June 9, 2014 at the historic Tierra Amarilla Courthouse, oral arguments were heard in the case of Northern NM Federation of Educational Employees, an affiliate of AFT-NM v. Northern New Mexico College. [1]
The case concerned the removals of union members Lisa Duran and Mildred Martinez (pictured), both administrative staff at northern New Mexico College. The women were removed from service along with over twenty other employees in 2013 after students, staff and faculty resisted cuts to programs and instructional services as well as raises in tuition. Lisa Duran, Administrator in Humanities, and Mildred Martinez, an Accounting Technician in Purchasing are models of the Administration’s systemic retaliation against staff, faculty and now students who voice concerns with the direction of leaderships of NNMC. [2]
At the June 9th hearing, Northern’s attorney Peter Dwyer of Basham & Basham PC argued to have Lisa Duran and Mildred Martinez’s cases dismissed. The attorney for NMFEE Shane Youtz[3] argued the case should not be dismissed. Youtz argued the facts of the case are not in dispute—Northern’s attorney Dwyer agreed. Thus, Youtz argues the court must recognize the “facts as plead to be true” including the fact that the two employees of NNMC were terminated as a result of their union activity, which is a protected activity in New Mexico. Further, the personal employment contract (year-to-year that NNMC wants to say is binding) is superseded in law by the Collective Bargaining Agreement. Article 5B of the Collective Bargaining agreement establishes that when there are both a personal employment contact and a collective bargaining agreement, “the union contract prevails.” Youtz asserted, “this is a settled matter of labor law” according to the U.S. Supreme Court, the collective bargaining agreement prevails.
Further, the Public Employees Bargaining Act requires binding arbitration between employees and employers. And NNMC, the employers, refused to arbitrate. In addition, the collective bargaining agreement is an enforceable agreement under state law and it “establishes removal with just cause.”
First District Judge Sheri Raphaelson, whose decisions in the past have been called “against logic, reason, and impartiality” (2013) and who has been attached to previous-Gov. Richardson’s “pay to play” judicial appointments, ruled against the Northern NM Federation of Educational Employees (Lisa Duran and Mildred Martinez).[4] Raphaelson did not respond to the legal points of Youtz's argument, but instead stated a single point of semantics: “We must be specific about ‘terminated,’ what it means. The employees were non-renewed. The collective bargaining agreement uses the terminology 'discharge' or 'termination,' not non-renewal of contract. A plain reading of that says these employees were not 'terminated.' Thus, because Duran and Martinez were not 'terminated,' I stay with the personal employment agreement; the collective bargaining agreement is not triggered. The contracts for these employees had expired and the employees should not have an expectation of continued employment.” Judge Raphaelson concluded, "there is no right to grieve, as there is no termination.” She then asked Mr. Dwyer, attorney for NNMC to “write that up for me.”
Because Raphaelson dismissed Northern NM Federation of Educational Employees' appeal, the facts of the case were not heard in court, though they appear in the legal briefs, which the Northern New Mexico College Study Group has requested and will post as soon as they are received.
Youtz, attorney for Northern NM Federation of Educational Employees, will appeal Judge Raphaelson's decision. He explains the collective bargaining agreement’s explicit protection prevails and “that provision has been violated.” He argues that “employees have been terminated in violation of NM State law.” And he asserts that NNMC is saying they can terminate employees for their union activity, which is “the same as arguing they were terminated because they are Black, a woman—in the eyes of the law this is the same… these are prohibited practices equal to terminating for union activity.”
The appeal process will continue for six to twelve months, however, Mildred Martinez has already lost. Martinez passed this April from medical complications after losing her healthcare when she was removed by President Nancy "Rusty" Barcelo's Administration.[5]
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[1] Civil Administrative Appeal- Plaintiff Appellant; Comment: ORAL ARGUMENT ON APPELLATE ISSUES; Plaintiff: Northern NM Federation of Educational Employees, an affiliate of AFT-NM Atty: Montalbano, James A.; Defendant: Northern New Mexico College Atty: Ortiz, Tony F; Basham, Mark A. https://firstdistrictcourt.nmcourts.gov/division_5_schedule.htm
[2] The news reports of these removals can be found at https://s3.amazonaws.com/external_clips/676142/College_Accused_of_Retaliatory_Firings.pdf?1400546598 and http://www.santafenewmexican.com/news/local_news/article_5ecdd5f5-5917-5908-9af8-444e4ca05611.html
[3] See attorney’s bio at http://youtzvaldez.com/page4.html
[4] See Albuquerque Journal http://www.abqjournal.com/182576/news/court-overturns-judge-orders-murder-retrial.html ; see also
http://newmexico.watchdog.org/7621/richardsons-judges-donated-much-more-than-predecessors/ and http://www.muckrakersguide.com/tag/sheri-raphaelson/
[5] See Mildred’s obituary at: http://www.devargasfuneral.com/page_manager/obituary.php?obit_id=1810
The case concerned the removals of union members Lisa Duran and Mildred Martinez (pictured), both administrative staff at northern New Mexico College. The women were removed from service along with over twenty other employees in 2013 after students, staff and faculty resisted cuts to programs and instructional services as well as raises in tuition. Lisa Duran, Administrator in Humanities, and Mildred Martinez, an Accounting Technician in Purchasing are models of the Administration’s systemic retaliation against staff, faculty and now students who voice concerns with the direction of leaderships of NNMC. [2]
At the June 9th hearing, Northern’s attorney Peter Dwyer of Basham & Basham PC argued to have Lisa Duran and Mildred Martinez’s cases dismissed. The attorney for NMFEE Shane Youtz[3] argued the case should not be dismissed. Youtz argued the facts of the case are not in dispute—Northern’s attorney Dwyer agreed. Thus, Youtz argues the court must recognize the “facts as plead to be true” including the fact that the two employees of NNMC were terminated as a result of their union activity, which is a protected activity in New Mexico. Further, the personal employment contract (year-to-year that NNMC wants to say is binding) is superseded in law by the Collective Bargaining Agreement. Article 5B of the Collective Bargaining agreement establishes that when there are both a personal employment contact and a collective bargaining agreement, “the union contract prevails.” Youtz asserted, “this is a settled matter of labor law” according to the U.S. Supreme Court, the collective bargaining agreement prevails.
Further, the Public Employees Bargaining Act requires binding arbitration between employees and employers. And NNMC, the employers, refused to arbitrate. In addition, the collective bargaining agreement is an enforceable agreement under state law and it “establishes removal with just cause.”
First District Judge Sheri Raphaelson, whose decisions in the past have been called “against logic, reason, and impartiality” (2013) and who has been attached to previous-Gov. Richardson’s “pay to play” judicial appointments, ruled against the Northern NM Federation of Educational Employees (Lisa Duran and Mildred Martinez).[4] Raphaelson did not respond to the legal points of Youtz's argument, but instead stated a single point of semantics: “We must be specific about ‘terminated,’ what it means. The employees were non-renewed. The collective bargaining agreement uses the terminology 'discharge' or 'termination,' not non-renewal of contract. A plain reading of that says these employees were not 'terminated.' Thus, because Duran and Martinez were not 'terminated,' I stay with the personal employment agreement; the collective bargaining agreement is not triggered. The contracts for these employees had expired and the employees should not have an expectation of continued employment.” Judge Raphaelson concluded, "there is no right to grieve, as there is no termination.” She then asked Mr. Dwyer, attorney for NNMC to “write that up for me.”
Because Raphaelson dismissed Northern NM Federation of Educational Employees' appeal, the facts of the case were not heard in court, though they appear in the legal briefs, which the Northern New Mexico College Study Group has requested and will post as soon as they are received.
Youtz, attorney for Northern NM Federation of Educational Employees, will appeal Judge Raphaelson's decision. He explains the collective bargaining agreement’s explicit protection prevails and “that provision has been violated.” He argues that “employees have been terminated in violation of NM State law.” And he asserts that NNMC is saying they can terminate employees for their union activity, which is “the same as arguing they were terminated because they are Black, a woman—in the eyes of the law this is the same… these are prohibited practices equal to terminating for union activity.”
The appeal process will continue for six to twelve months, however, Mildred Martinez has already lost. Martinez passed this April from medical complications after losing her healthcare when she was removed by President Nancy "Rusty" Barcelo's Administration.[5]
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[1] Civil Administrative Appeal- Plaintiff Appellant; Comment: ORAL ARGUMENT ON APPELLATE ISSUES; Plaintiff: Northern NM Federation of Educational Employees, an affiliate of AFT-NM Atty: Montalbano, James A.; Defendant: Northern New Mexico College Atty: Ortiz, Tony F; Basham, Mark A. https://firstdistrictcourt.nmcourts.gov/division_5_schedule.htm
[2] The news reports of these removals can be found at https://s3.amazonaws.com/external_clips/676142/College_Accused_of_Retaliatory_Firings.pdf?1400546598 and http://www.santafenewmexican.com/news/local_news/article_5ecdd5f5-5917-5908-9af8-444e4ca05611.html
[3] See attorney’s bio at http://youtzvaldez.com/page4.html
[4] See Albuquerque Journal http://www.abqjournal.com/182576/news/court-overturns-judge-orders-murder-retrial.html ; see also
http://newmexico.watchdog.org/7621/richardsons-judges-donated-much-more-than-predecessors/ and http://www.muckrakersguide.com/tag/sheri-raphaelson/
[5] See Mildred’s obituary at: http://www.devargasfuneral.com/page_manager/obituary.php?obit_id=1810
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