N.M. Corr. Dep't v. Am. Fed'n of State, Cnty., & Mun. Emps., Council 18, AFL-CIO

• Decision Date: 05 September 2017
• Docket Number: NO. A-1-CA-34737,A-1-CA-34737
• Citation: 409 P.3d 983
• Parties: NEW MEXICO CORRECTIONS DEPARTMENT, Appellant-Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 18, AFL-CIO, Appellee-Respondent.
• Court: Court of Appeals of New Mexico

409 P.3d 983

NEW MEXICO CORRECTIONS DEPARTMENT, Appellant-Petitioner,

v.AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 18, AFL-CIO, Appellee-Respondent.

NO. A-1-CA-34737

Court of Appeals of New Mexico.

Filing Date: September 5, 2017

Certiorari Denied, October 24, 2017, No. S-1-SC-36688

Paula E. Ganz, Jennifer R. James, Deputy General Counsel, New Mexico Corrections Department, Santa Fe, NM, for Appellant.

Shane Youtz, Stephen Curtice, James A. Montalbano, Youtz & Valdez, P.C., Albuquerque, NM, for Appellee.

J. MILES HANISEE, Judge

{1} The State of New Mexico Corrections Department (the Department) appeals the district court's denial of the Department's motion for reconsideration following the district court's on-record affirmance and adoption of the Public Employee Labor Relations Board's (PELRB) September 2009 order and the PELRB hearing examiner's July 2009 order, both of which found the Department to have committed a prohibited practice in violation of NMSA 1978, Section 10-7E-19(A) (2003) of the Public Employee Bargaining Act (PEBA). We affirm.

BACKGROUND

{2} On February 10, 2009, Respondent filed a prohibited practices complaint (PPC) with the PELRB against the Department, alleging that the Department had violated Section 10-17E-19 by discriminating against two of the Department's employees, Frank Blair and Gabe Molina. The basis of the PPC was that Blair and Molina, who are also union members and officials of the American Federation of State, County, and Municipal Employees (AFSCME) Local 3422 (Corrections Officers), had requested and were denied use of a state vehicle to travel to and from a policy review meeting with Department management on January 26, 2009. Blair and Molina were attending the meeting in their capacity as state employee union officials (employee officials). Employee officials are union officials or stewards who are also state employees. Per the parties' 2005 collective bargaining agreement (CBA), employee officials are "on paid status" when they attend "meetings agreed to by the parties for purposes of administration of [the CBA]." Other Department employees attending the same meeting in their capacity as management were allowed to use a state vehicle to travel to and from the meeting, the purpose of which was to discuss various labor-management issues. A hearing on the merits was held before PELRB Director Juan Montoya (the hearing examiner) on July 1, 2009, during which the following facts were elicited.

{3} The purpose of labor-management meetings is to provide the Department and the union an opportunity to resolve issues that arise in the workplace in order to promote a cooperative relationship between the parties and enhance the orderly operation and functioning of the Department's facilities. Policy review meetings, such as the one held on January 26, 2009, are a type of labor-management meeting that is convened when the Department proposes policy changes affecting the CBA. Such meetings are typically convened by the Department's Human Resources Bureau Chief Elona Cruz, who is the Department's administrator of the CBA. When convened, representatives of both Department management and employee officials are required to attend per the CBA.

{4} Cruz used a state vehicle to attend such meetings, including the meeting on January 26, 2009. On approximately a dozen occasions from 2005 through 2008, Cruz granted employee officials permission to do the same. In January 2009 Cruz issued a directive to the Department, disallowing use of state vehicles by employee officials. Cruz's directive was in response to direction she received from the State Personnel Office (SPO), which had received a legal opinion (the opinion) in December 2008 from the General Services Department's (GSD) general counsel that concluded that state law prohibits the use of state vehicles by union officials and stewards, including employee officials. The opinion responded to a general inquiry from SPO Director Sandra Perez regarding an issue that had arisen during negotiations between the state and different unions, including AFSCME, and did not address the specific factual scenario presented in this case.

{5} According to GSD Secretary Arturo Jaramillo, GSD is the only state agency with the authority to own, lease, and insure state vehicles. GSD is also the only state agency with the authority to establish rules and regulations for the use of state vehicles. Secretary Jaramillo explained that under the New Mexico Administrative Code, the general eligibility requirements for using a state vehicle are: (1) status as a state employee, (2) possession of a valid driver's license, (3) completion of a defensive driving course, and (4) the use must be "in furtherance of official state business." He also testified that the term "official state business" is not defined by statute or regulation, and determinations of whether use of a vehicle is in furtherance of official state business are made on a case-by-case basis, taking into consideration "the whole complex" of facts, not just one particular fact. When asked whether, in general, there are instances where a union official's use of a vehicle would be in furtherance of official state business, Secretary Jaramillo responded, "I could envision that, where the interests of the state and the union relat[e] to resolution of a matter of common interest, I would argue that is in furtherance of state business." He offered grievance meetings as an example of a type of labor-management meeting that would qualify for use of state vehicles by employee officials because such meetings are "in furtherance of official state business because it would be in the state's interests to resolve grievances." As an example of what he would not consider an appropriate use of a state vehicle by an employee official, he stated that a meeting relating to a "matter of pure internal administration by the union" is not something he would consider to be in furtherance of official state business. Secretary Jaramillo emphasized that determinations must be made based on all of the facts—not any particular fact, such as how an employee's time is coded—and that the ultimate question to answer in deciding whether use of a state vehicle is authorized is whether such use is in furtherance of official state business.

{6} The hearing examiner concluded that "[a] state employee who is also a union official of a state bargaining unit is on official state business while attending labor-management relations meetings, grievance meetings[,] and other meetings necessary for the administration of the [CBA]." As such, he determined that the Department had committed a prohibited practice in violation of Section 10-7E-19(A) by treating Blair and Molina differently than management employees regarding the use of state vehicles to attend the January 2009 policy review meeting and ordered the Department to "cease and desist" from such practice. The PELRB affirmed the hearing examiner's decision and order.

{7} The Department appealed the PELRB's decision to district court, arguing that the decision was not in accordance with law. Specifically, the Department argued that the decision conflicts with myriad statutes—including Section 10-7E-19(A) ; NMSA 1978, Section 10-7E-6 (2003) ; and New Mexico's Transportation Services Act (TSA), NMSA 1978, §§ 15-8-1 to -11 (1994, as amended through 2013)—as well as the New Mexico Constitution's Anti-Donation Clause, N.M. Const. art. IX, § 14. The district court affirmed the PELRB's order and adopted the findings and conclusions of the hearing examiner. In its motion for reconsideration, the Department reiterated its previous arguments and also argued that the decision overlooked and is in conflict with various provisions of the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015). The district court denied the Department's motion, and the Department timely filed for a writ of certiorari under Rule 12-505 NMRA, which this Court granted.

DISCUSSION

{8} The ultimate question we must answer in this case is whether the PELRB erred in concluding that the Department committed a prohibited practice by not allowing employee officials to use a state vehicle to attend a policy review meeting called by the Department when management employees were allowed to use a state vehicle to attend the same meeting.

Standard of Review

{9} "Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court conducts the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal." City of Albuquerque v. AFSCME Council 18 ex rel. Puccini , 2011-NMCA-021, ¶ 8, 149 N.M. 379, 249 P.3d 510 (alteration, internal quotation marks, and citation omitted). "In reviewing an administrative decision, we apply a whole-record standard of review." Town & Country Food Stores, Inc. v. N.M. Reg. & Licensing Dep't , 2012-NMCA-046, ¶ 8, 277 P.3d 490 (internal quotation marks and citation omitted). "We independently review the entire record of the administrative hearing to determine whether the [PELRB]'s decision was arbitrary and capricious, not supported by substantial evidence, or otherwise not in accordance with law." Puccini , 2011-NMCA-021, ¶ 8, 149 N.M. 379, 249 P.3d 510 (internal quotation marks and citation omitted). "When reviewing an administrative agency's conclusions of law, we review de novo." Id. We "apply a de novo standard of review to [administrative] rulings regarding statutory construction." Albuquerque Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Reg. Comm'n ( ABCWUA ), 2010-NMSC-013, ¶ 50, 148 N.M. 21, 229 P.3d 494. We "will generally defer to an agency's reasonable interpretation of its own ambiguous regulations, especially where the subject of the regulation implicates agency expertise[.]" Id. ¶ 51 (internal quotation marks and citation...