The Court affirmed the PELRB’s dismissal of a PPC alleging SRMC violated PEBA when UNM, who was in the process of acquiring SRMC, sent bargaining unit employees information on what their new pay and benefits would be if they transferred their employment to UNM.

The Union had alleged that SRMC had violated PEBA by engaging in direct dealing by communicating with bargaining-unit members regarding alterations of their terms and conditions of employment without bargaining the changes with the Union. The Union also alleged that Employer had “bypassed the Union in issuing proposed changes related to the impending merger between [Employer] and UNM Hospital.” It also alleged “the Union requested information related to the merger plans and that Employer violated PEBA by refusing to respond to the request for information.”

The PELRB’s Hearing Examiner concluded “the Employer’s communications to its employees did not constitute ‘direct dealing.’ Employer was merely supplying information about the terms and conditions that its employees could expect in the event they decided to accept future employment at UNM Hospital.”  The H.E. also rejected the argument that the Employer made unilateral changes to the terms and conditions of employment”, as SRMC was merely advising its employees of the wage, benefits and terms and conditions to expect under UNM.  “Employer was under no obligation to bargain the terms
and conditions that existed at a different entity.”

The Employer had declined to provide the requested information on the merger, on “grounds that a recent district court decision had invalidated the Union’s certification as the exclusive bargaining agent and Employer therefore had no obligation to provide information…The Hearing Officer concluded Employer had responded to the request for information by refusing to provide the information for the reasons stated”, and that the Employer had no duty to provide the information sought since there was no duty to bargain at the time.

United Health Professionals of New Mexico, AFT, AFL-CIO v. University of New Mexico Sandoval Regional Medical Center, D-202-CV-2023-02118 (In re: PELRB 304-22,

26-PELRB-2022, 8-PELRB-2023 and 9-PELRB-2023)

November 22, 2021

February 4, 2019

The Court affirmed the Board’s Order, based on substantial evidence and lack of error under a whole record review.  See Selmeczki v. N.M Dep’t of Corr., 2006-NMCA-024, ¶ 13, 139 N.M. 122, 129 P.3d 158 (standards of administrative review).

The Board had ruled that the state employees AFSCME sought to accrete into an existing bargaining unit (Home Health Aide Supervisors and Psychiatric Technician Supervisors) do not share an “overwhelming community of interest” with other union members and that those employees are supervisors and/or managers exempt from bargaining.   The Court wrote, –    “In order to determine whether the petitioned-for employees share a community of interest with the existing bargaining unit, the Board applies a multifactor test. The factors are the method of wages or compensation, the work hours, employment benefits, separate supervision, job qualifications, job functions and amount of time spent away from the employment situs, regularity of contact with other employees, level or lack of integration, and the history of collective bargaining. Kalamazoo Box Corp., 136 NLRB 134, 137 (1962); AFSCME & Dep’t of Corr., 2013 WL 12205590, 2-PELRB-2013, at n.1 (January 23, 2013).”  Here, some factors supported a shared community of interest but the weight of them did not.

–    As to whether the positions were supervisory, they spent a majority of their time in direct patient care, but also greater than 50% of their time engaged in supervisory activities.  Union argued these were inconsistent findings, but the Court accepted the Department’s argument that “the findings are reconciled by the evidence that showed that the Petitioned-for employees complete supervisory duties while providing patient care.”  The Court also “agree[d] that the finding that the duties are not merely routine, incidental, or clerical is supported by the record.” Further, “[t]here is also evidence supporting the authority of these employees to hold the interest of the employer as to hiring, promoting, and disciplining subordinates.”

–    As to the positions were managerial, the Union argued error in finding that the petitioned-for employees were management employees where it also found that a majority of their time was spent in direct patient care.  The Court rejected this argument also: “[a]s discussed above, the Court agrees with the Department that the finding that petitioned-for employees spend much of their time in direct patient care is not contrary to a finding that they perform supervisory or managerial duties at the same time. Evidence in the record supports the finding that they engaged in managerial duties.”

This case resolved “whether the discharge hearing for a certified school employee under Section 22-10A-27 (Section 27) of the School Personnel Act, Sections 22-10A-1 to -39 must be conducted by the local school board or its superintendent.” 

The District Court concluded that the discharge hearing for a certified school employee under the School Personnel Act, §§ 22-10A-1 to -39, must be conducted by the school board… In Central Consolidated School District No. 22 v. Central Consolidated Education Association, (No. A-1-CA-34424), …, the district court affirmed the order of the … PELRB that the school board is required to hear and decide appeals from decisions of the school superintendent under grievance procedures set forth in the collective bargaining agreement (CBA) negotiated between the Central Consolidated Education Association (Union) and the Central Consolidated School District (School District) pursuant to the Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005).” “In both cases, the respective school boards asserted that changes made to the Public School Code in 2003 divested school boards of all authority to act on any personnel matters and vested exclusive authority to act on all personnel matters in the local superintendent.”

The Court of Appeals affirmed the District Court’s conclusion in Alarcon that the hearing must be conducted by the school board.  The Court “reject[ed] the argument of APS that it did not have a clear, legal duty to provide Teacher with a discharge hearing before the school board”, to support a writ of mandamus. 

The Court also affirmed PELRB’s conclusion in CCEA “that the 2003 amendments to the Public School Code did not prohibit the school board from performing its duties at Step 4 of the CBA,… [and] that the School District contractually obligated itself to review the superintendent’s decision when his decisions were appealed pursuant to Step 4 of the CBA grievance process. Because ‘[a]n appeal, to be meaningful, involves the exercise of independent judgment as to whether the decision rendered by the superintendent is correct[,]’ and the School District failed to point to any evidence that the school board was providing meaningful review at Step 4… the hearing officer’s conclusion (adopted by the PELRB) that the School District violated the CBA was not arbitrary and capricious.”  

“Under the PEBA, the ‘appropriate governing body’ to engage in collective bargaining and enter into a CBA is ‘the policymaking . . . body representing the public employer’ that at the local level is ‘the elected or appointed representative body . . . charged with management of the local public body.’ Section 10-7E-7. The school board is the policymaker here, and it satisfies the definition in all other respects…”

Affirming the District Court’s affirmance of the PELRB’s order finding the Department violated PEBA by denying Union officials and stewards use of a State vehicle for attending meetings while allowing management representatives to use them to attend the same meeting.

“‘Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court conducts the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal.’ … ‘In reviewing an administrative decision, we apply a whole record standard of review.’ … ‘We independently review the entire record of the administrative hearing to determine whether the [PELRB]’s decision was arbitrary and capricious, not supported by substantial evidence, or otherwise not in accordance with law.’ … ‘When reviewing an administrative agency’s conclusions of law, we review de novo.’ … ‘apply a de novo standard of review to [administrative] rulings regarding statutory construction.’ … We ‘will generally defer to an agency’s reasonable interpretation of its own ambiguous regulations, especially where the subject of the regulation implicates agency expertise[.]’ … However, we are ‘not bound by the agency’s interpretation,’ and we may substitute our own ‘’independent judgment for that of the agency if the agency’s interpretation is unreasonable or unlawful.’”  [Internal citations omitted.] 

“Treating two similarly situated persons differently on the basis of an identifiable characteristic is the hallmark of discrimination.”

The Court rejected an argument that PEBA like the NLRA required a showing of anti-union animus or retaliatory motive, to support a disparate treatment claim.  “{12} …[O]ur Legislature adopted Subsection A [of Section 19] as an additional protection against discrimination even where there is no evidence of anti-union animus or retaliation against employees who engage in union activities… {13} By its plain language, Section 10-7E19(A) requires only that the discriminatory treatment be “because of the employee’s membership in a labor organization” in order for such treatment to constitute a prohibited practice. We decline to read into the statute a requirement that there be evidence that antiunion animus was the underlying motivation for a public employer’s discriminatory treatment of a public employee in order to constitute a violation of Section 10-7E-19(A).”

The Court also rejected the argument that the 2005 CBA’s silence regarding use of a state vehicle by employee officials Is dispositive as to whether Section 10-7E-19(A) was violate, saying that is “simply the beginning of the inquiry, not the end.”

The Court concluded that employee officials attending a policy review meeting with the Department are acting in furtherance of official State business.  “[T]the record contradicts the Department’s contentions that employee officials attend policy review meetings only ‘on behalf of the union’ and are merely ‘advocating for the union’s position’ at those meetings; and second, the Department’s summary conclusion that ‘[u]nion business is not state business, and vice versa’ rests on a false dichotomy.”

Reversing the Board in part and affirming it in part; the Board had affirmed the Hearing Examiner in part and reversed them in part.  The Board reversed the Hearing Examiner’s determination that there was a past practice, and the change to it was presented as a fait accompli; the Board found instead that the Union waived its opportunity to bargain once given notice of the change of past practice.  The Court could not say it was arbitrary for the Board to reject the H.E.’s findings, reasoning that “where there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration”.  However, the Court nonetheless reversed the Board in its determination that the Department violated Sec. 19(B), finding that inconsistent with the Board’s first ruling that bargaining had been waived.

In a case alleging breach of the duty of fair representation, the Court concluded the Complaint was untimely but that it was properly dismissed as a substantive matter because, even if the employee’s complaints against the Union were true, the allegations only established negligence, and “do not rise to the required standard of arbitrary, discriminatory or bad faith.”

Although their discretion is not boundless, Unions are granted wide discretion in handling their representation of their members.  Ford Motor Co. v. Huffman, 345 US 334, 338 (1953); Granberry v. Albuquerque POA, 2008-NMCA-094, ¶ 7, 144 NM 595.  Here, the Union represented the employee although some stewards believed the grievance lacked merit, there was no evidence of bad faith, and the Union had no obligation to represent the employee in his private appeal.

The Court affirmed two PELRB Orders from 2014. First, it upheld the April 18, 2014 Order approving the New Mexico Coalition of Public Safety Officers’ (NMCPSO) petitions to amend its certifications after disaffiliating from CWA, finding that the disaffiliation did not constitute a change in representation because there was substantial continuity in the union’s identity. See 7-PELRB-2014.  Second, it affirmed the July 2014 Order certifying AFSCME as the exclusive bargaining representative following the expiration of NMCPSO’s contract, concluding that the subsequent election was fair. See 13-PELRB-2014

The Court applied a deferential standard of review, affirming agency action unless it was arbitrary or capricious, unsupported by substantial evidence, or contrary to law. Reviewing the full record and deferring to the PELRB’s expertise, the Court found sufficient evidence to support both Orders.  Although the PELRB committed some harmless procedural error in applying an NLRB continuity-of-interest test, the error did not affect the outcome. The Court also rejected NMCPSO’s challenge to the AFSCME election, holding that alleged procedural irregularities did not rise to the level of “vice,” did not unfairly advantage AFSCME, and did not materially interfere with employees’ free choice.

City of Albuquerque v. AFSCME, City of Albuquerque v. Montoya, 2012-NMSC-007, 247 P.3d 108, Local 1888, 2nd Judicial Dist. CV-2012-02239 (consolidated), J. Baca, May 1, 2013.) 

(Consolidated decision for D-202-CV-2012-02239, D-202-CV-2012-02240, D-202-CV-2012-02242, D-202-CV-2012-01862, D-202-CV-2012-01856, D-202-CV-2012-01857, D-202-CV-2012-02254, D-202-CV-2012-01862, D-202-CV-2012-02246 and D-202-CV-2012-01856) (In re: PELRB 103-11, 104-11, 103-11, 105-11, 106-11,108-11, 121-10, 128-10 A, C and D, 133-11, and 101-12)

March 8, 2011 and

August 19, 2010