NORTHERN N.M. FED'N OF EDUC. EMPS. V. NORTHERN N.M. COLL., 2016-NMCA-036, 369 P.3d 22
NORTHERN NEW MEXICO FEDERATION OF
EDUCATIONAL EMPLOYEES, AN AFFILIATE OF AFT NM, AFT/AFL-CIO,
Petitioner-Appellant,
v.
NORTHERN NEW MEXICO COLLEGE, and NORTHERN NEW MEXICO
COLLEGE LABOR MANAGEMENT RELATIONS BOARD, Respondents-Appellees.
COURT OF APPEALS OF NEW MEXICO
2016-NMCA-036, 369 P.3d 22
APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY,
Sheri A. Raphaelson, District Judge.
Certiorari Denied, March 23, 2016, No.
S-1-SC-35775. Released for Publication May 3, 2016.
Youtz & Valdez, P.C., Shane C. Youtz,
Stephen Curtice, James A. Montalbano, Albuquerque, NM, for Appellant.
Basham & Basham, P.C., Mark A. Basham,
Santa Fe, NM, Joseph L. Romero Trial Lawyer, LLC, Joseph L. Romero, Santa Fe,
NM, for Appellee NNMC.
Tony F. Ortiz, Attorney at Law, L.L.C.,
Tony F. Ortiz, Santa Fe, NM, for Appellee NNMC Labor Board.
RODERICK T. KENNEDY, Judge. WE CONCUR:
CYNTHIA A. FRY, Judge, J. MILES HANISEE, Judge.
AUTHOR: RODERICK T. KENNEDY.
{1} This case involves
a complaint filed by the Northern New Mexico Federation of Educational
Employees (the Union) against Northern New Mexico Community College (the
College) with the Northern New Mexico College Labor Management Relations Board
(the Board). The complaint alleged that the College had terminated two
employees of the College (Employees) in retaliation for their Union-related
activities, which was in violation of the College’s labor-management relations
resolution (the Resolution) and the governing collective bargaining agreement
(CBA). The College responded that it had declined to renew Employees’ contracts
for legitimate business reasons. In its hearing on the Union’s complaint, the
Board focused on provisions in the CBA and the employee handbook that were not
mentioned in the complaint instead of addressing the complaint’s allegations of
retaliatory termination. The Board granted the College’s motion to dismiss the
complaint on the ground that the non-renewal of Employees’ contracts was
consistent with the employee handbook and not inconsistent with the CBA.
Because the Board failed to address the complaint’s allegations that the
non-renewal was retaliatory and violated the Resolution, we reverse and remand
for reinstatement of the Union’s complaint. We make no determination about
whether the complaint’s allegations of retaliation are true and leave that
undertaking to the Board on remand.
{2} Employees signed
employment contracts with the College for the period from July 1, 2012 to June
30, 2013. The contracts themselves permitted cancellation by the College on
several grounds, including cause, lack of funding, a reduction in personnel, or
cancellation of the program in which the staff person was employed. These
provisions were in accordance with the staff handbook (the Handbook). The
Handbook also permitted the president of the College to “choose not to renew
the contract of any regular staff employee for any reason or no reason.” It is
undisputed that Employees were members of the Union and that the Union and the
College had entered into a CBA, which included the following provision:
An employee may be discharged,
suspended without pay or terminated only for good and just cause and in the
event, shall be notified in writing of the action and reasons therefor[] and
shall have the right to file a grievance as provided in Article 11.
In May 2013, the College notified Employees in writing that
their contracts, due to expire on June 30, 2013, would not be renewed for the
fiscal year 2013-14.
{3} The Union filed a
prohibited practice complaint against the College on behalf of Employees,
claiming that they were terminated by the College in violation of the
Resolution and the CBA. According to the complaint, the College terminated
Employees “in retaliation for [their] union activities” and then “refused to
participate in the arbitration procedure” related to the grievance filed by one
of the employees. The College filed an answer in which it admitted that
Employees’ contracts were not renewed but asserted that the non-renewal was
“for legitimate business purposes.”
{4} The complaint was
heard by the Board, although the record on appeal does not include a transcript
of the hearing or the exhibits introduced at the hearing. The Board entered its
findings of fact and conclusions of law, in which it granted the College’s
motion to dismiss the complaint. The Board did not address the complaint’s
allegations of retaliation at all. Instead, it found that “the College’s staff
are hired on annual contracts for terms lasting from July 1st to June 30th” and
that Employees “were notified in May 2013 that their contracts would not be
renewed.” The Board then concluded that the non-renewal of Employees’ contracts
was consistent with the Handbook and that non-renewal of staff contracts was a
“retained management right pursuant to the CBA and the . . . Handbook.” It
further concluded that the CBA’s provisions governing the discharge or
termination of staff “applie[d] during the term of the staffs’ contracts and,
as such, there [was] no conflict” between the CBA and the Handbook.
{5} The Union appealed
the Board’s decision to the district court, which determined that the decision
was not erroneous. The district court dismissed the appeal with prejudice, and
this Court granted the Union’s petition for writ of certiorari under Rule
12-505 NMRA.
{6} On appeal, the
parties do not directly address the allegations of retaliation asserted in the
Union’s complaint. Instead, the Union argues that the Board’s decision was
arbitrary, capricious, and contrary to law because the CBA controlled the
relationship between the College and Employees and prohibited termination of
Employees’ employment in the absence of just cause. In response, the College
contends that there is no conflict between the CBA and the Handbook on the
subject of non-renewal and that, under the CBA, the College retained all rights
not specifically limited by the CBA. Further and consistent with the decision
reached by the Board, the College argues that non-renewal of the staff
contracts was not a termination or discharge governed by the CBA.
{7} “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.”
La Vida Llena v. Montoya,
2013-NMCA-048, ¶ 9,
299 P.3d 456 (alteration, internal quotation marks, and
citation omitted). “In conducting our whole record review, we review the record
of the administrative hearing to determine whether the board’s decision was
arbitrary and capricious, not supported by substantial evidence, or otherwise
not in accordance with law.”
Id. (alteration, internal quotation marks,
and citation omitted).
{8} Before undertaking
our analysis of the merits, we first consider the Union’s suggestion that the
complaint’s allegations must be deemed to be true for purposes of the College’s
motion to dismiss. The Union specifically contends that we must analyze its
appeal in the context of its allegation that the College declined to renew
Employees’ contracts in retaliation for their union activities. The College
responds that, because the Board considered matters outside the pleadings—i.e.,
the employment contracts, the Handbook, and the CBA—the motion to dismiss was
converted to a motion for summary judgment and, therefore, we cannot deem true
the complaint’s allegations of an impermissible purpose underlying the decision
not to renew Employees’ contracts.
See Rule
1-012(B) NMRA (stating that
if a party files a motion to dismiss under Rule 1-012(B)(6), and if “matters
outside the pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment”).
{9} We decline to treat
the motion as one for summary judgment. While the Board certainly considered
“matters outside the pleadings” in deciding to dismiss the Union’s complaint,
those matters shed no light on the complaint’s allegations that the College’s
non-renewal of the contracts was retaliatory. Instead, the Board relied on the
Handbook and the CBA to determine that the terms of each were not in conflict
and that the non-renewal complied with the Handbook’s provision that the
College’s president could decline to renew a staff contract “for any reason or
no reason.” The Board made no determination as to the merits of the complaint’s
allegations of retaliation.
See Dunn v. McFeeley,
1999-NMCA-084, ¶ 17,
127 N.M. 513,
984 P.2d 760 (declining to treat a motion to dismiss as a motion
for summary judgment, despite the submission of matters outside the pleadings,
because it would be unfair to the plaintiff).
{10} While we agree with
the Union that the complaint’s allegations of the College’s retaliatory motive
are central to resolution of the complaint by the Board, we need not indulge the
presumption that those allegations are true because the presumption begs the
question itself, which is whether the Union was entitled to a hearing on the
allegations. The Board failed to address these allegations in any way by its
dismissal of the complaint, effectively determining that the Union was not
entitled to a hearing on whether the College’s motives for non-renewal were
retaliatory. We therefore turn to an analysis of whether the Board’s
determination was proper.
The Board Improperly Failed to
Address the Allegations of the Complaint
{11} According to the
Union’s complaint, its claims of retaliatory discharge are specifically based
on the Resolution. Consistent with the Public Employee Bargaining Act (PEBA),
NMSA 1978, §§
10-7E-10 to -11 (2003, as amended through 2005), the College
adopted the Resolution creating the Board and detailing the provisions
governing the College’s employer-employee relations.
See N.N.M. Coll.
Labor Mgmt. Relations Resolution, http://nnmc.edu/wordpress//wp-content/uploads/2014/03/
NNMC-Labor-Resolution.pdf. (Resolution).
1
Section 16(A) of the Resolution provides:
A. A
public employer or his representative shall not:
1) discriminate
against an employee with regard to terms and conditions of employment because
of the employee’s membership in a labor organization;
5) discharge
or otherwise discriminate against an employee because the employee has signed
or filed an affidavit, petition, grievance, or complaint or given any
information or testimony under the provisions of the . . . Resolution or
because an employee is forming, joining, or choosing to be represented by a
labor organization[.]
Resolution, supra, at 18. The College’s alleged
violation of these provisions gave rise to the Union’s claims that Employees’
employment was wrongfully terminated for retaliatory reasons.
{12} Again, although the
complaint focused on the College’s alleged violation of the Resolution’s
provisions quoted above, on appeal the parties focus on the legal question of
whether the non-renewal of Employees’ contracts constituted a discharge or
termination under the CBA. Thus, neither substantially addresses, or factually
argues the allegations set forth within the complaint dismissed by the Board.
We conclude that we need not decide whether non-renewal constitutes a discharge
or termination under the CBA because the non-renewal of the contracts—
if
undertaken with the retaliatory impetus alleged by the Union—would be in
conflict with the Resolution, which is the legal document governing the CBA.
{13} We begin our
discussion with a review of the law governing the circumstances before us,
which is the PEBA. The PEBA was enacted “to guarantee public employees the
right to organize and bargain collectively with their employers,” Section
10-7E-2, and it provides that public employers and exclusive representatives
(i.e., unions) “shall enter into written collective bargaining agreements
covering employment relations.” Section 10-7E-17(A)(2). The PEBA further
states, among other things, that a public employer may “retain all rights not
specifically limited by a [CBA] or by the [PEBA].” Section 10-7E-6(D). Thus,
the PEBA provides the basic requirements for relations between public employers
and union employees.
{14} The PEBA provides
that “a public employer other than the state may, by ordinance, resolution or
charter amendment, create a local board similar to the public employee labor
relations board.” Section 10-7E-10(A). A local board created in this fashion
“shall follow all procedures and provisions of the [PEBA] unless otherwise
approved by the [state public employee labor relations] board.”
Id.
Among these provisions is a list of a public employer’s “prohibited
practices[,]” including a prohibition against “discriminat[ing] against a
public employee . . . because of the employee’s membership in a labor
organization[.]” Section 10-7E-19(A).
{15} As previously
mentioned, the College created its own local board pursuant to the Resolution.
Taken together, the PEBA and the Resolution provide the legal authority for the
College and the Union to bargain collectively and enter into the CBA.
See
Section 10-7E-26(B) (stating that a public employer other than the state, which
adopts collective bargaining procedures after October 1, 1991, must include
certain provisions and procedures in its implementing document). Importantly,
the PEBA required the Resolution to include the PEBA’s prohibition against
discrimination on the basis of an employee’s union membership.
See
Section 10-7E-26(B)(9) (requiring a public employer like the College to include
in its implementing document the prohibited practices set out in the PEBA), and
the Resolution does indeed include that prohibition.
{16} The issue before us
concerns how the Resolution impacts Employees’ contracts and the Handbook,
which permits non-renewal of those contracts. The United States Supreme Court
in
J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332 (1944),
shed light on this interplay between employment contracts and the PEBA’s
federal counterpart, the National Labor Relations Act (NLRA), 29 U.S.C.
Sections 151-169 (2012). The Court explained that “[c]ollective bargaining . .
. results in an accord as to terms which will [g]overn hiring and work and pay
in that unit. The result is not, however, a contract of employment except in
rare cases; no one has a job by reason of it and no obligation to any
individual ordinarily comes into existence from it alone.”
J.I.Case Co.,
321 U.S. at 334-35. After the collective bargaining agreement is made, the
employer makes hiring decisions and may enter into individual employment
agreements with the persons hired.
Id. at 335. “The employer, except as
restricted by the collective agreement itself and
except that he must engage
in no unfair labor practice or discrimination, is free to select those he
will employ or discharge.”
Id. (emphasis added). The Court emphasized
that “[i]ndividual contracts no matter what the circumstances that justify their
execution or what their terms, may not be availed of to defeat or delay the
procedures prescribed by the [NLRA.]”
Id. at 337. “Wherever private
contracts conflict with [the NLRA’s] functions, they obviously must yield or
the [NLRA] would be reduced to a futility.”
Id.
{17} The same principles
apply in the circumstances of the present case. The College is free to enter
into employment contracts with whomever it chooses to hire, it may discharge
any employee it has hired, or it may decide not to renew an employee’s
contract—so long as those actions are not either restricted by the CBA or in
conflict with the PEBA or the Resolution.
Cf. Las Cruces Prof’l Fire
Fighters v. City of Las Cruces,
1997-NMCA-031, ¶ 15,
123 N.M. 239,
938 P.2d
1384 (explaining that our appellate courts will generally interpret language of
the PEBA the same way that similar language in the NLRA has been interpreted);
see
also Section 10-7E-19(A) (stating that “[a] public employer . . . shall not
discriminate against a public employee . . . because of the employee’s
membership in a labor organization[.]”
{18} It follows that if
the College decided not to renew Employees’ contracts as a means of
discriminating against them for their union activities, that decision would
violate the prohibited practices section of the Resolution. This was the
question presented to the Board by the Union’s complaint—i.e., whether the
non-renewals were motivated by discriminatory or retaliatory reasons. Instead
of answering this question, however, the Board elected to dismiss the complaint
on the ground that there was no conflict between the CBA’s provisions requiring
discharge or termination for cause and the Handbook’s provisions permitting
non-renewal for no reason. The Board’s dismissal, being based on a ground not
alleged in the Union’s complaint, was arbitrary and capricious, and we
therefore reverse its decision.
{19} We remand this case
to the Board for reinstatement of the Union’s complaint. We emphasize that we
are not addressing whether the Union can prove its allegations of retaliatory
motive because this is a matter for proof before the Board. Instead, we hold
only that the Union is entitled to a hearing on those allegations, consistent
with the Resolution, which provides that the Board “may hold hearings for the
purposes of . . . adjudicating disputes and enforcing the provisions of the . .
. Resolution[.]” Resolution,
supra, at 8.
{20} For the foregoing
reasons, we reverse the Board’s decision dismissing the Union’s complaint and remand
for proceedings consistent with this Opinion.
RODERICK T. KENNEDY, Judge