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.
Recommendations for Neutral Member
One agenda items was discussion of Member Boyd's and Bingham's recommendations for the neutral member. As pointed out in the recent Supreme Court decision, AFSCME v. Hon. Susana Martinez, the term of Chair Westbrook, the "neutral," expired in June of 2010. The term of Member John Boyd, the Labor Representative, expired in June of 2011l. Thus, both of those issues should be agenda items in the coming weeks/month.
Member John Boyd was not present at the 7/19 meeting, only Chair Duff Westbrook and Member Wayne Bingham, so this item could not be addressed.
Re-hire of Director Montoya
Another agenda items was discussion of the decision to re-hire Juan Montoya as Director in May. On this issue, the Board went into executive session with its Assistant A.G., Andrea Buzzard. Upon their return they determined that the May 2011 hiring of Juan Montoya as Director was "null and void" under PERA, because he had not been out of government employment for 12 months or longer, as I've written previously.
The Board tentatively set a special meeting for 7/26 to address hiring of a new Director, the date and time of 7/26 at 3:00 p.m. was later confirmed by Staff email. It is presumed by the undersigned that the Board will simply re-hire Director Montoya, but perhaps that is not a forgone conclusion.
AFT/CYFD
What a tangled procedural mess this case is. Basically, the Union filed a petition for representation waaaay back when which was subsequently certified by then-Director Montoya, Staff Assistant Carian, and/or later-then Director Gentry, but with different union, employer and bargaining unit members from what was originally petitioned. Oh, and throw in some cross-PPCs for bad faith bargaining. It was on the agenda to hear the Department's motion to disqualify the Director, which had just been made moot.
When the matter, which has been pending for almost a year now, is eventually heard by the Board, the State will seek testimony from Ex-Director Montoya and/or Staff Assistant Carian as to how the new union, employer and bargaining unit descriptions were obtained by PELRB staff to wind up in the Certification. According to the State, these descriptions had previously only been raised by the Union to the State in private negotiations.
Besides the relatively parvenu complaints of bad faith and bad behavior on the part of various folks, the matters raise several special items of interest, from the policy perspective. First, counsel for the State John Kennedy made reference to the fact that at some point then-Director Montoya conducted a card count, concluding that the State does not do elections. Mr. Kennedy seemed to take umbrage at this assumption, but that had been the policy of the State since 2004 when elections first started to be conducted under PEBA II.
If that policy has changed with the new administration, that could signal a significant shift in balance of labor-management relations at the State level. Under the Richardson administration, the State seldom required an election (or even objected to accretion or other representation petitions except as to whether individual positions were covered by PEBA), even when it seemed at first blush that viable arguments might lie. Then, with little or no fan fare, new bargaining unit members would become liable for "fair share" payments and perhaps payroll deductions, and the new bargaining unit or its augmented members would be unobtrusively folded into a larger bargaining unit pursuant to the "merger doctrine."
Notably, none of these are negligible issues. As to accretion petitions, if unchallenged they can lead to "cherry picking," in which unions add to a bargaining unit bit by bit with--to continue the analogy--"low hanging fruit" of positions or personnel whom they know to be favorable towards the union. Besides the fact the the union would be focusing on more "friendly" employees, additions of less than 10% require less scrutiny under PELRB rules and NLRB precedent. Under ordinary labor principles, accretions are strictly limited to prevent such cherry picking, and a union must show there was a substantial change in the work place after initial certification, to explain the belated accretion of these new positions. See PELRB Practice Manual at 80-82,
http://www.pelrb.state.nm.us/pdf/peba/pelrbpracticemanual.pdf (authored by the undersigned while Deputy Director of the PELRB). However, such arguments were not raised--or, when they were raised by experienced and savvy counsel, were subsequently dropped--under the Richardson administration.
Under fair share principles, a portion of dues not attributable to political activity can be assessed against bargaining unit members, even if they are not union members or if they opposed union representation. Interestingly, only the the State, through Richardson, permitted negotiation of the permissive subject of fair share, deduction of which would then be a mandatory subject of bargaining. Compare NMSA 10-74-17(C) (payroll deduction a mandatory subject of bargaining).
Finally, under the merger doctrine, all separately certified bargaining units become "merged" into a single unit if addressed under a single collective bargaining agreement, as is the practice. Thus, while a relatively small group of State employees in a single Agency or work locus can petition to be represented by a union, only a much larger and dispersed group of State employees can hope to petition for that union's decertification if the relationship turned sour, or if the employees did not otherwise tend to feel the relationship benefited them.
The second issue of special interest raised by the AFT/CYFD complaint is the issue of Staff testimony. The AFT representative, Andy Lotrich, touched briefly on the fact that under PELRB regulations PELRB staff cannot be compelled to testify. See NMAC 11.21.1.25 ( agents of the board, including the director, investigators, hearing examiner, board members and contractors, may not be compelled to testify in board proceedings). This rule may comport with general principles of judicial and quasi-judicial immunity. However, if a party is alleging a Certification or other action was improper because based on ex-parte communications, or some such, how could the party hope to prove those allegations except by calling staff to testify? What other recourse would the party have? There may be comparable case law in the judicial context that would answer these questions, and it will be interesting to see how this issue develops.
United Mineworkers and Gallup
These poor folks are probably on their 3rd or 4th scheduled election which, after the alleged expenditure of thousands of dollars and Lord knows how many organization man-hours, can never quite seem to go forward due to irregularities in Board meetings or change of Board personnel. Now, the election, to be conducted by the Director, is scheduled for 2 days after the Board declared the Director's recent re-hire to be null and void.... Ouch. The Union is very frustrated, and with good reason.
It was suggested by the undersigned that an emergency meeting with only 24 hours notice could be held by the Board, under the Open Meetings Act (OMA), to delegate election supervision responsibilities, but the A.G. and counsel for the City disagreed that this would constitute an emergency under the OMA, and there was some confusion as to whether or not elections could only be conducted by the Director, as stated in the Rules. Ex-Director Montoya suggested the contracting of an election supervisor could be treated as a simple service contract that any Staff could approve, but the Staff Assistant Bernadette Carian expressed doubt and said she would not sign to authorize such a contract, if she did not know it would be okay under public purchasing statutes and regulations. Member Westbrook then offered to sign any such contract, but my unspoken concern was that it could well create the issue of Board action without either a quorum OR notice.
It was ultimately left to the parties to try to find and stipulate to someone mutually agreeable who would agree to supervise the election on the 21st. I suppose Member Westbrook and Staff will then arm wrestle to see who will be responsible for signing the voucher of payment. Or, maybe the resolution was more definitive than that--I'll check back after I get a copy of the minutes. Although with canceling various hearings scheduled before Ex-Director Montoya, and setting up a special meeting on July 26, Staff member Bernadette Carian will likely be busy, so there may be a delay on the minutes.
Finally, of course, all of this just further confounds State Personnel Office's prior complaints that, although the PELRB is complying with the OMA, it is nonetheless violating its own statute, NMSA 10-7E-12(D), which requires 30 days notice of all meetings and is silent as to special and/or emergency meetings.
Ironically, before being laid off as Deputy Director of the PELRB in 2010, I had been in the process of drafting amendments to the admittedly ambiguous and inconsistent PELRB rules, to address issues such as delegation of duties, and notice of meetings, among other things.
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.
