Am. Fed'n of State v. City of Albuquerque

• Decision Date: 07 January 2013
• Docket Number: No. 30,927.,30,927.
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, (AFSCME) COUNCIL 18, AFL–CIO, CLC, AFSCME Local 1888, AFSCME Local 3022, AFSCME Local 624, and AFSCME Local 2962, Plaintiffs–Appellants, v. CITY OF ALBUQUERQUE, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

293 P.3d 943

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, (AFSCME) COUNCIL 18, AFL–CIO, CLC, AFSCME Local 1888, AFSCME Local 3022, AFSCME Local 624, and AFSCME Local 2962, Plaintiffs–Appellants,

v.CITY OF ALBUQUERQUE, Defendant–Appellee.

No. 30,927.

Court of Appeals of New Mexico.

Oct. 29, 2012.

Certiorari Granted, Jan. 7, 2013, No. 33,924.

Youtz & Valdez, P.C., Shane C. Youtz, Marianne Bowers, Albuquerque, NM, for Appellants.

Conklin, Woodcock & Ziegler, P.C., Robin A. Goble, Albuquerque, NM, David Tourek, City Attorney, Rebecca E. Wardlaw, Assistant City Attorney, Albuquerque, NM, for Appellee.

OPINION

WECHSLER, Judge.

{1} This appeal results from the breakdown in negotiations of collective bargaining agreements between Plaintiffs American Federation of State, County and Municipal Employees (AFSCME) Council 18, AFL–CIO, CLC, AFSCME Local 1888, AFSCME Local 3022, AFSCME Local 624, and AFSCME Local 2962 (the Unions) and Defendant City of Albuquerque (the City) to succeed ones that had expired. We hold that the failure of the City's Labor Management Relations Ordinance (LMRO), Albuquerque, N.M. Code of Ordinances, ch. 3, art. 2, §§ 3–2–1 to –18 (2003, as amended through 2005) (Abq. Ord.) to include provisions for binding impasse arbitration does not preclude the LMRO from grandfather status under the Public Employee Bargaining Act (the PEBA), NMSA 1978, §§ 10–7E–1 to –26 (2003, as amended through 2005). We also hold that in this case the PEBA enforcement of an existing collective bargaining agreement in the event of impasse (the PEBA evergreen clause) is subject to the requirements of appropriation and availability of funds under the PEBA and that the complaintwas moot with respect to unions that had reached collective bargaining agreements with the City. We affirm.

BACKGROUND

{2} The Unions are the exclusive bargaining representatives for employees of the City. Because existing collective bargaining agreements were to expire on June 30, 2010, they engaged in negotiations with the City under the LMRO to replace the existing collective bargaining agreements. During the negotiations, the Unions brought suit, asking the district court to declare that the LMRO violates the PEBA because the LMRO does not contain impasse arbitration and evergreen provisions that are required by the PEBA.

{3} On June 30, 2010, the Unions filed a motion for a temporary restraining order and preliminary injunction to continue the expiring collective bargaining agreements until new agreements were reached. The district court granted partial injunctive relief, continuing the agreements with certain exceptions until a full evidentiary hearing before the court.

{4} The parties then filed cross-motions for summary judgment. The district court denied the Unions' motion and granted summary judgment in favor of the City. Following City of Deming v. Deming Firefighters Local 4521, 2007–NMCA–069, 141 N.M. 686, 160 P.3d 595, the district court concluded that the grandfather clause of the PEBA, Section 10–7E–26(A), applies to the LMRO's collective bargaining provisions. The district court also granted the City's motion to dismiss Local 1888 and Local 3022 because they reached new agreements with the City, and their claims in the complaint were therefore moot.

GRANDFATHER STATUS OF LMRO IMPASSE PROCEDURES

{5} On appeal, the Unions argue that the district court erred in not ruling that (1) the impasse procedure of the LMRO violates the PEBA and (2) the lack of an evergreen clause in the LMRO violates the PEBA. The City counters that the district court properly concluded that the PEBA requirements do not apply because the LMRO is entitled to grandfather status under the PEBA.

{6} Generally, we review a district court's grant of summary judgment under de novo review. Vill. of Wagon Mound v. Mora Trust, 2003–NMCA–035, ¶ 57, 133 N.M. 373, 62 P.3d 1255. Specifically, in this case, we review the district court's interpretation of the PEBA as a question of law subject to de novo review. See City of Deming,2007–NMCA–069, ¶ 6 (“To decide whether the grandfather clause applies, we must interpret the PEBA and make a determination of law.”). “Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Roth v. Thompson, 113 N.M. 331, 334, 825 P.2d 1241, 1244 (1992).

{7} The PEBA was designed “to guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.” Section 10–7E–2. It grants most public employees the right to “form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by public employees.” Section 10–7E–5. It sets forth various provisions and procedures to comply with its collective bargaining requirement. As pertinent to this case, the PEBA requires public employers other than the State of New Mexico and exclusive representatives to follow impasse procedures that include mediation and binding arbitration, unless the public employers and the exclusive representatives agree in writing to an alternative procedure. Section 10–7E–18(B), (C). In addition, the PEBA requires, in the event of impasse, that the existing contract “continue in full force and effect until it is replaced by a subsequent written agreement.” Section 10–7E–18(D).

{8} The PEBA's grandfather clause reads

A public employer other than the state that prior to October 1, 1991 adopted by ordinance, resolution or charter amendment a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives may continue to operate under those provisions and procedures. Any substantial change after January 1, 2003 to any ordinance, resolution or charter amendment shall subject the public employer to full compliance with the provisions of Subsection B[.]

Section 10–7E–26(A). Section 10–7E–26(B)(8) requires any such public employer making a substantial change to include within the change specific provisions and procedures, including “impasse resolution procedures equivalent to those set forth in” Section 10–7E–18. Thus, the PEBA's grandfather clause has two requirements: (1) that a public employer have adopted “a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives” and (2) that the public employer has done so prior to October 1, 1991. Section 10–7E–26(A); Regents of Univ. of N.M. v. N.M. Fed'n of Teachers, 1998–NMSC–020, ¶ 34, 125 N.M. 401, 962 P.2d 1236;City of Deming, 2007–NMCA–069, ¶ 9, 141 N.M. 686, 160 P.3d 595.

{9} The City originally adopted the LMRO in 1977 and last amended it in 2002. The purposes of the LMRO are similar to those in the PEBA, including allowing employees of the City “to organize and bargain collectively with” the City. Abq. Ord. § 3–2–2(A). It contains various provisions and procedures that control the collective bargaining relationship of the City and the Unions. Abq. Ord. §§ 3–2–1 to –18. It does not, however, contain binding arbitration or evergreen provisions.

{10} Our Supreme Court discussed the purposes of grandfather clauses in Regents, 1998–NMSC–020, ¶¶ 23–28, 125 N.M. 401, 962 P.2d 1236, a case involving the prior version of the PEBA. It observed that the effect of grandfather clauses is to “narrow, qualify, or otherwise restrain the scope of the statute” or to “remove from the statute's reach a class that would otherwise be encompassed by its language.” Id. ¶ 24. As the Court stated, “[a] grandfather clause preserves something old, while the remainder of the law of which it is a part institutes something new.” Id. ¶ 25. It further noted that grandfather clauses should be construed strictly or narrowly and with the purpose of giving effect to the Legislature's intent. Id. ¶¶ 27, 48.

{11} This Court acknowledged those purposes in addressing impasse procedures in City of Deming, 2007–NMCA–069, ¶ 23, 141 N.M. 686, 160 P.3d 595. In that case, we held that the PEBA's grandfather clause applied to an ordinance provision that addressed impasse through advisory arbitration. Id. ¶ 24. We reversed the district court that had denied grandfather status because “the advisory arbitration impasse procedure of the ordinance did not provide any more than the right to petition the government and thus was not a meaningful opportunity to engage in collective bargaining.” Id. ¶ 19 (internal quotation marks omitted).

{12} The Unions make similar arguments in this case. The impasse provision of the LMRO calls for mediation at the request of a party, and, if the mediation fails, binding arbitration only upon voluntary agreement of the parties. Abq. Ord. § 3–2–14(A), (B). The LMRO does not contain an evergreen provision. The Unions contend that, by failing to provide binding impasse resolution procedures and evergreen protection, the LMRO does not provide “a system allowing employees to form, join or assist a Union in ‘collective bargaining’ as required by [the] PEBA.”

{13} We understand the Unions' position to be that because the provisions and procedures of the LMRO do not require binding arbitration and include evergreen provisions, the LMRO does not satisfy the “collective bargaining” requirement for grandfather status. The Unions contend that without a procedure for finality in the event of impasse a collective bargaining process is meaningless. They reason that the Legislature did not intend to extend grandfather status to such a process.

{14} However, the Unions' argument attaches an additional requirement to the PEBA's...