• The PEBA definition of “supervisor” is very strict so that while a position may be designated by the employer as supervisory and may in fact constitute a supervisory position under law other than PEBA, “[i]t is not the rank nomenclature (corporal, sergeant, lieutenant, captain, etc.) that is determinative but rather the facts related to whether the individual functions as a supervisor as defined under the Act.” 
• Community of interest is determined on a case-by-case basis. 

• Duties performed by a sergeant are not supervisory merely because the County has designated the sergeant position to be supervisory. Otherwise, an employer could, merely by labeling positions as supervisory, exclude whole classes or groups of employees from the Act’s coverage, without regard to statutory definitions and the Board’s role in adjudicating unit determination issues. 
• Under the PEBA I definition of supervisor, 40% of work time was held to be insufficient to constitute “substantial amount of work time”. 
• There is no right to file post-hearing briefs. Rather, the matter lies in the discretion of the hearing examiner. See 11.21.2.20 NMAC. Note: This rule, which is also relevant to 11.21.3.17 NMAC, provides that when any party requests permission to file a post hearing brief and that request is granted, then the hearing examiner shall permit all parties to file briefs. By this decision the Board has interpreted its rule to mean that if one party’s request for submission of a written brief is granted, then all parties shall likewise submit briefs. Permission to submit written briefs in lieu of oral argument remains in the discretion of the Hearing Examiner and the rule should not be read to make the submission of written briefs mandatory upon request of any party. 
• The time limit established in PELRB rules for the issuance of a Hearing Examiner’s report are directory rather than mandatory, so its violation does not require Board rejection of the report unless there is a demonstration of prejudice to the appellant by the Hearing Examiner’s delay in the issuance of the report.
• Request for review may not rely on any evidence or argument not presented to the hearing examiner. A five-minute time limitation on oral presentations to the Board as part of a request for Board review of a hearing examiner’s decision does not violate due process. Such a time limit is reasonable under the circumstances because the decision to permit oral arguments at this stage of the proceedings resides solely in the Board’s discretion, and the parties are afforded an opportunity to fully develop their cases prior to that stage of the proceedings.
• Any suggestion of improper conduct on the part of a hearing officer is highly inappropriate absent evidence of bias or a showing of some impermissible motive which might lead to an inference of bias and without such evidence the Board will not entertain mere allegations of impropriety. 
• It is not reasonable to produce, on the day of the hearing, fifteen (15) boxes of original documents onwhich a summary is based. Summaries of evidence may be properly excluded in the hearing examiner’s discretion when the opposing party and/or hearing examiner raise issues with the summaries’ reliability, accuracy and relevancy and the proponent fail to produce the original documents on which the summaries are based at a “reasonable time and place” prior to the hearing. 

• NEA-NM has standing to bring complaint before PELRB on behalf of NEA-Bernalillo because there is an affiliation and comity of interest between “parent” NEA-NM and “sibling” NEA-Bernalillo, including (1) negating or lessening a potential loss of members and dues; (2) eliminating or minimizing the potential harm flowing from an abridgement or denial of statutory rights; and (3)  seeking to influence the Board’s interpretation of the Act.
• An employer other than the state does not lose grandfathered status based upon “garden variety disputes” over the unit inclusion or exclusion of a particular employee.
• The public employer retains the right to designate a position as supervisory in nature, but PEBA provides the definition for supervisor for purposes of collective bargaining and unit composition, even over a conflicting definition of a local ordinance. 
  • The PELRB may review and invalidate portions of § 26(A) grandfathered ordinances that violate PEBA.
  • In enacting § 26 (Repealed, 2020), the legislature did not intend that a public employer could lose grandfathered status in a garden-variety dispute over unit inclusion or exclusion of a particular employee. 
  • A statewide parent union has standing to bring claims on behalf of a local union.
  • There is an affiliation and comity of interest between ‘parent’ NEA-NM and ‘sibling’ NEA-Bernalillo, including (1) negating or lessening a potential loss of members and dues; (2) eliminating or minimizing the potential harm flowing from an abridgement or denial of statutory rights; and (3) Seeking to influence the PELRB’s interpretation of PEBA. 
  • A word is properly interpreted out of the statute and its presence did not accord a special meaning, where it was not used elsewhere and the Board finds its inclusion to be the result of awkward drafting. 

• Rejecting the Agency’s argument that the State Board of Education’s Constitutional status insulates it from an accretion Petition.

• Concluding, nonetheless, that Financial Specialists and the Procurement Specialist do not share a community of interest with members of the CWA “paraprofessional unit 10” because of a difference in wages, supervision, and management; and a lack of interaction with the other bargaining unit employees.

• Objection to election is improper and dismissed where it essentially seeks a review and reconsideration of the Board’s decision in 1 PELRB 16, rather than being related to “conduct affecting the result of an election” as required under Rule 2.34.

• Additionally, Board reconsideration is not expressly authorized under PEBA rules and would violate the prescription against de novo review by the Board.

The PELRB is not the proper forum to address claims of gender discrimination, even where Union asserts that the Doña Ana County withheld proper rank of lieutenant from a Detention Center training sergeant on the basis of her gender, and that such action interfered with the designation of an appropriate bargaining unit. 

• The ten-day time limit to seek review in a representation matter begins to run on day after receipt of a report and the request for review is timely filed if deposited into the mail on the tenth day as evidenced by the postmark. See 11.21.2.22 (A) NMAC. 
• The ten-day time limit to seek review in a representation matter begins to run on day after receipt of a report and the request for review is timely filed if deposited into the mail on the tenth day as evidenced by the postmark. See 11.21.2.22(A) NMAC. 
• The Board is to independently review any recommended decision by a hearing examiner regarding the scope of the bargaining unit. See 11.21.2.22(C) NMAC. 
• Under 11.21.2.22(D) NMAC, an un-appealed recommended decision adopted by the Board in a representation matter can constitute binding precedent unlike an un-appealed recommended decision concerning a PPC that is pro forma adopted by the Board under 11.21.3.19(D) NMAC. 

Reliance on Board-adopted recommended decisions regarding the scope of a bargaining is also warranted under 11.21.2.22(C) NMAC, which requires the Board to independently review any recommended decision by a hearing examiner regarding the scope of the bargaining unit. 

There is no legal agency relationship between a County and its instrumentality or institution such as would make the alleged principal the public employer and appropriate governing body under PEBA where the institution routinely acts independently of the County, disregards County Commission recommendations and where the County has historically denied legal liability related to the operation of the institution. 

• The term “public employer” has also been found to include public facilities run by private contractors if the public governing body retains authority and control over the business, policies, operations and assets of the facility. 

Testimony that police sergeants are expected to supervise 100% of the time only reflects the expectation that they will perform supervisory duties whenever called upon to do so. Where, in fact, the expectation only results in the occasional performance or assumption of supervisory or directory roles, the position meets the proviso in the definition for excluding a position from supervisory status. 

• A telecommunicator supervisor is excluded from a bargaining unit where he is responsible for the overall supervision of the communications personnel; has sole scheduling responsibility: disciplines and evaluates subordinate telecommunicators or effectively recommends such action; is responsible for other telecommunicators’ proficiency training; and there is no evidence presented demonstrating that he does not devote a substantial amount of work time to supervisory duties, or that he performs substantially the same duties as his subordinates. 
• The definition of “supervisor” in PEBA is not the same as, or closely similar to, the definition contained in the NLRA because PEBA’s definition is delimited by provisos that do not exist in the NLRA definition. Consequently, positions that may be supervisory under the NLRA and excluded from the bargaining unit under that act may not be supervisory under PEBA given the difference in definitions.
• Under the PEBA I definition of supervisor, “substantial” was interpreted “according to its plain and ordinary meaning found in Webster’s New Collegiate Dictionary’ to mean ·’ … considerable in quantity, significantly large…. being largely but not wholly that which is specified,” and 25% of work time was held to be insufficient to meet this standard. 
• An appropriate bargaining unit of police officers, investigators and telecommunicators does not include administrative secretaries, because there is no clear and identifiable community of interest between the two types of positions to justify varying from the normal designations under PEBA, or the NLRB precedent of treating safety officer and clerical employees separately. Specifically, clerical employees are not certified in law enforcement; they do not wear a uniform; they perform clerical duties; they do not work the same shifts as officers and telecommunicators and are not engaged in the same or even similar skills; the record does not show a great deal of contact between these employees and other members of the proposed bargaining unit; and the clerical employees’ impact upon the primary function of the department is tangential. 
• An administrative body such as the PELRB does not have the authority to reverse or reconsider its final action unless the legislature expressly granted the Board the power to do so, and the legislature did not do so. 
• The Board may, upon review of the whole record, summarily adopt a Recommended Decision regarding unit inclusion or exclusion in the absence of exception, but that part of the Board’s Decision will not have precedential effect. 

• Concluding that Carlsbad Resolution No. 340 did not establish a system of provisions and procedures for labor relations under § 10-7D-26, because it only authorized the City Administrator to represent the City in collective bargaining negotiations.

• Petition for Certification as Incumbent Labor Organization granted without a secret ballot election or card count where the petitioned for bargaining unit was established and recognized by the City in 1967, although the latest collective bargaining agreement was ratified after the statutory incumbency date, and where the Director’s investigation revealed no question of representation.

• Notwithstanding their job descriptions or the paramilitary structure of the Santa Fe Fire Department, Captains are not supervisors under PEBA, but rather are lead employees with limited authority, whose duties are substantially similar to those of their subordinates, including firefighting, and who exercise no independent judgment in directing other employees.
• In contrast, Battalion Chiefs are excluded as supervisory personnel because they are part of the administrative staff of the department; are shift commanders with responsibility for the conduct of an entire shift of the four department fire stations; exercise actual administrative and disciplinary authority over the department fire fighters, including fire captains; and visit the fire stations under their command at least once daily to supervise activity therein.
• Decisions from other jurisdictions cannot substitute for performing the community of interest analysis under § 13(A).  Where the parties present decisions from other labor boards in representation proceedings, the fact specific nature of representation proceedings requires that each party’s case be buttressed with (1) the specific wording from the labor law of the jurisdiction from which the decision issued; (2) how the wording is similar or dissimilar to comparable wording in the New Mexico PEBA; and (3) justification why the PELRB should find such decisions persuasive in the circumstances of the instant proceeding.

• Invalidating numerous provisions of the County’s local labor management relations ordinance, as part of the process of approving the local boards under Section 10, after concluding that neither the constitutional doctrine of separation of powers nor the New Mexico Declaratory Judgment Act, NMSA 1978 §§ 44-6-1 through 44-6-15, placed authority to review such local ordinances solely within the jurisdiction of the New Mexico courts, and that being a “home rule jurisdiction” under Article X, Sections 5 and 6 of the New Mexico Constitution does not shield a public employer other than the state from the PELRB’s jurisdiction.
• A union that has been decertified for strike activity cannot be barred from collecting dues, and pursuant to Section 10-7D-21(C) of PEBA I (Section 10-7E-21(C) of PEBA II) they cannot be decertified for more than one year.
• The time limit established in PELRB rules for the Board (or its agents) to conduct a hearing are directory rather than mandatory, so its violation does not deprive the Board of jurisdiction. The Board will reject exceptions based on technical violations of rules that are not alleged or proven to cause prejudice and that do not affect the outcome, such as issuing a decision more than 20 after the close of a hearing or submission of post-hearing briefs.
• An employer or a labor organization violates its duty to bargain in good faith by placing unreasonable conditions on bargaining, such as by insisting upon agreement concerning “permissive” subjects of bargaining, including ground rules.
• Punitive damages and attorneys’ fees are not an appropriate administrative remedy.

• Concluding that signed authorization cards evidence employees’ desire for union representation, and the Director’s determination of sufficiency of the showing of interest is not subject to question or review.
• Adopting an anti-fragmentation policy as to bargaining units.
• Concluding that use of occupational groups such as blue-collar, secretarial clerical, technical, professional, paraprofessional, police, fire and corrections is only advisory, not mandatory.
• Adopting the nine community of interest factors identified in Kalamazoo Paper Box Corp., 136 NLRB 134, 49 LRRM 1715 (1962), although no single factor will be conclusive: (1) differences in method of wages or compensation; (2) differences in work hours; (3) differences in employment benefits; (4) separate supervision; (5) degree of dissimilar qualifications, training and skills; (6) differences in job functions and amount of working time spent away from the employment or plant situs; (7) the infrequency or lack of contact with other employees; (8) the lack of integration with the work functions of other employees, or interchange with them; and (9) the history of collective bargaining.
• Signed authorization cards evidence employees’ desire for union representation, and the Director’s determination of sufficiency of the showing of interest is not subject to question or review. If a group of employees were not interested in representation by a particular union, they could have chosen not to sign the cards, they could have sought representation by a different union, or they could have organized their own independent union. They pursued none of these alternatives, and therefore the only evidence of their desire to be represented by a union is expressed in the showing of interest presented by the particular union seeking to represent them. 
• Occupational groups generally are identified as blue-collar, secretarial clerical, technical, professional, paraprofessional, police, fire and corrections are only advisory, not mandatory.

• Interpretations of the NLRA must generally be followed in interpreting substantially similar PEBA provisions.
• Where alternative impasse procedures are authorized for employers other than the state, they must still be equivalent to PEBA’s procedures.
• The Board or local board must examine or investigate on a case-by-case basis to determine whether an exclusive representative caused, instigated, encouraged or supported a strike, before the sanction of decertification can be imposed.
• An existing CBA cannot be automatically voided as a penalty for a strike, without a case-by-case determination of whether the exclusive representative caused, instigated, encouraged or supported a strike.
• Being a home rule jurisdiction under Article X, Sections 5 and 6 of the New Mexico Constitution does not shield a public employer other than the state from the PELRB’s jurisdiction.