On January 9, 2023 UNM Sandoval Regional Medical Center  appealed the New Mexico Public Employee Labor Relations Board’s Order issued in 24-PELRB-2022, in which the Board concluded that UNM SRMC’s objections to a card check resulting in certification of a unit at the Medical Center. The Board conducted a fact-finding hearing on the challenge to confirm that a majority of the employees in the appropriate bargaining unit have signed valid authorization cards and entered findings and conclusions including: 

1. a) The Petition contemplated a bargaining unit consisting of all full-time, regular part-time, and per diem, non-probationary Security Guards, Security Guard Leads, Cooks, Food Service Workers, Food Service Leads, Kitchen Staff Workers, Registration Representatives, Prior Authorization Clerks, Patient Access Representatives, Central Registration Representatives, Charge Entry Specialists, Clerks, Facilities Services Maintenance Technicians, Facilities Services Maintenance Technicians Leads, Maintenance Technicians, Materials Technicians, Materials Coordinators, Housekeepers, Housekeeper Leads, Environmental Services Workers (EVS) employed by the University of New Mexico Sandoval Regional Medical Center at its acute care hospital.
2. b) Following a hearing held on July 27, 2022, the Board’s Executive Director issued a Hearing Officer’s Report and Recommended Decision dated August 11, 2022, finding that the Lead Maintenance Mechanic and the Lead Housekeeper positions were not supervisors as contemplated by the Act and that employees in a probationary status at the time the Petition was filed should not be included in the employee list for the purposes of a card check.
3. c) On September 15, 2022, the Executive Director and Board staff conducted a card check indicating 58% majority support.
4. d) UNM-SRMC Objected to the Card Check Results and Certification of Representation contending that cards obtained or signed prior to May 18, 2022 should not have been included or considered by the Hearing Officer, that the cards provided by IAMAW were stale, that “a couple of cards obtained by the union were done so through coercion,” and that the card check was invalid because UNM-SRMC was not provided notice or the opportunity to observe the card count.
5. e) On October 18, 2022, the Executive Director filed his Director’s Report on Objections to Card Check. The Executive Director concluded that there was “no authoritative support for SRMC’s objection to the consideration or inclusion of any authorization cards obtained and/or signed prior to May 18, 2022” and that UNM-SRMC’s argument to the contrary overlooked the fact that the cards submitted by the Union said nothing about having been submitted under the authority of, or pursuant to a proceeding under, the Public Employee Bargaining Act. The Executive Director further found that none of the cards submitted by IAMAW were stale because they were not more than a year old and no other factual basis could be found to the contrary. In addition, he concluded that UNM-SRMC had provided no facts that would indicate that any of the cards submitted were obtained by fraud or coercion. Finally, he found that there was no legal authority for UNM-SRMC’s contention that it had a right to notice or attend the card count.

• The card check was conducted pursuant to and in accordance with Section 10-7E-14(C) of the PEBA and 11.21.2.33 NMAC. 

• UNM-SRMC’s first objection, that cards obtained or signed prior to May 18, 2022 should not have been included or considered by the Hearing Officer, is without merit. Although May 18, 2022 was the effective date of Senate Bill 41, the authorization card itself simply indicates that the employee has designated IAMAW to be the employee’s exclusive bargaining representative. As the representation petition in this case was filed on May 18, 2022, this does not involve the retroactive application of Senate Bill 41. 

• UNM-SRMC’s second objection, that the cards provided by IAMAW were stale, is without a factual basis. None of the cards submitted by IAMAW were more than a year old at the time of their submission, and the requirements of NMAC 11.21.2.13 were met in that the cards were reviewed for assurance that the cards are signed, dated and sufficiently current. 

• UNM-SRMC’s third objection, that cards were obtained by fraud or coercion, is similarly unsupported by the evidence. The objection was not articulated based on facts, but instead “[u]pon information and belief,” which is not a sufficient basis to invalidate any particular cards. 

• Finally, while UNM-SRMC’s fourth objection maintains that it had a right to attend and observe the card count conducted by the Director, no provision within the PEBA vests an employer with such a right and UNM-SRMC has not identified such a provision. This objection is therefore without merit. 

• As a result, the concluded that a majority of the employees in the appropriate bargaining unit have signed valid authorization cards and ordered that UNM-SRMC’S objections to the results of the card check are denied and the Certification of Exclusive Representation issued September 15, 2022 was affirmed. 

• This case remains on appeal at the time of this writing and has not yet been scheduled for briefing or argument.  

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)

In 2015, AFSCME, Council 18, Local 2851 filed a Petition with the City of Las Vegas Labor Management Relations Board seeking to accrete five supervisor and superintendent positions into an existing collective bargaining unit of blue-collar employees. On September 10, 2015, the Board issued an “Order Dismissing Clarification Petition” on the ground that the positions to be accreted exercised “independent judgment,” which the local board described as “one of the overriding principles for all the positions that we’re going to be discussing.” As to each of the five positions the Board summarily concluded that “[AFSCME] ha[d] not met its burden of proof to accrete.” The order contained neither a discussion of the evidence nor findings of fact to support the LMRB’s  decision and provided no explanation of its ruling. The next day, AFSCME appealed to the District Court and requested the preparation and filing of the record proper in accordance with Rule 1-074 NMRA. When the Board had not filed the record nearly three months later, AFSCME moved for an order to show cause. The day after AFSCME filed a request for hearing on its motion, the Board filed approximately two hundred pages of documents designated as the “Record Proper.” Three weeks later, the Board filed an Amended Record Proper, containing numerous new documents and some, but not all, of the records originally filed in the Record Proper, totaling nearly four hundred pages. AFSCME thereafter withdrew its motion for an order to show cause. 

• The district court held a hearing on August 4, 2016 wherein AFSCME argued that the LMRB decision “goes against the overwhelming evidence and is not based at all on substantial evidence” and that it “failed to apply the facts to black letter law when it comes to whether someone is a supervisor, manager, or confidential employee.” AFSCME noted that the Board’s decision failed to even specify what exemption, i.e. supervisor, manager, or confidential employee, it applied to justify denying the petitioning employees their presumptive right to join a bargaining unit. AFSCME also argued that the Board’s reliance on federal law on the “independent judgment” standard evinced a clear misapprehension of the law because New Mexico does not follow the federal definition of “supervisor”.  

• The City argued that AFSCME had not met its burden to show that there was insufficient evidence to support the Board’s decision and that AFSCME was impermissibly trying to reargue the case before the district court. The City primarily focused on what it contended was AFSCME’s failure to apprise the district court of the evidence AFSCME presented that the Board failed to consider and that the LMRB’s determination that AFSCME did not “meet [its] burden” constitutes substantial evidence to support its decision. 

• On August 15, 2016, the district court upheld the Board’s decision, concluding that “the record supports the [Board’s] decision[,] that the decision ‘is not arbitrary, capricious, or contrary to law[,]’ and that the Board ‘acted appropriately and within its scope of authority.’  

• The New Mexico Court of Appeals granted AFSCME’s petition for a writ of certiorari and concluded that the record does not support the LMRB’s decision and, therefore, reversed remanded the matter to the District Court undertake whole record review of the entire record to determine whether substantial evidence supports the Board’s determination that none of the five positions is eligible for accretion. In the event that no recording of the merits hearing was ever made or currently exists, the district court shall vacate the Board’s decision and remand the case to the Board with instructions that it conduct a new merits hearing. The appellate court also allowed that “the district court may very well determine on remand that remanding to the Board for findings and conclusions is appropriate despite the parties’ contention to the contrary, see Rule 1-074(T)(l), or that the parties should have to re-brief their arguments following the filing of the complete record proper in order to comply with Rule 1-074(K)-(M).” See Case No. A-1-CA-35840 (2/4/2019).  

• On August 23, 2019 the 4th Judicial District Court issued its Order on Remand noted that it was unable to determine after review of the record on what specific facts the local labor board relied for its decision or the weight given any particular evidence. Therefore, the district court remanded the matter to the City’s Labor Board for entry of appropriate Findings and Conclusions.  

• While the matter was on remand, the City of Las Vegas repealed its Labor Management Relations Ordinance. With the repeal of the ordinance, and pursuant to NMSA 1978 § 10-7E-10(G)(1) (2020), the Las Vegas Labor-Management Relations Board ceased to exist and all matters pending before it, specifically, the remand for Findings and Conclusions concerning AFSCME’s accretion petition, came under the jurisdiction of this Board. See NMSA 1978 § 10-7E-10(G) (2020). 

• On December 30, 2020, the PELRB’s Hearing Officer concluded that accreting the positions would not render the existing unit inappropriate and the recognition of this bargaining unit and its exclusive representative should be amended to reflect inclusion of those position in the bargaining unit. On January 15, 2021 the PELRB adopted as affirmed the Hearing Officer’s Decision in its Order 4-PELRB-2021. The City appealed that Order to the 4th Judicial District Court on February 15, 2021. On 11-22-21 the District Court affirmed the PELRB and instructed the City to take appropriate action. After the time passed in which the City could seek further appeal without a Petition for Writ of Certiorari having been filed, the District Court’s Judgment in D-412-CV-2015-00369 stands and the case was closed on 1-19-2022.  

The Union filed a representation petition on August 13, 2021, seeking to represent a bargaining unit of employees of UNM Sandoval Regional Medical Center. UNM SRMC moved to dismiss the proceeding, claiming that they were not subject to the jurisdiction of the PELRB because they were not a ”public employer” because of the University Research Park Economic Development Act (“URPEDA”), which provides in part that “A research park corporation shall not be deemed an agency, public body or other political subdivision of New Mexico, including for purposes of applying statutes and laws relating to personnel…” NMSA 1978, § 21-28-7(A) (1998). URPEDA was first enacted in 1989; at that time, there was no state law providing for statewide collective bargaining.

• UNM SRMC moved to Dismiss the Union’s Petition on that basis. On September 10, 2021, the Executive Director issued a Letter Decision denying the Employer’s Motion to Dismiss and concluding that the URPEDA did not control the question of whether UNM SMRC is a “public employer” (and consequently whether its employees are “public employees”) within the meaning of NMSA 1978 § 10-7E-4(R) (2020) and § 10-7E-4(Q).
• UNM Sandoval filed a Request for Review, asking the PELRB Board to reverse the Letter Decision. The Board adopted the Letter Decision of the Hearing Examiner. See 70-PELRB-2021. UNM SRMC then filed a Petition for Writ of Mandate in the Second Judicial District Court requesting dismissal of the Union’s Petition. The District Court scheduled a 15-minute hearing on the Petition, did not allow testimony or exhibits and allowed UNM SRMC to file a reply brief, contrary to NMSA 1978, § 44-2-11 (2020) (“No other pleading or written allegation is allowed than the writ and answer.”)
• The Second Judicial District issued its Order Granting Petitioner’s Request for Writ of Mandamus on December 7, 2021, and the resulting Writ of Mandamus to the New Mexico Public Employee Labor Relations Board on December 9, 2021 required the PELRB to stop processing the Union’s representation petition on the grounds that the PELRB lacked jurisdiction because UNM Sandoval was not a public employer under the PEBA. The Union filed a notice of appeal from both on January 5, 2021.
• This case remains on appeal in the Court of Appeals as of this writing. However, the legislature amended the URPEDA since that time, to specifically state that a research park created pursuant to that Act is “a public employer for the purposes of the Public Employee Bargaining Act [Chapter 10, Article 7E NMSA 1978] if it owns, operates or manages a health care facility or employs individuals who work at a health care facility.” (NMSA 1978 21-28-7(B)(2) (2022)). After the URPEDA was amended staff received a new Petition for Representation of the same group of employees previously sought by the Union. See PELRB No. 304-22.)

• Plaintiff sought retroactive relief for dues paid while a member of a union following the Supreme Court decision in Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S.Ct. 2448, 201 L.Ed.2d 924 (2018). The Plaintiff contended that, under Janus, the Union cannot retain dues that had been deducted from his paychecks or serve as his exclusive bargaining representative. In Janus, the Court said the First Amendment right against compelled speech protects non-members of public sector unions from having to pay “agency” or “fair share” fees—fees that compensate the union for collective bargaining but not for partisan activity. 
• The Plaintiff sought a declaration that “the Union and [the Governor] cannot force public employees to wait for an opt-out window to resign their union membership and to stop the deduction of dues from their paychecks” and a declaration that the New Mexico statute providing for exclusive representation “constitute[s] an unconstitutional violation of his First Amendment rights to free speech and freedom of association.” These claims were dismissed because the Governor and Attorney General therefore do not fall within the Ex Parte Young exception and thus have Eleventh Amendment immunity. 

• CWA filed a PPC over unilateral changes made by the State to its policy regarding paid time for employee union representative for their time spent filing and investigating grievances. The Hearing Officer found, and PELRB rejected, that a letter the State sent CWA presented a “fait accompli” by which the State relieved CWA from any duty to request bargaining and concurrently breached § 10-7E-19(F). The Court upheld the PELRB’s rejection of the findings related to CWA being relieved of the duty to demand bargaining after waiting six months to file the PPC. According to the District Court the PELRB had evidence before it to support the conclusion that the State’s letter was not a fait accompli. The Court concluded, therefore, that it was not unreasonable for the PELRB to reject the HO’s finding that CWA did not have the opportunity to request bargaining. (Citations omitted).
• Regarding the State’s cross-appeal the Court determined that PELRB’s Order sustaining a violation of Section 10-7E-19(B) was inconsistent with its conclusion rejecting a finding of bad faith. Accordingly, the Order was reversed as arbitrary and capricious. The union sought and obtained a writ of certiorari and the Court reversed and remanded to the Board to determine whether the CBA’s zipper clause eliminated the past practice of paying bargaining unit employees for time spent preparing for and participating in grievance meetings.
• After the State sent a letter to the union stating that it was discontinuing a past practice of allowing bargaining unit employees to use paid time (union time) to prepare for and participate in grievance meetings, subject to supervisor approval. The union filed a Prohibited Practice Complaint alleging (inter alia) that the State had refused to bargain in good faith about the subject. The Hearing Officer considered the Union’s unchallenged evidence of the parties’ past practice. Indeed, the State’s own witness stated that he was aware of at least five instances in 2012 and 2013 in which employees who were not union officers or union stewards, were coded as utilizing union time in the payroll system.” the Hearing Officer determined “the past practice of paying employees for preparing and attending their own grievance meetings as either union time or regular work time [was] clearly established.” As a result, the Hearing Officer concluded that “the State violated PEBA § 10-7E-19(B) when it unilaterally altered a mandatory subject of bargaining and a longstanding past practice thereby unlawfully restraining and interfering with employees’ rights under PEBA. The Hearing Officer’s decision held that the letter presented the union with a fait accompli which relieved them of the duty to request bargaining over the subject of union time and found that the State had violated § 10-7E-19(F). The Board reversed the Hearing Officer’s determination of a violation of § 10-7E-19(F) citing the union’s inadequate explanation of why it took no action in a six-month period to request bargaining. The District Court affirmed the PELRB’s finding that no violation of § 10-7E-19(F) occurred because the union was not relieved of its duty to request bargaining because the State provided them sufficient time to do so and had not implemented the change before notifying the union. Having determined that the union had waived any claim about the timeliness of the State’s notice, the Court of Appeals reversed the District Court and held the Board’s conclusion that no violation of § 10-7E-19(F) occurred was arbitrary and capricious because it had not considered the State’s intent when deciding the issue. The Board’s decision “contains no indication that it considered the possibility that the State had already implemented, or was in the process of implementing, its stated shift in policy, so as to warrant a finding that the State had no intention of changing its mind.” Id. at ¶23. The case was remanded to the PELRB to consider, in light of the Court of Appeal’s decision, whether the State’s actions constituted a fait accompli.

• The Corrections Department appealed from the Board’s Order upholding its Hearing Officer’s determination that Lieutenants in the State Corrections Department are not “supervisors” as that term is defined in PEBA § 4(U) and therefore, their accretion into an existing bargaining unit of Corrections Officers, did not render the unit “inappropriate”. The Second Judicial
• District upheld the PELRB establishing as precedent that the Board’s Hearing Officer was correct in his approach of determining, based on the testimony presented, how many hours of each shift lieutenants are performing supervisory duties as opposed to nonsupervisory duties. See 08-PELRB-2012 (July 13, 2012) and 02-PELRB-2013 (January 23, 2013).
• Regarding which duties constitute “supervisory duties”, the Court concluded that it was not arbitrary or capricious for the Hearing Officer to determine: (1) the use of independent judgment is required before an activity qualifies as a “supervisory duty” under PEBA; and (2) the duties of lieutenants largely do not require the use of independent judgment. The Court also concluded that the Hearing Officer did not abuse his discretion by relying on federal authority to determine that the use of independent judgment is an important indicator of supervisor status and that even though lieutenants may sometimes exercise independent judgment and perform supervisory duties, lieutenants are not supervisors for purposes of PEBA because they are not performing supervisory duties a majority of the time.
• Additionally, given the multi-level review involved in the disciplinary process, it was not arbitrary or capricious for the Hearing Officer to conclude that lieutenants do not effectively recommend discipline. The lieutenants do not effectively recommend discipline, not only because they lack authority to select a particular sanction, but also because lieutenants lack discretion with respect to their recommendations; indeed, the very purpose of the multiple levels of review is to remove discretion from the disciplinary process. As a result, the third element of the definition of a “supervisor” had not been met. That the third element was not satisfied was therefore an independent basis upon which to affirm the Board’s decision.

• The requirements and obligations of the parties regarding the funding of a public employee collective bargaining agreement are statutorily controlled by the PEBA, the Labor Management Relations Ordinance and the specific terms of the CBA.
• The City’s expenditures of funds to comply with the CBA was subject to both “the specific appropriation of funds” and the “availability of funds” under PEBA § 10-7E-17(H) and LMRO § 3-2-18. LMRO § 3-2-18, referenced in Section 2.1.1.5 of the parties’ CBA, required the City Council to “adopt a resolution” appropriating funds to cover the economic components of the contract when the CBA was approved by the City in 2008. As such, the City adopted the appropriate resolution in 2008 to cover the economic obligation for the new three-year CBA. Multi-year collective bargaining agreements are beneficial to both sides and provide stability and continuity for both management and public employees. LMRO § 3-2-18 does not prohibit the City from adopting a contract that has fiscal implications over several years. Its re-opening requirement ensures that the City has a mechanism to address unexpected deficit spending or budgetary shortfalls that arise during the subsequent years of multiyear collective bargaining agreements.

• The presence of security guards at the workplace is a term and condition of employment and a mandatory subject of bargaining and the Court upheld the PELRB’s determination that the employer impermissibly made a unilateral change in terms and conditions of employment without bargaining.
• HSD relied upon the management rights and scheduling clauses in its CBA as constituting a waiver by the union of its right to bargain removal of security guards but the Court, referring to another section of the same CBA that required HSD to negotiate in good faith prior to making any changes in terms and conditions of employment related to “reasonable standards and rules for employees’ safety”, found that HSD did not meet its burden of showing a clear and unmistakable waiver of the union’s right to bargain those issues.

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)

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• PELRB acted correctly when it dismissed PPC’s having concluded the College’s labor management relations board is “duly constituted and fully functional.”
• PELRB does have “subject matter jurisdiction” of PPC’s and it acted consistently with the minimum requirements of PEBA. Its decision and order is consistent with the Court’s understanding of jurisdiction and is consistent with PEBA. The College’s appeal is therefore denied and the PELRB’s Order and Decision is therefore upheld.
• Even if one accepts that the undisputed evidence shows that the management and labor representatives were appointed anew in 2011 and that they did not agree on a third “neutral” member, the previously agreed-upon “neutral” continues to serve in that position pursuant to Article XX, Section 2 of the New Mexico Constitution, which applies to Northern New Mexico College as a State institution.
• The PELRB, having decided that Northern New Mexico College’s labor management relations board was duly constituted and fully functional, properly dismissed the Union’s PPC’s and because those PPC’s were reviewed by the Board as an original tribunal, not as an appellate body, a remand of those matters to the local board would not have been procedurally appropriate.

• Because of the City’s Labor-Management Relations Ordinance grandfather the absence of an evergreen provision does not fundamentally violate the PEBA. The LMRO does not permit the City to unilaterally impose conditions of employment once a CBA has expired. Instead, the LMRO includes provisions for impasse resolution through mediation and voluntary binding arbitration. These provisions ensure that the Unions are participants in the determination of employment conditions even after a CBA has expired.
• The PEBA defines “collective bargaining” as “the act of negotiating between a public employer and an exclusive representative for the purpose of entering into a written agreement regarding wages, hours and other terms and conditions of employment.” It says nothing about the relative effectiveness of the procedures adopted. See City of Deming, 2007-NMCA-069, ¶¶ 22-24, 141 N.M. 686, 160 P.3d 595, (stating that application of the grandfather clause is not dependent on an evaluation of the quality or effectiveness of the collective bargaining procedures).

• Petitioner as a public employee working for a public employer as those terms are defined in the PEBA is therefore subject to the PEBA and the grievance arbitration process in the applicable CBA, not the grievance process in the City’s personnel rules for non-union employees.
• An arbitration clause in a validly negotiated CBA does not fail for lack of consideration and the CBA at issue was supported by adequate consideration.
• The CBA’s arbitration clause is not vague or uncertain in its application.
• Petitioner’s contention that as a non-union member of the bargaining unit he is not bound by the agreement to arbitrate disputes is refuted by the plain language of the PEBA §§ 10-7E-15(A) and (B) and 20(D) is rejected. The Petitioner is bound by the requirement of the CBA as well as the PEBA that a grievance challenging termination is subject to binding arbitration.

• The PEBA does not impose a requirement that the Courts review the City’s LMRO for effectiveness, citing City of Albuquerque v. Montoya, 2012-NMSC-007, 274 P.3d 108.
• Although the Legislature included requirements for compliance with PEBA in both PEBA I and PEBA II, that requirement is applicable only if a public employer other than the state adopts a system of provisions and procedures permitting collective bargaining after October 1, 1991. In such instances the grandfather clause does require for grandfather status that the newly adopted system include impasse resolution procedures equivalent to those set forth in the PEBA. But the Legislature specifically did not include any such requirement for public employers adopting ordinances prior to October 1, 1991.
• PEBA § 17(E) requirement that agreement provisions that require the expenditure of funds shall be contingent upon the specific appropriation of funds by the governing body and the availability of funds applies to economic components of the extension of expired collective bargaining agreements under the PEBA evergreen provision. It is not an issue whether the City appropriated funds for or during the life of the agreement; no appropriation occurred to extend the agreements and the City contends it does not have funds sufficient to fund the extension. The PEBA leaves that determination to the legislative functions of the public employer.
• The PEBA does not require the extension of existing collective bargaining agreements in conflict with Section 10-7E-17(E).
• The complaint was moot with regard to two unions that entered into successor agreements with the City while the appeal was pending.

• The Governor may not use the broad removal authority under Article V, Section 5 of the New Mexico Constitution to remove members of the Public Employee Labor Relations Board who have the responsibility of adjudicating the merits of disputes involving the Governor.
• None of the PELRB members serve at the pleasure of the Governor because the Public Employee Bargaining Act obligates the Governor to appoint one member recommended by organized labor, one member recommended by public employers, and one neutral member jointly recommended by these two appointees.
• The Governor’s responsibility under the Act and Article V, Section 4 of the New Mexico Constitution to “take care that the laws be faithfully executed” requires that the Governor respect the Act’s requirement for continuity and balance by not attempting to remove appointed members of the PELRB.
• Constitutional due process requires a neutral tribunal whose members are free to deliberate without fear of removal by a frequent litigant in that forum, such as the Governor. Due process considerations are also implicated because when the Governor reserves the power to remove board members at any time and for any reason, the Governor exerts subtle coercive influence over the PELRB, further compromising its balanced and fair character. “A fair trial in a fair tribunal is a basic requirement of due process.” Citing In re Murchison, 349 U.S. 133, 136 (1955); Reid v. N.M. Bd. of Exam’rs in Optometry, 1979-NMSC-005, 92 N.M. 414, 416, 589 P.2d 198, 200.

• Any direct communication with a union represented employee made for the purpose of altering terms and conditions of employment constitutes a violation of the PEBA.
• There is no definition of the phrase “wages, hours and other terms and conditions of employment” in either the PEBA or the local ordinance so as to delineate exactly what constitutes a mandatory subject of bargaining.
• A union can contractually waive its right to mandatory bargaining if the waiver is expressed clearly and unmistakably. However, courts will not infer a waiver unless it is clear that the parties were aware of their rights and made the conscious choice, for whatever reason, to waive them.
• A “zipper clause”, standing alone, did not constitute a waiver as to a specific bargaining item. Such clauses are to be given such effect as the negotiating history and other surrounding circumstances seem to make appropriate.

March 8, 2011 and

August 19, 2010

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The New Mexico Supreme Court declined to limit a union’s liability for breach of a DFR by imposing a per se exclusion of punitive damages much as the U.S. Supreme Court has done for similar actions against federally regulated labor unions.

The unanimous opinion underscored the public policy served by punitive damages and held that “punitive damages should be available in DFR suits where the union’s conduct is malicious, willful, reckless, wanton, fraudulent or in bad faith.”

• Court of Appeals Reversed the district court’s grant of summary judgment to Union, granting summary judgment to the City.
• Provisions of PEBA stating that arbitration awards are contingent on the appropriation and availability of funds prevail over the provisions of PEBA stating arbitration awards shall be final and binding.

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• Order dismissing petition for writ of prohibition against the PELRB from hearing a PPC that alleged the City’s local labor ordinance, grandfathered under §26(B) of PEBA, fails to meet the requirements of that section.
• The Court provided no reasoning or analysis for dismissal. However, the underlying briefing to the PELRB and the Court demonstrates that both New Mexico Courts and the PELRB have routinely upheld the PELRB’s authority to review local ordinances’ compliance with PEBA, even where grandfathered; and that local boards grandfathered under §26(B) are subject to many more substantive requirements than §26(A) boards, and thus permit greater grounds for the PELRB’s exercise of jurisdiction to review such ordinances.

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• A labor relations board has jurisdiction under §19(D) of PEBA, and the equivalent section of a local resolution or ordinance modeled on PEBA, to hear PPCs alleging the retaliatory discharge of probationary employees, for their participation in Union activities and in order to discourage Union membership.
• Probationary employees’ rights to form, join or assist a union are not protected under § 19(A).

• Upholding the PELRB’s denial of grandfathered status to a provision of the City’s local labor ordinance that defined certain classes of public employees (fire fighter lieutenants and captains) as “supervisors” and therefore automatically excluded from the coverage of the local ordinance.
• Reversing the PELRB’s and the District Court’s denial of grandfathered status to the arbitration provision that was not final and binding.

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• Mandamus is inappropriate where the petitioner fails to exhaust its administrative remedies. “Where an appeal process is available to a litigant, mandamus is not an appropriate vehicle for challenging an administrative decision,” and the extraordinary remedy of mandamus is not proper where the only consequences alleged are “the usual delay and expense inherent in all litigation.” Citing State ex rel. Hyde Park Co., LLC v. Planning Comm’n of the City of Santa Fe, 1998-NMCA-146, ¶¶ 11 and 13, 125 NM 832. 
• In the case below, 2nd Judicial District Case No. CIV-2005-07443 (Nov. 23, 2005) Judge Clay Campbell denied the Schools’ Petition for Writ of Mandamus and Stay of Proceedings against the PELRB, finding that the PELRB did not infringe on a clear legal right of the School and did not exceed its authority under PEBA by exercising concurrent jurisdiction when a local board had been approved. 

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• Upholding the PELRB’s determination in 1 PELRB 2004 that the PPC was not moot, even though the Complainant quit working for the courts, because the question involved an issue of substantial public interest and the issue was capable of repetition.
• Reversing as arbitrary and an abuse of discretion the PELRB’s determination that PEBA applied to court employees, “on the basis of grounds asserted[,] … and … the arguments and authority contained in” the Second Judicial District Court’s statement of appellate issues and reply.

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• A compensatory claim against a union for breach of its statutory duty, as exclusive representative, to fairly and adequately represent a bargaining unit member does not state a prohibited practice under PEBA. Additionally, the PELRB and local boards lack authority to either award monetary damages to an aggrieved union member for a union’s breach of its duty of fair representation, or to order the Union to reinstate an employee allegedly improperly terminated as a result of the Union’s breach. Therefore, such claims cannot be brought before a Labor Relations Board and must instead be filed in District Court. See also, Callahan v. N.M. Federation of Teachers-TVI, 2010-NMCA-004, 147 N.M. 453, 224 P.3d 1258. Both Callahan cases reiterate the holding in Jones v. International Union of Operating Engineers, 1963-NMSC-118, 72 N.M. 322, 330-32, 383 P.2d 571, 576-78. 

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• Ruling that the City of Las Cruces’ refusal to provide the Union with bargaining unit members’ home addresses constitutes a refusal to bargain in good faith, in violation of the local ordinance and PEBA, and ruling that City Resolution 00-136 is void as inconsistent with PEBA to the extent it forbids disclosure of the home addresses of bargaining unit employees to the Union.

• To be grandfathered under § 26(A), a local ordinance or resolution must constitute a system of provisions and procedures permitting public employees to form, join or assist any labor organization and it must have been enacted before October 1, 1991. Thus, to remain grandfathered, provisions of a grandfathered labor ordinance or resolution may not deny the right to bargain collectively to any public employees who have been afforded this right under PEBA. Where a provision of a grandfathered ordinance or resolution does not meet the requirements under § 26(A) for grandfathered status, the particular provision shall be denied grandfathered status, not the ordinance or resolution as a whole.
• The New Mexico Supreme Court confirmed the supremacy of PEBA’s definitions of “public employee” and “supervisor” over those of grandfathered provisions.
• When reviewing administrative agency decisions, the courts begin by looking at two interconnected factors: (a) is the question one of law, fact, or both; and (b) is the matter is within the agency’s specialized field of expertise. If the agency decision is based upon its interpretation of its statute, the court will accord some deference, especially if the legal question implicates agency expertise. However, the court may always substitute its interpretation of the taw for that of the agency because it is the function of the court to interpret the law. If the court is addressing a question of fact, the court will accord greater deference to the agency’s determination, especially if the factual issues concern matters in which the agency has specialized expertise.
• The party appealing the agency decision has the burden of showing that the agency action is (a) arbitrary and capricious, (b) not supported by substantial evidence, and/or (c) represents an abuse of the agency’s discretion by being outside the scope of the agency’s authority, clear error, or a violation of due process.
• “Substantial evidence” is evidence that a reasonable mind would regard as adequate to support a conclusion. If the agency’s factual findings are not supported by substantial evidence, the court may adopt its own findings and conclusions based upon the information in the agency’s record.
• When reviewing an administrative agency’s findings of fact, courts apply the whole record standard of review, meaning the reviewing court looks at both favorable and unfavorable evidence. The reviewing court may not exclusively rely upon a selected portion of the evidence and disregard other convincing evidence if it would be unreasonable to do so. The decision of the agency will be affirmed if it is supported by substantial evidence in the record as a whole.
• It is the policy of New Mexico courts to determine legislative intent primarily from the legislation itself, because New Mexico has no state-sponsored system or recording the legislative history of particular enactments. Thus, New Mexico courts do not attempt to divine what legislators read and heard and thought at the time they enacted a particular item of legislation. If the intentions of the legislature cannot be determined from the actual language of the statue, then New Mexico courts resort to rules of statutory construction, not legislative history.

• Local boards approved by the PELRB under § 10 are required to follow all procedures and provisions of the Act, and therefore must follow PEBA’s definition of “supervisor” where the local ordinance’s definition of supervisor differs.
• In reviewing a labor board’s decision on a claim of insufficiency of the evidence, the appellate court resolves all disputes of facts in favor of the prevailing party and indulges all reasonable inferences in support of the prevailing party. The courts do not reweigh the evidence or substitute their own judgment for that of the board.

• The New Mexico Court of Appeals held that the Las Cruces Fire Department’s no-solicitation rule that encompassed rest breaks, lunch time, and residential hours presumptively violated § 19(B), and the city made no showing that its firefighting efforts would be hampered if employees were permitted to engage in union organizational activities during times when fire fighters were not needed for emergency services; thus, the record supported a finding that enforcement of the rule constituted a prohibited employer practice.
• Both PEBAs were generally modeled on the NLRA. Accordingly, “absent cogent reasons to the contrary,” interpretations of the NLRA must generally be followed in interpreting substantially similar PEBA provisions, “particularly when that interpretation was a well-settled, long-standing interpretation of the NLRA at the time the PEBA was enacted.”
• Questions asked by a local board member at an administrative hearing concerning the possibility of compromise does not indicate prejudgment or bias where the board member directed the questions to both the employer and the union representatives, and he did not indicate what he thought the compromise should be. A board member is not disqualified for bias simply because he was nominated by union interests, or because he had expressed support for aggressive unionization of the public sector prior to being appointed to the Board.
• Work time is for work, but the time outside working hours (such as rest and lunch breaks, and residential hours for employees working 24-hour shifts, such as firefighters) is an employee’s time to use as he wishes without unreasonable restraint, although the employee is rightfully on company property.
• It violates PEBA to promulgate work rules or restrictions with the intent to interfere with employees’ rights under PEBA, rather than for legitimate business purposes. For example, an employer may impose limits on general fraternization during work time, but it may not forbid or prevent union organizational activities at all, even during non-working periods.

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• The PELRB rule providing for the confidentiality of a showing of interest in support of a petition for representation, See, 11.21.1.21 NMAC, is an authorized exception “as otherwise provided by law” to the Inspection of Public Records Act (IPRA), under § 14-2-1(F) of IPRA. See Republican Party of N.M. v. N.M. Taxation & Revenue Dep’t, 2012-NMSC-26, 283 P.3d 853.
• PELRB regulations have the force of law if promulgated in accordance with the statutory mandate to carry out and effectuate the purpose of PEBA.

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• New Mexico district courts confirmed the Board’s authority under § 10-7E-10 to review the content of labor ordinances and resolutions, as part of the process of approving local boards.

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The Court upheld Farmington’s authority to enter into a CBA where there was no applicable merit system in place.