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                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'05- 11:38:45 2011.12.08

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-117

Filing Date: October 19, 2011

Docket No. 30,059

SAN JUAN COLLEGE,

       Plaintiff-Appellant,

v.

SAN JUAN COLLEGE
LABOR MANAGEMENT
RELATIONS BOARD,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Bingham, Hurst & Apodaca, P.C.
Wayne E. Bingham
Albuquerque, NM

for Appellant

Rita G. Siegel
Albuquerque, NM

for Appellee

                                       OPINION

KENNEDY, Judge.

{1}     San Juan College (the College) appeals its Labor Relations Management Board’s (the
Board) decision regarding the appropriate composition of a faculty member’s collective
bargaining unit. The College maintains that the faculty member group was unduly
restricted. The undisputed applicable factors for consideration in defining the bargaining
unit are a proper “community of interest” and “occupational group.” We hold that the


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Board’s decision as affirmed by the district court was supported by substantial evidence and
affirm.

I.      BACKGROUND

{2}     In March 2008, a union filed a petition with the State Public Employer Labor
Relations Board to represent full-time faculty on nine-month contracts at the College. The
petition was dismissed by the state board and remanded to the Board on the College’s
motion. At the local Board, the College challenged the appropriateness of the proposed
bargaining unit as too narrow and sought to include all full-time faculty on nine- and ten-
month contracts, as well as full-time instructional professionals with 100%, 80%, 60%, and
50% instructional duties. These percentages reflect a division in the workload for those
persons between instructional and administrative duties. For instance, the 60% instructional
professional would also be employed to perform 40% of their work as an administrator. The
Board held a hearing and took testimony and other evidence. At the hearing, Michael Tacha,
Vice President for Learning, testified to the faculty structure at the College and gave his
opinion that, as to the fractional duties of employees, management and administrative duties
were comparable. The Board issued its decision that the appropriate bargaining unit would
include full-time faculty on both nine- and ten-month contracts, and full-time instructional
professionals with 100% instructional duties. The bargaining unit would exclude full-time
instructional professionals with less than 100% instructional duties, administrative and
managerial staff, and all others.1 From this ruling, the College appealed to the district court,
which affirmed the Board. The College now appeals.

II.     STANDARD OF REVIEW

{3}     The Public Employee Bargaining Act, NMSA 1978, § 10-7E-23(B) (2003), instructs
reviewing courts that “[a]ctions taken by the board or local board shall be affirmed unless
the court concludes that the action is (1) arbitrary, capricious[,] or an abuse of discretion; (2)
not supported by substantial evidence on the record considered as a whole; or (3) otherwise
not in accordance with law.” The court views the evidence in a light most favorable to the
Board’s decision and employs a deferential standard to the decision concerning areas within
the agency’s expertise. While we do not substitute our judgment for that of the Board, we
examine the record to determine whether it supports the result. N.M. State Bd. of
Psychologist Exam’rs v. Land, 2003-NMCA-034, ¶ 5, 133 N.M. 362, 62 P.3d 1244. If the
findings do not support the result, we may adopt facts from the record before us in reaching
our decision. Sanchez v. N.M. Dep’t of Labor, 109 N.M. 447, 449, 786 P.2d 674, 676
(1990). We review whether the Board’s decision was in accordance with law employing a
de novo standard of review. Selmeczki v. N.M. Dep’t of Corr., 2006-NMCA-024, ¶ 13, 139
N.M. 122, 129 P.3d 158. In this case, the parties agree on the nature of the case, the scope


        1
         Should other facts become necessary to our discussion, we will include them.


                                                2
of the relevant facts, the standard of review, and the applicable law. The parties dispute the
law’s application to the facts.

III.   DISCUSSION

{4}     The question in this case is: What is an appropriate bargaining unit? Under both
state law and the Board’s resolution, the criteria are virtually identical. The Board is
established pursuant to the San Juan College Labor Management Relations Resolution
(Resolution) and oversees the collective bargaining process for the College pursuant to the
Resolution and Public Employee Bargaining Act (PEBA). NMSA 1978, §§ 10-7E-1 to -26
(2003). Both the Resolution and the PEBA presume appropriate bargaining groups to “be
established on the basis of occupational groups or clear and identifiable community of
interest in employment terms, employment conditions, and related personnel matters among
the employees involved.” College LRB Resolution, § 10(A). The Resolution and PEBA
define an appropriate bargaining unit in substantially similar terms.

{5}     The Board is entitled to determine an appropriate bargaining unit without being
hamstrung by having to declare “the most appropriate [bargaining] unit.” Cmty. Hosps. of
Cent. Cal. v. NLRB, 335 F.3d 1079, 1084 (D.C. Cir. 2003) (emphasis omitted) (internal
quotation marks and citation omitted); Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421
(D.C. Cir. 2008). The difference between “a” most appropriate unit and “the” most
appropriate unit rests in the fact that sharing a community of interest does no more than
establish a unit that is prima facie appropriate, and “more than one appropriate collective
bargaining unit logically can be defined in any particular factual setting.” Country Ford
Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000). That a unit with “different
contours” might exist is immaterial. Id. Specific to this case, the College must show that
the employees excluded from the bargaining unit share an “overwhelming community of
interest with the included employees[.]” Blue Man Vegas, 529 F.3d at 421. There is no
absolute rule of law as to what constitutes an appropriate bargaining unit. Packard Motor
Car Co. v. NLRB, 330 U.S. 485, 491 (1947). Because it is the Board’s task to choose among
bargaining units that are perhaps equally appropriate and because we do not substitute our
judgment for the reasonable determination of the Board, we are limited to striking down only
those determinations that are “truly inappropriate.” Country Ford Trucks, 229 F.3d at 1189.


{6}     Both parties agree that it is the employer’s burden, if it seeks to overturn the Board’s
decision, to demonstrate that the Board’s decision resulted in a “truly inappropriate” unit.
Blue Man Vegas, 529 F.3d at 421 (internal quotation marks and citation omitted). This
results in a high standard of proof set against a firmly set tradition of deference to the
Board’s decisions.

{7}     Here, the College maintains that professional instructors with less than 100%
instructional duties—and, by definition, partial administrative and managerial
duties—should not have been excluded. The College relies heavily on the testimony given
by Tacha to establish the “overwhelming” shared community of interest between the full-
time faculty with fractional instructional/administrative duties from those who are employed

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full time to teach as 100% of their duties. The College asserts with some hyperbole that
there was “no legitimate basis” to exclude the other instructional staff which the College
sought to include in the unit. From the College’s summary of Tacha’s testimony, we gather
that all faculty are a community of interest whose purpose at the College is instructional.
All who teach students are faculty and receive the same benefits. The College’s statement
that “[t]he [u]nion presented no testimony substantial enough to contradict the above
testimony” reminds us that the College sought the inclusion of the instructional professionals
in addition to the nine- and ten-month contract faculty members that were not part of the
union’s petition. Tacha’s testimony indicated that carving away the instructional
professionals from other faculty members would create division in the faculty community
as the College was trying to erase such differences. We surmise this is a statement of the
College’s purpose in seeking full inclusion of all faculty members. We determine whether
the composition approved by the Board was supported by substantial evidence and in
accordance with law. However, we also take into account the union’s presentation of a large
amount of testimony in reviewing the Board’s decision.

{8}     We do not take a position in this case as to whether the College’s view of the
appropriate bargaining unit might be correct. We are not obligated to do so, owing to the
deference we pay to the Board’s decision and our substantial evidence review. The Board’s
conclusion as to an appropriate bargaining unit must only be an appropriate unit among what
may properly be more than one. We therefore concern ourselves with the difference between
full-time faculty and instructional professionals with 100% teaching duties, and those
instructional professionals “who spend 80%, 60%[,] and 50% of their time teaching [and]
spend the remaining percentage of their time performing various administrative duties in
connection with College programs in which they are involved.” (Emphasis omitted.)

{9}     The College only argues to us that, although correct as far as it went, the Board’s
decision established an inappropriate unit that should not have failed to include all of the
faculty. We disagree. The College points out that the administrative duties occasioned by
the fractional contracts consist of ordering materials, project preparation, and budgeting.
Testimony before the Board from Mr. Williams, the union’s primary witness, indicated that
those Instruction Professionals whose contracts included administrative duties were workers
of a different sort—working under annual contracts in contrast to continuing faculty
contracts and receiving a pay component for administrative work that occasionally enhanced
the salary beyond faculty levels. Instruction Professionals have a different way of bringing
grievances about their contracts to the College than do instructors who work under faculty
contracts. Faculty members who work pursuant to faculty contracts operate under a different
employee handbook than do instructional professionals whose job terms more resemble a
contract employee who teaches than a true faculty member. Faculty contracts are made for
the academic year while Instruction Professionals’ contracts are for the fiscal year. Faculty
contracts impose requirements having to do with academic expectations that the Instruction
Professionals’ contracts do not have. Faculty contracts also limit outside employment where
the Instruction Professionals’ contracts do not and are terminated pursuant to the “Faculty
Handbook” where the Instruction Professionals’ contracts may not be changed or amended,
save by the President of the College, and their working parameters are governed by the
“Employee Handbook for Professional & Support Staff.” When renewed, faculty contracts

                                              4
remain in continuing status for the next contract year where Instruction Professionals’
renewals “place [the instructor] on ‘continuing contract’ status . . . effective with the start
date of your next year contract.” Sick leave and annual leave accrual are handled differently
between faculty and instructional professionals. The Board points out that the instructional
professionals with less than 100% teaching duties are employed under a different contract
that divides their work between instruction and administrative/managerial duties. They are
subject to dual lines of supervision, one for each side of their role at the College, which may
subject them to conflicting loyalties. This said, instructional professionals employed to
provide 100% instruction without other duties or contractual obligations, perform
substantially identical jobs as full-time faculty who also are contracted as full-time
instructors. The logic of combining these groups is apparent and substantially supported by
the evidence.

{10} Having reviewed the record upon which the Board based its decision, we see that
full-time faculty, whether pursuant to nine- or ten-month contracts, engage in full-time
academic instruction during applicable periods of the school year. Instructional
professionals with 100% teaching duties do as well, even though their contract periods are
different. Instructional professionals with fractional duties have other responsibilities than
teaching and receive additional compensation for performing these other duties. In our view,
it is reasonable to accord full-time teaching personnel whose exclusive job is teaching, the
community of interest required to establish a proper bargaining unit.

{11} In accordance with our standard of review, as we resolve all factual disputes in favor
of the Board’s decision, including indulging all reasonable references, we determine that
substantial evidence supports the result that was reached. Las Cruces Prof’l Fire Fighters
v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177. We need only
find that there is credible evidence for a reasonable mind to accept as adequate the Board’s
result. Id. Having done so, we affirm the Board’s decision creating a bargaining unit of
faculty members with nine- and ten- month contracts and full-time instructional
professionals employed at 100% instruction.

IV.    CONCLUSION

{12}   Based upon the foregoing analysis, we affirm the district court.

{13}   IT IS SO ORDERED.

                                               _____________________________________
                                               RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________

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MICHAEL E. VIGIL, Judge

Topic Index for San Juan College v. San Juan College Labor Mgmt. Bd., No. 30,059

AL                  ADMINISTRATIVE LAW AND PROCEDURE
AL-AA               Administrative Appeal
AL-SE               Sufficiency of Evidence

AE                  APPEAL AND ERROR
AE-SR               Standard of Review
AE-SB               Substantial or Sufficient Evidence

EL                  EMPLOYMENT LAW
EL-CB               Collective Bargaining
EL-LU               Labor Unions
EL-UO               Union Organizing

GV                  GOVERNMENT
GV-PE               Public Employees




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