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
over broad, ill reasoned and results oriented. Others also read it broadly, apparently. When the Governor subsequently replaced Member John Boyd with Roger "Bart" Bartosiewicz, another member was heard to remark that the courts would surely overturn that in light of the Supreme Court's decision in AFSCME v. Martinez.
over broad, ill reasoned and results oriented. Others also read it broadly, apparently. When the Governor subsequently replaced Member John Boyd with Roger "Bart" Bartosiewicz, another member was heard to remark that the courts would surely overturn that in light of the Supreme Court's decision in AFSCME v. Martinez.
Obviously this was a patently silly statement since the cases involved two different fact patters and issues. As I've written elsewhere, the Public Employee Bargaining Act (PEBA) says nothing about any union having a controlling voice in the appointment of the "labor representative." (I use quotes because although popular, the term is loathsome to me, since it connotes bias.) However, this board member's cheerful sentiment ironically reflected my own fears about the largely Democratic and frequently proactive New Mexico judiciary.
Thus, I was relieved and heartened by Judge Nash's sensible decision on the appointment of Member Bartosiewicz, but still concerned the Supreme Court would again leap at the opportunity to chastise the Governor, as it had been wont to do in the first year of her administration. Luckily, my fears were misplaced this go-round.
PELRB quickly but dubiously processing matters
I completed a file audit of PELRB matters recently, which illuminated some concerning trends. See Firm's updated PELRB Statistics.
First, the new Director is closing cases rapidly, but all is not rosy. Many are being closed administratively for failure to prosecute under NMAC 11.21.1.29, or for facial inadequacy under NMAC 11.21.3.19(A), or by party stipulation of settlement. I always approve of, and as a hearing examiner judiciously used, administrative closures with proper notice and opportunity to object. An ALJ or hearing examiner should always exercise vigorous control over the docket, as retired Judge James Hall once advised me. As for the settlements: heck, it's been a good year, year and a half since many of these cases were filed, so I should certainly hope the parties would be able to settle some of these.
However, at least some are being closed based on the Director's ex parte investigation. See, e.g., Case 132-11, AFSCME 18 v. Human Services Dept. When questioned, the Director has apparently cited PELRB regulations. Although PELRB rules allow for such a contingency, see NMAC 11.21.3.12(B), they also provide for persons other than the Director to hearing matters. See, e.g., NMAC 21.11.3.14 and 21.11.2.19(B). Moreover, PEBA states any adjudicatory hearings must meet the minimum requirements of due process, see 10-7E-12(B), and we can only presume the PELRB intended the Director to follow due process in applying NMAC 11.21.3.12(B). Notably, as I've written elsewhere, it is basic, black letter judicial/ALJ ethics and due process that a decision maker cannot conduct ex parte investigations.
Second, the PELRB continues to take action in apparent ignorance or disregard of PELRB precedent, rules and procedures.
- In Case 305-11, AFSCME and Moriarty, Member Westbrook approved a voluntary recognition with no indication in the final Order that the alleged majority support was independently verified by the PELRB as required under NMAC 11.21.2.39(A), 11.21.2.11.
- In Case 134-11, CWA v. Public Eduction Dept., the Board tabled a motion to disqualify the Director as hearing examiner until the Director could rule on that motion, in violation of NMAC 11.21.1.14(A), which vests that decision making responsibility in the Board itself.
- In Case 314-10, NMCPSO and Town of Bernalillo, the Director has set the matter for representation election without explanation, although incumbent's are entitled to a card count under PELRB precedent.
- In a series of City of Albuquerque cases discussed further below, the PELRB has summarily affirmed the Director's shocking and unsupported conclusion that grandfathered local boards lose grandfathered status if they do not follow PELRB interpretation of PEBA.
Many appeals are accruing regarding Grandfathered Boards
In an alarming series of identical decisions involving the City of Albuquerque, the Director has concluded and the Board has affirmed that the PELRB can apply case law governing PELRB approved local boards to grandfathered boards, to revoke the latter’s grandfathered status.
In all of these cases, no underlying facts were given, and the Director ultimately concluded there were insufficient facts to conclude the PELRB could or should revoke the local board’s grandfathered status, such as that it was unproductive, being manipulated, non-functioning, or issuing decisions or taking action in violation of PELRB decisions interpreting PEBA. However, the Director went on to state that although there was therefore no jurisdiction to hear the matters, the PELRB nonetheless had jurisdiction to remand the matter to the grandfathered board, rather than dismissing the complaints.
That the matters have been sent back to the local board would ordinarily be a relief, but the dangerous dicta and statement of jurisdiction cannot be prudently ignored by the City. It is presumably for that reason that the City is appealing all of these cases in which it is ostensibly the prevailing party. See AFSCME 18, AFSCME 1888, IAFF Local 244, and Albuquerque POA v. City of Albuquerque, Case Nos. 103-11, 104-11, 105-11, 106-11, 107-11, 108-11, 121-10, 133-11 and 128-10.
Retroactive validation of actions under Open Meetings Act in jeopardy?
Last year, I wrote about the PELRB's mass retroactive validation of actions in 34 different cases taken in violation of the Open Meetings Act (OMA). A recent Court of Appeals decision, Palenick v. City of Rio Rancho, 2012-NMCA-018 calls that practice into questions. In Palenick, the Appeals Court concluded that such an attempt at retroactive "cure" is invalid under the OMA, because in violation of the plain language of the Act, and because to rule otherwise would "remove the incentive to comply with the Act," and "undermine[] the Act and essentially render [it] meaningless." Id.
Certiori has been granted, Case No. 33,380. If the decision stands, the PELRB will likely have a lot of new/old work. However, the decision may well be reversed as impracticable. People in the know say this is a common practice by public bodies throughout New Mexico, and the Supreme Court could conclude such an interpretation is too cumbersome on government, or that it will promote instability by putting too many past actions in jeopardy. If the Supreme Court does reverse the decision, it could conceivably strike a balance by imposing some limitations on the use of retroactive cures, to provide an incentive to get it right the first time.
Other labor news, the good, the bad and the ugly
The bad news is that concerning the Albuquerque Police Officers Association (POA), some of which I've previously written. Since I last wrote, we have learned that the President and Vice-President were receiving--in addition to their regular City salary for union work--much more money from Union dues than originally admitted, and that the President's wife was also on the union payroll. See Albuquerque Journal, Mar. 15, 2012, and Mar. 21, 2012. Moreover, additional public disquiet has resulted from the revelation that the POA has been paying $500.00 to officers suspended with pay as a result of on the job shootings, which some members of the public have decried as a "bounty." See Albuquerque Journal, Mar. 23, 2012, and Mar. 28, 2028. As a result of these scandals, both officers have resigned from the union. See Albuquerque Journal, Mar. 28, 2012.
As for the good news... Well, I cant say that I have seen any recently. These days it seems many public actors are behaving a bit badly--or without regard for public perception at the least. Perhaps it's the culture, or the times. I do hope we grow out of it.
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.
