjective term that cannot be uniformly applied or understood, and reflects a policy conclusion is not empirically established at all, at this point, e.g., that forceful/aggressive employees are "bad" for business and meeker/milder employees are "good", and that we need to run one group out in favor of another.

Recently, however, I've explored the matter further with colleagues, through a question posed by Marc Brenman on ADR, Conflict Resolution and Mediation Exchange--"Bullying: Amenable to legislated approaches?"  Ultimately, although I appreciate that my view and understanding of workplace "bullying" has been broadened and enhanced considerably, I come to the same conclusion regarding the efficacy and desirability of anti-bullying legislation.

Deja Vu All Over Again: PELRB Appoints Retired ex-Director Juan Montoya as New Director

Today the New Mexico Public Employee Labor Relations Board (PELRB) made the decision, with two in favor and one member abstaining, to appoint ex-Director Juan Montoya as the new Director.

The appointment saga has been going on for some time, as I've written elsewhere, and at this point I imagine any sort of decision is a relief to many. See http://albuquerqueadr2.blogspot.com/2011/02/nm-pelrb-director-terminated.html; http://albuquerqueadr2.blogspot.com/2011/05/recent-nm-labor-goings-on.html; and http://albuquerqueadr2.blogspot.com/2011/05/510-pelrb-meeting-re-new-director.html.   However, there may still be some cause for concern. 

Big News: NLRA Preempts State Law Claims of Termination for Union Activity

In a recent New Mexico case, the Court of Appeals held--not surprisingly to regular labor practitioners--that federal labor law preempts state law claims based on an allegation that a supervisory employee was improperly terminated from employment due to employer's suspicion that the employee was engaged in union-organizing activities. Humphries v. Pay and Save, Inc., 2011-NMCA-035, cert. not applied for.  To the labor practitioner, it is only surprising that the state law claims were pursued at all.

Workers Comp - Claim of Self-Injury Reviewed in Light of Delgado

A critical threshold issue for workers compensation cases can be whether the claim is for an “accidental injury,” as opposed to the result of intentional misconduct.  See NMSA § 52-1-28.  This is significant because where an injury is not accidental, it falls outside of the scope of workers’ compensation law, including its exclusivity provisions.  See  NMSA §§ 52-1-6(E) and 52-1-9.  Depending on who was willful--the employer or employee--it can result in the application of ordinary tort remedies, meaning without capped damages, or a complete bar to any sort of recovery at all.

In a recent case, Pearson v. Johnson Controls, 2011-NMCA-034, cert. den., the New Mexico Court of Appeals has held “that the standard of willfulness required to deny workers’ compensation benefits to an employee for self injury is the same as applied to employers’ misconduct under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 NM 272.”  See Pearson at ¶ 1.

Albuquerque Labor Board Unable to Agree on Neutral Appointment

The City of Albuquerque's Labor Management Relations Board--currently comprised of the Labor and Management appointments, Justin Lesky and Barbara Stephenson respectively--met today at 9:00 a.m. at the Mesa Del Sol Building, but were unable to reach a decision on the neutral appointment.  The Labor rep is looking for a candidate with specific labor experience, while the Management rep appears to be looking for a candidate who has a track record representing both sides of the table in either labor or employment matters.

"FedEx III" and Independent Contractors

A crucial issue in labor and employment law is often whether a person is an "employee" or "independent contractor," because this will determine whether or not the worker is entitled to various protections.  In the Fall 2010 issue of the ABA Journal of Labor and Employment Law, Jeffrey E. Dilger analyzes the .D.C. Circuit's 2009 decision, FedEx Home Delivery v. NLRB, 563 F.3d 492 ("FedEx III"), concluding that it will dramatically reshape independent contractor jurisprudence.

Statistical Survey of Changes to NLRA Precedent

In the Fall 2010 issue of the ABA Journal of Labor and Employment Law, G. Roger King provides a very provocative statistical survey comparing the rate of reversals of NLRA precedent under the Clinton and G.W. Bush Federal Labor Relations Boards, and concludes the Clinton Board --not the Bush Board-- was the more activist.

Disparate Claims Under ADEA Face Uphill Battle

In the Fall 2010 issue of the ABA Journal of Labor  Employment Law, authors Rozycki & Sullivan, argue that disparate claims under the Age Discrimination in Employment Act (ADEA) continue to face an uphill battle, even with the U.S. Supreme Court's decisions in Smith v. City of Jackson, 544 US 228 (2005), and Meacham v. Knolis Atomic Power Laboratory, 128 S.C. 2395 (2008). 

PELRB Meets Again to Discuss Hiring of New Director

Today the Public Employee Labor Relations Board (PELRB) met again to continue to discuss the hiring of a new Executive Director. As I discussed in a prior blog , the PELRB determined at its April 25 meting to hold off on choosing a new Director until additional resumes could be submitted to the Governor's Office, and considered.  There were some new faces and efficiency arguments, but mostly same old same old.

"The Future of Public Employee Collective Bargaining in New Mexico" - Seminar Summary

The May 6, 2011 Seminar, "The Future of Public Employee Collective Bargaining in New Mexico," was quite a success.  The seminar was Dr. T. Zane Reeve's "brainchild, and was sponsored by the UNM School of Public Administration with some assistance from the Federal Mediation Conciliation Service (FMCS).  Its overriding themes and questions was could what occurred in Wisconsin happen here and if we are in danger, how can we do things differently in the future.

Worker's Comp and Immigration Status

In Gonzalez v. Performance Painting, Inc. et al., 2011-NMCA-025, cert. granted, the New Mexico Court of Appeals recently considered (and rejected) the applicability of workers' compensation "modifier" benefit provisions to undocumented immigrant workers.

Court Rules No Do-overs Regarding Change of Probationary Status

In a recent case, the New Mexico Court of Appeals upheld administrative hearing examiner and district court conclusions that a change to non-probationary status was effective the date issued, rather than the date purported to be effective.

Recent NM Labor Goings-On

On April 25, the Public Employee Relations Board (PELRB) met for the first time since its recent "reorganizations," under the influence of the Governor and then the Supreme Court.  The upshot of the reorganizations was that Supreme Court said the Governor exceeded her authority by summarily discharging any members except that which served upon its own recommendation,* and the Governor's Office conceded that only the Board had authority to hire and fire the Director.

So where did that leave us at the April 25 meeting?  With lots of questions regarding current dates of appointments, candidates for Director, and pending business.  Elsewhere, KUNM hosted a not very balanced segment on public sector bargaining.

Collective Barganing Seminar to be Held May 6

I am please to announce that Dr. Reeves has graciously invited me to participate in the May 6, 2011 collective bargaining seminar that he is coordinating, which I wrote about in an earlier blog. 

He has also provided me with a Preliminary Agenda, and both the guest and topic line-ups look very intriguing, and timely.  The seminar begins with the premise that NM has a long and relatively stable history of public sector collective bargaining, and that today's "changing economic times and financial constraints on employers, unions, and taxpayers" call for "dialogue and creativity, not acrimony and rhetoric."

ABQ Labor Board -- First Meeting in 16 Months Mostly a No-Go

Today Albuquerque's Labor Management Relations Board was scheduled to meet for the first time since December 2009.  The two sitting members--Justin Lesky, Esq., the labor representative, and Barbara Stephenson, the management representative--did convene the meeting.  However, under the Labor Board's Rules, all three members are required for a quorum, so it could not take any action today, although everyone present was allowed to speak--and speak they did, largely to vent quite a bit of simmering frustration.

Seminar 5/6/11, State of NM Public Sector Collective Bargaining

New Mexico Arbitrator-Mediator-Hearing Examiner T. Zane Reeves, PhD, has coordinated a seminar on the state of public sector collective bargaining in New Mexico. 

NM PELRB Reinstated

Today the ABQ Journal reported that the State Supreme Court has ordered the reinstatement of PELRB members John Boyd, who was the labor recommendation, and Duff Westbrook, who was recommended jointly by the management and labor recommendations.  The Governor's Office pointed to a 2003 state Supreme Court ruling upholding then Governor Richardson's removal of six appointees to the Judicial Standards Commission.  The Union's position, accepted by the Supreme Court was that the Governor lacked authority to remove these board members, because the Office of the Governor was itself involved in adjudication before the PELRB.  

Barriers to Family Medical Leave for Men

In the March issue of the ABA Journal, Becky Beaupre Gillespie and Hollee Schwartz Temple (presumably themselves liberated, in light of those very long names) wrote about Ariel Ayanna, and the new frontier in sex/gender employment discrimination cases.  Ayanna was an associate in a Boston law firm, and has filed suit alleging termination in retaliation for his having exercised his right under the Family Medical Leave Act (FMLA) to take leave to take care of his new born baby and ill wife.

CBA Arbitration Clauses & Other Statutory Rights

I do not know what the practice is in other jurisdictions, but collective bargaining agreements (CBAs) in the New Mexico public sector typically include a clause prohibiting all kinds of statutorily illegal discrimination, not just that related to collective bargaining.  In these same contracts, there are also mandatory grievance-arbitration requirements that purportedly apply to all provisions except those that are expressly exempted.  Moreover, although these contracts frequently state that claims for discrimination or retaliation based on union activity may be brought before the state labor board, the New Mexico Public Employee Labor Relations Board (PELRB), there is no such carve out or proviso concerning other statutory discrimination claims.

While a hearing examiner with the PELRB I had previously wondered, privately, if such clauses could be read together to require employees to assert these claims through arbitration.  I had, frankly, tended to assume such a thing could not be a good thing.   However, Hoyt N. Wheeler has written a provocative, pause-giving little article in the LERA publication, Perspectives on Work, Vol. 14*, Summer 2010/Winter 2011, about the possible positive outcomes such arbitration.  See “Unions and the Arbitration of Statutory Rights,” Perspectives at 26-28. 

Guaranteed Retirement Accounts (GRAs)

In December of last year, I wrote about public employee guaranteed benefit pension funds.  As discussed in that blog, there are serious sustainability issues with these funds and many states are increasingly requiring employees to work more years before being entitled to their benefits.  Nonetheless, economics professor Teresa Ghilarducci has recently opined that “The Solution to the Pension Crisis is More Pensions,” (emphasis added), not working more.  

Unions’ Role in “the New Normal”

I am a labor/employment neutral, and I also do domestic and foreclosure mediation.  In all my work I see that times are tough all around, and it seems like the struggle to get and keep a job, and earn enough money to support your family in current economic situation is not getting any better.  My husband thinks this is the “new normal” and I’m beginning to believe him.

The news stories of other families struggling to make ends meet, to keep jobs, to meet bills, etc. certainly seem to bear out his theory.  See David Brooks, NY Times Op-Ed, “The New Normal” (Feb. 28, 2011) at http://www.nytimes.com/2011/03/01/opinion/01brooks.html; Alice Gomstyn, “Finance: Americans Adapt to the 'New Normal” (Jun. 15, 2009), at  http://abcnews.go.com/Business/Economy/story?id=7827032&page=1. And, as households reorganize their personal priorities and finances in this economic environment, we should not be too surprised to see similar reorganizations going on, as well, at the state, national and international levels. We should also not be surprised that such reorganizations are as painful on these larger stages, as they are in our own homes.

Cleaning House and Cleaning Up Our Acts - Anti-Bullying Legislation

As I catch up—or at least get less far behind—on the piles of work, potentially work-generating activities, kid activities, and volunteer responsibilities  littering my plate, I turn to a long delayed blog.  Ahhhhh, it's like Spring Cleaning.

You see, I have been toting around Volume 14 of the LERA publication Perspective on Work"—yes, that's "Summer 2010/Winter 2011"—for months now, wanting to do something with it.  It had a number of interesting articles I wanted to comment on, including titillating tidbits like work place bullying, and universal, guaranteed pensions for all.  But, the longer I waited and put it off, the more things jumped ahead in line… You know how that goes. 

Now, however, I am ready to tackle it.  I am just back from facilitating at a women's retreat held by my church, where we discussed issues like the burdens we carry around unnecessarily, freedoms we fail to exercise, and ways in which our freedom is restricted by ourselves as well as by forces outside our control.  In honor of these themes, I will limit myself to just the issue of bullying, and then promptly discard what has become an albatross upon my briefcase.

Social Media and the Workplace--NLRB and APD Cases Compared

What a curious world it is.  There is a notion of the "timeliness" or "confluence of ideas," and I'm sure you've all experienced it:  you have an idea rattling around in your head and, what do you know, you keep encountering things/people/incidents that reinforce, clarify and refine that idea.  We also see it historically.  For example, multiple people tend to come forward with similar technical innovations at about the same time.  Well, it is quickly becoming apparent that the idea or innovation de jure is Facebook and other social media, and their implications for the workplace, both nationally and at the Albuquerque Police Department.

Public Sector Set Backs--or Claw Backs?

Earlier this month, I reported on 2d Judicial District Judge Huling's ruling that the City of Albuquerque could scale back wages for the AFSCME bargaining unit, while negotiations for a successor contract was pending.  

Well, the beat goes on.  On February 2, the Albuquerque Journal reported that Second Judicial District Court Judge Nan Nash has ruled that the City was not required to implement negotiated annual pay increases for City firefighters, based on financial difficulties.  See Dan McKay, "Judge Dismisses Firefighters' Lawsuit."  

NM PELRB Director Terminated

The New Mexico Public Employee Labor Relations Board (PELRB) Director--Pam Gentry, who was just hired in the Fall of 2010 but has not appeared to have reduced the case backlog --was terminated effective February 5, 2011 according to agency correspondence to parties rescheduling a Status Conference. 

Bateman Act’s Preemption over PEBA in Tough Economic Times

In November, Judge Valerie Huling with the Second Judicial District in New Mexico ruled that “the city of Albuquerque can reduce the wages of its AFSCME union workers if there isn't enough money appropriated to pay them,” under the Bateman Act.  See Dan McKay, “Court: City Can Cut Union Pay,” Albuquerque Journal (Nov. 12, 2010).  

NM PELRB and Public Sector Collective Bargaining in Review -- 2010

2010 was an "interesting" year at the New Mexico Public Employee Labor Relations Board, and for public sector collective bargaining in general--calling to mind the ancient and purportedly Chinese curse, "may you live in interesting times."

As some readers may already know, I was one of a small number of "Gov-ex" personnel laid off from the PELRB in January 2010, at which time I started my own neutral practice, Pilar Vaile, P.C.  See http://joemonahansnewmexico.blogspot.com/2009/12/making-list-and-checking-it-twice.html.   Thereafter, in June, Director Juan B. Montoya retired and was replaced by a Federal Mediation and Conciliation (FMCS) retiree, Pam Gentry, who started with the PELRB in or about August, 2010.  Ms. Gentry brings lots of knowledge of federal labor law, and it is clear upon speaking with her for any length of time that she has big ideas for the agency.  Unfortunately, to date, day-to-day operations seem to be suffering a bit.

NM Workers’ Compensation Law Update – 2010

The Workers' Compensation Administration issued a number of interesting opinions that were appealed this year, dealing with the combining of impairments; the analysis for determining whether alcohol use results in a diminution or complete bar to recovery; several cases concerning the extent of and limitation on the WCA's "exclusive remedy;" and WCA jurisdiction over claims arising on property wholly owned and operated by an Indian Tribe.