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
CNM Vice President over "administrative services," including human resources, and labor and employment relations, was immediately awarded a short term, and later a longer term contract, as a labor consultant. This representative, Bob Brown, is well known in labor circles. As a strong and successful management advocate, the union at CNM had no doubt looked forward to his departure, and are by all accounts rather miffed that he is still around.
Union representative Andy Tibble credited Mr. Brown with a "yearslong impasse," and stated, "People on the faculty hoped with Bob Brown retired, we would be able to get something done." Imagine his surprise that Mr. Brown is still a force to be reckoned with: "I'll call people in human resources and they cant give me things until they've checked with Bob ... To me that means he's essentially still running that Department." Mr. Brown himself characterized the relationship as contentious but professional. (It recalled to me a transcript I had read of a prior CNM Labor Board hearing in which the Union representative described him as deceptively charming and ultimately implacable, to paraphrase.)
The Educational Retirement Board (ERB) had previously concluded upon reconsideration, however, "[t]he description of the services that he would provide ... were much narrower" than in the first submission or his prior job. Mr. Brown himself explained that "labor relations was 'a very small piece' of what he did for CNM as Vice President and that his new role is different." He also added that "[w]orking for CNM is only one of many contracts he has with other clients."
Then, today, the Journal reported that Albuquerque Attorney Fred Mowrer, who represents the Fraternal Order of Police, had recently warned the Union executive board that the use of $259,000 in dues over the past two years for "administrative and union work" is draining the union's coffers and "could endanger the ability to pay for litigation in State District Court against the City..." From this sum, two Albuquerque Police Officers and police union representatives, President Joey Sigala and Vice President Felipe Garcia, receive union stipends that amount to an additional 50% and 37%, respectively, over their regular City salary of $52,374.
Dues had apparently been raised in early 2010 from $17.00/month to $27.00/month in early 2010, and for "contract negotiations to get [the Union] message out there." The Journal also reports that President Sigala himself is unassigned so his City salary funds only union related activities which, as the article discusses quite well, has been a hotly contested issue with the City. President Sigala objected to Mr. Mowrer's email to the extent its suggested his and Vice President Garica's stipends constituted the entire $259,000.
Finally, there's news on the State PELRB front. Although I haven't quantified the results, I've concluded a file audit and it looks like the new Director, Tom Griego, has been quite busy. Many recommended decisions have been issued, and many have gone up on appeal to the PELRB and to District Court. Regrettably, rumor has it there are some procedural concerns, such as the Director actively investigating the facts underlying matters he intends to later hear; the mysterious appearance of evidence into the record concerning Director Griego's past client(s) that was not formally introduced by either party; and the Director hearing and deciding motions to have him recused, in violation of PELRB rules.
I say regrettably because, although no one knows at this point if they are true, the allegations are quite serious and could bring into question the integrity of Director Griego as a hearing examiner, and the PELRB as a neutral adjudicative body. See Model Code of Judicial Conduct for State Administrative Law Judges, Canons 1 and 2 (A State Administrative Law Judge Shall Uphold the Integrity and Independence of the Administrative Judiciary, and A State Administrative Law Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities).
The issue of not applying PELRB rules is troubling in so far as that is a fundamental job requirement of a Board Agent to apply the governing statute and regulations. I myself was never fond of the rule requiring the Board to rule on motions to disqualify, and had at my separation intended to propose a rule change permitting the hearing examiner to make that initial determination, as judges do. In my experience, the rule as written was frequently used in a baseless fashion to delay proceedings. However, the only way to get around the rule is to have it duly amended upon notice and publication, not to unilaterally fail to apply it.
The more alarming questions concern bias or appearance of bias. PELRB rules do provide for investigation of PPCs. However, it does not state how it is to be done and, obviously, hearing examiners cannot privately investigate matters pending before them. This would constitute ex party contact and would likely result in the eventual consideration of evidence obtained ex parte, which in turn raises serious due process considerations related to the right to an impartial decision maker. It is for precisely this reason that Boards such as the NLRB and the state Disciplinary Board have separate investigatory and adjudicator wings, with a Chines Wall between them.
Also alarming is the allegation (I understand a motion has been filed on the issue) that evidence obtained ex parte may have been surreptitiously added to a record ex parte by PELRB staff. This would be highly inappropriate in any case, but special concern exists due to circumstances: the hearing examine had previously represented the party on whose behalf the evidence has allegedly, mysteriously appeared.
Whether true or not, none of this bodes well for public perceptions as to the integrity of the office and agency. It may be in relation to these issues that the PELRB is hosting a lunchtime "Procedural Discussion" on March 29, 2012 (with lunch provided gratis). Unfortunately, if so, that may not be such a good idea either. My understanding is that some or all of these are currently litigated issues. As such, they should probably not be aired by Agency agents outside of a formal and duly noticed public hearing.
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
