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.
When one enters the PELRB, one is struck by the sparsity and disarray. All furnishings except for two desks, a couple of chairs and small tables, and the filing cabinets have been moved out, and one must step with caution around various packing boxes. Apparently, in or about October, the Board had intended to relocate to the Workers' Compensation offices in Albuquerque. That plan fell through for some reason about the time of the intended move. It is not clear, however, what the agency's next step will be. Although there is no buzz about the agency having a new, specific location in mind, it is clear that the furniture is still gone missing, and the packing boxes have not yet been unpacked...
When one reviews the PERLB files, one is equally struck by the sparsity and disarray--specifically, the sparsity of any hearings having been conducted, and the disarray in which records are kept concerning the little bit of business that has occurred. For example, audit of the PELRB files reveal only a small number of hearings have been held at all since August; where action has been taken, the files lack documentation; and a number of files are simply missing.
Of all the Status Conferences that have gone forward, the files do not document any disposition in four cases (Case Nos. 315-09, 311-10, 146-09 and 118-10); in one case the Director has verbally indicated it was settled, but there is not record of the disposition in the file (Case No. 313-10); and in four cases there was apparently some action, because the file documents opposition by one or more party, but the agency has not documented what was done (Case Nos. 117-10, 123-10, and 317-09--three related cases--and Case No. 308-10). A number of conferences had been set but then vacated in light of the "impending" move, and have not yet been rescheduled after the "impending" move was vacated (Case Nos. 123-09, 144-09 and 145-09). Finally, while several files are missing (Case Nos.124-10, 125-10 and 309-10), other files reveal summary disposition could already have been initiated but for a little time and attention (120-10, unopposed motion to transfer to local board; 121-10 and 126-10, failure to timely file answers; and 106-09, arbitration to which matter deferred long completed, 316-10, union failed to provide necessary information to complete Petition).
These figures are especially curious in that the total number of 2010 PELRB filings were only 60% of what they were in 2009, which was itself a historically slow year. Simply put, there was substantially less business to do. At he same time, however, the lack of industriousness seems to have had an actually dampening effect on filings:
- 2010: 16 representation petitions; 26 PPCs; and 3 local boards. Total cases filed, 45.
- Compare 2009: 17 representation petitions; 47 PPCs; and 6 local boards. Total Cases filed, 70.
Nonetheless, lest I be dismissed as merely a disgruntled ex-employee, I should also make several observations in all fairness. First, the PELRB has had a rash of recent scheduling activity. If they all go forward as planned, as many as five cases will have their pulse taken by mid-February via Status Conference (Case Nos. 105-10, 109-10, 110-10, 115-10 and 122-10), and a hearing on the merits will be held in one matter by mid-January (Case No. 114-10). Second, the PELRB is notably not alone in its present disarray. The City of Albuquerque has allegedly failed to provide a functioning and operational labor board since December of 2009, and the Union has taken recourse to filing matters with the PELRB of late. See PELRB Case Nos. 121-10, 122-10, 125-10, and 126-10).
In the shadow of this apparent general disarray in New Mexico collective bargaining, I note the Rio Grande Foundation's recent white paper, urging the dismantling of collective bargaining. See http://www.riograndefoundation.org/downloads/rgf_public_employees.pdf. I am also reminded of the many recent and nasty spats between labor and management across the State in the last year and half: fights over take home cars for cops in Albuquerque; fights over negotiated raises that could not be funded under the current economy in Albuquerque and Rio Rancho and likely elsewhere; fights over records requests at San Juan College and Rio Rancho Schools; protracted bargaining disputes all around (see, e.g., Rio Rancho Schools Local Board Case Nos. 08-01 and 08-02 (consol.) (Jul. 23, 2010)), and the spate of Albuquerque cases discussed herein). While similar disputes are not unheard of, these have been remarkable for their bellicose tone, which has decidedly not been in the normal range. (As proof, I point to the excitement they have caused on talk radio shows, such as KKOB, which tend to gravitate to the more incendiary debate.)
With all of this in mind, I am compelled to wonder, what is becoming of collective bargaining in New Mexico? Although I concede it is clearly strained, I am not near ready to forecast its demise, as I cannot help thinking of its long history in New Mexico. After all, some jurisdictions, such as Albuquerque, Albuquerque Public Schools and UNM, have engaged in voluntary collective bargaining for at least twenty years before the enactment of PEBA in 1991! See PELRB Practice Manual at 7, http://www.pelrb.state.nm.us/pdf/peba/pelrbpracticemanual.pdf. Thus, I urge all stakeholders--labor, management, individual employees, and neutrals--to continue to look for common ground, and a sense of balance and public interest, as we struggle through the current economic difficulties.
If you are interested in neutral services such as arbitration, mediation or contract ALJ services, in labor/employment or other areas of the law, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
