59-PELRB-2023, PELRB NO. 304-22
In re: United Health Professionals of New Mexico, AFT, AFL-CIO and University of New Mexico Sandoval Regional Medical Center

But see D-202-CV-2023-09660; and Ct of App, A-1CA-42271 

The Board reversed the Hearing Examiner’s determination that PRN or “as needed” nurses are regular employees.  The Board concluded that whether an employee is “regular” depends on the contractual status of the employee, not on employer specific variables such as duties, tenure or schedule, although those employer specific variables may determine community of interest.  Based on the Hearing Officer’s findings of fact establishing that the PRNs are employees with whom the Respondent could set terms and conditions of employment, PRN employees, directly employed, are regular employees of Respondent. The Board also reaffirmed its prior orders 08-PELRB-2023 and 09-PELRB-2023.

Thereafter, however, the Board was reversed in D-202-CV-2023-09660.  The Union has appealed that decision, which is pending.  See Ct. of App. Case No. A-1CA-42271.

26-PELRB-2023, PELRB No. 304-22
In re: United Health Professionals of New Mexico, AFT, AFL-CIO And University of New Mexico Sandoval Regional Medical Center

See also D-202-CV-2023-09660; Court of Appeals Case No. A-1CA-42271

The Board ratified and affirmed Staff’s Card Check Results Report and the resultant Certification of Representation.

The Board denied Respondent’s Motion to strike card check results and its request to remove review of the card check results as without merit, because there was no timely filed objection to the card check results pursuant to NMAC 11.21.2.34.

08-PELRB-2023, PELRB NO. 304-22
In re: United Health Professionals of New Mexico, AFT, AFL-CIO and University of New Mexico Sandoval Regional Medical Center

But see D-202-CV-2023-02118 and A-1CA-42271

The Board affirmed the Hearing Examiner’s decision, upon remand pursuant to Board Order 26-PELRB-2022, that PRNs in the proposed unit shared a community of interest with others in the unit so that their inclusion would not render the unit inappropriate; and the Board determined that all issues were resolved.  See also 26-PELRB-2022 and 9-PELRB-2023.

(Thereafter the Board was reversed and remanded for lack of explanation in D-202-CV-2023-02118; and after that the Board’s final determination that PRNs were regular employees was reversed by the District Court in D-202-CV-2023-02118; and that decision is currently being appealed in Ct. App. Docket No. A-1CA-42271.)

28-PELRB-2022, PELRB NO. 111-22
In re: United Health Professionals of New Mexico, AFT, AFL-CIO and University of New Mexico Sandoval Regional Medical Center

But see D-202-CV-2022-07805, cert denied Case No.  S-1-SC-40270.

The Board rejected the Hearing Examiner’s conclusion that Respondent violated Section 10-7E-19(B) of the PEBA by a supervisor conveying misleading and negative comments about the Union to employees during a mandatory meeting, and further, allowed one employee at the meeting to speak negatively about unions, while telling the participants that they could not speak about unions during work hours.

The Board adopted the remainder of the Hearing Officer’s conclusions, that Respondent violated Sections 10-7E-19(D), (E) and (G) of the PEBA; an ordered the Respondent to cease and desist from all violations of the PEBA as found therein, including enforcing its social media policy against the Union or its members in such a way that unlawfully chills or inhibits rights protected under § 5(A)of the PEBA. Thereafter, however, the Board was reversed by the District Court.  See D-202-CV-2022-07805 (J. O’Connell, Aug. 9, 2023), cert denied Case No.  S-1-SC-40270.

27-PELRB-2022, PELRB NO. 104-22
In re: McKinley County Federation of United School Employees Local 3313, AFT-NM and Gallup-McKinley County Public Schools

See also D-202-CV-2022 07617

The Board adopted the Hearing Examiner’s findings and recommended decision that House Supervisors and Charge Nurses are not excluded from coverage under the PEBA and are appropriate for inclusion in the bargaining unit; but it reversed the Hearing Examiner’s conclusion that “SRMC employees employed on a per diem or ‘PRN’ basis are not ‘regular’ employees” for the purposes of the PEBA. The Board remanded the case to the Hearing Examiner to determine whether the PRNs share a community of interest with others in the petitioned-for unit so that their inclusion in the unit would not render it inappropriate under § 10-7E-13.

See also 08-PELRB-2023 and 09-PELRB-2023 (subsequent Orders in the same matter).

The Board affirmed the Hearing Examiner’s certification of a bargaining unit of Firefighters up to and including the rank of Lieutenant.

(The Hearing Examinger – decision not attached – had determined after a hearing that the Bernalillo Fire Lieutenants do not meet the statutory definition of supervisors under PEBA so are not excluded from collective bargaining, and no request for review was filed.)

21-PELRB-2022, PELRB NO. 303-22
In re: International Union of Machinists and Aerospace Workers (IAMAW), AFL-CIO and University of New Mexico Sandoval Regional Medical Center

See also D-202-CV-2023-00132

13-PELRB-2022, PELRB NO. 133-21
In re: N. M. Coalition of Public Safety Officers and Santa Fe County Deputy Sheriff’s Ass’n v. Santa Fe County

But see D-101-CV-2022-00913

The Board affirmed the Hearing Examiner’s decision that implementing a COVID-19 vaccination policy with disciplinary consequences without bargaining constituted a violation of the duty to bargain in good faith contrary to §§ 10-7E-19(F) and (G) and 10-7E-18(B) and (H).

[Thereafter, however, the Board was reversed.  See D-101-CV-2022-00913.]

12-PELRB-2022, PELRB NO. 313-21

In re: United Electrical, Radio and Machine Workers of America and New Mexico State University Board of Regents

NMSU objected to a card check conducted under Section 10-7E-14(C) of PEBA, and the Board conducted fact finding upon the Director’s recommendation, pursuant to Section 14(C).

NMSU had argued: (1) the Board lacked rules for card-check procedures; (2) an outdated bargaining-unit list was used; (3) misspelled names on challenged authorization cards suggested possible fraud; (4) the Card Check Agreement was violated because a staff member assisted the Executive Director and the Union had two observers; (5) the authorization cards were not “sufficiently current”; and (6) the results form was misleading because it referenced an “election.”

After reviewing the Director’s Report, the card-check results, filings, and oral argument, the Board dismissed NMSU’s objections and directed staff to issue a Certification of Exclusive Representation, finding as follows.
–    Section 10-7E-14(C) authorizes certification based on a majority showing via valid authorization cards, with fact-finding available if the employer challenges verification
–    As held in UE v. UNM, the Board’s duty to verify cards and hold fact-finding is self-executing and does not depend on procedural rules; therefore, the absence of rules did not invalidate the card check.
–    UE v. UNM also confirms that PEBA does not require an updated bargaining-unit list; card check evaluates majority support as of the petition-filing date.
–    Misspelled names do not indicate fraud; the challenged cards were properly excluded and did not affect the remaining valid cards.
–    Alleged violations of the Card Check Agreement lack merit; nothing barred staff assistance, and only one Union observer was eligible under Board rules. NMSU showed no effect on the validity of the proceedings.
–    “Sufficiently current” is judged at petition filing, not during card check. NMSU did not dispute the cards’ currency at the time of filing.
–    The wording on the results form was not misleading, and no confusion or prejudice was shown.

Upon a Joint Motion for Clarification/Amendment of Orders, the Board modified paragraphs 1 and 4 of the PELRB’s August 17, 2021 Order (66-PELRB-2021-UE-UNM.pdf) to read: “Graduate students holding an assistantship”; and modified all references to “graduate students” in the PELRB’s January 27, 2022 order (4-PELRB-2022) to read: “graduate students holding an assistantship.”

05-PELRB-2022, PELRB NO. 311-21

In re: Classified School Employees Council-Las Cruces and Las Cruces Public Schools

04-PELRB-2022, PELRB NO. 307-20

In re: United Electrical Radio and Machine Workers of America and University of New Mexico

The Board directed Staff to certify the bargaining unit, after denying the Respondent’s objections to the card count election, which were that procedural rules were not adopted by the Board before proceeding with the card check; an updated employee list was not utilized during the card check; multiple lists were used; the total number of graduate students in the bargaining unit differed from the initial check to the final check; and not all cards were dated.

As to the issue of procedures, the Board concluded that:
–    “4.  Procedural rules on the conduct of a card check are not specifically mandated by PEBA and the Board has discretion to determine what rules are “necessary to accomplish and perform its functions and duties as established in the (PEBA).” Section 10-7E-9(A) NMSA.
–    “5. UNM’s first objection, that procedural rules were not adopted by the Board before proceeding with the card check, is without merit. The card check encompasses the simple task of counting the cards. Furthermore, the parties were present during the card check to lodge their objections as the counting proceeded.”
–    “6. The lack of rules for the conduct of this card check does not render the card check invalid.”
–    “7. The card check, unlike an election, merely requires the Board to count the cards and then verify they are from graduate students on the employee list.”

The Board further concluded that “8. …[a] majority of the employees of the proposed bargaining unit signed valid authorization cards within 3 months of the petition which were submitted with the petition.”  As to the other objections, the Board concluded they were not supported by the evidence or immaterial.

The Board affirmed dismissal of the PPC for lack of jurisdiction.

(The H.E.’s 12-10-21 Order of Dismissal – not attached – stated the PELRB lacked jurisdiction, based upon the 12-9-21 decision of Judge Ramczyk in D-202-CV-2021-06067 requiring the PELRB to cease all proceedings in this case, and to dismiss the Petition for lack of jurisdiction.)

The Board affirmed dismissal of the PPC for lack of jurisdiction.

(The H.E.’s 12-10-21 Order of Dismissal – not attached – stated the PELRB lacked jurisdiction, based upon the 12-9-21 decision of Judge Ramczyk in D-202-CV-2021-06067 requiring the PELRB to cease all proceedings in this case, and to dismiss the Petition for lack of jurisdiction.)

The Board affirmed the Hearing Examiner’s dismissal of the PPC.

(The H.E.’s 12-10-21 Order of Dismissal – not attached – stated that “On December 9, 2021 the Second Judicial District Court (J. Ramczyk) issued a Writ of Mandamus in D-202-CV-2021-06067 requiring the PELRB to cease all proceedings in our case PELRB 306-21 and to dismiss that petition for lack of jurisdiction” under the New Mexico University Research Park and Economic Development Act, NMSA 1978, §§ 21-28-1 to 25 (2007) (“URPEDA”). “The Court’s conclusion that this Board lacks jurisdiction over the Respondent necessarily means that we cannot proceed to further to determine the Complainant’s allegations of prohibited conduct in this case.”)

On a previously tabled appeal, 22-PELRB-2016, the Board adopted the Hearing Officer’s decision and findings on a Petition for Accretion, except that there was a change in circumstance to the bargaining unit.  The H.E. had recommended that the Board affirm its subject matter and personal jurisdiction; re-affirm the Board’s prior findings of AFSCME’s Majority Support in the unit in question; affirm that the Department’s Lawyers and Attorneys at issue are not supervisory, managerial or confidential employees as defined by the PEBA; and clarify the unit by affirming that it always included those positions.

The Board found that it had jurisdiction over the Parties and subject matter concerning the unit clarification but did not have jurisdiction to determine violations of the New Mexico Open Meetings Act, NMSA 1978, 10-15-1 et seq. The Board further found that under the facts of this case a Petition for Clarification is not the proper procedure for resolving the current dispute between the parties and HSD was time-barred from objecting to the decisions made in PELRB cases In re: AFSCME & State of New Mexico, PELRB No. 357-04; In re: AFSCME and HSD, PELRB No. 336-043; and In re: AFSCME and HSD, PELRB No. 312-09.

The Board affirmed the Hearing Examiner in part and reversed him in part.  The Board found that its rules NMAC 11.21.1.27(Appeal or Review by the Board), NMAC 11.21.2.22 (Board Review of Hearing Examiner Reports and Director Decisions), NMAC 11.21.3.13 (Appeal to Board of Director’s Dismissal) and NMAC 11.21.3.19 (Appeal to Board of Hearing Examiner’s Recommendation), construed together, permit the filing of a cross-appeal within 10 days of an appeal being filed.

The Board struck the Hearing Examiner’s Findings of Fact as either duplicative of prior findings or as otherwise unnecessary while adopting his conclusions of law to the effect that the Board is without authority to award consequential damages such as were requested by the Union in this case.

The Board adopted the Hearing Examiner’s decision that Luna County discriminated against Mr. Verduzco with regard to terms and conditions of his employment because of his membership in a labor organization in violation of the PEBA § 19(A); interfered with, restrained or coerced him in the exercise of his rights violation of § 19(B); discriminated against him in regard to hiring, tenure or a term or condition of employment in order to discourage membership in a labor organization in violation of § 19(D); and discharged or otherwise discriminated against him because he has given information or testimony pursuant to the provisions of the Act or because he formed, joined or chose to be represented by a labor organization in violation of § 19(E).

The Board ordered Luna County to cease and desist, post a notice, and re-instate Verduzco to his probationary position of Sergeant for the remainder of his probationary period and thereafter unless removed for other legitimate reasons and make him whole by payment of back pay and benefits until the ordered reinstatement is accomplished. The Board reserved jurisdiction to determine the amount to be paid to Verduzco in the event the parties did not agree to a sum certain necessary to make him whole.

The Board further ordered that for its failure to cooperate in exchanging exhibits and witness lists, entry of a prehearing order and for its default at the Merits Hearing in this matter and not in the way of a sanction or punitive damages, costs of the merits hearing were assessed against Luna County and/or its counsel.

In a special meeting, the Board denied as not well-taken a request for interlocutory appeal of the Hearing Examiner’s denial of Respondent’s motion to dismiss an accretion petition for lack of jurisdiction.

(The Department had alleged lack of jurisdiction because the PELRB files from the 2003 and 2004 certification(s) were not complete, and the later Petition was not approved by the Board.)

The Board ratified and adopted the Election Supervisor’s decision and certification of the Union as the exclusive bargaining representative, after an investigation of an objection to the conduct of an election filed by NMCPSO related to the voter eligibility list and challenged ballots.

Because the Employer failed to submit a revised list the initial list was used, and challenged ballots were segregated and investigated as needed.  The Board concluded this procedure was consistent with the requirements of NMAC 11.21.2.24 (C) and NMAC 11.21.2.30. It further concluded, “No error was committed by the Election Supervisor. The ballots counted represented the will of members of the bargaining unit eligible to vote both under the Board’s rules and under the terms of the parties’ CEA. Using the revised list to resolve ballot challenges was both appropriate and necessary and NMCPSO’s representative present at the ballot count agreed to permit the eight dispositive ballots to be counted and there was no factual basis on which anyone could have claimed that those voters were not eligible to vote.”

The Board adopted the Hearing Examiner’s decision that Sergeants were not included in the bargaining unit certified by the PELRB in PELRB 303-13 because that rank did not exist at the time of the Petition.

The H.E. had rejected the Union’s argument that the term “deputy” used in its Petition for Recognition and related documents encompasses all deputies commissioned or appointed by the Sheriff regardless of rank and so, would include any Sergeants in the proposed bargaining unit, since the rank did not exist at the time.

7-PELRB-2014, PELRB Case No’s. 313-13; 314-13; 315-13 and 316-13 consolidated
New Mexico Coalition of Public Safety Officers and AFSCME, Council 18 v. Santa Fe County

See also D-101-CV-2014-01195

27-PELRB-2013, PELRB Case No. 101-13
Central Consolidated School Association – CCEA v. Central Consolidated School District

See also D-202-CV-2013-0875 and A-I-CA-34843

Order Adopting the Hearing Officer’s Recommended Decision:
•    finding that the District Committed a PPC by refusing to hear grievances appealed to the school board pursuant to the CBA, violating NMSA § 10-7E-19(G) and (H);
•    finding that the District Committed a PPC by giving three bargaining unit members stipends without negotiating those stipends, violating NMSA § 10-7E-17(A)(1), 19(C), (F), and (G);  and
•    finding that it violated PEBA §19(H) by failing to follow Article 17 of the CBA when it hired a foreman from outside the Shiprock facility; but
•    concluding there to be insufficient evidence to support a conclusion that the District’s conduct violated PEBA §19(B)  or to show that the employer intentionally discriminated against three internal candidates on the basis of union activities

(Thereafter, the matter was appealed in D-202-CV-2013-0875 which affirmed the Board on 1/12/15; and A-I-CA-34843, which affirmed the District Court and the Board on 11/30/17.)

15-PELRB-2013, PELRB Case No. 101-12
AFSCME Council 18 v. The State of New Mexico Children, Youth and Families Department

See also D-202-CV-2012-05410

13-PELRB-2011, PELRB Case No. 144-11

New Mexico Motor Transportation Employee’s Association (MTD) and The Fraternal Order of Police (FOP)

12-PELRB-2011, PELRB Case No. 303-11, PELRB Case No. 304-11

NEA-NM v. Central Consolidated School District No. 22

11-PELRB-2011, PELRB CASE NO. 147-11

AFSCME, Council 18 v. NM Public Regulation Commission

10-PELRB-2011, PELRB Case No. 128-11

Santa Fe County Firefighters Association, IAFF Local 4366 v. County of Santa Fe

9-PELRB-2011, PELRB Case No. 137-11

Mora Federation of School Employees v. Mora School District

8-PELRB-2011, PELRB Case No. 315-10

Lake Arthur-NEA v. Lake Arthur Municipal Schools

7-PELRB-2011, PELRB Case No. 309-11

AFSCME, Council 18 v. Valencia County Detention Department

6-PELRB-2011, PELRB Case No.’s 123-10, 117-10, 317-09

American Federation of Teachers of New Mexico v. NM CYFD

5-PELRB-2011, PELRB Case No. 310-11

Teacher’s Association of Lordsburg v. Lordsburg Municipal School District

4-PELRB-2011, PELRB Case No. 114-10

NEA-NM v. Española Public Schools

3-PELRB-2011, PELRB Case No. 120-11

Gonzales v. A.P.S.

2-PELRB-2011, PELRB Case No. 122-11

Dulce Federation of United School Employees Local 4519, AFT-NM, AFL-CIO v. Dulce Independent School District #21 and AFT-NM v. Dulce Independent School District #21

1-PELRB-2011, PELRB Case No. 112-11

AFSCME, Council 18 v. NM Public Regulation Commission