City of Albuquerque v. Montoya

• Decision Date: 06 March 2012
• Docket Number: No. 32,570.,32,570.
• Citation: 274 P.3d 108,2012 -NMSC- 007
• Parties: CITY OF ALBUQUERQUE, Petitioner–Petitioner, v. Juan B. MONTOYA, Director of the Public Employee Labor Relations Board and the Public Employee Labor Relations Board, Respondents–Respondents,andAFSCME Council 18, local 624, Real Party in Interest.
• Court: New Mexico Supreme Court

2012 -NMSC- 007

274 P.3d 108

CITY OF ALBUQUERQUE, Petitioner–Petitioner,

v.Juan B. MONTOYA, Director of the Public Employee Labor Relations Board and the Public Employee Labor Relations Board, Respondents–Respondents,andAFSCME Council 18, local 624, Real Party in Interest.

No. 32,570.

Supreme Court of New Mexico.

March 6, 2012.

Robert D. Kidd, Jr., Interim City Attorney, Shelley B. Mund, Assistant City Attorney, Rebecca E. Wardlaw, Assistant City Attorney, Albuquerque, NM, Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Thomas L. Stahl, Jocelyn C. Drennan, Albuquerque, NM, for Petitioner.

Gary K. King, Attorney General, Andrea R. Buzzard, Assistant Attorney General, Santa Fe, NM, for Respondents.

Youtz & Valdez, P.C., Shane C. Youtz, Marianne Lee Bowers, Albuquerque, NM, for Real Party in Interest.

OPINION

MAES, Justice.

{1} The issue presented in this appeal is whether NMSA 1978, Section 10–7E–26(A) (2003), the grandfather clause of the Public Employee Bargaining Act (the Act), applies to the City of Albuquerque Labor–Management Relations Ordinance (the City Ordinance), as it pertains to the process for the appointment of interim members to the Labor–Management Relations Board of the City of Albuquerque (the Local Board). When the Local Board must meet during the absence of a member, Section 3–2–15(D) of the City Ordinance provides that the City Council President is to appoint an interim member “with due regard to the representative character of the [Local] Board.” Albuquerque, N.M. Rev. Ordinances ch. 3, art. II, § 3–2–15(D) (1974) (amended 2001). The Court of Appeals characterized the City Council President as “managerial personnel” and held that the President's appointment of a third member defeated the neutral makeup of the Local Board's membership. We disagree and hold that the City Council President does not serve in either a “management” or a “labor” capacity, and therefore the City Ordinance provision that provides a procedure by which the City Council President appoints a member to the Local Board during the absence of a member does not violate the Act's grandfather clause requirement that a local ordinance create a system of collective bargaining.

{2} Accordingly, we reverse the Court of Appeals' holding that, because “the [City Ordinance] establishing [the Local Board] is not eligible to be grandfathered pursuant to Section 10–7E–26(A),” the State Public Employee Labor Relations Board (the PELRB) has jurisdiction over the underlying matter. City of Albuquerque v. Montoya, 2010–NMCA–100, ¶ 1, 148 N.M. 930, 242 P.3d 497. We remand to the Court of Appeals for consideration of the other issues not previously addressed.

FACTS AND PROCEDURAL HISTORY

{3} In June 2007, the American Federation of State, County, and Municipal Employees Council 18, Local 624 (AFSCME), filed a prohibited practices complaint with the Local Board on behalf of Steve Griego, an AFSCME member. The complaint alleged that the City of Albuquerque (the City) discriminated against Griego by failing to hire him for an Electrician 3 position, a position for which he was qualified, because of his union activities. Following the prohibited practices complaint hearing, the “neutral” member of the Local Board recused from the matter. As a result of the deadlock, the two remaining members of the Local Board could not adjudicate AFSCME's complaint.

{4} Following the deadlock, AFSCME filed the same prohibited practices complaint with the PELRB. The City filed with the Local Board a motion for appointment of a neutral third member for the pending action. City Ordinance § 3–2–15(D). The Local Board issued an order directing the City and AFSCME to agree on a neutral third member to present to the City Council President for approval. If the City and AFSCME could not reach an agreement, then the remaining two Local Board members were to select a neutral third member to present to the City Council President. The City Council President subsequently solicited names from both the City and AFSCME. The City proposed either retired Chief Justice of the New Mexico Supreme Court Gene Franchini, or the neutral chair of Albuquerque's Personnel Board, Sean Olivas, to serve as the neutral third member. AFSCME did not respond to the City Council President's request. The City claimed that the “process failed due to [AFSCME's] refusal to participate.” AFSCME claimed that according to the plain language of Section 3–2–15(D) of the City Ordinance, the appointment of a neutral third member was not warranted when the neutral member had recused from the proceedings. As a result of the parties' failure to agree on a neutral third member, the Local Board entered an order directing the two remaining members to petition the City Council President for appointment of the neutral third member.

{5} The same day the City filed with the Local Board its motion for appointment of a neutral third member, it filed with the PELRB a motion to dismiss the proceeding for lack of jurisdiction because the dispute remained before the Local Board. Juan B. Montoya, Director of the PELRB (Director Montoya), determined that Section 3–2–15(D) of the City Ordinance was not grandfathered under the Act, and therefore the PELRB had proper jurisdiction over the complaint. Director Montoya's conclusion was based on a reading of Section 3–2–15(D) of the City Ordinance as conflicting with the requirement in Section 10–7E–10(B) of the Act that a local board be balanced in membership.

{6} The City then filed a petition in the Second Judicial District Court seeking the issuance of a writ to prohibit the PELRB from hearing AFSCME's complaint and to stay the PELRB proceedings. The district court granted the writ and ordered the PELRB to cease all proceedings related to the complaint, finding that Section 3–2–15(D) of the City Ordinance was grandfathered under the Act, and therefore, the Local Board, not the PELRB, had proper jurisdiction over the matter.

{7} The PELRB and AFSCME appealed to the Court of Appeals. The Court of Appeals reversed the district court, holding that “the ordinance establishing [the City's] labor board is not eligible to be grandfathered pursuant to Section 10–7E–26(A).” Montoya, 2010–NMCA–100, ¶ 1, 148 N.M. 930, 242 P.3d 497. The court explained that

[t]he [Act] requires that a local board, like the PELRB, be a balanced and, therefore, neutral body.... Even though Section 3–2–15(D) requires the president of the city council to appoint an interim member with deference to the representational character of the board, the president's effort to incorporate neutrality in an often highly polarized environment is not sufficient to uphold the integrity of the essential process.... Section 3–2–15(D) of the Ordinance effectively removes from an employee the “bargaining” aspect of collective bargaining when it establishes a process whereby two-thirds of a local board could be comprised of appointees pursuant to management recommendations.

Id. ¶ 10.

{8} The City filed a petition for writ of certiorari, which we granted pursuant to NMSA 1978, Section 34–5–14(B) (1972) and Rule 12–502 NMRA. City of Alb v. Montoya, 2010–NMCERT–010, 149 N.M. 65, 243 P.3d 1147. The question presented on appeal is:

Did the Court of Appeals err in holding that a provision of the Labor–Management Relations Ordinance of the City of Albuquerque, which allows the president of the City Council to appoint an interim member of the City's Labor Board “with due regard to the representative character of the Board,” is not entitled to grandfather status under [the Act] because the provision does not productively allow collective bargaining?

GRANDFATHER CLAUSE

{9} The Act, which “guarantee[s] public employees the right to organize and bargain collectively with their employers,” NMSA 1978, § 10–7E–2 (2003), was first enacted in 1992. NMSA 1978, §§ 10–7D–1 to –26 (1992) (repealed effective July 1, 1999). Some public employers had existing systems in place for collective bargaining. Therefore, the Act included a grandfather clause which permitted a public employer to preserve its collective bargaining system under certain circumstances. Section 10–7E–26. The Act's grandfather clause allows a public employer to preserve an existing collective bargaining system that was created prior to October 1, 1991, as long as the “system of provisions and procedures permit[s] employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives.” Section 10–7E–26(A).

{10} In order for the City Ordinance at issue here to receive grandfather status, two requirements must be satisfied: “(1) the public employer must have adopted ‘a system of provisions and procedures permitting employees to form, join or assist any labor organization for the purpose of bargaining collectively through exclusive representatives' and (2) the public employer must have taken such action prior to October 1, 1991.” City of Deming v. Deming Firefighters Local 4521 ( Deming ), 2007–NMCA–069, ¶ 9, 141 N.M. 686, 160 P.3d 595 (quoting Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers ( Regents ), 1998–NMSC–020, ¶ 24, 125 N.M. 401, 962 P.2d 1236). In 1974 the City adopted the City Ordinance, which provides for collective bargaining by City employees. See Albuquerque, N.M., Ordinances ch. 3, art. II, § 3–2–2 (1974) (amended 1977). The City Ordinance was most recently revised in 2002, see parenthetical notation to Albuquerque, N.M., Rev. Ordinances ch. 3, art. II, § 3–2–18 (2002), and the method for appointing an interim member has not substantially changed since 1977. See parenthetical notation to Ordinances § 3–2–2; § 3–2–13. Because the City Ordinance was created prior to October 1, 1991, both parties agree that Subsection A of the Act's grandfather clause applies to this matter. Therefore, we only address whether the City Ordinance's provision allowing the appointment of an interim ...