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

 2 GEORGE SEDILLO,

 3          Plaintiff-Appellant,

 4 v.                                                                    NO. 35,636

 5 NEW MEXICO CHILDREN,
 6 YOUTH & FAMILIES DEPARTMENT,

 7          Defendant-Appellee.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Valerie A. Huling, District Judge

10 Law Offices of E. Justin Pennington
11 E. Justin Pennington
12 Albuquerque, NM

13 for Appellant

14   Robles, Rael and Anaya, P.C.
15   Douglas E. Gardener
16   Christina E. Anaya
17   Albuquerque, NM

18 for Appellee

19                                 MEMORANDUM OPINION

20 GARCIA, Judge.
 1   {1}   Plaintiff is appealing from a district court order dismissing his motion to compel

 2 arbitration and alternative complaint for breach of employment contract. We issued

 3 a calendar notice proposing to reverse. CYFD has responded with a memorandum in

 4 opposition. Not persuaded, we reverse the district court. Plaintiff was a juvenile

 5 corrections officer employed by CYFD. He was a classified employee, and subject to

 6 a collective bargaining agreement (CBA). Under the State Personnel Act, a party to

 7 a CBA who is fired may either appeal the dismissal to the Personnel Board, or make

 8 an irrevocable election to arbitrate the matter pursuant to the CBA. NMSA 1978, § 10-

 9 9-18(H) (2009). Plaintiff chose to arbitrate, and under the terms of the CBA he is

10 represented by the union, which, under the terms of the CBA, has seven days to

11 request a panel of arbitrators from an approved list. [RP 36] The union failed to select

12 arbitrators within the time set by the CBA, and CYFD subsequently refused to

13 participate in arbitration proceedings. As a result, Plaintiff filed a motion in district

14 court to compel arbitration, or alternatively to pursue a breach of the employment

15 contract claim. [RP 1] CYFD filed a motion to dismiss. [RP 20] The district court

16 granted the motion based on the straightforward rationale that the seven-day deadline

17 was the equivalent of a jurisdictional requirement.

18   {2}   As we observed in our calendar notice, CBA’s are interpreted like any other

19 contracts. See Christmas v. Cimarron Realty Co., 1982-NMSC-079, ¶ 8, 98 N.M. 330,


                                               2
 1 648 P.2d 788. The district court’s bright-line rule on the seven-day deadline was in

 2 effect a determination that the CBA was not ambiguous, in that an employee will lose

 3 the right to challenge his dismissal if he elects arbitration and there is a failure to

 4 select arbitrators within the deadline. In the absence of language in the CBA

 5 specifically addressing the issue of what happens when the deadline is not met, the

 6 CBA is ambiguous. In addition, our calendar notice proposed to hold that the district

 7 court’s sanction (dismissal) for the failure to meet the seven-day deadline was too

 8 severe. Cf. Marshall v. Providence Wash. Ins. Co., 1997-NMCA-121, ¶ 29, 124 N.M.

 9 381, 951 P.2d 76 (describing dismissal as a “severe” sanction to be used in “extreme”

10 circumstances).

11   {3}   In its memorandum in opposition, CYFD notes that this Court has held that,

12 where a CBA calls for the union to represent an employee in these type of

13 proceedings, and the union breaches its duty to effectuate the employee’s rights, the

14 remedy is for the employee is to pursue a “hybrid suit.” Howse v. Roswell Independent

15 School Dist., 2008-NMCA-095, ¶ 16, 144 N.M. 502, 188 P.3d 1253. In a hybrid suit,

16 the employee joins the union as a separate defendant, wherein the employee may

17 prove that the union breached its duty, thereby allowing the suit against the employer

18 to proceed. In Howse, the employee chose to pursue her grievance exclusively through

19 the union. Id. ¶ 4. Here, Plaintiff’s private counsel made the irrevocable selection of


                                              3
 1 arbitration. [District Court Order, RP 90, ¶ 2] The CBA contemplates that an

 2 employee may assume the burden of representation. [RP 90-91, ¶ 8] As such, we

 3 believe that Plaintiff’s failure to pursue the “hybrid” approach does not prevent him

 4 from maintaining the arbitration action, but instead means that he has waived union

 5 representation. We are therefore left with his failure to satisfy the seven-day deadline,

 6 and we conclude that dismissal of the action was too extreme.

 7   {4}   For the reasons set forth above, we reverse and remand to permit the district

 8 court to fashion a remedy with respect to the selection of the arbitrators.

 9   {5}   IT IS SO ORDERED.

10                                                 ________________________________
11                                                 TIMOTHY L. GARCIA, Judge

12 WE CONCUR:


13 _______________________________
14 JONATHAN B. SUTIN, Judge


15 _______________________________
16 STEPHEN G. FRENCH, Judge




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