THE CITY OF LAS CRUCES, NEW MEXICO, (“the City”) and UNITED STEELWORKERS, LOCAL 9424, Union, FMCS Case 230515-06112, Mar. 9, 2024.

A.   After negotiations for a contract due to expire in July of 2023, the parties had agreed on all terms to a successor CBA except for Article 24, pay increases. Impasse was declared and five mediation sessions with the Federal Mediation of Conciliation Service did not result in an agreement. FMCS Arbitrator Stephen E. Alpern, held a hearing September 6, 2023, and considered the parties’ post-hearing briefs.

B.   The arbitrator issued his award on November 11, 2023, noting that he was bound by the PEBA to choose one of the parties’ Las Best Offers (LBO), but the PEBA “provides no standards for an arbitrator to consider in adopting one of the two LBO’s.” He also noted that the NMSC had found that “an arbitration award requiring a public employer other than the state to expend funds is contingent upon the appropriation and availability of funds.” See Ntl. Assn. of Firefighters v. City of Carlsbad, 2009-NMCA-097, 147 N.M. 6, 216 P.3d 256 (2009) and 5 Article IV, Section 27 of the New Mexico Constitution which provides: “No law shall be enacted giving any extra compensation to any public officer, servant, agent or contractor after services are rendered or contract made …. “

C.   The Union’s LBO provided that, upon adoption of the new Agreement, those employees who did not receive at least a $2.50 per hour increase in December 2021 would receive an increase of at least $2.50 per hour. After this adjustment was implemented all bargaining unit employees would receive a 3% wage increase. The City would also immediately pick up an additional 1.3% of the employees PERA contributions. The LBO further provided that within two weeks after the Agreement was effective the parties would hold further negotiations regarding bargaining unit employees’ compensation and classification, and even further negotiations regarding wage increase during the second and third years of the contract.

D.   The City’s LBO provided that at the first pay period following adoption by the City Council and ratification by Union membership of the Agreement the City would implement its new classification and compensation study completed in 2022. Employees would receive any increases provided by that study or a 4% wage increase, whichever is greater. In addition, at the same time, the City would pick up an additional1.3% of the employee’s contribution to PERA. In addition, the City proposed a 3% increase to base wages, effective the first full pay periods after July 1, 2024 and July 1, 2025, provided that the City Council appropriated sufficient funds for those pay increases in Fiscal Years 2025 and 2026, respectively. If sufficient funds were not appropriated, either party could reopen negotiations on Article 24 by giving written notice to the other party by July 15 of the appropriate year. Finally, the City’s proposal would allow either party to reopen negotiations on one non-economic article by giving written notice to the other party no earlier than 120 days and no later than 60 days prior to the second anniversary date of the adoption of the Agreement.

E.   The arbitrator noted that the provision in the Union’s LBO regarding the pick up of PERA contributions would likely be found to be illegal because any changes must first be approved by the Pension Board. “The problem in this case is that the alleged illegal provisions in the Union’s LBO appear to be essential to its proposals.” The arbitrator was also skeptical of the ‘further negotiations’ in the Unions LBO: “At best the Union’s proposal “kicks the can down the road” and is inconsistent with finality and with labor relations stability.”

F.    The arbitrator did not find the City’s LBO to be ideal either, “largely resulting from unilateral changes in employee wages that the City adopted in December 2021 in response to the newly enacted New Mexico minimum wage of $15 per hour. Rather than simply adjust the wages of employees who earned less than $15 per hour, the City increased other employee wages to avoid wage compression.” This could result in less senior employees receiving greater increases than more senior employees.

G.   As part of his Award Arbitrator Alpern wrote: “This is an unfortunate case where it appears that final offer arbitration did not result in the parties refining their positions to be attractive to a neutral arbitrator… The Arbitrator is left in a difficult position. Neither party’s LBO presents a reasonable resolution of this dispute. The Union’s LBO does not provide for finality… Frankly, there is no adequate remedy for the concerns the Arbitrator has with each party’s LBO. Instead, those concerns must be addressed by the parties in the future within the perimeters of this Award. Nevertheless, based upon the entire record in this matter, the Arbitrator determines that the City’s LBO is more acceptable than the Union’s.”

As of 3/09/2020

DOÑA ANA COUNTY and CWA, FMCS Case 13-51332-1, Aug. 27, 2013.

A. FMCS Arbitrator Ira Epstein found that the last best offer (LBO) of CWA was the more appropriate. Management posited that because the union’s last, best offer included the existing agreement’s provisions for paying 1/2 time for union members to attend bargaining sessions, the arbitrator must reject its offer as illegal on the ground that paying union member employees to attend bargaining sessions violated the Anti-Donations clause of the New Mexico State Constitution. The union contested that claim asserting that the payments are not a gift or contribution as contemplated by the Anti-Donation clause.

B. The arbitrator declined to decide whether payments to employees engaged in negotiations constitutes a felony in violation of § 30-23-2 NMSA as beyond the scope of an arbitrator’s authority. In the absence of a determination of illegality, the effect of Article 51 (Savings Clause) of the contract is that only the particular section of the proposal would be rendered illegal, not the entire proposal.

C. Also finding that management’s proposal made “sweeping changes” to current procedures governing discipline, grievances and arbitration that “carve grave inroads into the traditional definition of the grievance and arbitration procedure.” He rejected a proposed indemnification clause management sought to add to a Fair Share Article, changes to sick leave and vacation leave accrual rates and sick leave conversion payouts and other changes to the status quo proposed by management. He adopted the union’s application of the “just cause” standard being applied to employee Performance Assistance Plans.

D. The Decision was appealed to the Third Judicial District Court as case No. D-307-CV-201302250. J. Martin upheld the arbitrator’s decision on Sept. 27, 2013 and the Decision was not appealed further.

VISTA GRANDE CHARTER HIGH SCHOOL AND VISTA GRANDE FEDERATION OF UNITED SCHOOL EMPLOYEES, AFT – FMCS Case 11-55446-1, August 19, 2011.

A. In an Interest Arbitration Dispute the Union’s last best offer (LBO) was the more appropriate. Arbitrator I. B. Helburn based his decision on several factors among which were Employer’s limitation of solicitation of union membership and distribution of literature to “non-paid time” is “problematic” because the bargaining unit members are professional employees so that not all break time is work time. The School proposal would prohibit employees from discussing the Union at meals or in tents during wilderness trips. Additional factors that may be of statewide interest include the following:

B. The Employer’s offer prohibited the Union from making announcements at meetings or speaking at new employee orientation and is inconsistent with §10-7E-15(A) NMSA 1978 and with the CBA between TMS and the Taos AFT.

C. The Union asked for 10 professional leave days per year for members’ attendance at legislative meetings and/or participation in national or state-wide conferences if such leave “benefits both parties”. Arbitrator Helburn found such leave is not an unconstitutional donation as argued by the Employer.

D. The PEBA has been interpreted to apply Weingarten protection to New Mexico public employees; thus, the Employer’s request that such rights be excluded from the CBA is unreasonable. Nor can the Employer withhold information relevant to the Union’s duty to represent bargaining unit members for grievances and other purposes. Where privacy issues are a concern, the parties can negotiate how to address privacy concerns while preserving Union rights. The Employer’s restricted access to employee home addresses and phone numbers is inconsistent with existing federal and New Mexico case law.

E. The Union’s request for $50 per day compensation for wilderness experience days up to $5,500 annually, was justified by the nature of the instruction and supervision provided, e.g. the skill and experience required; the responsibility placed on wilderness experience instructors and the hazardous nature of this work in potentially undesirable conditions. Employees were already eligible for additional compensation, such as stipends, if the required work was different than their regular duties. The Employer did not claim an inability to pay, but the Arbitrator commented on a salary level lower than comparable levels in the area and pay cuts taken in the previous year and in the coming year. Funding the request would not require a re-appropriation of funds because the budget had not yet been reviewed.

F. The Employer’s LBO would make an employee evaluation “‘in compliance with PED Rules and Regulations'” non-grievable. This would remove employee rights contained in PEBA that all personnel related issues are grievable. The evaluation is part of licensure requirements; thus, a poor evaluation could impact the teacher’s license. Because the evaluation covers a three-year period, both the evaluation and related documents should be a part of the grievance procedure and “any/all documents pertaining to the evaluation must be provided because the summative evaluation requires that data be collected and analyzed”. A CBA that makes clear that probationary and tenured teachers have equal protection under PEBA will reduce future conflict. “(T)ermination and discharge are ‘related personnel matters’ and therefore must be governed by the grievance procedure of the” CBA. PEBA supersedes the previously enacted School Personnel Act in requiring equal treatment for probationary and tenured employees. “(T)he Union’s grievance procedure mirrors the School Personnel Act, while the Employer’s grievance procedure excludes the School Board/Council, which is a fundamental right of the employees under the School Personnel Act”. Exclusion of the School Council from the grievance procedure “would render the grievance procedure null and void because the sole individual to resolve the grievance would be the same individual to whom the grievance would be filed”. The inherent conflict of interest would abrogate due process protections. Immediate recourse to arbitration “is cost prohibited”. In addition, the Employer improperly, for reasons noted above, removes termination and discharge of probationary employees from issues subject to the grievance procedure.

G. The Employer’s LBO contained a “severely worded waiver clause” (zipper clause) that “prohibits the negotiating of impact decisions”.

H. Because of the timing of the hearing of this matter, the issue of whether approved budgetary funds could be moved between categories arose. The Employer has the burden of proof of demonstrating a school board has the ability to appropriate or re-appropriate funds. The New Mexico legislature is the only entity that may appropriate or re-appropriate education funds but a school-site budget contains a general description of how the money is to be allocated, not a fixed budget that contains the spending of money for a specific purpose. Following appropriation by the legislature, the PED allocates funds to school districts based on unit values. Local school boards then allocate “appropriate distributions. . .to individual charter schools” in their districts. Advisory School Councils work with administrations, advising on, among other things, “”proposed and actual budgets'”. The wording indicates flexibility. There is also reference to an operating budget. None of these are fixed; all can be modified or amended, “with the District having the ability to transfer funds within the operational codes of the school budget. . .”.

I. Requiring a commitment to remain as a teacher for three years did not constitute “involuntary servitude”. While the meaning of “involuntary servitude” extends beyond actual slavery, it cannot be viewed as applying to a situation where a teacher would know in advance that applying for and accepting financial support and release time would result in a commitment to remain as a teacher for three years. The additional three years would be paid at the appropriate salary rate. The acceptance of financial support and release time would be up to the teacher and so is not an involuntary situation. Arbitrator Helburn noted that those accepting appointments to one of the United States military academies who complete their studies, graduate and receive their commissions are obligated to serve for a set number of years. That arrangement has not been viewed as “involuntary servitude.”

STATE AND CWA, Sep. 25, 2009

A. In an essentially identical arbitration, Private Arbitrator John A. Criswell concluded the State violated Article 27 of the Jan. 1, 2006-Dec. 31, 2008 CWA/State CBA by implementing the legislature’s “2.5$ average raise” as an across-the-board raise for all employees covered under the State Personnel Act, rather than by providing bargaining unit members their negotiated raises.

B. The Arbitrator rejected as “totally unreasonable and bordering on sophistry” the State’s argument that it met its obligation concerning the 2% raise upon issuance of the Governor’s recommendation.

C. The Arbitrator also rejected the State’s arguments that it was required to make across the board pay raises. To the extent the State argued it was required to do so by the language of the appropriation legislation itself, that understanding was belied by the use of the word “average.” Moreover, the State presented no evidence indicating it was otherwise under any legal obligation to pay unrepresented employees the same salary increases as provided for in the CBAs. Although the State may elect to do so, it can do so only after satisfying its obligations under the CBA

D. As a remedy, the Arbitrator directed the State to provide, within 30 calendar days, a written accounting to the Union indicating the pay raises that should have been received had the fiscal year 2009 raises been properly implemented. Thereafter, the parties would confer and if they could not reach an agreement, they would file supplemental statements with the Arbitrator within 90 days of the award.

CYFD and AFSCME, FMCS Case #070110-52739-8, Jan. 8, 2008

A. FMCS Arbitrator Rex H. Wiant concluded the State did not violate the CBA in implementing the closure of the Boys Springer School. It worked and negotiated extensively with the Union to implement the closure, and to find new positions for the affected bargaining unit members. Additionally, the State was not required to negotiate over the use of job placement screening and tests concerning physical and psychological fitness, and criminal records. Ultimately, over 95% of the affected employees were placed in new positions and no one was denied a new position due to the disputed screening and testing.

B. The Union’s basic position during arbitration essentially amounted to a plea to prohibit the State from closing the Boys School at all, while the State clearly had the authority under State law and the CBA to take close the facility, just as it had clear authority under the CBA to determine job qualifications.

C. The Union requested PELRB review of the arbitration award pursuant to NMAC11.21.3.22(C). Thereafter, the hearing examiner dismissed the PELRB PPC (which had previously been deferred in favor of arbitration), upon conclusion that issues raised by the PPC were fairly presented to and fairly considered by the arbitrator, and the award was both consistent with the act and sufficient to remedy the violation found. See AFSCME v. CYFD, PELRB Case 134-06, letter decision dated Feb. 19, 2008.

¹ NOTE that this list does not presume or pretend to be exhaustive. The Agency only learns of and/or acquires copies of arbitration awards upon notice from and/or service by the parties.

The schedule was as follows:

Compa-ratios are determined by dividing the employee’s rate of pay by the rate of pay of the midpoint of the employee’s pay band. Thus, the purpose and intention of this provision, as found by both Arbitrators was to give larger increases to the lowest paid bargaining unit members, and smaller increases to the highest paid bargaining members.

AFSCME, CWA and the Fraternal Order of Police all had identical pay raise provisions in their State CBAs.