April 8, 2020- Mora Federation of School Employees v. Board of Education for the Mora Independent Schools, No. A-1-CA-36973

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

MORA FEDERATION OF SCHOOL Filed 4/8/2020 9:40 AM
EMPLOYEES, AFT NEW MEXICO, A.
a
Petitioner Appellee, Fat
v. No. A-1-CA-36973
BOARD OF EDUCATION FOR THE

MORA INDEPENDENT SCHOOLS,
Respondent- Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge

Y outz & Valdez, P.C.
Shane C. Y outz
Stephen Curtice
James A. Montalbano
Albuquerque, NM

for Appellee
Cuddy & McCarthy, LLP
Andrew M. Sanchez,

Laura E. Sanchez-Rivét
Laura M. Castille

Albuquerque, NM
for Appellant
MEMORANDUM OPINION
VARGAS, Judge.
ti} The Board of Education for the Mora Independent Schools (the Board)

appeals the district court’s confirmation of an arbitration award (the Award), which

2
found that the Mora Independent Schools (the District) terminated three of its former	1
employees, Lisa Yescas, Paulyette Perea, and Edwina Romero (collectively, the	2
Employees), without just cause. On appeal, the Board presents three issues for	3
review. First, the Board contends that the district court applied the incorrect standard	4
of review for the arbitrator’s decision. Second, the Board argues that the district	5
court failed to perform a “meaningful review” of the arbitrator’s decision. Third, the	6
Board claims the district court should have vacated the Award on grounds the	7
arbitrator exceeded his powers and engaged in misconduct and evident partiality.	8
Finding no error by the district court, we affirm.	9
BACKGROUND	10
{2} 	This case arises from grievances filed by the Employees alleging they were	11
terminated without just cause in August 2016. In May 2016 the District sent the	12
Employees 	written 	notices 	of 	re-employment, 	which 	the 	Employees 	timely	13
accepted.1 Classes for the 2016-2017 school year were scheduled to begin on August	14
15, 2016. On August 10, 2016, the Employees reported for orientation and were	15
provided written contracts to sign. The arbitrator received contradictory evidence	16
about whether the superintendent informed all District employees at orientation that	17
1 Pursuant to NMSA 1978, Section 22-10A-23(B) (2003, amended 2019),
“[d]elivery of the written acceptance of re[-]employment by a certified school
instructor creates a binding employment contract . . . until the parties enter into a
formal written employment contract.”

3
they needed to immediately sign the contracts and that any “discrepancies” would	1
be dealt with later on, or whether the superintendent did not then set a deadline to	2
sign the contracts but instead told the Employees only that they should speak with	3
her or human resources to discuss any discrepancies in the contracts. After noticing	4
discrepancies in the written contracts, Yescas and Perea attempted to meet and speak	5
with the administration to make corrections. The Employees did not sign their	6
contracts at orientation.	7
{3} 	After the Employees returned to work on August 11, 2016, Yescas and Perea	8
left early because Yescas was involved in a “medical emergency” and Perea was	9
given verbal permission to accompany Yescas to the hospital. By the end of the day,	10
at 3:15 p.m., the Employees had still not signed their contracts. Approximately one	11
hour later, the superintendent sent an email to the Employees’ email addresses,	12
explaining that their failure to sign and return the contracts by 8:00 a.m. on August	13
12, 2016, would be construed as an “affirmative rejection” of employment with the	14
District.2
15
{4} 	Around noon on August 12, 2016, the superintendent, having not received	16
signed contracts from the Employees, notified Perea and Romero that their failure	17
to return a signed contract was deemed an affirmative rejection of employment, and	18
2 We note that upon review of the incomplete transcript of the arbitration
hearing provided on appeal, we are unable to confirm whether the Employees
received the superintendent’s email.

4
that they must, therefore, leave District property. Notwithstanding 	Romero’s	1
subsequent signing of the contract, she was still asked to leave. Yescas, who had	2
taken sick leave for the day, received notice that she “was let go.” After sending a	3
text message to the superintendent, asking if she could sign and deliver the contract	4
when 	she 	returned 	on 	August 	15, 	2012, 	Yescas 	received 	word 	from 	the	5
superintendent that her “offer for [that school year had] indeed expired.”	6
{5} 	The Mora Federation of School Employees (the Union) filed grievances on	7
behalf of the Employees, alleging that, in violation of the collective bargaining	8
agreement (CBA) between the District and the Union, the Employees were	9
terminated on August 12, 2016, without just cause. Pursuant to the CBA’s grievance	10
procedure, the parties submitted the grievances to arbitration. 3 Following a hearing,	11
the arbitrator issued the Award, finding that the District violated the CBA by	12
terminating the Employees without just cause.	13
{6} 	The Union filed a petition in the district court to confirm the Award under	14
Section 44-7A-23, and the District filed a petition to vacate the Award under Section	15
3 Consistent with the Public Employee Bargaining Act (PEBA), NMSA 1978,
§§ 10-7E-1 to -26 (2003, as amended through 2005), the CBA provided for a
grievance procedure culminating in a final and binding decision by an arbitrator. See
§ 10-7E-17(F) (providing that a CBA’s “grievance procedure shall provide for a
final and binding determination[,]” which “shall constitute an arbitration award with
the meaning of the Uniform Arbitration Act[, (UAA), NMSA 1978, §§ 44-7A-1 to -
32 (2001)]”). Such decisions by the arbitrator are “subject to judicial review pursuant
to the standard set forth in the [UAA].” Section 10-7E-17(F).

5
44-7A-24. The district court denied the District’s petition, granted the Union’s	1
petition, and confirmed the Award. The Board now appeals.	2
DISCUSSION	3
{7} 	The Board argues the district court erred in confirming the Award because it	4
(1) applied the wrong standard for reviewing the Award; (2) failed to perform a	5
“meaningful review” of the arbitrator’s decision; and (3) should have vacated on	6
grounds that the arbitrator exceeded his powers, engaged in misconduct, and	7
demonstrated evident partiality. After outlining our standard of review on appeal,	8
we address each argument in turn.	9
A. 	Standard of Review on Appeal	10
{8} 	On appeal, we review “whether substantial evidence in the record supports the	11
district court’s findings of fact and whether the court correctly applied the law to the	12
facts when making its conclusions of law[.]” In re Arbitration Between Town of	13
Silver City & Silver City Police Officers Ass’n (Silver City), 1993-NMSC-037, ¶ 8,	14
115 N.M. 628, 857 P.2d 28 (citation omitted). “Substantial evidence is relevant	15
evidence that a reasonable mind might accept as sufficient to support a conclusion.”	16
Id. “When determining whether a finding of fact is supported by substantial	17
evidence, we review the evidence in the light most favorable to uphold the finding	18
and indulge all reasonable inferences in support of the district court’s decision.” Id.	19

6
We now turn to whether the district court applied the correct standard to review the	1
arbitrator’s award.	2
B. 	Standard of Review of the Arbitration Award by the District Court	3
{9} 	The Board first argues the district court applied the incorrect standard for	4
reviewing the arbitrator’s decision. At issue is whether the district court was required	5
to review the arbitrator’s decision under the standards set forth in Fernandez v.	6
Farmers Insurance Company of Arizona, 1993-NMSC-035, 115 N.M. 622, 857 P.2d	7
22, or in Board of Education of Carlsbad Municipal Schools v. Harrell, 1994-	8
NMSC-096, 118 N.M. 470, 882 P.2d 511. Under Fernandez, the district court’s	9
review of an arbitration award under the UAA is limited to allegations that “[the	10
award was the result of] fraud, partiality, misconduct, excess of powers, or technical	11
problems in the execution of the award,” 1993-NMSC-035, ¶ 9, which may include,	12
“under appropriate circumstances . . . [, a] mistake of fact or law so gross as to imply	13
misconduct, fraud, or lack of fair and impartial judgment[.]” Id. ¶ 12.	14
{10} 	By contrast, our Supreme Court in Harrell, held that the arbitrator’s decision	15
under NMSA 1978, Section 22-10-17.1(M) (1991)—later recompiled as NMSA	16
1978, Section 22-10A-28(M) (2003, amended 2019)— was incompatible with due	17
process and separation of powers because it limited judicial review of an arbitration	18
decision to allegations of “corruption, fraud, deception or collusion” and was not the	19
product of voluntary agreement. Harrell, 1994-NMSC-096, ¶¶ 6, 15-17, 50. Under	20

7
such circumstances, our Supreme Court concluded, the district court must perform	1
a “meaningful review” of an arbitrator’s decision, which requires a de novo review	2
of the arbitrator’s 	conclusions 	of law and 	an examination into 	whether the	3
arbitrator’s decision is “arbitrary, unlawful, unreasonable, capricious, or not based	4
on substantial evidence.” 	Id. 	¶¶ 50-52 (internal quotation marks and citation	5
omitted).	6
{11} 	The Union argues Harrell is inapplicable to the case at bar because the District	7
is not a “person” entitled to due process. See id. ¶ 21 (“The Fourteenth Amendment	8
to the [United States] Constitution guarantees citizens the right to procedural due	9
process in state proceedings.” (emphasis added)); City of Albuquerque v. Chavez,	10
1997-NMCA-054, ¶ 12, 123 N.M. 428, 941 P.2d 509 (concluding that because an	11
“arm of the state” is not a “person” as contemplated by the Fourteenth Amendment’s	12
Due Process Clause, it “has no constitutional right to due process”). Although the	13
Board argues the District is more than a “faceless state government,” and that it has	14
a right to raise due process “as a judicial concern” under Section 44-7A-16(A)’s	15
requirement that an arbitrator conduct arbitration “in such manner as the arbitrator	16
considers appropriate for a fair and expeditious disposition of the proceeding[,]” the	17
Board fails to address whether and to what extent the District is entitled to due	18
process as contemplated by Harrell and fails to cite any authority bearing upon this	19
issue. We therefore decline to review this argument further, see Headley v. Morgan	20

8
Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (explaining that	1
we “will not review unclear arguments or guess at what they might be”); see also	2
Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party	3
cites no authority to support an argument, we may assume no such authority	4
exists.”), and we move on to the Board’s second argument that the district court	5
failed to perform a “meaningful review” of the arbitrator’s decision.	6
C. 	Meaningful Review of the Arbitrator’s Decision	7
{12} 	The Board argues the district court failed to perform a “meaningful review”	8
of the arbitrator’s decision because it did not permit the Board to present additional	9
evidence at the hearing and allocated insufficient time for the hearing. We first note	10
that this argument is based on an application of the standard set forth in Harrell, a	11
standard which we have declined to require under the circumstances present in the	12
case at bar. Moreover, the Board’s argument is predicated on the notion that failing	13
to permit the presentation of additional evidence at the hearing renders the district	14
court’s review inadequate, an argument for which the Board fails to cite any	15
supporting authority. See Curry, 2014-NMCA-031, ¶ 28; see also State v. Am. Fed’n	16
of State, Cty., & Mun. Emp.s, Council 18, AFL-CIO, CLC (AFSCME), 2012-NMCA-	17
114, ¶ 14, 291 P.3d 600 (“The district court is not to apply a de novo review and	18
should simply conduct an evidentiary hearing and enter findings of fact and	19
conclusions of law with respect to each statutory basis raised as a ground for vacating	20

9
or modifying the award.” (internal quotation marks and citation omitted)). We	1
therefore decline to review this argument further, and we proceed to an examination	2
of the Board’s argument regarding the district court’s failure to vacate the Award.	3
D. 	Grounds for Vacatur of the Award	4
{13} 	The Board challenges the district court’s confirmation of the Award on two	5
grounds, arguing that the arbitrator exceeded the scope of his authority by arbitrating	6
the matter,4 and that the arbitrator engaged in misconduct and demonstrated evident	7
partiality. We address each argument in turn.	8
1. 	The Arbitrator’s Scope of Authority	9
{14} 	The Board first challenges the failure to vacate the Award on the basis that	10
the arbitrator was without the authority to arbitrate the matter. In particular, the	11
Board argues the arbitrator had no authority under the CBA to arbitrate the	12
grievances because (1) the Employees were not “employees” under the CBA at the	13
time of their separation from employment with the District, and (2) the Employees	14
were not “terminated” by the District. “[A]n arbitrator is considered to have	15
exceeded his/her powers when the arbitrator rules on a matter that is beyond the	16
scope of the arbitration agreement, inconsistent with the arbitration agreement, or	17
removed from the arbitrator’s consideration by statute or by case law.” AFSCME,	18
4 Although the Board frames its argument as one of whether the arbitrator had
“jurisdiction” to arbitrate the matter, we construe its argument as one of the arbitrator
exceeding his powers, a basis for vacatur under Section 44-7A-24(a)(4).

10
2012-NMCA-114, ¶ 20. Before examining the Board’s grounds for challenging the	1
arbitrator’s authority, we first review the scope of the arbitrator’s authority under the	2
CBA.	3
{15} 	Here, the CBA provides that an “employee”—defined as “an employee within	4
[the] bargaining unit for which the [Union] has been recognized as exclusive	5
representative”—“may 	grieve 	disciplinary 	actions . . . through 	grievance	6
procedures.” The CBA’s grievance procedure explains that when a grievant—	7
defined as “an employee [or] group of employees of the [Union]”—and the Union	8
are not satisfied with the superintendent’s decision under the “internal stage” of the	9
grievance procedure, the Union may submit a dispute over an alleged “violation,	10
misinterpretation, or misapplication of [the CBA]” to arbitration. The CBA further	11
provides that “[i]ssues related to the arbitrability of a grievance shall be decided by	12
the arbitrator.” In its provision regarding disciplinary actions, the CBA states that	13
“[e]mployees will be disciplined for [j]ust [c]ause,” and that such disciplinary	14
actions may include “[t]erminations/[d]ischarge.” Although it does not define	15
“discharge,” the CBA defines “termination” as a “permanent, involuntary separation	16
from employment from the District for disciplinary reasons.” We now turn to the	17
arbitrator’s finding that the Employees were “employees” under the CBA when they	18
were separated from their employment in August 2016.	19

11
{16} 	In its review of whether the Employees were no longer “employees” in August	1
2016, the arbitrator evaluated “the realities of the relationship between the parties,”	2
and found that the Employees “were on the District’s payroll on August 12, 2016;	3
that they were then providing services to and for the District, under the control of	4
District supervisors; and that their terms and conditions of employment were then	5
governed by the [CBA].” Further, the arbitrator noted that the Employees had not	6
given any indication of an intent to resign or to reject the contracts provided to them;	7
rather, the Employees requested a meeting with the administration to discuss the	8
purported errors in the contracts. The arbitrator also considered the absence of any	9
evidence indicating that a deadline to sign the contracts was set prior to the email	10
sent on August 11, 2016—one day after delivering the written contracts to the	11
District employees. Finally, the arbitrator explained that the 8:00 a.m. deadline on	12
August 12, 2016, was “arbitrary” given that the District had delivered the written	13
contracts to its employees well after the deadline found in Section 22-10A-23(B)	14
(2003) (“Written employment contracts between local school boards or governing	15
authorities of state agencies and certified school instructors shall be executed by the	16
parties not later than ten days before the first day of a school year.”). Under these	17
circumstances, the arbitrator concluded that on August 12, 2016, the Employees	18
were “employees” as contemplated under the CBA.	19

12
{17} 	The district court agreed with the arbitrator and ruled that this finding was not	1
demonstrative of a statutory basis for vacatur. 5 Based on our review of the	2
testimonies of the Employees, we conclude the district court’s ruling is supported by	3
substantial 	evidence. 	See 	Silver 	City, 	1993-NMSC-037, 	¶ 8 	(providing 	the	4
substantial evidence standard). We also note that the district court’s ruling in favor	5
of the arbitrator’s finding is further supported by Section 22-10A-23(B) (2003),	6
which provided that “[d]elivery of the written acceptance of re[-]employment by a	7
certified school instructor creates a binding employment contract between the	8
certified school instructor and the local school board or the governing authority of	9
the state agency until the parties enter into a formal written employment contract.”	10
{18} 	The 	Board, 	however, 	highlights 	the 	statutory 	distinctions 	between	11
“termination” and “discharge,” 	compare 	NMSA 1978, § 22-10A-2(A) (2007)	12
(defining “discharge” as “the act of severing the employment relationship with a	13
certified school employee prior to the expiration of the current employment	14
5 We acknowledge the district court’s written order did not indicate the
grounds for confirming the arbitration award. Because the district court’s oral ruling
does not conflict with its written order, we base our analysis on the district court’s
oral ruling, in which it made findings of fact and conclusions of law with respect to
the grounds for vacatur raised by the Board. See Jeantete v. Jeantete, 1990-NMCA-
138, ¶ 11, 111 N.M. 417, 806 P.2d 66 (“On appeal, the reviewing court may consider
the [district] court’s verbal comments in order to clarify or discern the basis for the
order or action of the court below.”); see also AFSCME, 2012-NMCA-114, ¶ 14
(explaining that the district court should “enter findings of fact and conclusions of
law with respect to each statutory basis raised as a ground for vacating or modifying
the award” (internal quotation marks and citation omitted)).

13
contract”), with § 22-10A-2(E) (2007) (defining “terminate” in the context of	1
certified school employees as “the act of not re[-]employing an employee for the	2
ensuing school year”), and argues that because the Union filed grievances for the	3
“terminations” of the Employees, the Union essentially conceded that the Employees	4
were not re-employed for the following year, and were therefore not “employees” as	5
contemplated by the CBA. Nonetheless, we cannot conclude the district court erred	6
in affirming the arbitrability of the grievances for the Employees, in light of the	7
CBA’s definition of “termination” as the “permanent, involuntary separation from	8
employment from the District for disciplinary reasons,” the CBA’s failure to define	9
“discharge,” 	and 	the 	substantial 	evidence 	demonstrating 	the 	Employees’	10
employment status at the time they received notice that their employment with the	11
District had ended. We now turn to the question of whether the District terminated	12
their employment such that the arbitrator had authority to arbitrate the matter.	13
{19} 	The Board disputes whether the District terminated the Employees or whether	14
they effectively resigned from their positions by refusing to sign their contracts by	15
the deadline set by the superintendent, the latter of which, the Board argues, would	16
have removed these grievances from the scope of the arbitrator’s authority under the	17
CBA. While discussing this matter, the district court ruled:	18
[A]ccording to [Section] 22-10A-23[(B)], once there was an acceptance	19
of the offer of re[-]employment, an employment relationship does exist	20
until it’s replaced. I don’t know when it was replaced. That was what	21
the 	arbitrator 	decided. 	In 	looking 	at 	it 	as 	a 	Monday 	morning	22

14
quarterback, I don’t find his conclusions so shockingly gross as to be—	1
as to imply bias, prejudice or fraud.	2
Indeed, there is substantial evidence that the Employees timely delivered their	3
written acceptances of re-employment. Although they had not yet signed the written	4
contracts when they received notice of their separation from employment on August	5
12, 	2016, 	the 	Employees’ 	acceptances 	of 	re-employment 	created 	binding	6
employment contracts, which survive “until the parties enter into a formal written	7
employment contract.” Section 22-10A-23(B) (2003). 6 Because the Employees	8
were re-employed for the following school year, we conclude the district court did	9
not err in affirming the arbitrability of their grievances under the CBA. And although	10
the Board argues the scope of the arbitrator’s power extends only to those grievances	11
that accrue during the time the employee is subject to the CBA, the CBA expressly	12
provides a grievance procedure for disputing terminations. Having concluded	13
substantial evidence supports the district court’s findings bearing upon arbitrability,	14
6 To the extent the Board argues the grievances, arbitration, and confirmation
of the Award are in conflict with NMSA 1978, Section 37-1-23(A) (1976)
(“Governmental entities are granted immunity from actions based on contract,
except actions based on a valid written contract.”), because they are predicated on
employment 	relationships based 	not 	on written 	contracts 	but on 	the written
acceptance of re-employment under Section 22-10A-23(B) (2003), the Board’s
argument misinterprets the basis for the case at bar. We are presented with an appeal
from the district court’s confirmation of an arbitration award, which was the product
of arbitration emanating not from the Employees’ employment contracts, but from
the CBA. See Callahan v. N.M. Fed’n of Teachers-TVI, 2006-NMSC-010, ¶ 19, 139
N.M. 201, 131 P.3d 51 (explaining that collective bargaining agreements are
contracts between the labor organization and the employer).

15
we affirm the district court’s denial of the Board’s petition to vacate the Award on	1
the basis that the arbitrator exceeded his powers. We therefore examine the Board’s	2
remaining arguments for vacatur.	3
2. 	Misconduct and Evident Partiality	4
{20} 	The Board also challenges the district court’s failure to vacate the Award on	5
the basis that the arbitrator’s rulings on the arbitrability of the Employees’	6
grievances were demonstrative of misconduct and evident partiality. The district	7
court found that the arbitrator’s findings of fact and law were not “so shockingly	8
gross as to” vacate the Award under 	Fernandez. 	See 	1993-NMSC-035, ¶ 12	9
(explaining that “the district court may find an [arbitrator’s] mistake of fact or law	10
so gross as to imply misconduct, fraud, or lack of fair and impartial judgment”). In	11
light of the substantial evidence supporting the district court’s findings confirming	12
the Award, we conclude the district court did not err in finding that there were no	13
mistakes of fact or law rising to the level of vacatur under Fernandez.	14
CONCLUSION	15
{21} 	For the foregoing reasons, we affirm the district court’s order denying the	16
Board’s petition to vacate the Award and granting the Union’s petition to confirm	17
the Award.	18
{22} 	IT IS SO ORDERED.	19
______________________________	20
JULIE J. VARGAS, Judge	21

1
WE CONCUR:
2
JENNIFER L. ATTREP, Judge
3 4
Kasina Bogardus
KRISTINA BOGARDUS, Judge
16