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).
The Union had petitioned to represent full-time faculty on nine-month contracts, and the College sought to include all full-time faculty on nine- and ten-month contracts, as well as full-time instructional professionals with 100%, 80%, 60% and 50% instructional duties.
The Court correctly noted that PEBA and the Local Resolution (or labor law generally, for that matter) do not require identification of "the most appropriate bargaining unit." Cmty. Hosps. of Cent. Cal. v. NLRB, 335 F.3d 1079, 1084 (D.C. Cir. 2003) (emphasis omitted). Rather, labor law recognizes "more than one appropriate collective bargaining unit logically can be defined in any particular factual setting," Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000), and the burden is on the employer to show that employees excluded from the petitioned for unit share an "overwhelming community of interest with the included employees[.]" Blue Man Vegas, 529 F.3d 417, 421 (D.C. Cir. 2008).
Here, the San Juan Labor Management Relations Board (Local Board) had concluded--and the Court agreed--that full-time faculty on ten-month contracts, and full-time instructional staff with 100% instructional duties do share such an "overwhelming community of interest with the petitioned-for full-time faculty on nine-month contracts. Specifically, they have "substantially identical jobs as full-time faculty who are also contracted as full-time instructors," so "[t]he logic of combining these groups is apparent and substantially supported by the evidence." Id., para. 9.
In contrast, the Court concluded the other full-time instructional staff, with less than 100% instructional duties, lack such an overwhelming community of interest. These instructors have administrative duties that the full-time faculty and 100% instructional staff do not share, and receive a pay component related to those administrative duties. These less than 100% instructors also: have a different method of bringing grievances about the contracts to the College; are subject to different sick leave and annual leave accrual; use a different handbook from faculty; and do not have contractual rights related to academic expression, like that of faculty. Additionally, they are subject to two lines of supervision, one for each role, instructional and administrative.
Although the less than 100% instructors share almost all of these attributes with the 100% instructional staff, the latter's differences are outweighed by the otherwise substantially identical job they share with full-time instructional faculty.
The Court noted that it was not called upon to evaluate the correctness of the School's position, including its argument that it sought a comprehensive bargaining unit to prevent the creation of division in the faculty community at the College. Rather, it was required to afford deference to the Local Board's determination, and utilize a substantial evidence standard of review that does not substitute its judgement for that of the Board.
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.
