October 19, 2011 – San Juan College v. San Juan College Labor Management Relations Board, No. 30,059

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	______________
Filing Date: 	October 19, 2011
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 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%

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

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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 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

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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 bargaining unit logically can be defined
in any particular factually 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

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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 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

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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

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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, which the Instruction Professionals’ contracts do not have. 	Faculty

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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 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-

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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.

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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
_________________________________
MICHAEL E. VIGIL, Judge