STOP!

What’s Wrong With This Picture?

Preface:

I don’t want to write about it! I Don’t Want To Write About It!! I DON'T WANT TO WRITE ABOUT IT!!!

I was the Albuquerque Police Officers Association president some 22 years ago and was last a union contract negotiator nine years ago. I have been gone long enough that I had hoped I would not have to write about what is going on in the union. I wouldn’t, except it affects the public, not just the police department or city employees.
I haven’t seen, read, or discussed with anyone the details of the recently ratified APOA contract. The language is of little consequence to why I write today.

Nobody is ever completely satisfied with a collective bargaining contract and there are age-old disputes about how to negotiate. This contract is no different. It’s what happened outside of the police and other city employee contracts that has caught my attention.

Lawrence Torres was appointed Director of Employee Relations by Mayor Martin Chávez in August 2006.

Torres, left, was an open space ranger and had been the chief negotiator for the APOA. His appointment violated ethical standards by allowing him to administer a contract that he had negotiated in his former job. It is not a violation of any city rule or ordinance, because the city has refused to address such issues. In the wider circles of professional public administration, such an ethical lapse would be well defined.

During this year’s round of negotiations, the city has entered into what can only be described as “take it, or leave it” deals with each of its labor unions, without entering into any good faith collective bargaining sessions. Normally, city employee union negotiations take several months to complete. This year, the meetings have not run past a couple of sessions.

The tactic is known as Boulwarism, named after a General Electric management negotiator and company Vice President Lemuel Boulware. He devised a plan for the company to identify and address all the concerns of the workers. His comprehensive research was presented at the opening of the next bargaining session as a “take it, or leave it” proposition as the "first, last and best offer." The International Union of Electrical, Radio and Machine Workers, AFL-CIO (IUE) filed several unfair labor practices and the National Labor Relations Board ruled the tactic improper.
General Electric Co. v. NLRB, 412 F.2d 512 (2d Cir., June 9, 1969)

Boulwarism is illegal. Ironically, Boulware’s financial offers were considered more than fair and outstripped anything offered by the rest of the industry. However, the electrical workers union wanted, but were denied, its opportunity to bargain at the table, not unlike what is currently happening to Albuquerque’s city employee unions.

The city's contract labor negotiator and mayor's education consultant Paul Broome, above, is trying to play the role of Boulware. However, he did none of the research nor had any of the benefits Boulware brought to the electrical union. Broome has only followed Boulwarism to the extent that the city has made a “take it, or leave it” contract offer.

Broome has used strong-arm tactics by telling city unions that it is all about money. He used tactics that were completely contrary to the city's labor ordinance; the requirement that labor put its proposal on the table first. Broome, instead put the "best, last and final" offer on the table. He then used pressure tactics including, that the mayor and department director are impatiently awaiting for the union to wrap it up.

I was going to write a piece about captains being removed from the union by contract last year, but I restrained myself; now seems like a good time to comment on it as an example of how the City is attacking unionism.

The problem stems from the Labor-Management Relations Ordinance and the original philosophies at play. Normally, and specifically in the private sector, supervisors are not allowed to be union members.

As a result of the City’s refuse collectors’ wildcat strike in 1970, blunted by a strong showing of police power, the city hastily wrote a labor law. This event was, for city union workers, the equivalent of the Boston Tea Party. It marked a change. However, even though the city agreed to negotiate with its employees, the ordinance the city drafted was far from a “good faith” attempt to deal fairly with the employees.

The City Commission defined supervisors:

Supervisors. …In the Police and Fire Departments, chiefs, deputy chiefs, and assistant chiefs are the only employees classified as supervisors.
('74 Code, § 2-2-3) (Ord. 153-1971; Am. Ord. 4-1977)

The operative word was “only.” Neither a union nor the city, separately or collectively, may ignore or rewrite a City Ordinance. In past contracts, union membership was defined as all “permanent, full-time, non-probationary, sworn police officers through the rank of Captain, from APD, Aviation, and Open Space.” This simply is another violation of the ordinance. The city and union redefined captains by calling them commanders. The change did not make the captains/commanders part of the excluded group: chiefs, deputy chiefs, or assistant chiefs.

Now there are reports that Sergeant Paul Heh, who was openly dissatisfied with the terms of the contract, is being investigated for "conduct unbecoming of an officer," by the APD Internal Affairs unit that is looking into complaints of intimidation over voting for the contract.

The APOA negotiating team made a presentation to its members on Thursday, March 13, using a PowerPoint slide program with all the purported language changes.

The Eye on Albuquerque has blogged extensively on this issue and the backside comment pages have had a lively discussion. Charges and counter charges ranged from why younger officers should get the lion’s share of the money to how longevity pay was going to be removed.

One of the common threads during the discussion is that there was not a complete contract available for review.

Some, including Heh, have charged that not having a complete copy of a tentatively agreed upon contract had never been done this way before. That’s one of those things, the statement “it never happened before,” that really bothers me. It has happened before and a lot of other things happened also. Almost every APOA negotiating team has presented proposed contracts in as many different ways as imaginable. I watched them all, while I was there; sometimes they had copies of full language, sometimes they didn’t.

Currently a ratification vote commenced immediately following the presentation with polls closing 36 hours later. The results were for acceptance by a vote of 366-307.

However, there were several items of concern raised:
Probationary officers were allowed to vote on this contract.

If true, this is a violation of the labor ordinance about the makeup of the bargaining unit as mirrored in the language: “non-probationary” members.

Chief Ray Schultz, center, speaking with field services officers after the Feb. 2, Hillary Clinton rally, announced in March, after the contract ratification vote, that he was changing Field Services Officers’ work schedule from four ten-hour days to five eight-hour days.

So what’s wrong with this picture?

This isn’t the first time city employees have been unhappy with contracts. Police Chief Gerald Galvin is surrounded by picket signs as he sat at the back of a 2000 City Council meeting where police officers gathered to protest the negotiations process.

Sgt. Heh spoke out at the April 8, 2008, City Council meeting. Heh is absolutely protected by the First Amendment for off duty comments about a matter of public concern. Immediately after the meeting, Heh was hand served with a target letter from Internal Affairs.

The existing contract specifically delineates how a target letter will be delivered.

“Section 23. Administrative Investigations
D. The officer shall be informed of the nature of the investigation before any interrogation commences. Prior to any administrative interview being conducted sufficient information shall be disclosed to reasonably apprise the officer of the allegations. This information will be provided to the target officer(s) in writing via certified US Mail. Through the course of the investigation, additional issues of concern may arise that may be incorporated into the investigation.”

There is a prohibition against parties and individuals becoming involved with the negotiations process in the Labor-Management Relations Ordinance.

§ 3-2-9 Prohibited Practices.
(C) It shall be a prohibited practice for any elected or appointed official of the city government or for any employee organization, group of city employees or individual city employee to attempt to influence negotiations or to interfere with the normal progress of negotiations between the duly authorized negotiating teams of the city government and of the employee organization.

One might think that both Sgt. Heh and the City Councillors violate the language of this ordinance. One would be right. However, if you will recall the first five words of the First Amendment, “Congress shall make no law…” That now includes the City Council, which “shall make no law… abridging freedom of speech…

This is City Attorney Bob White at a 1999 City Council meeting when then APOA President Alex Marentes and Vice President Paul Pacheco, who were challenged by then Council President Vicki Perea. Perea quoted the prohibited practice, but White warned her off with the First Amendment.

Apparently there is an accusation that Heh and possibly some other senior sergeants or veteran officers intimidated younger members of the APOA to vote against the contract. It is these accusations of intimidation that sparked Internal Affairs investigations.

This is where the title of this post comes into play: STOP!

This allegation is a union matter, to be resolved within the union, by the union.

If the chief believes that the alleged intimidation is more serious than a violation of the Standard Operating Procedure, then he should handle it as a criminal matter.

There are at least two problems with that:
APD’s criminal investigators, like their counterparts at Internal Affairs, are members of the bargaining unit and there is a built in conflict of interest that can not be overcome within the department.
There has been an allegation, if only a rumor, that non-union administrators, commanders or a deputy chief may have been present at a polling place and possibly looked over the shoulder of officers while casting a ballot.

With such allegations, it would be improper for APD to conduct such an investigation.

There is an irony associated with the idea that senior members of the association might intimidate younger members. When the old City Commission accepted the city’s human resources’ department’s draft language that became the Labor-Management Relations Ordinance in the early 1970’s, it chose to include all officers except the executive levels of chief, assistant chief and deputy chiefs. The thinking, according to John Martinez, who was at one time Director of Personnel and Employee Relations Department and the person who was intimately involved in all things related to labor relations at the city, was that police captains were included in the bargaining in part so they could exert a calming effect on younger and potentially more bold officers.

It now seems the opposite is occurring, with the allegation that senior members are influencing younger ones through rash acts.

Sgt. Heh has retained attorney John D'Amato, who is suspicious of the timing of the Internal Affairs’ target letter.

The City Council does not play a direct role in labor negotiations. They can become involved in two ways. The Council has a Guidelines Committee.

§ 3-2-17 Guidelines Committee.

(A) To facilitate communication and coordination between the Mayor and the City Council concerning collective bargaining strategy, there is created a Guidelines Committee composed of three City Councillors appointed by the Council President and three members of the Mayor's staff, one of whom shall be the Chief Administrative Officer. The Guidelines Committee shall, in accordance with the New Mexico Open Meetings Act, promulgate rules to effectuate the purposes of this section.

(B) The Guidelines Committee shall meet in closed session with appropriate staff in accordance with the New Mexico Open Meetings Act as necessary to discuss bargaining strategy preliminary to collective bargaining negotiations between the city and employee organizations.

(C) At the time negotiations are opened, the Guidelines Committee shall entertain a presentation from the employee organization involved in the subject collective bargaining negotiations summarizing its positions and proposals in the upcoming negotiations so the Guidelines Committee may be fully informed. The Guidelines Committee shall not otherwise meet to hear or entertain presentations by employee organizations of collective bargaining proposals, counter proposals, grievances or any other issue related to employee/labor relations except that the Mayor may ask the Guidelines Committee to convene upon the Board entering a finding that a strike has occurred.

The second involvement of the Council is a function of the budget process. When a contract exceeds the budget or there is a multi-year contract with pay increases, the Council must specifically approve those raises.

The Council, through its own ordinances, has determined that it will not become involved in the process, especially including grievances such as Heh’s.
My Take

It doesn’t seem like almost nine years, but it is; on November 8, 1999, I spoke at the Police Oversight Commission meeting and caused quite a stir because my attorney, Paul Livingston, and I had just had a District Court Judge rule that the POC illegally conducted meetings in violation of the State’s Open Meetings Act.

An IA investigation ensued. I videotaped the session. My attorney, Livingston, right, was assaulted and thrown to the floor by IA Sgt. John Gallegos, left. I touched Gallegos on the shoulder to try to calm him down and I was pushed against the wall. Ultimately, I was fired and criminally charged with battery.

Over the next year, there were four hearings scheduled:
An unemployment hearing with the State; the City failed to appear.
A Labor-Management Relations Board hearing, which ruled that the department had violated several sections of the union contract and recommended that the department withdraw the criminal charge and reinstate me.
The criminal battery charge, that a Metropolitan Court Judge dismissed at the end of the state’s case, with a strong admonition that it was the worse interrogation/interview he had ever seen.
A personnel hearing was scheduled, but the day before it commenced, the City asked to enter into mediation.

I was fully restored and my record was cleansed. I took a large monetary settlement and chose to end my 24 and half years with APD by retiring.

Two of the four players in my event are now lurking in the shadows of Heh’s case: Chief Schultz, left, was my Captain at the time. He said nothing and eventually, when Chief Galvin and Deputy Chief Bill Weiland refused to tell me I was fired, it fell to Schultz to deliver Galvin's termination letter. Then Lt. Michael Callaway, right, who is now a Deputy Chief, was heading Internal Affairs.

Why my history is of any significance here is that the heavy footsteps towards Heh sound very familiar.

It seems like nobody, either on the city's side or among the union leadership, bothers to read, let alone follow the ordinances, existing contracts or rules on how to enter the negotiations through the established collective bargaining process.

This is the hand of former, long time, City Councilor Vince Griego at the first publicly opened Council Guidelines Committee. The committee only opened the meeting because the union leaders, at the far end of the table, demanded access and threatened to force their way in. Griego, initially objected to the meeting being photographed, but relented when he was made aware that the committee was subject, like all other council meetings, to the State's Open Meetings Act.

The current Council did not hear from unions because the opening process was subverted.

There is no doubt in my mind that the root of this problem is the dysfunctional nature of the almost 40-year old Labor-Management Relations Ordinance. I have repeatedly called on the city to overhaul the labor relations ordinance, but it has always fallen on deaf ears.