City of Albuquerque v. Campos

Decision Date16 August 1974
Docket NumberAFL-CI,D,No. 9901,9901
Citation1974 NMSC 65,86 N.M. 488,525 P.2d 848
Parties, 87 L.R.R.M. (BNA) 2790, 75 Lab.Cas. P 53,458 CITY OF ALBUQUERQUE, a municipal corporation, Plaintiff-Appellant, v. Henry V. CAMPOS, President, Joe Stevens, Secretary-Treasurer, Jim Swann, Business Agent, for the American Federation of State, County and Municipal Employees Local 624 ofefendants-Appellees. CITY OF ALBUQUERQUE, a municipal corporation, Plaintiff-Appellant, v. Lt. Leonard ORTEGA, President, Ronald Piaz, Secretary-Treasurer, for American International Fire Fighters Local 1455, Defendants-Appellees.
CourtNew Mexico Supreme Court

OMAN, Justice.

This is an appeal from a final decree entered by two district judges in two separate suits filed in the district court of the Second Judicial District by the City of Albuquerque against the officers and members of two labor unions. The cases were not consolidated for trial, but, with the consent of the parties, were tried simultaneously and together with the two district judges presiding. The City sought an injunction and damages in each case.

The final decree from which this appeal has been taken was entered on September 26, 1973. In addition to ordering the dismissal of the amended complaint in each case, the decree recited, as a part of the decretal portion thereof:

'That the questions presented in the foregoing causes are of sufficient public importance to warrant a decision by the Supreme Court and are likely to recur.'

These questions or issues, and the final decisions of the district judges thereon, were stated as follows in the decree:

1. 'That the plaintiff may not maintain the present actions by reason of its failure to exhaust the administrative remedies provided in Sections 9 and 10 of Albuquerque City Ordinance No. 153--1971.'

2. 'That NMS 1953 Comp. § 59--2--1 (§ 59--2--1, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, 1960)) (commonly known as the little Norris-LaGuardia Act) is applicable to the present cause, notwithstanding the fact that the labor dispute referred to in the Complaint arises out of the employment by the City of Albuquerque, a municipal corporation of the State of New Mexico, of certain of its employees.'

We reverse these decisions.

On July 30, 1973, those City employees, who were members of the two unions shown in the caption hereof, went on strike and established picket lines at City facilities. This strike resulted in a total stoppage of municipal services furnished by the City to its residents in the areas of fire protection, water line maintenance, emergency rescue service, refuse collection, traffic control maintenance, public transportation, and others.

On the same date the City filed the two suits asking injunctions and damages. Consent orders were entered by which defendants were temporarily restrained from mass picketing and certain acts of obstruction and interference. On the following day, the City filed an amended complaint in each suit seeking preliminary injunctions whereby its striking employees would be commanded to cease their strike and return to their jobs. The district court thereupon issued an order commanding defendants to appear before the court the following day, August 1, 1973, and show cause why a preliminary injunction should not be entered as prayed for by the City.

Hearings were conducted on August 1 and 2, 1973. At a hearing on August 1, the parties were directed by the court to furnish written summaries of the evidence that they proposed to tender at the hearing to be held pursuant to said order to show cause. The City filed its 'tender of evidence' pursuant thereto in open court on August 2 at the continuation of this show cause hearing. In this tender, it not only listed seven witnesses it intended to call, but summarized the evidence it anticipated to elicit from each.

At one of the hearings conducted on August 2, the court made a plea for the parties to settle without further action by the court; conducted a negotiation session, in the nature of a pre-trial conference; urged an agreement for partial restoration of municipal services on a voluntary basis during a 'cooling-off period'; ultimately ruled from the bench that the City had to exhaust its administrative remedies under City Ordinance No. 153--1971; heard limited testimony from only one of the witnesses offered by the City; denied defendants the right to cross-examine this witness; and entered an interlocutory order in which, among other things, it was concluded or ordered:

1. 'That the provision of the City Ordinance No. 153--1971 of the City of Albuquerque, being Section No. 9B(7) thereof prohibiting employees of the City of Albuquerque from striking is valid;' 2. 'That the plaintiff may not maintain the present actions by reason of its failure to exhaust the administrative remedies provided in Sections 9 and 10 of Ordinance No. 153--1971.'

3. 'That Section 59--2--1 (§ 59--2--1, N.M.S.A. 1953 (Repl. Vol. 9, pt. 1, 1960)), is applicable to the present proceeding and that no injunction could be issued with respect to the foregoing violations by the defendants of the City ordinance, in the absence of factual evidence showing compliance with said section, and having further found that the mere fact that there is an existing strike by the defendants constitutes an unlawful act under said ordinance;'

4. 'That nevertheless the present cause should not be dismissed but should remain pending during the time necessary to satisfy said administrative requirements;'

5. 'That pending the final disposition of this cause, the defendants be and they hereby are ordered to supply personnel for the municipal services beginning no later than midnight, Aug. 2, 1973 to the extent and in the manner shown in the following tabulation:

'A. Fire protection

Manning of three fire stations by five firemen per shift for each shift, the selection of the stations to be at the City's election;

'B. Emergency Rescue Operations

Three men for three shifts to operate one rescue unit, the location to be determined by the City.

'C. Communications

Two men for each shift to operate a communications center to be selected at the City's election.

'D. Refuse collection

Ten men per day for performing the most pressing refuse collection needs of the City at the election of the City.

'E. Public Works

Four men for maintenance of public works at the election of the City.'

6. 'That the defendants need not supply personnel for the following city functions: Vehicle maintenance, liquid waste, transportation; and that the request of the City that picket lines which have prevented the use of any of the bus transportation of the City of Albuquerque be, and the same hereby is, denied.'

7. 'With respect to the foregoing requirement of furnishing personnel, the City will notify the defendants as to the number of persons required for each location and position and which location and position should be served and the particular individuals to be supplied for each of the positions so determined shall be made by the defendants.'

8. 'That the tender of proof made by the plaintiff and summarized in their 'tender of evidence' on file herein be, and the same hereby is, denied.'

9. 'That this Interlocutory Order does not practically dispose of the merits of these causes.'

10. 'That this Interlocutory Order involves a controlling question of law as to which there is a substantial difference of opinion.'

11. 'That an immediate appeal from this Interlocutory Order may materially advance the ultimate termination of this litigation.'

The schedule or 'tabulation' of services to be supplied was of the district court's own making, and was unsupported by any evidence. The court described those as 'emergency services' which were inadequate but essential to give minimal protection to the public.

Pursuant to the last three paragraphs above quoted from the interlocutory order of August 2, the City filed in this Court an Application for Order Allowing an Interlocutory Appeal as provided in § 21--10--3, N.M.S.A. 1953 (Repl. Vol. 4, 1970, Supp.1973). During argument on this application, this Court was advised that the strike had been settled. On August 7 we dismissed the interlocutory appeal without prejudice to the rights of the parties to prosecute an appeal from any final decrees to be entered by the district court. It is obvious from an unrefuted affidavit executed by a defendant in each case and filed on August 23 that the strike was settled.

As above stated, the final decree entered in the cases by the two presiding district judges was filed on September 26, 1973. This appeal therefrom was taken by the City on September 27. Since the strike had been settled in the meantime, there was no longer a need for an injunction, and the City is not urging its claims for damages. What it seeks is the resolution by this Court of the above recited questions concerning (1) the right of the City to maintain its suits, without having first exhausted the administrative remedies provided for by Ordinance No. 153--1971, and (2) the applicability to these suits of the provisions of § 59--2--1, supra.

On the other hand, defendants urge that these questions are moot and this Court should no longer concern itself with them. Defendants primarily rely upon Atchison, T. & S.F. Ry. Co. v. State Corporation Com'n, 79 N.M. 793, 450 P.2d 431 (1969); New Mexico Bus Sales v. Michael, 68 N.M. 223, 360 P.2d 639 (1961); Porter v. Robert Porter & Sons, Inc., 68 N.M. 97, 359 P.2d 134 (1961); Reeder v. Bowman, 64 N.M. 7, 322 P.2d 339 (1958); In Re Hickok's Will, 61 N.M. 204, 297 P.2d 866 (1956); State v. Vogel, 39 N.M. 122, 41 P.2d 1107 (1935); Buss v. Kemp Lumber Co., 23 N.M. 567, ...

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