AFSCME Council 18

Federal Court Says Berry Administration Ignorant of New Mexico Law

UPDATE: TRO is scheduled to be heard by Judge Mallott's Second Judicial District Court on Friday, 10/17 at 1:30.

Address/Location
400 Lomas Blvd NW
Albuquerque, NM 87102


On Wednesday, Oct 1, the United States District Court for New Mexico reprimanded Mayor Berry’s Administration for wrongly attempting to delay justice for Albuquerque’s City Workers by removing from state court AFSCME’s petition for a temporary restraining order (TRO).

AFSCME’s emergency restraining order was filed September 20, 2014 to prevent the Administration from continuing to implement their last contract offer on Albuquerque City Employees.

CLICK HERE for October 6 ACTION Flyer

AFSCME contends that the Administration bargained in bad faith to impasse, that the contract they’ve imposed causes irreparable harm to workers, and that the Administration lacks the legal right under Albuquerque’s Labor Management Relations Ordinance (LMRO) to implement such changes to the contract.

The Federal Court ordered the case back to New Mexico’s Second Judicial District Court and placed sanctions on the City for “ignorance of New Mexico law,” meaning, Albuquerque taxpayers will pay for the Administration’s sloppy legal activity by covering AFSCME’s attorney fees.  

The TRO could be heard in state court as early as Thursday, 10/2/14.


Excerpt from Federal Court Order today:

Complete Federal Court Order HERE: https://www.scribd.com/doc/241645476/Opinion-and-Order-on-Remand

"Here, the Court finds that Respondent’s (the City) removal was objectively unreasonable. 
 
Doc. 1, Ex. A at 7.  Respondent’s contention that Petitioners attempt to “apply [a] wholly federal concept. . .to a municipal ordinance” utterly ignores the entire body of New Mexico law discussed above that allows Petitioners to take the legal approach they have espoused.  

This ignorance is particularly suspicious in light of the litigious history between these two parties and the timing of the removal notice in relation to the stage of the state court litigation of Petitioner’s request for a temporary restraining order.   The Court therefore will order Respondent to pay Petitioners for attorneys’ fees incurred related to the instant motion to remand."  


Original 9/22/14 Press Release:

Union Takes Berry Administration Back to Court

On Friday, the American Federation of State, County and Municipal Employees (AFSCME) filed for a temporary restraining order (TRO) and permanent injunction in response to the City unilaterally imposing their last contract offer on three AFSCME Locals.

“By imposing the city’s last contract offer the City stands to inflict irreparable harm onto Blue Collar, Transit, Clerical, and City Security employees by robbing them of several basic workplace rights. ABQ Mayor Berry, CAO Perry, and the management consultant, John Martinez, have buried their head in the sand to the time-honored practice of contract dispute resolution: arbitration,” said Connie Derr, AFSCME NM Executive Director.

On Monday, the City claimed that AFSCME’s TRO petition has raised a federal question and moved the case to U.S. District Court. Union attorneys strongly claim there is no federal question, and the City’s move is only an attempt to delay and obfuscate the matter.

“There is no federal question,” says AFSCME chief counsel Shane Youtz. AFSCME will file today to have the case remanded to state court.

AFSCME contends that the Berry Administration made an illegal move when they acted unilaterally and stripped ABQ City Employees of several union contract rights. Citing the “status quo doctrine” as defined by the National Labor Relations Board, AFSCME holds that the City is required to maintain the status quo until the impasse has been resolved, either through negotiation or the City’s impasse resolution procedures.

While the City and AFSCME agree that the 3% raise being awarded is overdue and should go into effect immediately, the injunction petition states that Albuquerque’s Labor Management Relations Ordinance does not give the City the right to impose unilateral changes to basic workplace rights enshrined in the contract.??


"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…." 

From Court of Appeals Decision AFSCME II, 2013-NMCA-063; [cited in Thursday's AFSCME Temporary Restraining Order:


"This case strives to retain the basic protective rights for valuable City employees, and so much more. After the City Council meeting held on September 15, 2014, a city employee AFSCME member and her 3 year old son approached me to thank me for speaking on their behalf. As I shook the boy's hand, she said, 'Tell him thank you for securing your future.' THAT is what this case is all about," said Rocky Gutierrez, AFSCME Council 18 staff and lead negotiator.

AFSCME’s position is that the City has three choices. One, they may continue in their historic negotiations posture, which the unions consider uncompromising, and remain at loggerheads. Two, they can agree to neutral third party arbitration, letting the chips fall where they may in a winner-take-all arbitration. Or three, they can return to the negotiations table prepared, as AFSCME says they are, to make compromises and strike a contract agreement.

The City claims that the practice of “Union-time” has been the sole sticking point during negotiations. Union-time is where the City pays wages of union officials to handle representational issues while on the clock. AFSCME contends that there are many issues keeping the two parties from reaching agreement.

AFSCME’s position on Union-time maintains that it is a mechanism saving the city money by allowing city employees / union reps time on the clock to intervene in workplace crisis.

“It's good for the workers, it's good for the City,” says Miles Conway, AFSCME Communications. “Today, the Berry Admin wants the practice done away with, and AFSCME does not. Fine, we disagree on union-time along with a dozen other points. That is why we remain at impasse and why we must continue to work with the City Council to change the ordinance and compel the Administration to Arbitrate.

If the Administration wins, so be it; an impartial third party will have decided on the merits of the arguments.”

ABQ leaders agreed with the unions over a decade ago that having a steward available on work time was of value and created savings to taxpayers.

Having someone trained on the contract, who can either blow the whistle on a manager, or explain to coworkers why they should stand down, continues to save the city big money by avoiding costly lawsuits, harassment charges, OSHA violations, workplace accidents, or violence.

AFSCME Local 624 Members at 8/15/14 City Council Meeting

Casey Padilla, President of Local 624 Blue Collar Union, said, “This is about more than fighting for union-time, a discipline procedure, seniority, or career ladders - this is about fighting to make sure that working for the City remains a respected and dignified career.”

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