Opinion
A-1-CA-39783
08-15-2023
AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 18, AFL-CIO, Appellant-Respondent, v. DONA ANA COUNTY, Appellee-Petitioner, and DONA ANA COUNTY LABOR MANAGEMENT RELATIONS BOARD, Appellee.
Youtz &Valdez, P.C. Shane Youtz Stephen Curtice James A. Montalbano Albuquerque, NM for Respondent. Nelson J. Goodin, County Attorney Las Cruces, NM for Petitioner.
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY, Marci E. Beyer, District Court Judge.
Youtz &Valdez, P.C. Shane Youtz Stephen Curtice James A. Montalbano Albuquerque, NM for Respondent.
Nelson J. Goodin, County Attorney Las Cruces, NM for Petitioner.
DISPOSITIONAL ORDER QUASHING WRIT OF CERTIORARI AS IMPROVIDENTLY GRANTED
JANE B. YOHALEM, JUDGE.
1. This matter is before this Court upon an order of this Court granting the >petition of Dona Ana County (Employer) and the Dona Ana County Labor M Management Relations Board (the Labor Board) for a writ of certiorari to the District C Court for the Third Judicial District under Rule 12-505 NMRA.
2. The petition for writ of certiorari sought review of the district court's order reversing the Labor Board's decision. The district court concluded the Labor) Board's decision that Employer had not committed a practice prohibited by the Dona Ana County Labor Management Relations Ordinance, Dona Ana County, N.M. Vol. I., Part I, § 73.16 (A) (2016-2021) when it disciplined the president of the correction >worker's union AFSCME Local 1529 (the Union), Sergeant Thomas Burns, was I- not supported by substantial evidence in the record.
Local 1529 is a bargaining unit of corrections officers employed by Dona Ana County. The Local is represented by the American Federation of State, County and Municipal Employees, Council 18, AFL-CIO (collectively, the Union).
3. In this case, the Union alleges that Employer interfered with the Union's right to organize and to enforce the collective bargaining agreement by d disciplining Sergeant Burns for discussing Union business with a superior in a way >Employer alleged was discourteous, abusive, and threatening. The discipline arose out of a forty-five-second interaction between Sergeant Burns and a superior officer, Lieutenant Cordova. It was undisputed that Sergeant Burns approached Lieutenant Cordova about a potential violation of the collective bargaining agreement. In a raised voice and with the use of profanity, Sergeant Burns threatened to file a grievance if the issue was not swiftly resolved. Evidence showed the forty-five-second confrontation was overheard by three employees.
4. The Union claimed that Sergeant Burn's conduct was the sort of "robust debate" that labor law permits Union officials to engage in with management when they are conducting Union business. Employer responded that the Union president's actions constituted unprofessional and aggressive behavior and bullying, conduct prohibited by Employer's personnel rules, and that engaging in union activity did not create an exception to Employer's rules concerning discourtesy.
5. The legal standard applied by the parties, the Labor Board, and the district court is derived from the National Labor Relations Board's (NLRB) decision in Wright Line, 251 N.L.R.B. 1083 (1980). Under Wright Line, to prevail on a prohibited practice complaint, a union must show that the employer had animus against the union activity or against the union, and that this animus was a motivating factor in the discipline. Id.
"Absent cogent reasons to the contrary, we should interpret language of the [Public Employee Collective Bargaining Act] in the manner that the same language of the [National Labor Relations Act] has been interpreted." Las Cruces Prof'l Fire Fighters v. City of Las Cruces, 1997-NMCA-031, ¶ 15, 123 N.M. 239, 938 P.2d 1384.
6. The Wright Line test was adopted for this sort of encounter in the workplace in connection with protected union activity only a month before the Labor Board hearing in this case by the NLRB's decision in General Motors LLC, 369 NLRB No 127 (July 21, 2020). General Motors reversed decades of precedent applying a quite different test that allowed significant leeway to union officials in confrontations with their superiors, so long as the encounter is shown to have involved union business. See Media Gen. Operations, Inc. v. N.L.R.B., 560 F.3d 181, 193 (4th Cir. 2009); Atlantic Steel Co. v. N.L.R.B., 245 N.L.R.B. 814, 816 (1979). This line of precedent recognizes that "[b]oth labor and management often speak bluntly and recklessly, embellishing their respective positions with imprecatory language." Linn v. United Plant Guard Workers, 383 U.S. 53, 58 (1966). Such language, if not threatening violence or disrupting the workplace, is regularly found by the NLRB not to justify discipline if the topic of the interaction was union business. See United States Postal Service, 241 N.L.R.B. 389, 390 (1979).
7. Since the writ of certiorari was granted, the NLRB, at the direction of the Fifth Circuit Court of Appeals, has reversed its decision in General Motors, Inc. and returned to the Atlantic Steel test, allowing a union representative to use blunt language with a superior so long as it is in furtherance of union business. See Lion Elastomers LLC, 372 NLRB No. 83, * 1 (N.L.R.B. May 1,2023) (reversing General Motors, Inc. upon remand from the Fifth Circuit). There is, therefore, no need for this Court to provide guidance for future labor-management relations cases on the evidence required by the rejected General Motors LLC, 369 NLRB No 127 test.
8. The dispute on appeal to the district court and the petition for writ of certiorari to this Court focuses solely on whether substantial evidence in the record as a whole supports the Labor Board's findings. Having carefully reviewed the reasons the district court gives for its conclusion that the Labor Board's findings were not supported by substantial evidence, together with the hearing and exhibits before the Labor Board, we see no error in the district court's application of the whole record standard of review. Although the district court uses the term "substantial evidence," the court's reasoning shows that the district court correctly applied the whole record standard of review required by Rule 1-074 NMRA.
9. Because the whole record standard of review and the method of applying that standard to a labor dispute is well established, we see no significant dispute of law or policy requiring a formal decision of this Court. See Duke City Lumber Co. v. N.M. Env't Improvement Bd., 1984-NMSC-042, ¶ 10, 101 N.M. 291, 681 P.2d 717 (relying on the whole record standard of review and noting that standard was established by Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951) for review labor board decisions.; see also Rule 12-505(D)(2)(b) (requiring an important question of law or policy to support review by writ of certiorari.)
10. We, therefore, conclude that certiorari was improvidently granted. We quash the writ of certiorari and affirm the district court's decision.
IT IS SO ORDERED.
WE CONCUR: J. MILES HANISEE, Judge, KRISTINA BOGARDUS, Judge.