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.
Under the provision, the City Council President is to appoint an interim member "with due regard to the representative character of the [Local] Board." The provision came before the State Board (the PELRB) when the "neutral" member of the City Board recused himself. The Court of Appeals noted PEBA requires a local board to be balanced and neutral, and reasoned that "the president's effort to incorporate neutrality in an often highly polarized environment is not sufficient to uphold the integrity of the essential process." It concluded that the interim appointment provision "effectively remove[d] from an employee the 'bargaining' aspect of collective bargaining when it establishes a process whereby two-thirds of a local board could be comprised of appointees pursuant to management recommendations."
The Supreme Court rejected this reasoning on two fronts, and concluded that the provision does not contradict PEBA's definition of collective bargaining. First, it rejected the Court of Appeal's characterization of the City Counsel President as "managerial personnel." The City Counsel is "the legislative body of the city," while the Mayor is "the elected officer of the city who exercises administrative control and supervision over the city and hires or appoints directors of all city departments," and who is charged with appointing one member to the Local Board. The City Charter also specifies the City Counsel "shall not perform any executive functions" except as assigned by the Charter. Id. ¶¶ 17-19.
Second, the Court rejected the Court of Appeal's assumption that the President would be unable to make the appointment "with due regard to the representative character of the [Local] Board" due to the "highly polarized environment" of a labor-management dispute. "This assumption ... is contrary to our case law that 'a public official is presumed to properly perform his or her duty." Id. ¶ 20, citing Ruiz v. Vigil-Giron, 2008-NMSC-063.
I think this decision, frankly, could have gone either way and the only thing that gives me pause is the acknowledgement in one of the final paragraphs that the local ordinance defines collective bargaining as "a procedure whereby representatives of the city government and an employee organization meet, confer" etc, while PEBA defines it as "the act of negotiating between a public employer and an exclusive representative..." Here, the City Counsel President is pretty clearly a "representative of City Government," even if not a member of the executive branch. Moreover, to the extent he or she is engaging in collective bargaining and/or appointing labor board members, it can as easily be said they are violating the Charter prohibition on performing executive functions than that they are not performing executive functions because the Charter forbids it. In other words, the decision reads well enough but holes can be poked in it, just as it pokes holes in the Court of Appeals decision.
Ultimately the matter is now settled, and since the City's interim appointment provision is unique this exact issue will not arise again. Further, even though largely symbolic because the application is so narrow, the Court's decisive tone in supporting a grandfathered ordinance should stand in stark opposition to inchoate tendencies or desires to undermine or challenge grandfathered local boards. For example, I've previously written
about a series of PERLB decisions in which Director Tom Griegos "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." To the extent that conclusion by the Board was intentional or strategic, and not simply the result of sloppy analysis, City of Albuquerque should slow such a tendency down.
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.
