Local 2238 of the American Federation of State, County and Municipal Employees, AFL-CIO v. Stratton, AFL-CI

• Docket Nº: No. 17537
• Citation: 769 P.2d 76, 1989 NMSC 3, 108 N.M. 163
• Case Date: February 02, 1989
• Court: Supreme Court of New Mexico

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769 P.2d 76 108 N.M. 163, 131 L.R.R.M. (BNA) 2424 LOCAL 2238 OF THE AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES, AFL-CIO, Plaintiff-Appellee,
v.
The Honorable Hal STRATTON, Attorney General of the State of
New Mexico, Defendant-Appellant. No. 17537. Supreme Court of New Mexico. Feb. 2, 1989.

[108 NM 163] Hal Stratton, Atty. Gen., Henry M. Bohnhoff, Deputy Atty. Gen., David A. Garcia, James P. Bieg, Terran W. Mast, Asst. Attys. Gen., Santa Fe, Gregory D. Huffaker, Jr., Sp. Asst. Atty. Gen., Albuquerque, for appellant.

Simon & Oppenheimer, Jame Bloom Yohalem, Morton S. Simon, Carol Oppenheimer, Santa Fe, Kirschner, Weinberg & Dempsey, Richard Kirschner, Washington, D.C., for appellee.

Mountain States Legal Foundation, Paul Farley, Denver, Colo., Lossee & Carson, Jerry Losee, Artesia, for amicus curiae.

OPINION

STOWERS, Justice.

Defendant-appellant, the Honorable Hal Stratton, Attorney General of the State of New Mexico, appeals from the judgment of the district court granting partial summary judgment in favor of plaintiff-appellee, Local 2238 of the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). The trial court concluded, inter alia, that collective bargaining by public employees even without specific legislative authority for the practice is legal in New Mexico. The trial court also granted judgment in favor of appellant finding that one part of the proposed collective bargaining agreement was in violation of the Per Diem and Mileage Act, NMSA 1978, Sections 10-8-1 to -8 (Repl.Pamp.1987), because the agreement purported to

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[108 NM 164] set rates lower than those provided by statute. No appeal was taken from this portion of the judgment. We affirm the district court.

AFSCME is the duly elected "exclusive representative" of certain employees of the New Mexico State Highway and Transportation Department (Highway Department). In 1972 pursuant to the State Personnel Act, now codified in NMSA 1978, Sections 10-9-1 to -25 (Orig.Pamp. and Repl.Pamp.1987) (Act), the New Mexico State Personnel Board (Board) promulgated Rules for Labor-Management Relations (RLMR) for purposes of collective bargaining between the "exclusive representative" of the public employees and the state agency. Under Section 8(A) of the RLMR, the attorney general is responsible for reviewing and concurring in any collective bargaining agreement between these two entities.

On May 22, 1987, negotiations on a proposed collective bargaining agreement between AFSCME and the Highway Department were completed and agreed upon by these two parties. The attorney general, by letter dated July 6, 1987, informed the Highway Department that he would not concur in the proposed agreement because "the successor agreement contains numerous provisions that do not comply with statutory law [and] are inconsistent with the [State] Personnel Act * * * and Board rules * * *." As a result of this letter, AFSCME petitioned this court for a writ of mandamus. On July 8, 1987, we denied the writ and stated "collective bargaining is legal in New Mexico even in the absence of a statute addressing the subject." The Board thereupon terminated the then-existing collective bargaining agreement between the Highway Department and its employees.

On July 17, 1987, AFSCME initiated the present action in the district court for writ of certiorari by emergency and permanent relief and complaint for declaratory judgment to review the Board's decision denying a joint request by AFSCME and the Highway Department to extend the existing collective bargaining agreement and to find invalid the attorney general's legal objections of the successor collective bargaining agreement between them. The district court quashed the writ. Since no genuine issues of material facts existed, both parties moved for summary judgment as a matter of law in the declaratory judgment action.

From the granting of summary judgment in favor of AFSCME, appellant raises the following issues: (1) whether state agencies have a mandatory duty to recognize any union as the exclusive bargaining representative of its employees, or to bargain with it; (2) whether the legislature has delegated its exclusive authority to make law concerning collective bargaining; and (3) whether the collective bargaining agreement conflicts with both the RLMR and the State Personnel Act and is therefore void. The issue dispositive of this appeal is whether collective bargaining by public employees in New Mexico is legal even without a statute explicitly addressing that subject.

1. History of Collective Bargaining in New Mexico.

The leading case in New Mexico on collective bargaining is International Brotherhood of Electrical Workers, Local 611 v. Town of Farmington, 75 N.M. 393, 405 P.2d 233 (1965) (Farmington ). In that case this court held that a municipality had implied statutory authority to enter into a collective bargaining agreement with the union representing the public employees on those areas not otherwise covered by a state merit system. The issue raised therein was whether the town of Farmington could be a party to a collective bargaining agreement with a union representing electrical workers at an electrical utility acquired by the town from private owners. The workers were unionized at the time of the town's acquisition of the electrical company in 1959 and continued to operate under the collective bargaining agreement with the union until 1962. At that time, a new collective bargaining agreement was entered into, which the union sought to modify. The union thereafter brought a declaratory judgment action to clarify the town's power and authority to enter into

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[108 NM 165] any such agreement. Id. at 394, 405 P.2d at 234. The district judge ruled that the town had such authority and the town appealed.

In our analysis of that case we recognized that, absent legislative authority, courts in a majority of jurisdictions generally have viewed collective bargaining agreements between government management and public employees as invalid. Id.; see also Annotation, Union Organization and Activities of Public Employees, 31 A.L.R.2d 1142 (1953). The reasons principally advanced for denying the right of public employees to engage in collective bargaining include "the sovereignty of the public employer; the fact that the government is established and operated for all the people and not for the benefit of any person or group; that it is not operated for profit; that public employees owe undivided allegiance to the public employer; and, that continued and uninterrupted operation of public employment is indispensable in the public interest." Farmington, 75 N.M. at 394-95, 405 P.2d at 235. This court further stated in Farmington:

that any statutory regulation of employment negates the view that there could be contractual negotiations between the governmental employer and the employee. If a merit system provides for those matters usually contained in a collective bargaining agreement, both could not exist concurrently, and the inconsistency must be resolved in favor of the statute or municipal ordinance, and the authority to enter into a legally binding collective bargaining agreement should properly be denied.

Id. at 396, 405 P.2d at 236 (citations omitted).

However, in Farmington, because the legislature merely had authorized municipalities to adopt a merit system and the town had not yet effectuated such a system, this court held there existed no statutory authority to conflict with the collective bargaining agreement. And since the legislature authorized a merit system, it was apparent that the legislature contemplated employment contracts between municipalities and employees. This court said, "While collective bargaining contracts are not specifically mentioned in the statute [authorizing a merit system], such agreements would certainly be within the language." Id. at 397, 405 P.2d at 236.

Although Farmington narrowed its holding to the fact that the town was functioning in a proprietary capacity in operating an electrical utility, we believe that Farmington provides the authority for a governmental employer to bargain collectively with its employees, unless such bargaining is inconsistent with an existing statutory or state, county or municipal merit system or with one which will come into existence. Id. at 396, 405 P.2d at 237; see also Local 266, Int'l Bhd. of Elec. Workers v. Salt River Project Agric. Improvement & Power Dist., 78 Ariz. 30, 275 P.2d 393 (1954) (the district, a political subdivision of the state, had the power implied from the authorization to do business to enter into a collective bargaining agreement with its employees in the absence of express statutory provisions); accord Christie v. Port of Olympia, 27 Wash.2d 534, 179 P.2d 294 (1947) (en banc) (the state's power to employ includes the doctrine of implied powers).

Prior to our decision in Farmington, the attorney general's office in New Mexico had ruled that in the absence of specific legislative authority for a public employer to engage in collective bargaining, a public employer might negotiate with a union regarding rules and regulations for employees but the public employer had to retain the right to alter any such rules. AG Op. No. 63-52 (1963). On the basis of our decision in Farmington, the attorney general in 1969 ruled that implied legislative authority for collective bargaining existed for matters outside the scope of an established municipal merit system. AG Op. No. 69-73 (1969). In 1971 the attorney general reiterated the view that Farmington authorized municipal collective bargaining if no merit system was in effect, or if it was in effect, authorized collective bargaining in areas outside the merit system. AG Op. No. 71-96 (1971). That opinion also stated, in the absence of a statutory bar, a public

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[108 NM 166] employees' union might collect...