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.
For the seminar, Dr. Reeves managed to bring together a diverse body of panelists, which included well-known and respected representatives of both labor and management, and from both the public and private sectors. This cross-section of participation provided a full range of viewpoints and ideas that is often unprecedented in discourse on hot-button political questions. At the same time, however, and equally rare, all participants and audience members were respectful of one another and their differing perspectives.
Even more surprising to me, however, was that some clear points of consensus did emerge over the day, as I will discuss below.
I. Lessons from History--Where have we been? What went well and what did not go so well?
In this first panel, labor attorney Tom Griego, management representative Robert "Bob" Brown, and I reviewed lessons from history of public sector collective bargaining in New Mexico.
Tom Griego provided a fairly extensive history of collective bargaining in New Mexico, as stated in the Public Employee Labor Relations Board (PELRB) Practice Manual that I authored while with the Public Employee Labor Relations Board. He also opined that merit systems protection laws cannot be effectively enforced without collective bargaining, but I was not clear on his reasoning why that is so. Finally, he asserted that collective bargaining is not an "assault on the rights of government," on on public budgets.
Bob Brown, who is the Vice-President for Administrative Services at CNM and also a private management consultant, added a more "boots on the ground" view of a practitioner who had engaged in public sector collective bargaining in both Illinois (for labor) and New Mexico (for management). While Bob is quite clear and unapologetic as to where his sympathies now lie, he was equally frank that in many ways collective bargaining has gone best in New Mexico when a PEBA was in effect. Additionally, although he believes PEBA II is more union/employee friendly, he does not believe what happened in Wisconsin can happen here. Specifically, he notes the PEBAs were the result of work by a blue ribbon panel of both labor and management representatives. As such, there was buy-in and the law guarantees certain governing body economic prerogatives, such as subordinating contract rights and arbitration awards to the ability to pay and legislative appropriation, and by prohibiting bargaining over pension matters. Additionally, there simply are not the votes in the two-thirds Democratic New Mexico to overturn PEBA.
I discussed what I had seen go well and not so well, while Deputy Director and hearing examiner for the PELRB. I noted that many collective bargaining ordinances and resolutions were enacted and maintained voluntarily, and that many employers have voluntarily recognized bargaining units were appropriate. However, I noted that both sides have displayed poor judgment in picking their battles over the years. I also noted that relations worked best when the parties were consistent in their expectations and treatment of each other--whether soft or heavy handed. I also weighed in on some of the tricky questions facing us in New Mexico due to the existence of local labor boards, such as the weight and binding effect of PELRB precedent on local boards. On this point, I expressed some doubt concerning the PELRB's authority in this regards. Finally, I urged labor and management to consider the discontent of bargaining unit members who cannot realistically decertifiy a massive, sprawling, state-wide bargaining unit under the "merger doctrine."
The panelists also gave their differing views on the applicability of "Weingarten rights," the right to union representation during an investigatory interview, under PEBA. In Pita S. Roybal v. Children, Youth and Families Department, 02-PELRB-2006 (May 12, 2006), the PELRB had previously concluded without discussion that of course the very well established Weingarten rights apply to public sector. Bob pointed out, however, that Weingarten was decided under the National Labor Relations Act's (NLRA) right to engage in concerted action for mutual aid and protection. Nonetheless, he acknowledged that it was generally helpful to both sides to allow union representation during such meetings. Tom, not surprisingly, stated his view that Bob was interpreting PEBA too narrowly. I stated my, and the general office view when I was with the PELRB, that most of the well established NLRA rights would be included in the more general language of PEBA, even if judicially derived from the more specific language of the NLRA, because PEBA like most other state statutes follow the broad strokes, intent and purposes of the NLRA. The exception, I noted, would be if someone made a compelling argument as to why a particular right could or should not appropriately be extended in the public sector, due to differences in the two sectors.
Bob got the last word on us all by noting that the phrase "mutual aid and protection" is only used in one place in PEBA--in the section where it outlaws strikes--and that this signals legislative intent to exclude case law derived from that NRLA provision. This was, frankly, a novel statutory construction argument that has not previously been made before the Board or me, and it will be interesting to see what happens if the issue is revisited. Notably, it may well be revisited some day, as the new PELRB management representative, Wayne Bingham, opined later during the day that Weingarten applies only to the public sector, and only if there is a collective bargaining agreement in place.*
II. Where are we today? What is broken and what is not? What can we learn from Wisconsin?
In the second panel, a diverse group of labor and management representatives discussed their current experiences, and the general consensus was, as Bob indicated, that things are not broken and Wisconsin will not happen here.
Andy Lotrich, staff representative for the New Mexico Federation of Teachers, discussed his recent experiences with the Gadsden Independent School District and Gallup. When I was with the PELRB, Gadsden and Gallup-McKinley Schools were, frankly, two of our "problem children," at least in the early years. These locations seemed to suffer constant and bitter relations between labor and management. However, things have turned around in the intervening years, and the quality of education and student success rates are also improving.
One factor in improved education appears to be making reductions in force or "RIF" decisions based on value added rather than seniority. Surprising to me, the idea and impetus for this change came from AFT, in sharp contrast to a recent survey concluding collective bargaining has caused a decline in student achievement in New Mexico. See Benjamin A. Lindy, The Impact of Teacher Collective Bargaining Laws on Student Achievement: Evidence from a New Mexico Natural Experiment, 120 Yale L.J. 1130 (March, 2011).
Ultimately Andy concluded collective bargaining saves money by providing an effective grievance system, and by helping to get parents involved in the education system, such as through AFT's Early Education and other advocacy programs. Unions are also a good source of ideas on how to cut costs, and he gave the example of one charter school where bargaining unit members voluntarily took a pay cut to avoid the layoff of two other members.
Fred Mower, a private attorney with Sanchez, Mowrer, Desiderio, P.C. who represents the Fraternal Order of Police, spoke eloquently about the valuable brake or check unions can provide on unjustified terminations, and the ensuing damage to individual lives, especially in the law enforcement sector. He also spoke compellingly of the political pendulum, and how the union played such a tremendously valuable role in the first half of the 20th Century, but may have been the victim of its own success such that organized sectors are no longer competitive. But, as Fred pointed out, we are now in a position to see that pendulum swing back and, while that is generally a good thing, we should all be mindful not to permit it to swing in too extreme a trajectory, and we should continue to honor existing contracts.
Fred also emphasized the valuable source for input that unions represent in cutting costs and meeting economic challenges. And, he added, they have an incentive to do so because they want to protect the gains they have achieved.
Finally, Fred concluded by urging both sides to keep labor attorneys out of negotiations! As he pointed out, it only makes the process unnecessarily antagonistic and adversarial at that stage, and usually prevents coming to any agreement. he suggested only labor and management sit and the table to come to an agreement on the issues, then have their respective attorneys clean up the language if necessary. Having heard a number of bad faith bargaining complaints over the years, I can certainly vouch for the wisdom in these words, but do note that oftentimes one party gets an attorney because they feel they were "completely raped" during the last go round. So, I might also add, don't run up the points for your side if you're already doing well in bargaining so far!
Dina Holcomb, private attorney and President of Management Associates, Inc., focused on the question "Where do we go from here?" She marveled over how difficult negotiations have often been in the past two years, when she thought everyone should understand just how bad the economy and public budgets were. But, she conceded that she did understand when one of her labor counterparts finally explained to her the union just could not "sell" a package to their members that did not include any wage increases, or maybe even called for wage reductions. (The panel was not asked whether part of the union negotiator's and/or Executive Board's function should be explaining economic necessity to their membership.)
Dina also cleared up a common misunderstanding about apparent arbitration shifts in management negotiation strategies. She pointed out that "management" is made up of both the managerial staff and elected officials, and the latter are often under intense political pressure concerning subjects of bargaining. Accordingly, they sometimes change their perspective, and direct the manager to change the goal, in mid-negotiations.
Dina did agree with Fred that contracts should be honored, but she did not explain her position as to the recently amended contracts for the City, which Management Associates now represents in collective bargaining.
Wayne Bingham, a private attorney with Bingham, Hurst & Apodaca who represents private sector management, gave an insightful comparison with private sector construction industry. That industry is only about 8 % unionized, and he estimates the rest of private sector is about 2-3% unionized, and the public sector about 50% unionized.** He noted that the private sector construction (one of the hardest hit sectors of the economy it should be noted) have simply rolled over their contracts for the last several years, without any wage increase. And, notably, the bargaining sessions have been few and very brief, because both sides do "get it."
Wayne also compared the various state and local labor boards, identifying the Albuquerque-Bernalillo County Water Utility Authority (ABCWUA) and Rio Rancho School labor boards as some of the most successful, because they meet as needed and issue prompt written decisions. (Having reviewed and digested all the local labor board decisions produced upon IPRA request, I would say that the ABCWUA decisions, like those of most local boards, are rather unhelpful to practitioners because "thin" on facts or analysis.).
Not surprisingly, he identified the State and Albuquerque boards as being highly dysfunctional and non-functioning, as I have noted in other blogs. See e.g., NM PELRB and Public Sector Collective Bargaining in Review -- 2010 and NM PELRB Reinstated.
Joseph Escobedo, Chief of Staff for the Albuquerque Public Schools (APS), focused his comments on APS's and the teacher and education unions' use of the "living contract" concept, in which labor and management meet every two weeks, whether or not there is anything specific to discuss. (Later, we learned from David with the FMCS, that the "living contract" concept came from Walter Reuther with the United Auto Workers Union in the 1940s.)
These regular meetings have multiple purposes, the biggest of which are frequent opportunities for relationship building, and providing a regular forum for when unexpected problems do crop up.
Joe could not emphasize enough that in his opinion, the most important lesson for labor and management to jointly take away was "communicate, communicate, communicate," and he gave several examples of small miscommunications snowballing and risking damage to the relationship. He too, like Fred and Andy, also emphasized the value of seeking input from the union as to how to lower costs, etc.
Finally, Carter Bundy, the Legislative Director for AFSCME Council 18, discussed the value of collective bargaining in New Mexico. Specifically, the Union acts as a gate keeper for many frivolous grievances, and the Union also ensures consistency in the promulgation and enforcement of work rules, and that management "makes its case" in seeking to discipline employees. He also emphasized the value of labor-management relations committees. Carter also noted that New Mexico, unlike Wisconsin, has a relatively solvent pension fund and has taken active steps to adequately fund it. Finally, he challenged claims by Paul Gessing with the Rio Grande Foundation that public sector employees enjoy greater compensation than their private sector counterparts, arguing that with benefits they still make 5-10% less than in the private sector. He also acknowledged, however, that there's considerable more job security in the public sector.
Having observed considerable tension over the years concerning labor's desire to have a say in policy decisions, I asked the panel if there was a point at which union would require that and/or management simply did not allow it, as to policy issues that are beyond immediate terms and conditions of employment. Andy Lotrich responded that it was usually a case-by-case issue, and depended in large part on how worked up the community and parents were about the issue. Joe Escobedo said the APS generally permits and welcomes any input but also emphasizing that management has the final say on these types of matters.
III. The Future of Interest Based Bargaining in New Mexico -- an FMCS Perspective
David Martinez with the Federal Mediation Conciliation Service (FMCS) gave, as he always does, a lively and interesting presentation on Interest Based Bargaining (IBB), both generally there has and in New Mexico in particular. In his 38 years*** of labor relations experience that has spanned nations, David has seen a lot of expertise and savvy yet he claims nothing to rival that in New Mexico. That's likely a bit of hyperbole, but sure nice to hear anyway, David!
As a brief summary, IBB is distinguished from traditional positional bargaining in that it seeks to "expand the pie" by moving parties off their positions and to instead address issues, which are often not in conflict and can be mutually accommodated. Some of the hallmarks of IBB are the requirement of advance training in IBB principles and methods; formulation of ground rules by consensus; open brainstorming without judgment or comment, to identify all the possible interests and needs of the parties, and possible solutions; creation of consensus at all other decision-making stages, such as identifying interests and solutions to be negotiated, and reaching actual agreements; and eschewing compromise entirely in favor of such consensus.****
David also had a couple of labor and management representatives give their perspective on how IBB works, Nancy Sheehan, the Northwest UniServ Consultant for NEA-NM; Rick Edwards, lead negotiator for Central Consolidated Schools; and Sandy Martinez, Director of the Labor Relations Bureau of the State Personnel Office.
Sandy Martinez***** gave a particularly helpful description of her recent observation of the IBB negotiations between the American Federation of Government Employees (AFGE) and the United States Air Force Materiel Command. By all accounts, the parties had been completely stymied by traditional negotiations and, although IBB negotiations were grueling, they did the trick in far less time the failed traditional negotiations.
In general, the representatives all prefer IBB to traditional positional bargaining, as increasing morale, decreasing turnover, and enabling the parties to think of innovative non-economic incentives and provisions. However, they agreed IBB has certain limitation. It can take a very long time if not well-facilitated; it does require a trained and non-partisan facilitator to "crack the whip" on the parties; and it cannot occur if the parties don't exercise some initial trust and open minds. Also one observer pointed out that IBB practitioner Roger Fisher himself has conceded that no matter how you expand the pie, at some point it must be divided, and at that point the parties tend to move back to traditional bargaining. In particular, while IBB is very helpful for non-economic articles, it is not so helpful when final dollars have to be agreed upon. But, as the same observer also noted, by that point the parties have developed a considerable amount of trust and respect for each other through the IBB process, so even traditional bargaining is made easier and more effective.
David Martinez closed this section by noting that when advocates are negotiating "at their best," they are inevitably engaged in IBB methods.
IV. Summary
Julian Sanchez, former director of Labor Relations for Sandia National Laboratories, and a member of the Albuquerque Personnel Board, provided a helpful wrap up and summary of the presentations. He applauded the participants and audience for their respectful comments, and identified the following lessons from the presentations:
1. work on consistency and relationship building;
2. try to remain focused on the big issues, not the picayune ones;
3. communicate, communicate, communicate;
4. be prepared to compromise (Me: and also to build consensus);
5. do not invite the lawyers to negotiations (Me: or at least avoid it, if possible);
6. recognize that some agreements cannot be sold to the respective constituents; and
7. New Mexico's situation is very different from that of Wisconsin, and we are not likely to see the same or similar upheaval.
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.
NOTES:
* The PELRB, through Director Juan Montoya, has previously concluded the same as to the latter point. See Casey Conrad v. San Juan County, PELRB Case No. 102-10, Hearing Examiner Report (Feb. 16, 2010).
** Although I compile and maintain statistics showing the number of employees in certified bargaining units, I cannot extrapolate unionization rates from them because I do not have data on the total number of public employees in a given body. However, that would make for a very interesting IPRA project some day.
*** 23 years with the United Farm Workers, and 15 with FMCS, 7 of which have been spent in the Region including New Mexico.
**** See, e.g., Cohen (1982); Stiebel, (1990); Fisher, Ury & Patton (1991); Ury (1991).
***** Sandy is a pretty interesting case study herself: while a member of management, being employed by SPO and regularly advocating for the State's interpretation of the contracts, she also regularly assists David with IBB training and has apparently trained with William Ury while with SPO. In some ways this must be very difficult, in light of the common wisdom that we cannot generally wear two hats or serve two masters (management advocate and neutral) effectively. However, if she ever decides to leave her role as an advocate for management, I imagine she'll have quite a successful career as a neutral.
