Zipper Clause Leaves County Exposed

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Fire union wins paramedic contract appeal

By Carol A. Clark

A battle between firefighters and the county over an issue of direct dealing with union members fell in favor of International Association of Fire Fighters Local #3279 Wednesday.


New Mexico Court of Appeals Judges Linda Vanzi, Jonathan Sutin and Michael Vigil upheld the decision rendered more than two years ago in First Judicial District Court.

“The district court did not err in determining in the summary judgment proceeding that, as a matter of law, the union did not waive its right to bargain based on the zipper clause,” according to the judges’ ruling.

A zipper clause is a contract provision that means a union and management can’t force each other to engage in bargaining during the life of the contract. The law requires parties be willing to bargain when asked, even in mid-contract, if a subject isn’t covered in the contract and wasn’t withdrawn during negotiations.

“In our view, the answer does not call for a rigid rule, formulated without regard for the bargaining postures, past practices and agreements of the parties for two reasons,” according to the ruling.

“We observe that there is virtually no evidence in the record and no argument in the District Court in connection with bargaining history, expectations of the parties, past practices or surrounding circumstances for the purpose of supporting or rejecting waiver on summary judgment.”

Attorney Barry Paisner, a partner in the Santa Fe law firm of Hinkle, Hensley, Shanor & Martin, L.L.P., has represented the local fire union for several years, successfully arguing the case in district court in 2008.

He explained that the union took exception to the county negotiating terms and conditions of employment directly with union members rather than dealing with the union in collective bargaining.

“The union is the exclusive bargaining agent for the members,” Paisner said after the ruling was handed down Wednesday. “Judge Daniel Sanchez in First Judicial District Court on Oct. 2, 2008 ruled that these contracts were illegal and the county has ignored his ruling and continues to do that. You can’t direct deal with union members when we are the exclusive bargaining unit.”  

Sanchez found that Los Alamos County violated the Public Employees Bargaining Act (PEBA), by entering into contracts with individual union members that were subject to collective bargaining with the union.
PEBA mandates exclusive bargaining rights between unions and employers. The court found that in choosing to provide paramedic training contracts directly to union members without first negotiating them through the union, the county disregarded its own ordinance in addition to state and federal regulations.

Now retired, Mary McInerny served as Los Alamos County Attorney until July 2010. She explained following the district court ruling the issue concerned a contract the county enters into with firefighters volunteering for paramedic school, a program the county has supported for 10 years.

“Fourteen firefighters have taken advantage of this specialized training opportunity and have successfully completed the school; only two of those firefighters have failed to fulfill the obligation set forth in the contract,” she said at the time. “Our primary interest has been, and will continue to be, safeguarding our taxpayers’ dollars. We support specialty programs, such as paramedic school – which are very expensive – and we merely ask that the firefighters remain employed with us for at least two years. That seems like a reasonable request.”

The county pays for trainees’ tuition, travel, per diem and other expenses, as well as their full salaries, including overtime, for as much as one year while they attend the specialized school, she said, adding that the advanced training provides county residents a highly skilled paramedic staff.

It also enables firefighters to receive higher wages because the training enables them to obtain the highest EMS rated license in New Mexico.

In return, the county asked the firefighters to complete at least two years of service with the county after completing training and EMS licensure before taking a job elsewhere.

The county first brought suit against EMTs Michael Dickman and John Paul Martinez in August 2006 for leaving LAFD before the agreed two-year minimum.

The actual training costs for everything involved was nearly $86,500 for Dickman and Martinez, McInerny said, because the nearest acceptable training program at that time was in Roswell. The union has disputed the cost being that high. Current costs are actually less, she said, because training time required for certification is shorter and training is now available at Santa Fe Community College.

McInerny explained there are two ways to meet the contract obligation: stay and work or repay training costs based on time employed with the fire department post training. In the case of Dickman, he left immediately following his training, McInerny said. The claim against Martinez was less because he worked seven months before resigning.

There also is a provision in the contract that in the event of a family hardship requiring a firefighter to move away, the training cost would be forgiven, she said.

IAFF President Flavio Martinez addressed Wednesday’s appeal ruling saying, “I’m glad it’s finally over. This has been hanging over our heads for the last couple of years and it’s too bad the county keeps looking for someone to agree with them instead of working this out with us.”

IAFF Vice President Paul Grano said, “We are very happy the court found in our favor once again –it’s a shame we couldn’t work this out in negotiations – it’s sad that both sides have had to spend time, effort and money doing battle rather than sitting down together and working it out.”

Acting County Administrator Randy Autio had not yet been hired as Los Alamos County Attorney at the time the county initiated the paramedic training contracts directly with union members. He expressed confidence during an interview Wednesday that upcoming negotiations will resolve the conflict.

“I have full faith that we are going to be able to have successful negotiations this year on this issue and other issues facing the IAFF and the county,” Autio said.

Fire Chief Doug Tucker expressed similar sentiments Wednesday:

“The court of appeals has rendered its decision and we’ll work with the union to establish a process for dealing with this issue in the future,” Tucker said. “We will continue to provide this training opportunity to our firefighters to enable us to deploy highly trained paramedics. We have always agreed to sit with the union’s attorney to discuss the contracts, now we will do it as a part of the contract negotiations. The bottom line is we will continue to provide the advanced medical care to the community, LANL, NNSA and the visitors to our area.”