UNM appeals grad worker union case to District Court

University has paid a law firm nearly $130,000 so far to fight its students over labor rights

By: - November 24, 2021 6:00 am

NMSU students marched on Nov. 16 calling for the school’s president to resign, in part, over grad student working conditions. Grad worker unions at NMSU in Las Cruces and UNM in Albuquerque are fighting the same law firm at the state’s labor board over their rights to unionize. (Photo by Santana Ochoa for Source NM)

A year after grad student workers at the University of New Mexico started the process of certifying a workers union to fight for fair wages and health care, the state’s board still hasn’t filed a final order.

That’s partly because rather than voluntarily recognizing the union and getting on with bargaining over graduate students’ working conditions, UNM instead decided to fight its students and hired Dina Holcomb of the Holcomb Law Office in Albuquerque under a contract specifically for “labor law and collective bargaining legal services.”

Between December 2019 and October 2021, UNM went on to pay Holcomb’s firm almost $130,000, according to university invoices and contracts provided to Source New Mexico by the university in response to a public records request.

Despite all that spending, the New Mexico Public Employee Labor Relations Board overseeing the case has sided with the graduate students at key points during the fight. The board ruled in August that graduate students are public employees and have a right to organize under state law. 

The students are trying to unionize as part of the United Electrical, Radio and Machine Workers of America (UE). The state board in October again ruled in favor of the union, saying that the makeup of the proposed bargaining unit was appropriate and that UE is a labor organization. 

It also ordered UNM to begin the process of card check — where workers sign authorization cards showing whether they want to form a union.

Big win for UNM grad workers in the fight for labor rights

Going to court

The fight moved to state court late last week when Holcomb and one of UNM’s staff attorneys Kevin Gick filed a notice of appeal in Second Judicial District Court challenging the board’s decisions.

Holcomb then on Monday asked the board to stop all proceedings, including the card check, until the court appeal is decided.

She wrote that the board should wait “to avoid the unnecessary expense of public resources that (UNM) could incur and in fact many other public employers could incur should the requested stay be denied.”

The grad students wrote in a news release Tuesday that there’s hypocrisy in Holcomb’s concern over expenses, given that UNM has paid her so much to stall the union’s certification. The appeal will only add to that bill, they pointed out.

“It’s insulting that UNM’s union-busting lawyer … is skirting the appropriate process, and on top of that, claiming that the certification of our union would waste public resources,” said Duncan McGaw, a graduate research assistant in Optical Science and Engineering.

Holcomb makes $185 per hour under her contract with UNM, and her legal clerk also makes $40 per hour fighting the union, according to the contract, which was renewed in September 2020 and then again about a year later. But she has been billing UNM at a rate of $195 per hour, though it is not clear from the records how that changed. Those hourly rates do not include lodging or mileage.

“The administration has already wasted tens of thousands of dollars on these legal proceedings,” McGaw said. “But when workers living with poverty wages demand their right to negotiate better salaries, they have the audacity to argue that workers are the ones wasting public resources.”

The value of labor

NMSU students to rally Tuesday for better graduate working conditions

University spokesperson Cinnamon Blair said Tuesday the notice of appeal “is not a reflection on the value of our graduate student employees and their contributions to UNM.”

UNM is filing an appeal because it believes the board’s rulings so far have been incorrect and overbroad, she said, and the case could pave the way for unions to form at all research universities in the state. That would include New Mexico State University, where graduate workers are also trying to form a union to fight for labor rights. Students at the school in Las Cruces demonstrated on Nov. 16. Holcomb is also representing NMSU before the labor board.

Blair added that the board’s own executive director ruled that grad students are not eligible to bargain collectively as a union.

But that’s not how the board ultimately ruled.

The recommendation she’s referencing was written by the board’s hearing officer and election supervisor Thomas Griego, who said the case should be dismissed in favor of the university administration on June 11.

Griego relied on the definition of a “regular employee” as someone who holds their job for an indefinite period of time — a definition from UNM’s own policy manual. He argued that since graduate students work under time-limited contracts, usually called “assistantships,” they do not meet the university’s definition of regular employees and therefore do not count as public employees under state law.

The labor board threw that out, saying other public employees who have limited terms are already guaranteed collective bargaining rights.

“Because of the importance of these issues to our mission, we feel that a correct and thorough legal examination of the issues is necessary, and this is the role of the courts,” Blair said Tuesday.

‘Transitory in nature’

In Holcomb’s motion, she also wrote that UNM is concerned with “the lack of established rules for conducting a card check.” It’s an acute problem, she said, because “graduate assistantships are inherently transitory in nature, often lasting only a single semester.” That means the membership of the union will have an unusually high turnover rate, she said. 

The board ruled on Nov. 9 that it was appropriate to include all different kinds of assistantships in the bargaining unit, comprising about 1,500 out of roughly 4,000 graduate students at UNM.

Board members found it appropriate to include all the different kinds of assistantships that the union originally asked for, even if their work duties do not include instruction or research. The union could have members who are regular and special graduate assistants, project assistants, research assistants, regular and special teaching assistants, and teaching associates.

Griego wrote in his Oct. 4 recommendation that the board doesn’t need to figure out the only appropriate bargaining unit, or the most appropriate, only that it is appropriate, period.

This reflects a history of case law and preference by the board against fragmenting workers into a bunch of different bargaining units, he wrote, which would actually make it harder for the government to bargain with them.

Holcomb also took issue with UE not being registered as a labor organization with the state or the federal Internal Revenue Service. Griego also wrote in his recommendation that registration with state or federal taxing authorities has nothing to do with the definition of a labor organization under New Mexico law.

Instead, he wrote, UE’s status as a labor organization under state law primarily rests on one of its purposes being to represent public sector workers in collective bargaining.

The union called the UNM’s intent to appeal “a bid to strip graduate workers of their legally protected right to unionize.”

“It is disappointing that the UNM administration continues to ignore the law and devalue the labor of graduate workers,” said Jens Van Gysel, a graduate assistant in Linguistics. “The labor board, elected leaders, community members and more all support our right to unionize. It’s time for the UNM administration to do the right thing and bargain a contract.”

NMSU Chancellor Dan Arvizu speaks to protesters at NMSU in Las Cruces, N.M., outside of Hadley Hall. (Photo by Santana Ochoa for Source NM)

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.