The City of Albuquerque pays union officers to conduct union business on city time.  At worst, they are being paid by taxpayers to act against the city’s interest.  At best, they spend their work week serving two masters at odds with each other.

This is Part Three in our series:  “Union Time on the Taxpayer Dime.”   Part 1.    Part 2.

The union officers on the city’s payroll decide how they spend their time.  The city has no way of judging their job performance, and barely knows what they do in exchange for their paychecks.  For the past eleven months, the City of Albuquerque been requiring union officers to fill out logs recording what they do on the city’s clock in an effort to impose some measure of accountability. But an inspection of those logs shows they contain mysteries even the City’s head of Human Resources cannot decipher.

When he was sworn in as Albuquerque’s mayor in December 1, 2009, Richard J. Berry inherited a raft of union-friendly collective bargaining agreements negotiated by Marty Chavez, who had been mayor since 2001.  Chavez had agreed to contracts with public sector unions that obligated the city to pay their union officers to conduct union business as city employees.  As we reported previously, Berry refused to agree to renew those terms when the contracts expired.  His administration announced the city would no longer pay for city employees to work on union matters. The American Federation of State, County, and Muncipal Employees, and the police and firefighters unions sued, arguing the provisions of the pre-existing contracts continued until renegotiated.  Second Judicial District Court Judge Clay Campbell found that state law ran in the union’s favor and ruled the city must continue paying for union business until new contracts are negotiated.

The city’s appeal is pending before the New Mexico Court of Appeals.

Under the contracts Mayor Berry inherited, the city of Albuquerque subsidizes union operations as follows:

AFSCME 624 Blue Collar:  20 hours a week for its president

AFSCME 624 Transit:  20 hours a week for its president;

International Association of Firefighters 244:  40 hours a week for its president;

Albuquerque Police Officers Association:  Time as needed by president; 40 hours a week for vice president;

AFSCME 3022:  16 hours per week for president;

AFSCME 2962:  “reasonable time” for officers and others to attend grievances, meetings and facilitate contract;

AFSCME 1888:  8 hours per week for president; 8 hours per pay period for vice-president.

In addition, all unions get paid time for officers, stewards or designees to attend grievance and pre-determinaton hearings, contract negotiations and meetings called by city management.

Berry appointed Vince Yermal as Director of the city’s Human Resources Department.  According to the biography provided by the Santa Fe consulting firm where he worked before joining the city, Yermal gained 30 years experience as a human resources manager and consultant.  He has served as Manager of Employee Relations for FMC Corporation, Manager of Human Resources for Kennametal, Inc., Director of Administration for Public Service of New Hampshire, and Director of Human Resources for Los Alamos County, NM.

Now he is charged with figuring out how to manage employees who serve organizations frequently at odds with the city that cuts their checks and pays their benefits.

Yermal agreed to answer our questions about the practicalities of managing city employees paid to be union officers.  In the course of our discussion he repeatedly called paid leave to do union business “a fundamentally bad practice.”  His conclusions had little to do with ideology, and everything to do with practical problems the city faces in having people on its payroll who are working directly for public sector unions.

Baby Steps Towards Accountability

Before Mayor Berry, the city did not require union officials to report how they spent their taxpayer-paid time.  It was pretty much anything goes.  After Judge Campbell issued his ruling last summer, on September 1, 2011, Yermal sent letters to all the unions whose collective bargaining agreements provided them with city time for union business.  His letters stated that the city would honor the judge’s ruling and continue to pay for union business as required by the contracts.  But he also announced he was instituting the first modest steps towards accountability.

He was requiring the unions to submit weekly logs on how they used the time paid by taxpayers.  Further, the union officers using paid leave for union business would have to submit a week in advance a “tentative” schedule of how they intended to use the time.  The city would have to be informed in advance of any changes in those plans.

“They’ve been resistant,” Yermal says.  “While they’ve been submitting the logs for how they’ve spent time, they haven’t always been submitting their tentative schedules for the coming week.”  Have they been disciplined for failing to comply with the city’s rules?  “Well, let me say this is new territory. Theoretically, yes, they could face progressive discipline.  It has not happened yet.  It is a situation that is evolving.”

Do the time sheets really hold the union officers accountable for how they spend their time?  New Mexico Watchdog obtained time sheets for Casey Padilla, who started being paid by the city to work as the the president of the AFSCME Blue Collar and Transit bargaining units last October.  The collective bargaining agreements give each unit 20 hours a week of pay for their president to conduct union business.  So Padilla’s full work week is paid by the city to be a president for the two unions.  We randomly selected a time sheet and asked Yermal what the entries told him about how Padilla was spending his days on the city’s clock.

The first entry we chose was for June 18, 2012.  The time sheet is divided into half hour slots, and asks for information by “Department,”  “Meeting Attendees,” and “Purpose of Meeting.”  From 2:30 to 3 p.m. that day the only information Padilla provided about how he spent his time was “Transit.  M.M.  FMIA.”  Yermal acknowledge that entry told him nothing about what Padilla had done.

With few exceptions, Padilla reports the people he meets only by initials and provides but a terse description of the purpose of the meeting, like “steward info” or “questions from city.”  Sometimes the description is an abbreviation (“Rev”) or a single word (“harassment”).

We asked about another entry for the same day.  At 11 a.m. Padilla reported the department as “Bio,”  meeting attendees as “MTG” and purpose of meeting as holiday pay.  “The union has a case against us on holiday pay,” Yermal said.  “It makes me uncomfortable to think that the city is paying him to work against the city.”

We informed Yermal that Padilla had also recorded time spent in meeting Shane Youtz, the attorney for AFSCME, who has been litigating cases against the city.  “This is a bad practice,” Yermal observed, “because it puts the employee in a position of divided loyalty.”

Could the city audit Padilla’s records to see that he really was where he said he was and doing what he said he was doing?  “Not practically speaking,” said Yermal.  “If he was meeting with management, yes, we could ascertain from our end what he was doing.  But if the meeting was with employees discussing a grievance or in a discussion of union business, we are not really going to be able to audit Padilla’s time.”

Even with its significant shortcomings, it bears noting that Albuquerque’s procedures for holding union officers accountable for how they spend their time go further than the policies of the city of Santa Fe.  New Mexico Watchdog inspected the same period of time sheets for the president of that city’s firefighter’s union.  When he takes paid leave to conduct union business, which the contract states may be political activity, he records only raw numbers of hours, with not even the most minimal description of what he did.

Nothing Expected, Nothing Demanded of Union Officers on the City’s Clock

The collective bargaining agreements state that union officers are to be paid “to assist with the resolution of labor/management issues” or “to facilitate positive labor/management relations between the employe and the employees represented by the union and to resolve issues at the lowest possible level.”  The justification in the firefighters’ contract for the city paying the union president and vice-president to do union business is “to develop a more cohesive relationship” between the union and the fire department.

All those high sounding phrases, practically speaking, are meaningless.  The city “cannot dictate anything” on how union officers spend their city time,” Yermal explained.   In the instance of Casey Padilla, could the city tell him what to do to facilitate positive labor/management relations?  “The union could accuse us of intruding into union business, even though we are paying him to be president.  They could file a charge against us.”  How he spends his time is “completely in his discretion,” without any control by or accountability to the city, even if his actions make employer/employee relations worse. “This is one of the reasons we believe this is a bad policy,” Yermal emphasized.

Does the city conduct a performance review for the union officers on its payroll, as it does for all other employees?  It can’t be done, Yermal explained.  “Really there’s no way to do it, since the city can’t hold them to any standard of performance as to how they do their work for the union.”

The lines of authority for union officers paid as city employees are also truncated.  In Padilla’s case, he is technically assigned to the Solid Waste Department where he holds the job title of driver.  If he is sick or wants vacation from showing up at the AFSCME office where he spends his days, he contacts his supervisor in Solid Waste. His time sheets and other communications go through the Human Resources Department.

City on the Hook for Unaccountable Employees

What kind of liability does the city have for employees engaged in union business activities?  They are covered by the city’s liability insurance, according to Yermal.  We gave him a hypothetical:  Say a city employee paid to be a union officer got drunk at a union picnic and hit someone while driving to his next appointment.  Would the city be liable for damages he caused?  “I always get in trouble when I answer hypotheticals,” Yermal responded.  So far, no claims have arisen against the city for actions caused by union officers on its payroll.  Two labor attorneys we consulted said paying someone as an employee while denying any control over their conduct poses a knotty problem for the city. What about a sexual harassment or discrimination claim that arises in the course of their work as a union officer?  The city might very well be liable, they opined.  Declining responsibility for their actions because they were on union business may not be a winning defense.

The unions currently do not indemnify the city for liability and legal fees arising from claims against city employees conducting union business.  “It would be a very good idea,” Yermal offered.

We threw another one at Yermal:  The city is paying these people to execute their duties as union officers.  Does the city have any responsibility for how they meet their obligations to the union and its members?  If a union president on the city’s payroll does something in violation of labor laws, is the city on the hook?  Yermal pretty much threw his hands in the air.  We got the same response from the labor lawyers we consulted.  No one seems to know the answer.

Are Union Records Public Records?

Casey Padilla does not have a city e-mail account.  That is understandable.  He does not report to a city office, but uses AFSCME headquarters as his base of operations.  His time sheets reveal he is being paid by the city to write and receive e-mails.  The time sheets also reveal that the city has paid him to gather information and prepare documents related to employee complaints, grievances and miscellaneous labor issues.  Are Padilla’s records public records, and would they be covered by a request to inspect and copy public records?

After all, Padilla and the other union officers on the city’s payroll are employees.  Generally, all documents created or in the possession of public employees that do not fit under any of the exemptions in the New Mexico Inspection of Public Records Act must be made available upon request.  Under a recent Court of Appeals decision, even independent contractors for public bodies may have to respond to public records requests. Further, AFSCME’s lawyer has argued to the Court of Appeals in the city’s appeal from Judge Campbell’s decision that union business performed by city employees and paid for by the city is “official business.”  If what Padilla does is “official business,” are not his records the public’s business?

“Interesting,” Yermal said, but left it at that.

“Let me say this,” he offered at the end of our discussion.  “None of these guys [the union officers on the city payroll] have advanced any proposals for increasing productivity or the efficiency of our workforce.”   Instead, Yermal continued, everything they do seems to be against the city, promoting only the interests of the unions.

“It suggests to me,” Vermal concluded,  “that the underlying nature of their role is adversarial and that this is not an appropriate thing for the city to be paying for.”