(SUNfoto by Austin Fisher) New Mexico Public Employee Labor Relations Board Chair Duff Westbrook (center) reads from his motion, Aug. 9, upholding the decision to dismiss the prohibited practices case brought against the city of Española and its police department.
The New Mexico Public Employee Labor Relations Board has upheld an earlier decision by its director to dismiss allegations that the city of Española and it’s police department tried to dismantle the local police officers union.
The three-member Board unanimously affirmed, Aug. 9, Executive Director Thomas Griego’s findings that the city did not violate labor laws when it fired American Federation of State, County and Municipal Employees Council 18 Local 923 Labor Union President Sammy Marquez in January and suspended Vice President Robert Vigil for two weeks in March.
At their offices in Albuquerque, Board members deliberated their decision for about 15 minutes in closed, or executive session, following nearly 90 minutes of oral arguments by Union attorney Shane Youtz and city attorney Wayne Bingham, that focused on whether Marquez’s speech was protected when he wrote a memorandum in October 2015 that, along with an internal affairs investigation, led to his termination.
“I was disappointed in the decision,” Union attorney James Montalbano, who argued the case during five days of hearings this summer, said of the Board’s affirmation. “We’re exploring our options, we can appeal this to the (First Judicial) District Court.”
A follow-up call and an email message to Youtz for comment about a possible appeal was not returned.
During the hearings, the Union argued that the Department’s actions were part of an effort to dominate and dismantle the Union, which would violate the Public Employee Bargaining Act, but Griego disagreed.
In a 48-page decision in June, Griego wrote that the city’s discipline against Marquez and Vigil was not based on any hostility toward the Union.
The evidence doesn’t show any link between Marquez’s union activities and management’s decisions to discipline or fire him, Griego wrote.
However, his ruling explicitly avoids the question of whether Marquez should have been fired. Management had “reasonable business reasons” to discipline Marquez in the way they did, Griego wrote.
“Mr. Marquez may not breach established standards of conduct with impunity claiming sanctuary in his role as a union officer,” he wrote.
Marquez’s memorandum, dated Oct. 22, 2015, addresses write-ups that he received from Sgt. Daniel Espinoza and Sgt. Michelle Ortega, and how they did not conform to city policy for discipline, in addition to the lack of qualifications of the supervisors and allegations of former deputy chief Miguel Maez abusing sick leave.
Espinoza and Ortega were two of nine Union members who each pulled their Union dues at the same time, four days later.
“Of course you and your staff would not know anything about that because you are all inept at your jobs,” Marquez wrote in the memorandum. “It is attributed to the mere fact that no one here; yourselves included, cannot even pass a corporal or sergeants test. You have all been appointed (enabled) into your positions which are clearly blatant in your decision to enable your ‘special few.’”
Marquez also wrote that he would take “further action” against the Department, and that Police Chief Richard Gallegos should retire, for which he is eligible.
“The contents of the letter were not a matter of public concern and thus were not protected speech,” Griego wrote, citing four U.S. Supreme Court cases involving First Amendment free speech protections for government employees.
Gallegos and Maez testified that they perceived Marquez’s memorandum as a threat, and that it became a significant, though not the only, basis for his termination.
The internal affairs investigation concluded that Marquez harassed and threatened co-workers and superior officers, was insubordinate and engaged in conduct “unbecoming of an officer.”
“Chief and Deputy Chief testified that they felt physically threatened by Marquez’s statement because Mr. Marquez has the ability and attitude to harm them,” Bingham told the Board. “His comments go beyond disrespect, and attack the character of the Chief. They became very personal, denigrating, insubordinate, embarrassing, and unacceptable in civilized society.”
Lawyers disagree over what law to apply
Youtz said the memorandum was rude, “jerky,” and an example of poor judgment by Marquez, but the point of the case is not the tone of the statements, but whether labor law provided him the right to make the statements.
“If writing that is a physical threat, then I am guilty of physical threats every day in my business,” Youtz said. “The law says he shouldn’t have to forfeit his job for saying stupid things in the context of being a union president. Griego did not evaluate the situation in that context, instead he relied on First Amendment analysis, which is completely irrelevant.”
Youtz said Griego missed the point by relying on that line of case law, rather than New Mexico law and federal labor decisions that assert employees’ rights to “form, join or assist a labor organization for the purpose of collective bargaining.”
The National Labor Relations Act, the state’s Public Employees Bargaining Act and the precedent set in the 1979 Atlantic Steel Co., case which protects union representatives from being fired for speaking their mind, Youtz said.
“I’m not going to decide the issue of whether it was appropriate for Mr. Griego to rely on Connick v. Myers and that line of (free speech) cases, but I know that Mr. Marquez’s speech wasn’t protected under the Atlantic Steel decision,” Board Chair Duff Westbrook said in his motion to affirm Griego’s decision. “I particularly don’t think that the dictum from the Ninth Circuit case cited by the Union with respect to language requiring physical threat is claimed in precedent or law that would be adopted by the Boards of New Mexico.”
Bingham said Youtz is reading the Atlantic Steel case wrong, and that the case does not apply to Marquez’s termination.
Bingham also said the U.S. Supreme Court gives the state Public Employee Relations Board the option to use National Labor Relations Board findings for guidance, but does not require the state board to do so.
Union officers challenging discipline
Marquez is currently challenging his termination, which is expected to go into arbitration overseen by the city’s Human Resources Department and Council 18.
City Human Resources Director Sally Baxter said in a phone interview, Aug. 11, that an arbitrator has been selected in Marquez’s case, but no dates for arbitration have been set.
The arbitrator was selected from a list provided by the Federal Mediation and Conciliation Service.
Vigil is also challenging his two-week suspension from the force for crushing a small amount of marijuana found on a suspect while on duty.
A list of possible arbitrators has been made but the actual arbitrator has not been selected, Baxter said.
A version of this article appears in print on Aug. 25 on page B1 of the Rio Grande SUN with the headline: Board Upholds Decision.