 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number:

 3 Filing Date:    December 14, 2015

 4 NO. 33,982

 5 NORTHERN NEW MEXICO FEDERATION
 6 OF EDUCATIONAL EMPLOYEES, AN
 7 AFFILIATE OF AFT NM, AFT/AFL-CIO,

 8        Petitioner-Appellant,

 9 v.

10   NORTHERN NEW MEXICO COLLEGE, and
11   NORTHERN NEW MEXICO COLLEGE
12   LABOR MANAGEMENT RELATIONS
13   BOARD,

14        Respondents-Appellees.

15 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
16 Sheri A. Raphaelson, District Judge

17   Youtz & Valdez, P.C.
18   Shane C. Youtz
19   Stephen Curtice
20   James A. Montalbano
21   Albuquerque, NM

22 for Appellant

23 Basham & Basham, P.C.
24 Mark A. Basham
25 Santa Fe, NM
1 Joseph L. Romero Trial Lawyer, LLC
2 Joseph L. Romero
3 Santa Fe, NM

4 for Appellee NNMC

5 Tony F. Ortiz, Attorney at Law, L.L.C.
6 Tony F. Ortiz
7 Santa Fe, NM

8 for Appellee NNMC Labor Board
 1                                      OPINION

 2 KENNEDY, Judge.

 3   {1}   This case involves a complaint filed by the Northern New Mexico Federation

 4 of Educational Employees (the Union) against Northern New Mexico Community

 5 College (the College) with the Northern New Mexico College Labor Management

 6 Relations Board (the Board). The complaint alleged that the College had terminated

 7 two employees of the College (Employees) in retaliation for their Union-related

 8 activities, which was in violation of the College’s labor-management relations

 9 resolution (the Resolution) and the governing collective bargaining agreement

10 (CBA). The College responded that it had declined to renew Employees’ contracts for

11 legitimate business reasons. In its hearing on the Union’s complaint, the Board

12 focused on provisions in the CBA and the employee handbook that were not

13 mentioned in the complaint instead of addressing the complaint’s allegations of

14 retaliatory termination. The Board granted the College’s motion to dismiss the

15 complaint on the ground that the non-renewal of Employees’ contracts was consistent

16 with the employee handbook and not inconsistent with the CBA. Because the Board

17 failed to address the complaint’s allegations that the non-renewal was retaliatory and

18 violated the Resolution, we reverse and remand for reinstatement of the Union’s
 1 complaint. We make no determination about whether the complaint’s allegations of

 2 retaliation are true and leave that undertaking to the Board on remand.

 3 BACKGROUND

 4   {2}   Employees signed employment contracts with the College for the period from

 5 July 1, 2012 to June 30, 2013. The contracts themselves permitted cancellation by the

 6 College on several grounds, including cause, lack of funding, a reduction in

 7 personnel, or cancellation of the program in which the staff person was employed.

 8 These provisions were in accordance with the staff handbook (the Handbook). The

 9 Handbook also permitted the president of the College to “choose not to renew the

10 contract of any regular staff employee for any reason or no reason.” It is undisputed

11 that Employees were members of the Union and that the Union and the College had

12 entered into a CBA, which included the following provision:

13         An employee may be discharged, suspended without pay or terminated
14         only for good and just cause and in the event, shall be notified in writing
15         of the action and reasons therefor[] and shall have the right to file a
16         grievance as provided in Article 11.

17 In May 2013, the College notified Employees in writing that their contracts, due to

18 expire on June 30, 2013, would not be renewed for the fiscal year 2013-14.

19   {3}   The Union filed a prohibited practice complaint against the College on behalf

20 of Employees, claiming that they were terminated by the College in violation of the

21 Resolution and the CBA. According to the complaint, the College terminated

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 1 Employees “in retaliation for [their] union activities” and then “refused to participate

 2 in the arbitration procedure” related to the grievance filed by one of the employees.

 3 The College filed an answer in which it admitted that Employees’ contracts were not

 4 renewed but asserted that the non-renewal was “for legitimate business purposes.”

 5   {4}   The complaint was heard by the Board, although the record on appeal does not

 6 include a transcript of the hearing or the exhibits introduced at the hearing. The Board

 7 entered its findings of fact and conclusions of law, in which it granted the College’s

 8 motion to dismiss the complaint. The Board did not address the complaint’s

 9 allegations of retaliation at all. Instead, it found that “the College’s staff are hired on

10 annual contracts for terms lasting from July 1st to June 30th” and that Employees

11 “were notified in May 2013 that their contracts would not be renewed.” The Board

12 then concluded that the non-renewal of Employees’ contracts was consistent with the

13 Handbook and that non-renewal of staff contracts was a “retained management right

14 pursuant to the CBA and the . . . Handbook.” It further concluded that the CBA’s

15 provisions governing the discharge or termination of staff “applie[d] during the term

16 of the staffs’ contracts and, as such, there [was] no conflict” between the CBA and

17 the Handbook.

18   {5}   The Union appealed the Board’s decision to the district court, which

19 determined that the decision was not erroneous. The district court dismissed the


                                                3
 1 appeal with prejudice, and this Court granted the Union’s petition for writ of

 2 certiorari under Rule 12-505 NMRA.

 3 DISCUSSION

 4   {6}   On appeal, the parties do not directly address the allegations of retaliation

 5 asserted in the Union’s complaint. Instead, the Union argues that the Board’s decision

 6 was arbitrary, capricious, and contrary to law because the CBA controlled the

 7 relationship between the College and Employees and prohibited termination of

 8 Employees’ employment in the absence of just cause. In response, the College

 9 contends that there is no conflict between the CBA and the Handbook on the subject

10 of non-renewal and that, under the CBA, the College retained all rights not

11 specifically limited by the CBA. Further and consistent with the decision reached by

12 the Board, the College argues that non-renewal of the staff contracts was not a

13 termination or discharge governed by the CBA.

14 Standard of Review

15   {7}   “Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court

16 conducts the same review of an administrative order as the district court sitting in its

17 appellate capacity, while at the same time determining whether the district court erred

18 in the first appeal.” La Vida Llena v. Montoya, 2013-NMCA-048, ¶ 9, 299 P.3d 456

19 (alteration, internal quotation marks, and citation omitted). “In conducting our whole


                                               4
 1 record review, we review the record of the administrative hearing to determine

 2 whether the board’s decision was arbitrary and capricious, not supported by

 3 substantial evidence, or otherwise not in accordance with law.” Id. (alteration,

 4 internal quotation marks, and citation omitted).

 5 Preliminary Matter

 6   {8}   Before undertaking our analysis of the merits, we first consider the Union’s

 7 suggestion that the complaint’s allegations must be deemed to be true for purposes

 8 of the College’s motion to dismiss. The Union specifically contends that we must

 9 analyze its appeal in the context of its allegation that the College declined to renew

10 Employees’ contracts in retaliation for their union activities. The College responds

11 that, because the Board considered matters outside the pleadings—i.e., the

12 employment contracts, the Handbook, and the CBA—the motion to dismiss was

13 converted to a motion for summary judgment and, therefore, we cannot deem true the

14 complaint’s allegations of an impermissible purpose underlying the decision not to

15 renew Employees’ contracts. See Rule 1-012(B) NMRA (stating that if a party files

16 a motion to dismiss under Rule 1-012(B)(6), and if “matters outside the pleading are

17 presented to and not excluded by the court, the motion shall be treated as one for

18 summary judgment”).




                                             5
 1   {9}    We decline to treat the motion as one for summary judgment. While the Board

 2 certainly considered “matters outside the pleadings” in deciding to dismiss the

 3 Union’s complaint, those matters shed no light on the complaint’s allegations that the

 4 College’s non-renewal of the contracts was retaliatory. Instead, the Board relied on

 5 the Handbook and the CBA to determine that the terms of each were not in conflict

 6 and that the non-renewal complied with the Handbook’s provision that the College’s

 7 president could decline to renew a staff contract “for any reason or no reason.” The

 8 Board made no determination as to the merits of the complaint’s allegations of

 9 retaliation. See Dunn v. McFeeley, 1999-NMCA-084, ¶ 17, 127 N.M. 513, 984 P.2d

10 760 (declining to treat a motion to dismiss as a motion for summary judgment, despite

11 the submission of matters outside the pleadings, because it would be unfair to the

12 plaintiff).

13   {10}   While we agree with the Union that the complaint’s allegations of the College’s

14 retaliatory motive are central to resolution of the complaint by the Board, we need not

15 indulge the presumption that those allegations are true because the presumption begs

16 the question itself, which is whether the Union was entitled to a hearing on the

17 allegations. The Board failed to address these allegations in any way by its dismissal

18 of the complaint, effectively determining that the Union was not entitled to a hearing




                                               6
 1 on whether the College’s motives for non-renewal were retaliatory. We therefore turn

 2 to an analysis of whether the Board’s determination was proper.

 3 The Board Improperly Failed to Address the Allegations of the Complaint

 4   {11}       According to the Union’s complaint, its claims of retaliatory discharge are

 5 specifically based on the Resolution. Consistent with the Public Employee Bargaining

 6 Act (PEBA), NMSA 1978, §§ 10-7E-10 to -11 (2003, as amended through 2005), the

 7 College adopted the Resolution creating the Board and detailing the provisions

 8 governing the College’s employer-employee relations. See N.N.M. Coll. Labor Mgmt.

 9 Relations Resolution, http://nnmc.edu/wordpress//wp-content/uploads/2014/03/

10 NNMC-Labor-Resolution.pdf. (Resolution).1 Section 16(A) of the Resolution

11 provides:

12              A.    A public employer or his representative shall not:

13                    1)     discriminate against an employee with regard to terms and
14              conditions of employment because of the employee’s membership in a
15              labor organization;

16                    ....


            1
17          The College maintains that we should not consider the Resolution because it
18   was not part of the record on appeal and the Union cannot show whether the Board
19   relied on the Resolution in making its decision. In our view, the Resolution formed
20   the basis for the Union’s complaint, and it is therefore central to the question
21   presented. The Resolution is akin to a municipal ordinance, which our Supreme Court
22   has held is law of which a court may take judicial notice. City of Aztec v. Gurule,
23   2010-NMSC-006, ¶ 16, 147 N.M. 693, 228 P.3d 477.

                                                  7
 1                5)     discharge or otherwise discriminate against an employee
 2          because the employee has signed or filed an affidavit, petition,
 3          grievance, or complaint or given any information or testimony under the
 4          provisions of the . . . Resolution or because an employee is forming,
 5          joining, or choosing to be represented by a labor organization[.]

 6 Resolution, supra, at 18. The College’s alleged violation of these provisions gave rise

 7 to the Union’s claims that Employees’ employment was wrongfully terminated for

 8 retaliatory reasons.

 9   {12}   Again, although the complaint focused on the College’s alleged violation of the

10 Resolution’s provisions quoted above, on appeal the parties focus on the legal

11 question of whether the non-renewal of Employees’ contracts constituted a discharge

12 or termination under the CBA. Thus, neither substantially addresses, or factually

13 argues the allegations set forth within the complaint dismissed by the Board. We

14 conclude that we need not decide whether non-renewal constitutes a discharge or

15 termination under the CBA because the non-renewal of the contracts—if undertaken

16 with the retaliatory impetus alleged by the Union—would be in conflict with the

17 Resolution, which is the legal document governing the CBA.

18   {13}   We begin our discussion with a review of the law governing the circumstances

19 before us, which is the PEBA. The PEBA was enacted “to guarantee public

20 employees the right to organize and bargain collectively with their employers,”

21 Section 10-7E-2, and it provides that public employers and exclusive representatives


                                               8
 1 (i.e., unions) “shall enter into written collective bargaining agreements covering

 2 employment relations.” Section 10-7E-17(A)(2). The PEBA further states, among

 3 other things, that a public employer may “retain all rights not specifically limited by

 4 a [CBA] or by the [PEBA].” Section 10-7E-6(D). Thus, the PEBA provides the basic

 5 requirements for relations between public employers and union employees.

 6   {14}   The PEBA provides that “a public employer other than the state may, by

 7 ordinance, resolution or charter amendment, create a local board similar to the public

 8 employee labor relations board.” Section 10-7E-10(A). A local board created in this

 9 fashion “shall follow all procedures and provisions of the [PEBA] unless otherwise

10 approved by the [state public employee labor relations] board.” Id. Among these

11 provisions is a list of a public employer’s “prohibited practices[,]” including a

12 prohibition against “discriminat[ing] against a public employee . . . because of the

13 employee’s membership in a labor organization[.]” Section 10-7E-19(A).

14   {15}   As previously mentioned, the College created its own local board pursuant to

15 the Resolution. Taken together, the PEBA and the Resolution provide the legal

16 authority for the College and the Union to bargain collectively and enter into the

17 CBA. See Section 10-7E-26(B) (stating that a public employer other than the state,

18 which adopts collective bargaining procedures after October 1, 1991, must include

19 certain provisions and procedures in its implementing document). Importantly, the


                                              9
 1 PEBA required the Resolution to include the PEBA’s prohibition against

 2 discrimination on the basis of an employee’s union membership. See Section 10-7E-

 3 26(B)(9) (requiring a public employer like the College to include in its implementing

 4 document the prohibited practices set out in the PEBA), and the Resolution does

 5 indeed include that prohibition.

 6   {16}   The issue before us concerns how the Resolution impacts Employees’ contracts

 7 and the Handbook, which permits non-renewal of those contracts. The United States

 8 Supreme Court in J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332

 9 (1944), shed light on this interplay between employment contracts and the PEBA’s

10 federal counterpart, the National Labor Relations Act (NLRA), 29 U.S.C. Sections

11 151-169 (2012). The Court explained that “[c]ollective bargaining . . . results in an

12 accord as to terms which will [g]overn hiring and work and pay in that unit. The

13 result is not, however, a contract of employment except in rare cases; no one has a job

14 by reason of it and no obligation to any individual ordinarily comes into existence

15 from it alone.” J.I.Case Co., 321 U.S. at 334-35. After the collective bargaining

16 agreement is made, the employer makes hiring decisions and may enter into

17 individual employment agreements with the persons hired. Id. at 335. “The employer,

18 except as restricted by the collective agreement itself and except that he must engage

19 in no unfair labor practice or discrimination, is free to select those he will employ


                                             10
 1 or discharge.” Id. (emphasis added). The Court emphasized that “[i]ndividual

 2 contracts no matter what the circumstances that justify their execution or what their

 3 terms, may not be availed of to defeat or delay the procedures prescribed by the

 4 [NLRA.]” Id. at 337. “Wherever private contracts conflict with [the NLRA’s]

 5 functions, they obviously must yield or the [NLRA] would be reduced to a futility.”

 6 Id.

 7   {17}   The same principles apply in the circumstances of the present case. The

 8 College is free to enter into employment contracts with whomever it chooses to hire,

 9 it may discharge any employee it has hired, or it may decide not to renew an

10 employee’s contract—so long as those actions are not either restricted by the CBA

11 or in conflict with the PEBA or the Resolution. Cf. Las Cruces Prof’l Fire Fighters

12 v. City of Las Cruces, 1997-NMCA-031, ¶ 15, 123 N.M. 239, 938 P.2d 1384

13 (explaining that our appellate courts will generally interpret language of the PEBA

14 the same way that similar language in the NLRA has been interpreted); see also

15 Section 10-7E-19(A) (stating that “[a] public employer . . . shall not discriminate

16 against a public employee . . . because of the employee’s membership in a labor

17 organization[.]”

18   {18}   It follows that if the College decided not to renew Employees’ contracts as a

19 means of discriminating against them for their union activities, that decision would


                                              11
 1 violate the prohibited practices section of the Resolution. This was the question

 2 presented to the Board by the Union’s complaint—i.e., whether the non-renewals

 3 were motivated by discriminatory or retaliatory reasons. Instead of answering this

 4 question, however, the Board elected to dismiss the complaint on the ground that

 5 there was no conflict between the CBA’s provisions requiring discharge or

 6 termination for cause and the Handbook’s provisions permitting non-renewal for no

 7 reason. The Board’s dismissal, being based on a ground not alleged in the Union’s

 8 complaint, was arbitrary and capricious, and we therefore reverse its decision.

 9   {19}   We remand this case to the Board for reinstatement of the Union’s complaint.

10 We emphasize that we are not addressing whether the Union can prove its allegations

11 of retaliatory motive because this is a matter for proof before the Board. Instead, we

12 hold only that the Union is entitled to a hearing on those allegations, consistent with

13 the Resolution, which provides that the Board “may hold hearings for the purposes

14 of . . . adjudicating disputes and enforcing the provisions of the . . . Resolution[.]”

15 Resolution, supra, at 8.

16 CONCLUSION

17   {20}   For the foregoing reasons, we reverse the Board’s decision dismissing the

18 Union’s complaint and remand for proceedings consistent with this Opinion.




                                             12
1   {21}   IT IS SO ORDERED.



2                               ___________________________________
3                               RODERICK T. KENNEDY, Judge


4 WE CONCUR:


5 _______________________________
6 CYNTHIA A. FRY, Judge


7 _______________________________
8 J. MILES HANISEE, Judge




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