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.   

CBA Arbitration Clauses & Other Statutory Rights

I do not know what the practice is in other jurisdictions, but collective bargaining agreements (CBAs) in the New Mexico public sector typically include a clause prohibiting all kinds of statutorily illegal discrimination, not just that related to collective bargaining.  In these same contracts, there are also mandatory grievance-arbitration requirements that purportedly apply to all provisions except those that are expressly exempted.  Moreover, although these contracts frequently state that claims for discrimination or retaliation based on union activity may be brought before the state labor board, the New Mexico Public Employee Labor Relations Board (PELRB), there is no such carve out or proviso concerning other statutory discrimination claims.

While a hearing examiner with the PELRB I had previously wondered, privately, if such clauses could be read together to require employees to assert these claims through arbitration.  I had, frankly, tended to assume such a thing could not be a good thing.   However, Hoyt N. Wheeler has written a provocative, pause-giving little article in the LERA publication, Perspectives on Work, Vol. 14*, Summer 2010/Winter 2011, about the possible positive outcomes such arbitration.  See “Unions and the Arbitration of Statutory Rights,” Perspectives at 26-28. 

Public Sector Set Backs--or Claw Backs?

Earlier this month, I reported on 2d Judicial District Judge Huling's ruling that the City of Albuquerque could scale back wages for the AFSCME bargaining unit, while negotiations for a successor contract was pending.  

Well, the beat goes on.  On February 2, the Albuquerque Journal reported that Second Judicial District Court Judge Nan Nash has ruled that the City was not required to implement negotiated annual pay increases for City firefighters, based on financial difficulties.  See Dan McKay, "Judge Dismisses Firefighters' Lawsuit."  

Bateman Act’s Preemption over PEBA in Tough Economic Times

In November, Judge Valerie Huling with the Second Judicial District in New Mexico ruled that “the city of Albuquerque can reduce the wages of its AFSCME union workers if there isn't enough money appropriated to pay them,” under the Bateman Act.  See Dan McKay, “Court: City Can Cut Union Pay,” Albuquerque Journal (Nov. 12, 2010).