August 12, 2010 – City of Albuquerque v. Juan B. Montoya, Director of the Public Employee Labor Relations Board and the Public Employee Labor Relations Board, No. 28,846

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	August 12, 2010
NO. 28,846
CITY OF ALBUQUERQUE,
Petitioner/Appellee,
v.
JUAN B. MONTOYA, Director
of the PUBLIC EMPLOYEE LABOR
RELATIONS BOARD and the PUBLIC
EMPLOYEE LABOR RELATIONS BOARD,
Respondents/Appellants,
AFSCME COUNCIL 18 and LOCAL 624,
Real Party in Interest/Cross-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District Judge
Robert M. White, City Attorney
Shelley B. Mund, Assistant City Attorney
Albuquerque, NM
for Appellee

Gary K. King, Attorney General
Andrea R. Buzzard, Assistant Attorney General
Santa Fe, NM
for Appellants
Youtz & Valdez, P.C.
Shane C. Youtz
Albuquerque, NM
for Cross-Appellant

OPINION
WECHSLER, Judge.
{1} 	Appellants Juan B. Montoya, Director of the Public Employees Labor Relations
Board (the PELRB), the PELRB, and AFSCME Council 18 and Local 624 (the real
parties-in-interest) appeal the district court’s denial of their motion to dismiss and
grant of a writ of prohibition and/or superintending control (the Writ) prohibiting the
PELRB from exercising jurisdiction over the prohibited practices complaint (PPC)
before it. Appellants argue that the grandfather clause in the Public Employee
Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through
2005), does not apply to the ordinance at issue in this case and that, therefore, the
PELRB had jurisdiction over the PPC. 	Appellants also make several procedural
arguments as to why the district court lacked jurisdiction, including that (1) no inferior
tribunal had yet acted or been presented with the PPC or the grandfather clause issue;
(2) Appellee City of Albuquerque had not yet exhausted its administrative remedies;
(3) the issues were not yet ripe for adjudication; (4) no “emergency” warranted the
issuance of the ex parte writ; and (5) Rule 1-012(A) NMRA accords Appellants the
opportunity to answer after the denial of their motion to dismiss. We hold that the
ordinance establishing Appellee’s labor board is not eligible to be grandfathered
pursuant to Section 10-7E-26(A). 	Because we so hold, we need not address

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Appellants’ remaining procedural issues. We reverse the district court’s grant of the
Writ and denial of Appellants’ motion to dismiss and remand for further proceedings.
BACKGROUND
{2} 	The facts relevant to this appeal are not in dispute. Appellee enacted a Labor-
Management Relations Ordinance (the Ordinance) in 1974 that governs collective
bargaining with the city. Albuquerque, N.M., Code of Ordinances ch. 3, art. 2, §§ 1
to 18 (1974). The Ordinance establishes a labor board (the Local Board) to oversee
administration of the Ordinance. Section 3-2-15. The Local Board is comprised of
three appointees—a “labor” appointee who is appointed by the committee of union
representatives, a “management” appointee who is appointed by the mayor, and a
“neutral” appointee who is appointed by the other two Local Board members. Section
3-2-15(A)-(C). If one of the appointed Local Board members is absent, “the President
of the City Council shall appoint an interim [Local] Board member from the public
at large with due regard to the representative character of the [Local] Board.” Section
3-2-15(D).
{3} 	On June 15, 2007, AFSCME filed a PPC with the Local Board based on the
contention of an employee that Appellee refused to hire him for a position based on
his union activities. 	The Local Board conducted a full evidentiary hearing, after

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which the neutral member recused. The remaining members were unable to reach an
agreement on the complaint. On October 18, 2007, as a result of the recusal of the
third Local Board member and the inability of the remaining members to agree on the
complaint, AFSCME filed an identical PPC with the PELRB. On November 9, 2007,
Appellee moved to dismiss the PPC filed with the PELRB, asserting that an interim
third neutral member could, in accordance with the Ordinance, be appointed by the
president of the city council. Appellee also filed a motion with the Local Board to
appoint a third, neutral, interim board member under Section 3-2-15 of the Ordinance.
{4} 	The PELRB set the motion to dismiss the PPC for hearing on January 2, 2008.
However, the Local Board continued to proceed and, on January 8, 2008, ordered the
parties to agree to a third neutral member or, if they could not, ordered the two
remaining board members to select the third member. 	Thereafter, on January 22,
2008, because the parties and the board members were unable to arrive at an
agreement as to the third neutral member, the Local Board petitioned the president of
the city council for appointment of a third member. On February 7, 2008, the PELRB
issued findings of fact and conclusions of law, stating that, despite the orders of the
Local Board, the Ordinance created an “unacceptable method for appointment of labor
board members pursuant to the [PEBA] and is therefore not to be used for that

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purpose.” 	The PELRB further concluded that Appellee’s “method of temporary
appointment of board members, in case of an absence by an already permanently
appointed board member, is contrary to the fundamental provision of the [PEBA]
requiring a local board be balanced in that one member is appointed upon the
recommendation of labor, another upon the recommendation of management and
those two, together, recommend the third party neutral.” 	See § 10-7E-10. 	The
PELRB therefore denied Appellee’s motion to dismiss the PPC before the PELRB,
asserting that it would “exercise its jurisdiction and hear this case.”
{5} 	On February 28, 2008, Appellee filed the petition for the Writ, arguing that the
PELRB lacked jurisdiction pursuant to Section 10-7E-26(A), the grandfather clause
of the PEBA. 	The following day, the district court signed a peremptory writ of
prohibition and/or superintending control. 	The PELRB and Director Montoya
responded with a motion to dismiss, asserting that the issues before the court were not
ripe. 	On May 1, 2008, the district court held a hearing and denied the motion to
dismiss and made permanent the February 29 peremptory writ. 	The district court
stated that Appellee “is grandfathered in under the appropriate state legislation and . . .
the PELRB has no jurisdiction in this instance and, therefore, the [m]otion to [d]ismiss
filed by the [PELRB and Director Montoya] is denied.” The PELRB and Director

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Montoya filed a motion for reconsideration, which the district court denied.
Appellants appeal the district court’s order granting the Writ and denying the PELRB
and Director Montoya’s motion to dismiss for lack of jurisdiction.
THE PEBA’S GRANDFATHER CLAUSE
{6} 	Appellants argue that the district court erred in granting the peremptory writ of
superintending control because the “‘grandfather clause’ . . . should not be
expansively construed to permit the employer to select two members of a three-
member local labor board to adjudicate labor-management disputes, which is
fundamentally contrary to [the] PEBA.” To determine whether the grandfather clause
applies to Section 3-2-15 of the Ordinance, “we must interpret the PEBA and make
a determination of law,” which we review de novo. 	City of Deming v. Deming
Firefighters Local 4521 (Deming), 2007-NMCA-069, ¶ 6, 141 N.M. 686, 160 P.3d
595. “Although we may afford some deference to [the PELRB]’s interpretation[, we]
have the ultimate responsibility to interpret the law.” Id.
{7} 	As we stated in Deming, in order for a labor-management policy to be exempt
from some of the requirements of the PEBA, “(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

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exclusive representatives and (2) the public employer must have taken such action
prior to October 1, 1991.” Id. ¶ 9 (emphasis, internal quotation marks, and citation
omitted); see also Regents of Univ. of N.M. v. N.M. Fed’n of Teachers (Regents),
1998-NMSC-020, ¶¶ 21, 34, 125 N.M. 401, 962 P.2d 1236 (discussing the grandfather
clause of the PEBA and stating that the “system must be productive” to be
grandfathered). The second requirement is easily met and is not disputed. We must,
therefore, decide whether Section 3-2-15 of the Ordinance—allowing for the president
of the city council to appoint an interim third member of the Local Board to resolve
labor-management disputes—meets the requirement under the PEBA that employees
be permitted to bargain collectively. 	See Deming, 2007-NMCA-069, ¶ 9; see also
Regents, 1998-NMSC-020, ¶ 34 (stating that a system permitting employees to form,
join, or assist a labor organization for the purpose of bargaining collectively “must . . .
actually result[] in . . . the negotiation of existing collective bargaining agreements”
(internal quotation marks and citation omitted)). If Section 3-2-15 does not meet this
requirement, it is not eligible for grandfather status under the PEBA and, therefore,
the PELRB would have jurisdiction. 	See Deming, 2007-NMCA-069, ¶¶ 11-12, 16
(“[I]f the grandfather clause applies, the PELRB does not have jurisdiction to rule on
the merits of any claims that the [c]ity has not complied with the PEBA.”).

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{8} 	Section 3-2-15 of the Ordinance establishes that the Local Board must be
comprised of a labor appointee, a management appointee, and a neutral appointee.
However, Section 3-2-15(D) further provides that, if one of the appointed Local Board
members is absent, “the President of the City Council shall appoint an interim [Local]
Board member from the public at large with due regard to the representative character
of the [Local] Board.” 	The question, therefore, is whether this latter provision,
allowing the president of the city council to appoint an interim member, violates the
purpose of the PEBA to allow employees to bargain collectively.
{9} 	Appellee argues that the Ordinance “establishes an effective system of
provisions that permits employees to form, join or assist any labor organization for the
purpose of collective bargaining through exclusive representatives” and that the
Ordinance was in existence prior to 1991, and, therefore, the Local Board “may
continue to operate without reference to [the] PEBA so long [as] the [L]ocal [B]oard
is not inconsistent with the overall intent of [the] PEBA.” 	Appellee argues that
Section 3-2-15(D) does not inhibit neutrality on the Local Board because the president
of the city council must appoint a third interim neutral member “with due regard to
the representative character” of the Local Board. (Emphasis omitted.) While we do
not disagree with Appellee’s general proposition that the Ordinance establishes a

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system for collective bargaining, we are not persuaded that, in this case, the “specific
provision[]” of the Ordinance, rather than the Ordinance as a whole, complies with the
overall intent of the PEBA. 	See Regents, 1998-NMSC-020, ¶ 35 (stating that we
construe the grandfather clause test “narrowly, holding that it applies to specific
provisions of a public employer’s policy rather than the policy as a whole”).
{10} 	The PEBA requires that a local board, like the PELRB, be a balanced and,
therefore, neutral body. 	See § 10-7E-10(B) (stating that a local board shall be
composed of one member appointed on the recommendation of labor representatives,
one appointed on the recommendation of management representatives, and the third
appointed on the recommendation of the first two appointees); § 10-7E-8(A)
(establishing the PELRB with one member appointed on the recommendation of labor
representatives, one appointed on the recommendation of public employers, and the
third appointed on the joint recommendation of the other two members). 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. 	Indeed, as Appellants
contend, allowing management personnel to appoint a third member on its own

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recommendation, even with deference to the board’s representative character, is
“particularly grievous in the context of an adjudicatory proceeding involving an
employee who alleges that management passed him over for a job for which he was
qualified simply because of his union activities.” 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. Moreover, the
shortcoming of Section 3-2-15(D) is not merely a difference of language. Rather, the
failure of Section 3-2-15(D) to abide by the PEBA’s requirement that a local board be
balanced and, therefore, neutral affects the substantive and essential rights of public
employees seeking to enforce their rights under the PEBA. 	See § 10-7E-10(B)
(requiring a balanced local board with a third neutral member); § 10-7E-2 (stating that
the purpose of the PEBA is “to guarantee public employees the right to organize and
bargain collectively with their employers”); see also Deming, 2007-NMCA-069, ¶¶
8-9 (explaining that the grandfather clause is an exception to the PEBA requirement
and should therefore be construed narrowly to apply only to systems that permit
public employees to collectively bargain).
{11} 	Additionally, we construe statutes as a whole and consider the provisions in

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relation to one another. 	Regents, 1998-NMSC-020, ¶ 28; see also Deming, 2007-
NMCA-069, ¶ 14 (stating that “Regents requires that we interpret the grandfather
clause in conjunction with the other provisions of the PEBA”). We will not construe
statutes so as to render a portion of it surplusage or superfluous. 	Regents, 1998-
NMSC-020, ¶ 28. To apply the PEBA’s grandfather clause to Section 3-2-15(D) in
this case would essentially ignore Section 10-7E-10(B) of the PEBA, rendering as
surplusage its requirement that a third neutral member of a local board be appointed
pursuant to the recommendations of the other two members. In short, the provision
of the Ordinance that allows for a public employer to select two members of the three-
member Local Board to adjudicate labor-management disputes does not productively
allow employees to collectively bargain, Regents, 1998-NMSC-020, ¶ 28, and, as
such, violates the purpose of the PEBA, thereby failing the first requirement for
acquiring grandfather status. 	See § 10-7E-2 (stating the purpose of the PEBA);
Deming, 2007-NMCA-069, ¶ 9 (stating the requirements for acquiring grandfather
status). The district court erred in granting the Writ and concluding that the PELRB
did not have jurisdiction.
CONCLUSION
{12} 	We reverse the district court’s grant of the Writ and denial of the PELRB and

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Director Montoya’s motion to dismiss, and we remand for further proceedings in
accordance with this opinion.
{13} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
_______________________________
CELIA FOY CASTILLO, Judge
_______________________________
ROBERT E. ROBLES, Judge