Two Interesting NM Public Sector Labor Law Updates

State v. AFSCME 18 and CWA, 2012-NMCA-114 (cert. granted)

In the long-awaited --but still not final-- appellate court decision, the New Mexico Court of Appeals upheld an arbitration award concerning the fiscal year 2009 pay rasies for State employees.

As people who follow these issues will recall, the 2005 collective bargaining agreements (CBA) for both AFSCME and CWA employees provided for specific salary increases for three fiscal years, ending in FY2009.  One FY 2009 provision called for a 2% general salary increase effective July 1, 2008 for employees in each Union's bargaining unit, "subject to the Governor's recommendation."  The second FY2009 provision called for a  2% increase effective January 1, 2009 that would be "compa-ratio based within band" and "subject to legislation appropriate."  If either were not implemented because the Legislature failed to approrpiare sufficient funds, the Unions would have the right to reopen bargaining as to general salary and within band salary increases effective for the fiscal year following the year in which the Legislature failed to appropriate sufficient funds.

The FY2009 budget was passed in the midst of an economic meltdown in 2008.  It is undisputed that the Legislature would have needed to appropriate $8 million to cover the negotiated salary increases for AFSCME and CWA bargaining unit mbers, but $15.9 million to cover all eligible classified employees--"both unrepresented workers as well as Union-represented employees."

At that time, the Unions lobbied for raises for their own bargaining unit members pursuant to the CBA.  The State Personnel Office (SPO), however, took the position that it must give raises to all classified employees, not just those covered by CBA. 

Ultimately, the Legislature appropriated $12.8 million for FY2009 "to provide incumbents in agencies governed by the Personnel Act ... with an average salary increase of two and four-tenths percent ... based on employee job performance as determined by the personnel board," effective July 1, 2008.  Not surprising, SPO argued the appropriation was inadequate to provide a 2.4%  salary increase to all employee, while the Unions argued that appropriation was sufficient to fund the negotiated raises to Union bargaining members since the legislation spoke only of "average" salary increases.

Thereafter, the Unions filed two separate grievance for contract violation and both arbitrators concluded the legislation appropriation was sufficient to fund the negotiated salary increases to bargaining unit members,  SPO appealed the awards, which were upheld by the District Court and then the Court of Appeals.

 Both positions are tenable.  The Union's is supported by the language of the contract and its duty to aggressively represent its bargaining unit members.  However, SPO's position points to a moral argument that many non-union members might find compelling:  that it is unfair for tax payers to fund a raise for only some public employees when the difference in treatment is not related to productivity or other performance standards based criteria.

I foresee the Supreme Court also upholding the arbitration awards because the contract language is what it is.  However, if the dispute ever makes it beyond the radar of public sector agents and labor practitioners, it could a bit of a stink with the general public.  This is not to say the Unions are wrong for pressing their members' rights under the contract even if at the expense of non-bargaining unit members.  This is also not to say that I presume the State is operating in non-bargaining unit members' interests when it appeals the arbitration awards.  It all just is what it is, and not everyone would find this situation peachy.

AFSCME 18, et al. v. City of Albuquerque, 2013-NMCA-012 (cert. granted)

At first blush, this case seems to stand only for the entirely unsurprising conclusion--first stated in Albuquerque v. Montoya, 2012-NMSC-007--that PEBA does not impose an "effectiveness" requirement for labor management relations ordinance (LMRO) provisions to be accorded grandfathered status.   

Here, the Union challenged the impasse provisions as ineffective because it did not result in final, binding arbitration or some other "final" resolution.  The Court of Appeals noted--as it had before--that, to the contrary, the reenacted PEBA removed "effectiveness" related provisions for the very old grandfathered LMROs (pre-October 1991), such as that it have "resulted in the designation of appropriate bargaining units, the certification of exclusive bargaining agents, and the negotiation of existing collective bargaining agreements."  See NMSA 10-7D-26(B) (repealed 1999).

There were some interesting points in the decision, however.  First, nearest and dearest to my heart, the Court seems to have finally acknowledged that there are in fact three layers of local boards:  the very old, those simply pre-dating PEBA I, and newer PELRB approved boards. Prior court decisions have treated 26(B) [previously 26(C)] as applying equally to all but the very old LMROs. PELRB Practice Manual, pp. 97-98.

Second, and likely to be quite significant going forward, the Court concluded that the appropriations limitation in Section 10-7E-17(E) provides equally well to the contract terms continuing in effect under the evergreen provision, Section 10-7E-18(D), as to newly negotiated contract provisions.  This will provide powerful incentive against relying overly much on the evergreen position in the face of negotiation obstacles related to finances.

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.

Pilar Vaile

Pilar Vaile, P.C.          

Albuquerque, NM

Albuquerque's Labor Ordinance Still Grandfathered

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. 

Survey of NLRB Shifts Analyzed and Found Wanting

In 2010, I wrote about a survey of changes to NLRB precedent, written by G. Roger King and publishes in the Fall 2010 issue of the ABA Journal of Labor and Employment law. Mr. King's analysis revealed that over a comparable course of years (5-7), the Clinton Board reversed 1,181 years of prior precedent while the Bush II Board issued reversed only 295 years of precedent.  Additionally, King noted that "the federal circuit court affirmance rate of the Bush II Board decisions was either equal to or greater than the circuit court affirmance rate of the Clinton Board."  Specifically, Clinton decisions were enforced in full 66.8% of the time, and in part 81.5% of the time.  In contrast, Bush II decisions were enforced in full 77.9% of the time and in part 87.9% of the time.   

In the Vol. 26, No. 3 of the Journal, Associate General Counsel of the AFL-CIO, Bill Lurye, reviews King's data and the decisions, and concludes they were "prove[d] susceptible to interpretation and vulnerable to manipulation."  Lurye also advises that "a mathematical

Major Business Investments & Management Rights

Last year the blogosphere saw much chatter and commentary concerning the proposed opening of a Boeing plant in South Carolina, and the subsequent filing of a National Labor Relations Board (NLRB or Board) charge, congressional hearings, etc.  The Fall 2011 issue of the ABA Journal of Labor and Employment, Vol. 27 No. 1, thoughtfully included testimony of two congressional hearing witnesses.  Although the immediate storm has passed, the parties having settled the charge with the signing of a new collective bargaining agreement, it is an issue that could recur with similar responses, so I’d like to discuss that testimony here.

Employer Polling -- Criteria and Standards

As a neutral third party familiar with collective bargaining matters and representation election procedures, I am periodically contracted to conduct employer pollings, to ascertain whether or not a majority of its employees continue to desire union representation. The first time I was asked to conduct a polling, I was obligated as a neutral to satisfy myself that polling is not illegal or otherwise improper in New Mexico as a general matter.  As is common, there was no New Mexico case law on point.  However, the federal courts and the National Labor Relations Board (NLRB) have reviewed the matter in a number of cases, and I will outline the results of my research here.  

PELRB Watch and Other NM Labor News

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

Union and Management Reps Slammed in News, and Other NM Labor News

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

An Appropriate Bargaining Unit of Community College Instructors

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). 

Happy Belated Birthday, NLRB

Collective bargaining has been increasingly in the news in the last year, and has even made its way back into popular consciousness.  As I've written elsewhere, a number of states are trying to put limitations on public sector collective bargaining, in response to budgetary difficulties  Additionally, there has been a renewed push to pass the federal Employee Free Choice Act, which would permit certification without a secret ballot election over the employer's objection, among other things, and the NLRB has taken several controversial actions of late that have been reported widely.  They have proposed new rules to expedite elections and to require the posting of notice of labor rights, and also filed a charge against Boeing for its attempt to open a plant in right-to-work state South Carolina (the latter issue has now been settled).  

Despite this present heightened public awareness of collective bargaining issues, however, many people do not know that 2010 marked the National Labor Relations Act's (NLRA) 75th anniversary.  In honor of this significant milestone, the National Labor Relations Board (NLRB) and George Washington University had co-sponsored a seminar in October 2010 on the Act and "Its Legacy and Its Future," to which the Winter 2011 issue of the ABA Journal of Labor & Employment Law, Vol. 26, No. 2, was largely dedicated. 

In light of this milestone, and the level of popular attention garnered to collective bargaining in the last year or so, it seems to me it is a good time to review what collective bargaining scholars, professionals and advocates have to say about the Act.  

PELRB Update -- Ex Parte Contacts Alleged and Elections in Limbo

The 7/19/11 PELRB meeting covered a lot of ground. Although I missed some of the meeting, I do still have some news to report, regarding stated agenda items, the proposed re-hire of Juan Montoya, and the AFT/CYFD and United Mineworkers/Gallup representation petition debacles.

AFSCME et al v. Hon. Susana Martinez, Governor, 2011-NMSC-018

Back in April, I wrote that the N.M. Supreme Court had ordered the Governor to reappoint several PELRB members.  That decision was reduced to writing until May 13, and thereafter published in the N.M. Bar Bulletin on June 1. Now that some time has passed and the Board is back to functioning (well, sort of, but that's for another post), I'd like to look at that decision in a little more detail, as I think the decision's reasoning and background raises some serious questions about its fitness.

Recent NM Labor Goings-On

On April 25, the Public Employee Relations Board (PELRB) met for the first time since its recent "reorganizations," under the influence of the Governor and then the Supreme Court.  The upshot of the reorganizations was that Supreme Court said the Governor exceeded her authority by summarily discharging any members except that which served upon its own recommendation,* and the Governor's Office conceded that only the Board had authority to hire and fire the Director.

So where did that leave us at the April 25 meeting?  With lots of questions regarding current dates of appointments, candidates for Director, and pending business.  Elsewhere, KUNM hosted a not very balanced segment on public sector bargaining.

Seminar 5/6/11, State of NM Public Sector Collective Bargaining

New Mexico Arbitrator-Mediator-Hearing Examiner T. Zane Reeves, PhD, has coordinated a seminar on the state of public sector collective bargaining in New Mexico.