City of Deming v. Deming Firefighters

• Decision Date: 19 April 2007
• Docket Number: No. 26,508.,No. 26,509.,26,508.,26,509.
• Parties: CITY OF DEMING, Appellant-Appellee/Cross-Appellant, v. DEMING FIREFIGHTERS LOCAL 4521, Appellee-Appellant/Cross-Appellee.
• Court: Court of Appeals of New Mexico

160 P.3d 595

2007 NMCA 069

CITY OF DEMING, Appellant-Appellee/Cross-Appellant, v. DEMING FIREFIGHTERS LOCAL 4521, Appellee-Appellant/Cross-Appellee.

No. 26,508.

No. 26,509.

Court of Appeals of New Mexico.

April 19, 2007.

Management Associates, Inc., Dina E. Holcomb, French & Associates, Inc., Kerri L. Allensworth, Albuquerque, NM, for City of Deming.

Law Office of Justin Lesky, Justin Lesky, Albuquerque, NM, for Deming Firefighters Local 4521.

OPINION

WECHSLER, Judge.

{1} We consider in this case the application of the grandfather clause of the New Mexico Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005), to two provisions of a labor relations ordinance of the City of Deming (City). With regard to the ordinance provision excluding fire department officers from bargaining units, we hold that, under Regents of the University of New Mexico v. New Mexico Federation of Teachers, 1998-NMSC-020, 125 N.M. 401, 962 P.2d 1236, the grandfather clause does not apply and the New Mexico Public Employee Labor Relations Board (PELRB) must additionally address whether the City's fire department officers meet the definition of supervisors under the PEBA. We hold that the grandfather clause does apply to the ordinance provision concerning impasse procedures. We reverse, remanding to the PELRB.

BACKGROUND

{2} The PEBA was enacted to grant to public employees the right to organize and collectively bargain with their employers. Section 10-7E-2. It contains a grandfather clause that 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 of Section 26 . . . of the Public Employee Bargaining Act.

Section 10-7E-26(A).

{3} The City adopted an ordinance pertaining to labor-management relations and employee organizing and collective bargaining on January 14, 1991. The City amended the ordinance prior to 2003. Two provisions of the ordinance are different from the PEBA and are in dispute in this case. The first defines a "supervisor" by reference to a job title and thereby precludes any employee with the title from participating in a bargaining unit. Deming, N.M., Ordinance no. 1039, § 3(I) (2001). The PEBA does not contain any such categorical title restriction. The second provision concerns procedures for addressing an impasse in labor-management negotiations. The ordinance provides for mediation in the event of impasse, and if the impasse persists, advisory arbitration under which the arbitrator provides an opinion to the city council. Id. § 13(B). The city council in turn renders the final, binding decision. Id. § 13(D). The PEBA currently provides for final, binding arbitration for a continuing impasse. Section 10-7E-18.

{4} To obtain recognition of a bargaining unit containing employees considered supervisors by the first provision, the Deming Firefighters Local 4251 (Union) filed a petition for recognition with the City's labor-management relations board (City Board). The City Board denied relief based on the ordinance. The Union thereafter filed a petition for representation and a prohibited practice charge with the PELRB. The petition for representation requested recognition of the bargaining unit. The prohibited practice charge alleged that the City ordinance violated the PEBA because it (1) defined captains as supervisors and thereby excluded them from the right to collectively bargain, and (2) did not provide for final, binding arbitration in the event of impasse in contract negotiations. The PELRB executive director acted as the hearing examiner. The director concluded that (1) the PELRB had jurisdiction, (2) the two challenged provisions did not conform to the purpose of the PEBA and were invalid and not entitled to grandfather protection, and (3) the PELRB would retain jurisdiction to determine the appropriate bargaining unit based on the employees' responsibilities. The PELRB adopted the conclusions concerning jurisdiction and invalidity of the ordinance provisions. It remanded to the City Board to determine the appropriate bargaining unit.

{5} The City appealed to the district court. The district court concluded that the ordinance provision defining captains as supervisors came within the grandfather clause and could validly operate as written. It reversed the PELRB decision as to that provision. It further concluded that the ordinance impasse provision did not "provide employees with a meaningful opportunity to engage in collective bargaining" and therefore was not entitled to grandfather status. It affirmed the PELRB as to the impasse provision. The Union appeals from the district court's ruling on the supervisor ordinance, and the City appeals the impasse provision ruling. We consolidate the appeals on our own motion.

STANDARD OF REVIEW

{6} The issues as to both ordinance provisions as framed by the district court require us to decide whether the grandfather clause applies. If it does, the City may operate under the ordinance and, because the PEBA does not apply, the PELRB does not have jurisdiction. If the grandfather clause does not apply, the parties must look to the provisions of the PEBA and the jurisdiction of the PELRB, rather than the ordinance. To decide whether the grandfather clause applies, we must interpret the PEBA and make a determination of law. See Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 (stating that statutory interpretation is a matter of law). We therefore review de novo the interpretations of both the district court and the PELRB. Id. ("[W]e will not defer to the Commission's or the district court's statutory interpretation, as this is a matter of law that we review de novo."). Although we may afford some deference to an agency's interpretation of statutes within its field of expertise, courts have the ultimate responsibility to interpret the law. Regents, 1998-NMSC-020, ¶ 17, 125 N.M. 401, 962 P.2d 1236.

REGENTS OF THE UNIVERSITY OF NEW MEXICO V. NEW MEXICO FEDERATION OF TEACHERS

{7} Regents is central to both issues before us. It is the only applicable precedent considering the PEBA grandfather clause. It involved the labor-management policy of the University of New Mexico (UNM) adopted before October 1, 1991. Regents, 1998-NMSC-020, ¶ 2, 125 N.M. 401, 962 P.2d 1236. The policy expressly excluded certain types of employees from participating in collective bargaining. Id. The policy, however, conflicted with the later-enacted PEBA, which contained exclusions of employees from the collective bargaining process but opened the process to several types of employees who were excluded by the UNM policy. Regents, 1998-NMSC-020, ¶ 3, 125 N.M. 401, 962 P.2d 1236.

{8} Our Supreme Court in Regents addressed grandfather clauses in general and recognized that such clauses restrict the scope of a new statute in order to prevent harm. Id. ¶¶ 24-26. As a matter of statutory construction, the Court determined that because grandfather clauses make exception to the general operation of a law, courts should give them a strict or narrow construction, such that they would apply only to cases that clearly fall "within the purpose, letter, or express terms, of the clause." Id. ¶ 27. It emphasized that grandfather clauses should be construed under the principal objective of statutory construction to "determine and give effect" to legislative intent and by construing the entire statute as a whole. Id. ¶ 28 (internal quotation marks and citation omitted).

{9} As to the PEBA grandfather clause, our Supreme Court noted the two requirements of the clause that (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. Regents, 1998-NMSC-020, ¶ 34, 125 N.M. 401, 962 P.2d 1236 (internal quotation marks and citation omitted). When it read the PEBA as a whole, it concluded that the legislature intended the PEBA to provide collective bargaining to all public employees other than those expressly excluded from the PEBA. Regents, 1998-NMSC-020, ¶ 48, 125 N.M. 401, 962 P.2d 1236. It therefore interpreted the first requirement of the grandfather clause to refer to those same employees. Id. It further interpreted the grandfather clause narrowly to apply to specific provisions of UNM's policy, "rather than the policy as a whole." Id. ¶ 35. When it viewed the specific provision of the UNM policy pertaining to covered employees, it concluded that that provision of the policy did not meet the first requirement of the grandfather clause that it permit the requisite employees to engage in collective bargaining. Id. ¶ 43.

ORDINANCE PROVISION CONCERNING SUPERVISORS

{10} The City's ordinance prohibits supervisors from participating in a bargaining unit. It defines a "supervisor" as including fire captains regardless of their job responsibilities. The PEBA, on the other hand, affords collective bargaining rights to all public employees except management and confidential employees. Section 10-7E-5. We note that although the original PEBA permitted exception to "management employees, supervisors and confidential employees," we do not consider the difference to be material to this appeal. NMSA 1978, § 10-7D-5 (1992) (repealed 1999). The critical difference between the...