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Communication Workers of America, AFL-CIO v. State

Court of Appeals of New Mexico

February 21, 2019

COMMUNICATION WORKERS OF AMERICA, AFL-CIO, Appellant/Cross-Appellee-Petitioner,
v.
STATE OF NEW MEXICO, Appellee/Cross-Appellant-Respondent.

          APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Carl J. Butkus, District Judge.

          Youtz & Valdez, P.C. Shane Youtz Stephen Curtice James A. Montalbano Albuquerque, NM Rosenblatt & Gosch, PLLC Stanley M. Gosch Greenwood Village, CO for Appellant.

          Hector H. Balderas, Attorney General Lori Chavez, Assistant Attorney General Santa Fe, NM, Holcomb Law Office Dina Eileen Holcomb Albuquerque, NM for Appellee

          OPINION

          JULIE J. VARGAS JUDGE.

         {¶1} This case arises from a prohibited practice complaint filed by the Communications Workers of America, AFL-CIO (the Union) against the State of New Mexico (the State). In its complaint, the Union argued that the State violated the Public Employee Bargaining Act (the PEBA). The Public Employee Labor Relations Board's (the Board) Executive Director, Thomas J. Griego, designated as the hearing officer, found the State violated NMSA 1978, Section 10-7E- 19(B) (2003) (prohibiting public employers from interfering with, restraining, or coercing public employees in the exercise of their rights guaranteed under the PEBA) and Section 10-7E-19(F) (prohibiting public employers from refusing to bargain collectively in good faith with the exclusive representative). The Board adopted the Hearing Officer's findings and conclusions, with the exception of those related to the Hearing Officer's finding of a violation of Section 10-7E-19(F). The district court, reviewing the case in its appellate capacity, affirmed the Board's decision that no violation of Section 10-7E-19(F) occurred and reversed the Board's decision insofar as it found a violation of Section 10-7E-19(B). Having granted the Union's petition for a writ of certiorari under Rule 12-505 NMRA, we reverse the district court with instructions to remand to the Board for proceedings consistent with this opinion.

         I. BACKGROUND

         {¶2} The State has long maintained a practice whereby a bargaining unit employee who files a grievance may use state-paid time to prepare for and participate in grievance meetings, subject to the discretion of the employee's supervisor. Prior to the enactment of the original version of the Public Employee Bargaining Act (PEBA I), NMSA 1978, §§ 10-7D-1 to -26 (1992, repealed 1999), bargaining unit employees were paid for time spent in grievance meetings. In 1994, following PEBA I's enactment, the Union and State entered into a collective bargaining agreement (CBA). In the 1994 CBA, the parties agreed that:

The Employer shall allow [u]nion officials and stewards who are employees (hereinafter referred to as "employee officials") to attend, on paid status, meetings agreed to by the parties for purposes of administration of this Agreement, including grievance hearings.
Employee officials may investigate and process grievances on paid status for reasonable periods of time during their normal working hours. Where an employee official needs to consult with another employee concerning a grievance, both employees shall request permission to do so.

         Under this CBA, bargaining unit employees were paid for time spent preparing for and participating in grievance meetings, provided they received approval from their supervisor. The 1994 CBA contained a "zipper clause," which provided:

This agreement shall be deemed the final and complete agreement between the parties and expresses the entire understanding of the Employer and the Unions. This agreement supersedes any and all previous agreements and all conflicting agency and departmental rules, policies and regulations on the same matters except as otherwise specifically provided herein.
The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from collective bargaining, and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and the Unions, for the life of this Agreement, each voluntarily and unqualifiedly waive the right, and each agree that they shall not be obligated to bargain collectively with respect to any subject or matter referred to or covered in this Agreement. However, the parties continue to have a duty to bargain over any subject or matter which was not within the knowledge or contemplation of the parties at the time they negotiated or signed this Agreement.

         {¶3} Following PEBA I's repeal in 1999, the Union and State operated for four years without a CBA. During this time, bargaining unit employees continued to be paid for time spent preparing for and participating in grievance meetings. In 2004, after the passage of PEBA II, NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005), the State and the Union entered into a second CBA. The 2004 CBA largely kept the same language regarding paid time for union officials and stewards, adding limitations on union officials' and stewards' use of union time. Under the 2004 CBA, bargaining unit employees continued to be paid for time spent preparing for and participating in grievance meetings, provided they received approval from their supervisor. The 2004 CBA's zipper clause contained similar language to that of the 1994 CBA, though it deleted the waiver language and stated only:

[F]or the duration of this Agreement, the Employer is not obligated to bargain over Union initiated changes in terms and conditions of employment unless such changes are proposed pursuant to the terms of this Agreement.
[I]n addition to changes initiated pursuant to its Management Rights (Article 5 of this Agreement), the Employer reserves the right to propose other reasonable changes in the terms and conditions of employment of employees to meet legitimate public service and operating needs, and such changes are subject to negotiation in accordance with the PEBA or any other expedited impasse resolution procedures mutually agreed upon by the parties at the time of such negotiations.

         {¶4} In 2009, the State and the Union entered into a third CBA, which remains in effect. Article 2 of the CBA, titled "Union Rights," provides:

Section 3. The Employer shall allow [u]nion [o]fficers and stewards to attend, on paid status (utilizing the union time code in the time and labor reporting system), meetings agreed to by the parties for purposes of administration of this Agreement including grievance meetings within the parameters set forth in this section's succeeding paragraphs.
Each union officer or steward shall be entitled to use union time to investigate and process grievances, which they are authorized to settle, within the agency to which they are employed, for reasonable periods of time without charge to pay or to leave. Union time must be pre-approved and will not be disapproved except for operational reasons.
When a union officer or steward desires to consult with another employee concerning a grievance on work time, both employees shall request and obtain prior permission to do so.

         Section 3 goes on to provide time and procedural parameters for the grant of union time. Article 2 also defines the terms "union officer" and "steward":

Union [o]fficer means a classified state employee elected as President, Executive Vice-President, Secretary, Treasurer, Agency ...

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