Certiorari Denied, December 3, 2009, No. 32,037

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-004

Filing Date: September 4, 2009

Docket No. 28,651

CONNIE CALLAHAN, SALLY FISH,
and ANNE WATERS,

       Plaintiffs-Appellants,

v.

NEW MEXICO FEDERATION OF
TEACHERS-TVI, ALBUQUERQUE TVI
FACULTY FEDERATION LOCAL NO. 4974
AFT, NMFT, and AMERICAN FEDERATION
OF TEACHERS,

       Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Linda M. Vanzi, District Judge

Steven K. Sanders & Associates, L.L.C.
Steven K. Sanders
Albuquerque, NM

for Appellants

Law Office of Justin Lesky
Justin Lesky
Albuquerque, NM

for Appellees

                                     OPINION

SUTIN, Judge.


                                         1
{1}     This case comes to us after a prior appeal and ultimately a decision by our Supreme
Court reversing this Court in part, affirming this Court in part, and remanding to the district
court for further proceedings. See Callahan v. N.M. Fed’n of Teachers-TVI, 2006-NMSC-
010, ¶¶ 3, 29, 139 N.M. 201, 131 P.3d 51. The Supreme Court held that Plaintiffs Callahan,
Fish, and Waters stated a claim against Defendant New Mexico Federation of Teachers-TVI
(Union) for which relief could be granted for breach of the duty of fair representation. Id.
¶ 3. The Court also held that Plaintiffs stated a claim against Defendant American
Federation of Teachers (International Union) based on averments that International Union
did business in New Mexico as an exclusive bargaining agent for Plaintiffs under a collective
bargaining agreement. Id.

{2}      The primary issue in the district court on remand was whether the handling of
Plaintiffs’ grievances was perfunctory and therefore arbitrary, or was in bad faith. The
district court entered summary judgments in favor of Union and International Union. As to
the claims against Union, the district court determined that Plaintiffs did not show that Union
engaged in the arbitrary, fraudulent, or bad faith conduct required to support their claim. As
to International Union, the court also determined that Plaintiffs did not provide any evidence
to show that it was party to the collective bargaining agreement or that it consulted with or
advised Union with regard to Plaintiffs’ grievances. We hold that a genuine issue of material
fact exists as to whether Union’s pursuit of Plaintiffs’ grievances was arbitrary, including
perfunctory, thus precluding summary judgment in favor of Union and requiring remand for
trial on Plaintiffs’ claims against Union. We also hold that summary judgment in favor of
International Union was appropriate.

BACKGROUND

{3}     A good deal of the factual background of this case is found in Callahan. See id. ¶¶ 1-
7. Plaintiffs worked as full-time teachers at Albuquerque Technical Vocational Institute
(TVI). TVI terminated the employment of Plaintiffs and several other teachers. Union
agreed to represent Plaintiffs and the others in a grievance process. Id. ¶¶ 1, 5-6. An
arbitrator determined that the grievances were arbitrable. Id. ¶¶ 1, 6. However, instead of
pursuing Plaintiffs’ grievances in arbitrations, Union entered into a settlement of the
grievances. Id. ¶ 6. Plaintiffs were dissatisfied with the settlement, and they sued Union and
International Union in district court. Id. ¶ 7.

Defendants’ Motion for Summary
Judgment on the Issue of Fair Representation

{4}     After setting out who the parties were and what the collective bargaining agreement
stated in pertinent part, Defendants’ motion for summary judgment in the district court stated
that the following were “undisputed material facts”: (1) TVI did not renew the employment
contracts of eight employees, including Plaintiffs, or offer them new employment contracts;
(2) Union filed a grievance on behalf of Plaintiffs seeking to overturn their terminations;
(3) Union prevailed in an arbitration concerning arbitrability, and the matter was to proceed

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to arbitration on the merits of the terminations; (4) Union reached a settlement with TVI and
therefore did not participate in arbitrations relating to the merits of Plaintiffs’ terminations;
and (5) the settlement did not provide for full payment of back-wages and reinstatement of
Plaintiffs to full-time instructor positions. Defendants’ support for these assertions of
undisputed facts were the complaint and the answer filed in the case.

{5}      Following this recitation of undisputed material facts, the motion set out Defendants’
argument supporting dismissal of Plaintiffs’ claim for breach of the duty of fair
representation. Defendants recited a number of other facts and attached a number of
documents in support of their argument, but none of the facts recited or documents referred
to in the argument was represented or shown to be or contained undisputed material facts on
which Defendants’ sought summary judgment.

{6}      Defendants’ main argument in their motion was that Union settled the grievances for
three reasons. The first reason was that Union believed that the terms of the settlement were
fair to all parties involved. Defendants explained that Union had to consider the interests of
all eight grievants and the interests of the entire bargaining unit; that under the settlement
four grievants, including one Plaintiff, were able to get their jobs back; that TVI contributed
at least $75,000 in back-wages for eight individuals to divide among themselves, and the
amount could have been $100,000 had all eight participated; and that the bargaining unit as
a whole received beneficial language changes in the collective bargaining agreement,
including the right not to be disciplined except for “just cause.”

{7}    The second reason was that Union’s efforts and expenses on behalf of the grievants
were “tremendous.” The expenses included about $30,000 in attorney fees, arbitration
expenses, as well as transcript and mediation expenses. Further, Union asserted in the
motion that had it proceeded to arbitration on behalf of the grievants, it would have cost
Union another $5000 to $10,000 per arbitration, and that process would either bankrupt
Union or cause the rights of the bargaining unit as a whole to suffer.

{8}     The third reason involved the uncertainty of the meaning of the collective bargaining
agreement language stating that employees could not be terminated “unfairly” or “unjustly.”
Included in this reason were Defendants’ statements that TVI was prepared to introduce
evidence relating to the merits of the terminations and could have possibly prevailed. Also
included was Defendants’ view that with eight different arbitrations with possibly eight
different arbitrators, the disciplinary standard would have been interpreted inconsistently and
that this could have had a negative impact on the bargaining unit as a whole.

{9}     Defendants also argued that one of Plaintiffs’ claims of bad faith conduct on the part
of Union was not supportable, and that Plaintiffs were adequately notified of the events
leading up to the arbitration process, including the settlement negotiations. Defendants
referred to a number of documents in support of this argument.

DISCUSSION

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{10} Plaintiffs appeal the summary judgments in favor of Union and International Union
on Plaintiffs’ claim for breach of the duty of fair representation arguing that there exists a
genuine issue of material fact. Plaintiffs also appeal the summary judgment in favor of
International Union on its separate motion for summary judgment on the ground it played
no consulting or advisory role in regard to the handling of Plaintiffs’ grievances.

I.     Standard of Review

{11} “Our review of summary judgment is de novo. Summary judgment is proper if there
are no genuine issues of material fact and the movant is entitled to judgment as a matter of
law. We view the facts in a light most favorable to the party opposing the motion and draw
all reasonable inferences in support of a trial on the merits.” Howse v. Roswell Indep. Sch.
Dist., 2008-NMCA-095, ¶ 6, 144 N.M. 502, 188 P.3d 1253 (internal quotation marks and
citations omitted). To meet this burden, the non-moving party cannot rely on allegations
contained in its complaint or upon argument or contention of counsel to defeat the motion;
the party must come forward and establish with admissible evidence that a genuine issue of
material fact exists. See Juneau v. Intel Corp., 2006-NMSC-002, ¶ 15, 139 N.M. 12, 127
P.3d 548 (filed 2005). “Summary judgment should be denied where the facts support
equally logical but conflicting inferences.” McNeill v. Rice Eng’g & Operating, Inc., 2003-
NMCA-078, ¶ 12, 133 N.M. 804, 70 P.3d 794 (internal quotation marks and citation
omitted).

II.    Breach of the Duty of Fair Representation—The Law Generally

{12} In Jones v. International Union of Operating Engineers, 72 N.M. 322, 330-32, 383
P.2d 571, 576-78 (1963), our Supreme Court held that a union member stated a claim for
relief for breach of the duty of fair representation when he pleaded that the union had acted
arbitrarily, in bad faith, and in violation of its trust when it refused to press the member’s
grievance to arbitration. See also Callahan, 2006-NMSC-010, ¶¶ 9-10 (reiterating the
holding in Jones). “[T]he breach of duty of fair representation requires a showing of
arbitrary, fraudulent, or bad faith conduct[.]” Id. ¶¶ 13-15; see also Vaca v. Sipes, 386 U.S.
171, 190 (1967) (“A breach of the statutory duty of fair representation occurs only when a
union’s conduct toward a member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.”). The claim for breach of the duty of fair representation
cannot be premised upon mere negligence. See Callahan, 2006-NMSC-010, ¶¶ 11, 15; see
also United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-73 (1990) (stating that mere
negligence will not state a claim for breach of the duty of fair representation); Webb v. ABF
Freight Sys., Inc., 155 F.3d 1230, 1240 (10th Cir. 1998) (stating that a union does not
“violate[] its duty of fair representation by mere negligent conduct; carelessness or honest
mistakes are not sufficient to impose liability on a union”).

{13} “[A] union may not arbitrarily ignore a meritorious grievance or process it in
perfunctory fashion[.]” Vaca, 386 U.S. at 191; see also Webb, 155 F.3d at 1239-40 (stating
that the prohibition against perfunctory conduct in Vaca remained the law despite the

                                              4
omission of the word in Air Line Pilots Ass’n, International v. O’Neill, 499 U.S. 65, 67, 77
(1991), when quoting the “tripartite” duty from Vaca that “a union’s actions may not be
‘arbitrary, discriminatory, or in bad faith’”); Young v. UAW Labor Employment & Training
Corp., 95 F.3d 992, 996-98 (10th Cir. 1996) (quoting Vaca, 386 U.S. at 191, that “[a] union
may not arbitrarily ignore a meritorious grievance or process it in [a] perfunctory fashion,”
and holding that the union did not process the grievances in a perfunctory manner (internal
quotation marks omitted)).

III.    The Propriety of Summary Judgment on the Issue of Fair Representation

A.      The Parties’ Arguments on Appeal

{14} Plaintiffs argue that the handling was perfunctory because Union failed to (1)
investigate or otherwise learn the reasons Plaintiffs were fired, (2) discuss the reasons for
the firings with Plaintiffs or obtain Plaintiffs’ input, (3) give Plaintiffs notice and opportunity
to participate in the grievance process, (4) examine Plaintiffs’ personnel files and to thereby
note their good evaluations and that they had not been disciplined, (5) invoke powers of
arbitration to compel TVI to provide information, (6) obtain Plaintiffs’ input before deciding
to discontinue the arbitration process, (7) muster colorable arguments or refute insubstantial
arguments of TVI, (8) evaluate the merits of Plaintiffs’ grievances, and (9) interview
witnesses who would support Plaintiffs’ grievances. In addition, Plaintiffs assert that Union
engaged in a “sham” arbitration process and discontinued the arbitration in bad faith to
obtain some collateral advantage. Plaintiffs further assert that Union acted in bad faith when
its representative supplied a false affidavit to TVI in support of TVI’s position against
Plaintiffs in a pending federal court case, when Union entered into a settlement with TVI that
was unfavorable to Plaintiffs, and when Union forced Plaintiffs to accept a sham settlement.
Lastly, Plaintiffs contend that Union wrongfully agreed to a clause in the settlement
agreement that the grievances were filed in accordance with the collective bargaining
agreement, in an effort to cover up its concern that it had failed to institute the grievances
on a timely basis.

{15} Plaintiffs shower us with forty-two facts that are taken from their response to
Defendants’ summary judgment documents and that Plaintiffs consider material to the issues,
but they separately set out in more detail and concentrate on certain deposition testimony in
order to show evidence of a perfunctory performance by Union in representing them in the
grievance process. This selected testimony as presented to us by Plaintiffs is as follows.

{16} Donna Swanson, president of Union, handled grievances and grievance training, and
signed the settlement agreement with TVI. Swanson’s first step in defending a grievance
was to get the complete story including all documentation from both parties. This included
getting witness statements and interviewing the employer’s witnesses. However, Swanson
did not find out the reasons for termination of Plaintiffs. Swanson stated that an essential
element of due process of an employee considered for termination is being told what needs
to be improved and allowed time to improve. Swanson knew Plaintiffs did not know the

                                                5
reasons for their termination and that TVI had told them that it needed no reasons. During
the grievance process, Swanson did not have access to Plaintiffs’ personnel files and did not
know if Plaintiffs had ever been reprimanded. TVI’s president would not tell Swanson the
reasons for any termination, and the TVI Board did not know the reasons.

{17} Further, neither Swanson nor Plaintiffs received any written documentation of the
reasons for termination, and Swanson had only rumors and hearsay about Callahan and
Waters, but had no information concerning Fish and did not receive any information from
TVI concerning the reasons for Plaintiffs’ dismissals. Swanson admitted that the collective
bargaining agreement’s procedural rights included the right of an employee to be told the
reason for termination. After the question of arbitrability of the terminations was addressed,
Swanson played a perfunctory role in advancing the grievances of all eight terminated
employees. According to Swanson, Union made no evaluation of which of the eight
employees would win or lose the arbitration. Swanson did not know how it was determined
who would return to work.

{18} Another Union official, Paul Broome, who advocated on behalf of the employees at
a mediation that led to the settlement agreement, stated that access to an employee’s
personnel file and all previous evaluations, administrative directives, disciplinary documents,
as well as knowing the reasons for termination were necessary and important. Another
Union official, John Ingram, stated that an employee needs notice of what he or she is doing
wrong and needs an opportunity to correct it. Ingram, who spent twenty-five percent of his
time handling grievances for Union, had been successful in grieving “any termination in
which notice of wrong doing [was] not given.”

{19} In sum, according to Plaintiffs, based on the foregoing facts “[t]here is simply a
wealth of information that [Union and International Union] perfunctorily, arbitrarily[,] and
in bad faith engaged in the grievance defense in this case and that there is a jury question on
this matter.”

{20} In their answer brief, Defendants go to lengths to dispute the accuracy and materiality
of many of the facts Plaintiffs recite in their brief in chief. In their argument, Defendants
reiterate the arguments they set out in their motion for summary judgment, which primarily
consisted of the three reasons they settled Plaintiffs’ grievances and pending arbitrations.
In addition, Defendants attempt to meet the arguments that Plaintiffs set forth in their brief
in chief. To support the favorable summary judgment, Defendants rely heavily on prevailing
case law that requires careful scrutiny of such claims and sets high deferential standards
when reviewing a union’s decision not to take a grievant’s claims to arbitration. We set this
formidable case law out here, although we ultimately determine that that law does not save
Defendants’ summary judgment in this case on the issue for breach of the duty of fair
representation.

{21} “The final product of the bargaining process may constitute evidence of a breach of
the fair representation duty only if, in light of the factual and legal landscape, it can be fairly

                                                6
characterized as so far outside of a wide range of reasonableness, that it is wholly irrational
or arbitrary.” Air Line Pilots Ass’n, Int’l, 499 U.S. at 66 (internal quotation marks and
citation omitted). A court’s review of a union’s performance is “highly deferential.” Id.; see
also Trnka v. Local Union No. 688, 30 F.3d 60, 61 (7th Cir. 1994) (stating that a “wide
degree of deference is warranted” and that this is an “extremely deferential standard”
(internal quotation marks and citation omitted)). Courts will not substitute their own
“judgment for that of the union, even if, with the benefit of hindsight, it appears that the
union could have made a better call.” Garcia v. Zenith Elecs. Corp., 58 F.3d 1171, 1176
(7th Cir. 1995) (internal quotation marks and citation omitted). The union’s decision must
be “so far outside a wide range of reasonableness” as to be irrational. Ooley v. Schwitzer
Div., Household Mfg. Inc., 961 F.2d 1293, 1302 (7th Cir. 1992) (internal quotation marks
and citation omitted); see also Howse, 2008-NMCA-095, ¶ 8 (“A union’s conduct can be
classified as arbitrary only when it is irrational, when it is without a rational basis or
explanation.” (internal quotation marks and citation omitted)). “[A] union does not breach
its duty of fair representation . . . merely because it settled the grievance short of arbitration.”
Vaca, 386 U.S. at 192.

B.      The District Court’s Analyses

{22} In regard to the issue of perfunctory handling of the grievance, the district court
correctly rejected the notion that Plaintiffs’ claim could be premised on negligence, noting
Callahan’s admonition that “a court should only interfere with a union’s decision not to
present an employee’s grievance in extreme cases.” Callahan, 2006-NMSC-010, ¶ 11.
Quoting Webb, 155 F.3d at 1240, the district court determined that for Union to have acted
in a perfunctory fashion, it would have had to have acted “without concern or solicitude, or
[to have given] a claim only cursory attention.” (Internal quotation marks and citation
omitted.) The court was guided by Callahan’s statements that “a union member does not
have an absolute right to have his [or her] grievance taken to arbitration,” and that “a union
does not breach its duty of fair representation merely by settling an employee’s grievance
short of arbitration; the union’s refusal or failure to take the grievance to arbitration has to
be arbitrary, discriminatory[,] or in bad faith.” Callahan, 2006-NMSC-010, ¶ 13 (alteration
in original). The court was further guided by Howse in which this Court stated that “[a]bsent
justification or excuse, a union’s negligent failure to take a basic and required step . . . is a
clear example of arbitrary and perfunctory conduct.” Howse, 2008-NMCA-095, ¶ 8. In
addition, the district court noted that the amount and thoroughness of investigation required
of a union to meet its duty of fair representation depended on the circumstances of each case.
See Webb, 155 F.3d at 1241; Garcia, 58 F.3d at 1176. And the court noted from Garcia the
view that “only an egregious disregard for union members’ rights constitutes a breach of the
union’s duty.” 58 F.3d at 1176 (internal quotation marks and citation omitted). Based on
the foregoing principles and its analysis of Plaintiffs’ facts and claims, the district court
determined that “Plaintiffs [failed to] come forward with sufficient evidence to create a fact
issue regarding whether their termination grievances were handled in a perfunctory manner.”




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{23} The court indicated that Union presented several reasons why the settlement as to all
grievants was fair, including the following facts. Union expended considerable resources
in the arbitration process, and Union was concerned about the rights of the bargaining unit
as a whole and was concerned that the unit would have suffered had Union pursued the
individual grievances through a full arbitration. There was no guarantee that the terminated
employees would have prevailed in the arbitration. The collective bargaining agreement did
not provide that the employees could be terminated only for just cause but, instead, the test
was whether they were terminated “unfairly” or “unjustly.” It did not appear from the
collective bargaining agreement that TVI was required under the circumstances to provide
the basis for its failure to renew Plaintiffs’ contracts. “[U]nion attempted to collect
information about the terminations, but . . . TVI hamstrung its efforts to do so.” Union
attempted to contact Callahan and Fish to discuss the possibility of entering into a settlement
agreement before the agreement was reached and apparently received no response. And
“Union was unsure of the legal footing upon which the grievances were based[.]” In
addition, Union showed that four of the eight terminated employees got their jobs back in
the settlement. Granting Union’s motion for summary judgment, the court concluded:

                In this case, it is evident . . . Union took many circumstances into
       account in deciding to settle the grievances. There is evidence that more
       favorable terms were procured as a result of the global nature of the
       settlement and . . . Union’s ability to negotiate collectively on behalf of all
       eight employees. Thus, even if the three Plaintiffs had vehemently opposed
       the settlement agreement, . . . Union did not exercise “an egregious
       disregard” for the rights of its members. On the contrary, the evidence shows
       . . . Union was trying to protect the rights of the largest number of members
       it could. A reasonable jury could not find for Plaintiffs on their claim.

{24} The district court appears to have been satisfied that Union had no duty to pursue the
reasons for termination or to evaluate the merits of the grievances once they asked TVI for
the reasons and TVI declined. In its decision, the district court did not analyze whether there
existed a genuine issue of material fact as to whether Union breached its duty by failing to
further pursue reasons for the terminations, to discuss the reasons with Plaintiffs, and to
evaluate the merits of Plaintiffs’ grievances. The court was satisfied that “[a] reasonable jury
could not find for Plaintiffs on their claim.” It appears that the court may not have held close
to the summary-judgment standard. Yet, as we explain later in this opinion, to the extent it
may have, we disagree with the court’s analyses and entry of summary judgment on
Plaintiffs’ claim for breach of the duty of fair representation.

C.      The Issue, as Focused in Oral Argument, Favors Plaintiffs

{25} It became clear in oral argument that Plaintiffs’ primary and critical point was that
Union’s handling of the grievances was necessarily perfunctory and therefore arbitrary,
because Union made its decision to settle with TVI without knowing the reasons why
Plaintiffs were terminated. Thus, Union never evaluated the merits of their grievances.

                                               8
Further, Plaintiffs complain that any information Union may claim it received during the
mediation process was neither documented nor transmitted to Plaintiffs, and Plaintiffs never
had an opportunity to rebut any statements TVI might have made for the terminations.
Plaintiffs acknowledge the case-law standards relating to claims for breach of the duty of fair
representation and the high deference given to union decisions not to take a grievance to
arbitration. However, Plaintiffs contend that these standards are not applicable to their
grievances. In Plaintiffs’ view, the standards cannot be applied where a union has not had
and taken the opportunity to analyze the reasons why an employee is terminated, has not
discussed the reasons and evaluation with the employee, has not evaluated whether the
termination was proper, and has not evaluated the merits of the grievances and made a
reasoned decision whether to settle or to proceed to arbitration. Only after the foregoing
processes and decision, Plaintiffs contend, is a union decision not to proceed to arbitration
to be given deference and the high case-law standards to be applied. Plaintiffs further
contend that Union cannot use as an excuse that TVI refused to give Union any documents
showing the reason for the terminations or to informally pass that information on to Union,
because under that circumstance Union should have proceeded to arbitration to at the very
least obtain the reasons.

{26} Union responded two ways in oral argument. First, Union argued that the record
contained undisputed facts showing that in the mediation process Union was given reasons
for terminations. Union pointed to portions of depositions that it represented contained those
undisputed facts. Second, Union argued that more important considerations were at stake
than knowing and evaluating the reasons for the terminations or having concern for the
individual grievances. Union argued that most important were the considerations that Union
was a small union, that eight full arbitrations would be very expensive, that the termination
language in the collective bargaining agreement was unclear, that Union was able to get four
of the eight grievants reinstated, that it was able to get better termination language in the
collective bargaining unit, and that, all in all, the interests of the entire bargaining unit were
enhanced. Based on these considerations, Union argued, the summary judgment was proper
because the foregoing facts demonstrated that the decision of Union to settle was not
irrational.

{27} We agree with Plaintiffs’ argument and reject that of Union. We are not prepared
to apply the high deferential and other standards on the question of a breach of the duty of
fair representation to affirm the summary judgment in favor of Union, where Union did not,
before scuttling arbitration, fully pursue, obtain, and evaluate the reasons why the grievants
were terminated. The case-law protection given a union’s decision making in the grievance
process is not an impenetrable shield—i.e., a union’s discretion in that process is not
unlimited. See Granberry v. Albuquerque Police Officers Ass’n, 2008-NMCA-094, ¶ 8, 144
N.M. 595, 189 P.3d 1217 (“While we are mindful of the general policy of deference to union
decision making, we note that a union’s discretion on whether to represent a member’s
complaint is not unlimited.”). We are persuaded it was for the jury to evaluate whether
Union had and breached a duty to investigate, to pursue, obtain, and evaluate the reasons for
the termination, and then to evaluate the merits of the grievances relating to the employees’

                                                9
termination, before settling the grievances as it did. Cf. Norton v. Adair County, 441 N.W.2d
347, 356-57 (Iowa 1989) (discussing a union’s duty to investigate the merits of a grievance).
Plaintiffs presented facts showing that Union by-passed the issue of the propriety of the
terminations based on TVI’s refusal to show Union any documentation regarding the
terminations and that Union failed to further pursue that information and then evaluate the
reasons for the terminations, including obtaining the grievants’ sides of the story. Plaintiffs
showed that Union decided to settle solely on matters independent of the merits of the
grievances. Plaintiffs contend that Union thereby arbitrarily ignored their grievances and
perfunctorily processed the grievances and that Union’s decision to settle and not arbitrate
was therefore arbitrary and not entitled to deference.

{28} We have reviewed the record and, contrary to Union’s representation during oral
argument, it is not undisputed whether Union received from TVI any particular information
regarding reasons for the terminations. There is nothing to reflect that Union was given or
even shown any documentation in that regard. In addition, we find nothing in the record
showing undisputed facts that Union discussed any reasons for termination with Plaintiffs
or ever evaluated any reasons for termination and the merits of the grievances when
considering whether to settle or proceed with arbitration.

{29} We think it is also important to note, as we discussed earlier in this opinion, that
Union’s motion for summary judgment was based on undisputed facts that were not
particularly material to the issue of whether Union breached its duty of fair representation
due to arbitrary, perfunctory conduct. None of the facts presented in its motion as
undisputed facts included any facts relating to the reasons for Plaintiffs’ terminations, and
none included any facts relied on by Defendants as reasons Union entered into the settlement
with TVI. While in their motion, Defendants argued reasons why it settled and did not
proceed to arbitration, the facts purportedly supporting that decision were not shown to be
undisputed facts. In response, Plaintiffs presented facts showing that Union made its
decision without knowing the reasons for termination, without discussing any reasons with
Plaintiffs, and without evaluating the merits of the grievances. Defendants were not able in
oral argument to show through undisputed evidence that it did know reasons. To the extent
that any aspect of Defendants’ showing might arguably be construed to support Union’s
knowledge of reasons, the showing does nothing more than create an issue of material fact,
barring their right to summary judgment.

{30} Defendants’ reasons for settling the grievances and not proceeding to arbitration
might have supported summary judgment by showing that its actions were not arbitrary or
perfunctory had Union also evaluated the reasons for the terminations, as well as the merits
of the grievances, and had it entered those considerations into the decision-making mix. But
the merits of the grievances were omitted from the mix. And for that reason, Plaintiffs
established that a genuine issue of material fact existed in regard to the breach of the duty
of fair representation, precluding summary judgment on Plaintiffs’ claims. “[W]here a union
acts or fails to act to the detriment of a member’s complaint, it must offer a rational basis or
explanation for its actions.” Granberry, 2008-NMCA-094, ¶ 8. When “an issue of fact

                                              10
remains on the question of [a union’s] rationale for not pursuing [a] grievance, we must
reverse the court’s grant of summary judgment.” Howse, 2008-NMCA-095, ¶ 11.

IV.     Plaintiffs’ Point Relating to Unverified Interrogatory Answers

{31} Defendants relied on answers Union made to Plaintiffs’ interrogatories and attached
those answers as an exhibit to their summary judgment documents. When first provided, no
verification was attached to the interrogatory answers. Defendants later supplied a
verification signed by Swanson. Plaintiffs moved to strike the interrogatory answers on the
grounds of the initial lack of verification and of the failure of Swanson to show that she had
personal knowledge of the facts stated in the answers, as required under Rule 1-056(E)
NMRA. Because we reverse the summary judgment granted to Defendants on the issue of
fair representation, we need not address this issue.

V.      Plaintiffs’ Point on Error Relating to Granting
        Summary Judgment Dismissing International Union

{32} In regard to International Union, the court determined that Plaintiffs did not meet
their burden of showing that International Union “played any sort of active role” in the case.
The court pointed out that none of the witnesses who testified on the issue stated that they
had consulted with or received advice from International Union and that no discovery
supported Plaintiffs’ claim against International Union.

{33} Plaintiffs assert that in Callahan our Supreme Court held that “International Union
would be liable if it was a party to the [collective bargaining agreement] or if it participated
in the decision to drop the grievance.” Plaintiffs point to the following language in
Callahan:

                A general rule is that an international union cannot be sued for breach
        of the duty of fair representation where the international union is not
        designated as an exclusive representative in a collective bargaining
        agreement. In addition, an international union cannot be sued for breach of
        the duty of fair representation if the international union has not played a role
        in consulting with or advising either the employee or the local union.

Callahan, 2006-NMSC-010, ¶ 27 (citations omitted). Based on this language, Plaintiffs
argue that summary judgment was improper because International Union did not file an
affidavit addressing either its participation or its lack of participation in the decision to drop
the grievances.

{34} Callahan reviewed Plaintiffs’ complaint averments that International Union did
business in New Mexico, by contract was the exclusive representative for Plaintiffs, and was
a party to the collective bargaining agreement. Id. ¶ 28. Based on those averments, the
Court determined that Plaintiffs pled facts sufficient to defeat a Rule 1-012(B)(6) NMRA

                                               11
motion to dismiss. Id. In the summary judgment proceedings, International Union supplied
sufficient facts to show it was neither the exclusive representative for Plaintiffs nor a party
to the collective bargaining agreement. It was not the burden of International Union to
provide further facts attempting to show that it played no role in consulting with or advising
Union. International Union made a prima facie showing for entitlement of summary
judgment, and this switched the burden to Plaintiffs to create a genuine issue of material fact.
See Johnstone v. City of Albuquerque, 2006-NMCA-119, ¶ 5, 140 N.M. 596, 145 P.3d 76.
 Plaintiffs have not shown how they satisfied that burden. Thus, the district court did not err
in granting summary judgment in favor of International Union.

VI.    Defendants’ Point That Plaintiffs’ Claims Are Barred
       by the Statute of Limitations and the District Court’s
       Summary Judgment Was Right for That Reason

{35} Defendants filed a motion on May 2, 2008, to dismiss on statute of limitations
grounds. The district court’s decision on the merits of this case that was filed ten days later
did not contain a ruling on the motion to dismiss. Defendants argue that this Court should,
at the very least, affirm the summary judgment relating to the duty of fair representation on
the ground that Plaintiffs’ claims are barred by the two-year statute of limitations in NMSA
1978, Section 37-1-23(B) (1976), which covers “hybrid claims” and according to
Defendants, bars the present hybrid contract action against a state employer. See Howse,
2008-NMCA-095, ¶ 21. We leave this issue for the district court on remand.

CONCLUSION

{36} We reverse the summary judgment entered in favor of Defendants on the issue of
breach of Union’s duty of fair representation. We affirm the summary judgment in favor of
International Union. This matter is remanded to the district court for further proceedings in
accordance with this opinion.

{37}   IT IS SO ORDERED.


                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________


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MICHAEL D. BUSTAMANTE, Judge



Topic Index for Callahan v. NM Federation of Teachers-TVI, No. 28,651

CN           CONTRACTS
CN-BR        Breach

CP           CIVIL PROCEDURE
CP-PL        Pleadings
CP-SJ        Summary Judgment

EL           EMPLOYMENT LAW
EL-CB        Collective Bargaining
EL-DE        Duties of Employee and Employer
EL-GR        Employee Grievances
EL-LU        Labor Unions
EL-RD        Reinstatement and Damages
EL-TE        Termination of Employment




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