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.