Public Sector Woes Part III: Public Sector CBAs & Unilateral Change

As readers may know, I have been doing a series of reviews/commentaries based on the Winter 2012 ABQ Journal of Labor & Employment Law, which is largely devoted to the recent travails of public sector collective bargaining.  One article, by Stephen F. Befort, asks why is unilateral change somehow more acceptable or possible in the public sector.   

Public Sector Woes Part II -- Compensation, Pension Etc. Analyzed

In my last blog, I wrote generally about the "upheaval" or "cross roads" that public sector collective bargaining finds itself in today.  See also Unions’ Role in “the New Normal”.  This second blog looks specifically at issues of public sector compensation and reform, particularly pension reform of which I've also written before.   See  Public Sector Pensions -- The Times They are a-Changin'. 

Such reforms range from attempts to limit the scope of public bargaining as it relates to compensation; the move from defined contribution (DC) to defined benefit (DB)

Public Sector Collective Bargaining Woes

In December 2010, I blogged about the travails facing public sector pension funds, and in March 2011 I wrote a bit about the general "upheaval" in public sector collective bargaining.  See Public Sector Pensions -- The Times They are a-Changin' and Unions’ Role in “the New Normal”.  Both of these subjects have now captured the interest of a number of commentators and my next couple of blogs will analyze some recent articles.  This first blog in the series looks at the general climate change and "upheaval," and the idea that public sector labor is at a "crossroads." Review of three articles articles in particular, which represent more moderate, liberal, and conservative views of the issue, are a helpful orientation.

NM Workers Comp Tidbits

As a labor/employment mediator, arbitrator and ALJ, I strive to keep abreast of--and inform my readers of noteworthy labor and employment cases.  Although the Workers Comp Administration in New Mexico maintains its own stable of mediators and ALJs, I like to keep up with this area of law also, mostly because the issues that arise are so darn interesting.  Two recent cases highlight that.

Albuquerque's Labor Ordinance Still Grandfathered

This year, the State Supreme Court struck a highly symbolic blow for the continuing efficacy of grandfathered local labor boards.  Back in 2010, the Court of Appeals had reversed then-District Court Judge Bill Lang, and upheld PELRB Director Juan Montoya, in determining that the interim appointment provision of City of Albuquerque's local labor relations ordinance was not entitled to grandfathered status. 

NM Probationary Employees Protected by Human Rights Act

In a case of first impression, the New Mexico Court of Appeals has held that State employees on probationary status may still assert a claim of sex or race discrimination under the New Mexico Human Rights Act (HRA).  See Rodriguez v. NM Workforce Solutions, 2012-NMCA-059.

Exhaustion of Remedies & Employment Handbooks

This summer, in Lucero v. Board of Regents of the Univ. of New Mexico, NMHSC, 2012-NMCA-055 (cert. den.), the Court of Appeals concluded that an employee alleging breach of an employee handbook must exhaust the grievance process outlined in that handbook.

Dukes & the Propensity to Stereotype

Is the propensity to stereotype inadmissible character evidence?  That is what King and Amin answer in the affirmative in the Fall 2011 issue of the ABA Journal of Labor and Employment Law.  See Vol. 27, No. 1.

Employment discrimination claims based on pattern and practice evidence are common and can be successful, but courts require more than just a bare allegation of patter and practice of misconduct.  Increasingly, plaintiffs are turning to social science experts to meet this burden.  Such experts rely on "social framework evidence" to show that "seemingly distinct and independent employment decisions emanate from a company-wide culture of discrimination."   This was the argument made in last years Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2547-48 (2011).  

King and Amin summarize the Dukes theory as follows:

"(1) dominant social grounds have an automatic tendency to invoke negative stereotypes in judging minorities, which operate at an unconscious level, (2) because management of most corporations is populated by members of the dominant social group, stereotyped decisionmaking pervades these corporations; (3) these unconscious stereotypes will infuse the culture of a company and lead to stereotyped decisions, unless particular safeguards are in place to prevent this otherwise inevitable occurrence; and (4) whether the corporate culture is permeated by stereotypical decisionmaking therefore can be assessed by gauging the strength and effectiveness of a company's policies and practices aimed at curbing stereotypical decisionmaking."

Obviously there are a lot of generalities and untestable assumptions built into that windy standard.  Accordingly, it was soundly disparaged by the Supreme Court in the Dukes case as being "too general to be probative."  The social framework fails to persuade, in particular, because it cannot "predict or measure the extent to which stereotyping is responsible for any of the decisions within any particular workplace.

After the Court's rejection of social framework evidence, the authors posit that the plaintiff bar may turn instead to to "implicit bias research" to show discrimination, in the future.  Implicit bias theory states that "individuals are animated by prejudices of which they themselves are unaware," and these subconscious prejudices can be measured through physiological and behavioral measures that better rely on unconscious responses than the traditional questionnaire.  

Physiological and behavioral measurements can be extraordinarily revealing.  However, they have been found to constitute impermissible character evidence.  This raises the question of  whether evidence of actual bias could be introduced.  However, only one court has ordered a defendant to submit to such testing.  Palgut v. City of Colorado Sprigs, (D. Colo. July 3, 2008).  Besides the invasion of privacy issues, the tests may well be measuring a state of mind in existence months or years after the events in controversy. 

An additional question raised is whether the use of such evidence would be permissible to demonstrate a corporation's character.  However, the authors note such use would likely be impermissible under Rule 404.  Although corporations are "persons" for some purposes but not others, some commentators argue that Rule 404 is irrelevant to them because they do not have "character."  In this particular instance, however, it would be evidence of the propensity of individuals making up the corporation.  "Indeed, it is the failure of the corporation to develop an independent culture, free of the natural biases that characterize its employees, the permits these experts to label the corporate culture as discriminatory."  Id.  Accordingly, Rule 404 should operate to exclude evidence of individual employee's propensity.

It is an amazing age we are living in, when social sciences can teach us much about ourselves and our institutions.  However, it is still a relief to me that much of the fruit of these soft and subjective sciences is excluded from evidence as prejudicial and unreliable. Otherwise, we could find ourselves living out The Minority Report....

If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.

Pilar Vaile

Pilar Vaile, P.C.          

Albuquerque, NM

FLSA--What is Compensable Work??

As labor/employment practitioners know, the Fair Labor Standards Act, governing the payment of minimum wages and overtime, is silent as to the definition of "work."  In the Spring 2011 issue of the ABA Journal of Labor and Employment Law, Richard Alfred and Jessica Schauer argue that recent case law and a Department of Labor (DOL) Administrator's Interpretation has potentially opened the floodgate for claims regarding de minimus but arguably "integral and indispensible" activities, such as checking or sending emails, prior to the start of  the workday.  See  Alfred and Schauer,

Bargaining with Minority Unions

In the Fall 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 27 No. 1, authors Catherine Fisk and Xenia Tashlitsky urge us to "Imagine a World Where Employers are Required to Bargain with Minority Unions." The authors observe that while case law says it cant be done, that is not an inevitable conclusion based on statutory language.  They also see many potential benefits in such a requirement.

Workplace Concerns Arise Even in Rarified Quarters

In 2009, Model Sara Ziff issued a documentary, Picture Me, which was five years in the making.  In it, Ziff covertly captured the seedy side of the fashion modeling industry, where young girls are often required to work incredibly long hours, denied or mislead about compensation, and are routinely subject to sexual harassment and even assault.  In 2012, Ziff has launched the Model Alliance, in conjunction with the Fordham University’s Fashion Law Institute.  The Alliance is “an advocacy group aimed at improving

Survey of NLRB Shifts Analyzed and Found Wanting

In 2010, I wrote about a survey of changes to NLRB precedent, written by G. Roger King and publishes in the Fall 2010 issue of the ABA Journal of Labor and Employment law. Mr. King's analysis revealed that over a comparable course of years (5-7), the Clinton Board reversed 1,181 years of prior precedent while the Bush II Board issued reversed only 295 years of precedent.  Additionally, King noted that "the federal circuit court affirmance rate of the Bush II Board decisions was either equal to or greater than the circuit court affirmance rate of the Clinton Board."  Specifically, Clinton decisions were enforced in full 66.8% of the time, and in part 81.5% of the time.  In contrast, Bush II decisions were enforced in full 77.9% of the time and in part 87.9% of the time.   

In the Vol. 26, No. 3 of the Journal, Associate General Counsel of the AFL-CIO, Bill Lurye, reviews King's data and the decisions, and concludes they were "prove[d] susceptible to interpretation and vulnerable to manipulation."  Lurye also advises that "a mathematical

Mediating Workplace Bullying Claims

As I have previously written, bullying is a hot topic today.   Cleaning House and Cleaning Up Our Acts - Anti-Bullying Legislation, and Bullying Legislation, Revisited.  As such, it is natural for alternative dispute resolution (ADR) practitioners to move into this field.  However, caution should be used in doing so, and practitioners should consider in each case whether mediation is appropriate and, if so, what it should look like.

In the Fall 2011 issue of the ACR Conflict Resolution Quarterly, Vol. 29 No. 1, Moira Jenkins asks Is Mediation Suitable for Complaints of Workplace Bullying? Although she herself does not appear to come to any firm conclusions, the article raises a number of helpful points to be considered by managers and individual ADR practitioners consider the issue.  First, as Ms. Jenkins observes, bullying is often not well defined, and in the workplace bullying may be confused with a number of other activities that are similar but nonetheless distinct. 

Recent Employment Law Decisions--Fees Shifting, Exhaustion and Preclusion

My arbitration, mediation and ALJ practice is booming these days, as is my guardian ad litem (GAL) practice.  As a result, I am woefully behind on my blogs, with a pile of items to review and write up.  I'm not sure how the really prolific--or even moderately prolific--bloggers do it, once their practice picks up.  In any event, here is a belated summary of recent New Mexico employment law cases.

Dangers of EEOC Class Member Communication

In the Fall 2011 ABA Journal of Labor and Employment Law, Vol. 27, No. 1, Fall 2011, Christopher Lage writes abut Avoiding and Dealing with Unethical Communications with Putative Class Members in Systemic Cases.  The article is timely because there has been a dramatic Increase Equal Employment Opportunity Commission (EEOC) systemic cases since the EEOC launched its 2006 initiative concerning these types of claims.  Although the flow may slow a bit after the Wal-Mart v. Dukes case, at least for very

Major Business Investments & Management Rights

Last year the blogosphere saw much chatter and commentary concerning the proposed opening of a Boeing plant in South Carolina, and the subsequent filing of a National Labor Relations Board (NLRB or Board) charge, congressional hearings, etc.  The Fall 2011 issue of the ABA Journal of Labor and Employment, Vol. 27 No. 1, thoughtfully included testimony of two congressional hearing witnesses.  Although the immediate storm has passed, the parties having settled the charge with the signing of a new collective bargaining agreement, it is an issue that could recur with similar responses, so I’d like to discuss that testimony here.

Employer Polling -- Criteria and Standards

As a neutral third party familiar with collective bargaining matters and representation election procedures, I am periodically contracted to conduct employer pollings, to ascertain whether or not a majority of its employees continue to desire union representation. The first time I was asked to conduct a polling, I was obligated as a neutral to satisfy myself that polling is not illegal or otherwise improper in New Mexico as a general matter.  As is common, there was no New Mexico case law on point.  However, the federal courts and the National Labor Relations Board (NLRB) have reviewed the matter in a number of cases, and I will outline the results of my research here.  

PELRB Watch and Other NM Labor News

Governor Wins Battle on Labor Board Appointment

The most significant recent PELRB-related news, is that the Supreme Court declined to review District Court Judge Nan Nash's decision that Governor Martinez could appoint the so called "labor representative" upon recommendation of any New Mexico labor organization, not just the biggies, AFSCME Council 18 or CWA Local  7076.  See Albuquerque Journal, Gov. Wins Labor Battle, Mar. 14, 2012.

As readers may recall, I had previously been critical of the underlying reasoning in a state Supreme Court ruling that the Governor's removal power is severely limited as to the PELRB.  See AFSCME v. Martinez, 2011-NMSC-018. To me, the decision appeared

Union and Management Reps Slammed in News, and Other NM Labor News

The past week's news was newsworthy in including two stories that raise questions about collective bargaining representatives.  Although the issues were different, the parallel timing was really quite ironic.  There is also interesting but worrisome news concerning the State Labor Board ("PELRB").

On Friday, February 24, 2012, the Albuquerque Journal reported that a newly retired

Workers Comp and Tribal Immunity Revisited--What a Tangled Web

As discussed in a previous blog, in 2010, the New Mexico Court of Appeals concluded that the Workers Compensation Administration does not have jurisdiction where a Worker is injured in the course of employment at a business  wholly owned and operated by a federally recognized Indian tribe, if the Tribe has not expressly waived sovereign immunity.  See Antonio v. Inn of the Mountain Gods Resort and Casino, 2010-NMCA-077, cert. den.  

However, recent cases highlight that there can be quite a bit of parsing between tribal business entities, and as to whether which if any have waived tribal immunity

Public Sector Employee Benefit Obligations Avoided with Chapter 9 Bankruptcy

I have previously written about the threat of unfunded public sector pension obligations.  Since then, several municipalities are reported to be using or contemplating use of Chapter 9 bankruptcy.  See Mark Curriden, "The Next Chapter,"  ABA Journal, Nov. 2011.  In doing so, many of these municipalities cite employee pension and retiree health care obligations as the cause or source of their financial woes.   

An Appropriate Bargaining Unit of Community College Instructors

In a recent case, San Juan College v. San Juan College Labor Management Relations Board, 2011-NMCA-117, the New Mexico Court of Appeals has finally had the opportunity to review what is an "appropriate bargaining unit" under the New Mexico Public Employee Bargaining Act (PEBA)  and the San Juan College Labor Management Relations Resolution (Local Resolution).