Certiorari Granted, October 27, 2010, No. 32,570

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMCA-100

Filing Date: August 12, 2010

Docket No. 28,846

CITY OF ALBUQUERQUE,

       Petitioner/Appellee,

v.

JUAN B. MONTOYA, Director
of the PUBLIC EMPLOYEE LABOR
RELATIONS BOARD and the PUBLIC
EMPLOYEE LABOR RELATIONS BOARD,

       Respondents/Appellants,

AFSCME COUNCIL 18 and LOCAL 624,

       Real Party in Interest/Cross-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
William F. Lang, District Judge

Robert M. White, City Attorney
Shelley B. Mund, Assistant City Attorney
Albuquerque, NM

for Appellee

Gary K. King, Attorney General
Andrea R. Buzzard, Assistant Attorney General
Santa Fe, NM

for Appellants

Youtz & Valdez, P.C.
Shane C. Youtz

                                           1
Albuquerque, NM

for Cross-Appellant

                                          OPINION

WECHSLER, Judge.

{1}     Appellants Juan B. Montoya, Director of the Public Employees Labor Relations
Board (the PELRB), the PELRB, and AFSCME Council 18 and Local 624 (the real parties-
in-interest) appeal the district court’s denial of their motion to dismiss and grant of a writ of
prohibition and/or superintending control (the Writ) prohibiting the PELRB from exercising
jurisdiction over the prohibited practices complaint (PPC) before it. Appellants argue that
the grandfather clause in the Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-
7E-1 to -26 (2003, as amended through 2005), does not apply to the ordinance at issue in this
case and that, therefore, the PELRB had jurisdiction over the PPC. Appellants also make
several procedural arguments as to why the district court lacked jurisdiction, including that
(1) no inferior tribunal had yet acted or been presented with the PPC or the grandfather
clause issue; (2) Appellee City of Albuquerque had not yet exhausted its administrative
remedies; (3) the issues were not yet ripe for adjudication; (4) no “emergency” warranted
the issuance of the ex parte writ; and (5) Rule 1-012(A) NMRA accords Appellants the
opportunity to answer after the denial of their motion to dismiss. We hold that the ordinance
establishing Appellee’s labor board is not eligible to be grandfathered pursuant to Section
10-7E-26(A). Because we so hold, we need not address Appellants’ remaining procedural
issues. We reverse the district court’s grant of the Writ and denial of Appellants’ motion to
dismiss and remand for further proceedings.

BACKGROUND

{2}     The facts relevant to this appeal are not in dispute. Appellee enacted a Labor-
Management Relations Ordinance (the Ordinance) in 1974 that governs collective bargaining
with the city. Albuquerque, N.M., Code of Ordinances ch. 3, art. 2, §§ 1 to 18 (1974). The
Ordinance establishes a labor board (the Local Board) to oversee administration of the
Ordinance. Section 3-2-15. The Local Board is comprised of three appointees—a “labor”
appointee who is appointed by the committee of union representatives, a “management”
appointee who is appointed by the mayor, and a “neutral” appointee who is appointed by the
other two Local Board members. Section 3-2-15(A)-(C). If one of the appointed Local
Board members is absent, “the President of the City Council shall appoint an interim [Local]
Board member from the public at large with due regard to the representative character of the
[Local] Board.” Section 3-2-15(D).

{3}    On June 15, 2007, AFSCME filed a PPC with the Local Board based on the
contention of an employee that Appellee refused to hire him for a position based on his
union activities. The Local Board conducted a full evidentiary hearing, after which the

                                               2
neutral member recused. The remaining members were unable to reach an agreement on the
complaint. On October 18, 2007, as a result of the recusal of the third Local Board member
and the inability of the remaining members to agree on the complaint, AFSCME filed an
identical PPC with the PELRB. On November 9, 2007, Appellee moved to dismiss the PPC
filed with the PELRB, asserting that an interim third neutral member could, in accordance
with the Ordinance, be appointed by the president of the city council. Appellee also filed
a motion with the Local Board to appoint a third, neutral, interim board member under
Section 3-2-15 of the Ordinance.

{4}      The PELRB set the motion to dismiss the PPC for hearing on January 2, 2008.
However, the Local Board continued to proceed and, on January 8, 2008, ordered the parties
to agree to a third neutral member or, if they could not, ordered the two remaining board
members to select the third member. Thereafter, on January 22, 2008, because the parties
and the board members were unable to arrive at an agreement as to the third neutral member,
the Local Board petitioned the president of the city council for appointment of a third
member. On February 7, 2008, the PELRB issued findings of fact and conclusions of law,
stating that, despite the orders of the Local Board, the Ordinance created an “unacceptable
method for appointment of labor board members pursuant to the [PEBA] and is therefore not
to be used for that purpose.” The PELRB further concluded that Appellee’s “method of
temporary appointment of board members, in case of an absence by an already permanently
appointed board member, is contrary to the fundamental provision of the [PEBA] requiring
a local board be balanced in that one member is appointed upon the recommendation of
labor, another upon the recommendation of management and those two, together,
recommend the third party neutral.” See § 10-7E-10. The PELRB therefore denied
Appellee’s motion to dismiss the PPC before the PELRB, asserting that it would “exercise
its jurisdiction and hear this case.”

{5}     On February 28, 2008, Appellee filed the petition for the Writ, arguing that the
PELRB lacked jurisdiction pursuant to Section 10-7E-26(A), the grandfather clause of the
PEBA. The following day, the district court signed a peremptory writ of prohibition and/or
superintending control. The PELRB and Director Montoya responded with a motion to
dismiss, asserting that the issues before the court were not ripe. On May 1, 2008, the district
court held a hearing and denied the motion to dismiss and made permanent the February 29
peremptory writ. The district court stated that Appellee “is grandfathered in under the
appropriate state legislation and . . . the PELRB has no jurisdiction in this instance and,
therefore, the [m]otion to [d]ismiss filed by the [PELRB and Director Montoya] is denied.”
The PELRB and Director Montoya filed a motion for reconsideration, which the district
court denied. Appellants appeal the district court’s order granting the Writ and denying the
PELRB and Director Montoya’s motion to dismiss for lack of jurisdiction.

THE PEBA’S GRANDFATHER CLAUSE

{6}    Appellants argue that the district court erred in granting the peremptory writ of
superintending control because the “‘grandfather clause’ . . . should not be expansively

                                              3
construed to permit the employer to select two members of a three-member local labor board
to adjudicate labor-management disputes, which is fundamentally contrary to [the] PEBA.”
To determine whether the grandfather clause applies to Section 3-2-15 of the Ordinance,
“we must interpret the PEBA and make a determination of law,” which we review de novo.
City of Deming v. Deming Firefighters Local 4521 (Deming), 2007-NMCA-069, ¶ 6, 141
N.M. 686, 160 P.3d 595. “Although we may afford some deference to [the PELRB]’s
interpretation[, we] have the ultimate responsibility to interpret the law.” Id.

{7}       As we stated in Deming, in order for a labor-management policy to be exempt from
some of the requirements of the PEBA, “(1) the public employer must have adopted a system
of provisions and procedures permitting employees to form, join or assist any labor
organization for the purpose of bargaining collectively through exclusive representatives and
(2) the public employer must have taken such action prior to October 1, 1991.” Id. ¶ 9
(emphasis, internal quotation marks, and citation omitted); see also Regents of Univ. of N.M.
v. N.M. Fed’n of Teachers (Regents), 1998-NMSC-020, ¶¶ 21, 34, 125 N.M. 401, 962 P.2d
1236 (discussing the grandfather clause of the PEBA and stating that the “system must be
productive” to be grandfathered). The second requirement is easily met and is not disputed.
We must, therefore, decide whether Section 3-2-15 of the Ordinance—allowing for the
president of the city council to appoint an interim third member of the Local Board to
resolve labor-management disputes—meets the requirement under the PEBA that employees
be permitted to bargain collectively. See Deming, 2007-NMCA-069, ¶ 9; see also Regents,
1998-NMSC-020, ¶ 34 (stating that a system permitting employees to form, join, or assist
a labor organization for the purpose of bargaining collectively “must . . . actually result[] in
. . . the negotiation of existing collective bargaining agreements” (internal quotation marks
and citation omitted)). If Section 3-2-15 does not meet this requirement, it is not eligible for
grandfather status under the PEBA and, therefore, the PELRB would have jurisdiction. See
Deming, 2007-NMCA-069, ¶¶ 11-12, 16 (“[I]f the grandfather clause applies, the PELRB
does not have jurisdiction to rule on the merits of any claims that the [c]ity has not complied
with the PEBA.”).

{8}     Section 3-2-15 of the Ordinance establishes that the Local Board must be comprised
of a labor appointee, a management appointee, and a neutral appointee. However, Section
3-2-15(D) further provides that, if one of the appointed Local Board members is absent, “the
President of the City Council shall appoint an interim [Local] Board member from the public
at large with due regard to the representative character of the [Local] Board.” The question,
therefore, is whether this latter provision, allowing the president of the city council to
appoint an interim member, violates the purpose of the PEBA to allow employees to bargain
collectively.

{9}    Appellee argues that the Ordinance “establishes an effective system of provisions that
permits employees to form, join or assist any labor organization for the purpose of collective
bargaining through exclusive representatives” and that the Ordinance was in existence prior
to 1991, and, therefore, the Local Board “may continue to operate without reference to [the]
PEBA so long [as] the [L]ocal [B]oard is not inconsistent with the overall intent of [the]

                                               4
PEBA.” Appellee argues that Section 3-2-15(D) does not inhibit neutrality on the Local
Board because the president of the city council must appoint a third interim neutral member
“with due regard to the representative character” of the Local Board. (Emphasis omitted.)
While we do not disagree with Appellee’s general proposition that the Ordinance establishes
a system for collective bargaining, we are not persuaded that, in this case, the “specific
provision[]” of the Ordinance, rather than the Ordinance as a whole, complies with the
overall intent of the PEBA. See Regents, 1998-NMSC-020, ¶ 35 (stating that we construe
the grandfather clause test “narrowly, holding that it applies to specific provisions of a public
employer’s policy rather than the policy as a whole”).

{10} The PEBA requires that a local board, like the PELRB, be a balanced and, therefore,
neutral body. See § 10-7E-10(B) (stating that a local board shall be composed of one
member appointed on the recommendation of labor representatives, one appointed on the
recommendation of management representatives, and the third appointed on the
recommendation of the first two appointees); § 10-7E-8(A) (establishing the PELRB with
one member appointed on the recommendation of labor representatives, one appointed on
the recommendation of public employers, and the third appointed on the joint
recommendation of the other two members). Even though Section 3-2-15(D) requires the
president of the city council to appoint an interim member with deference to the
representational character of the board, the president’s effort to incorporate neutrality in an
often highly polarized environment is not sufficient to uphold the integrity of the essential
process. Indeed, as Appellants contend, allowing management personnel to appoint a third
member on its own recommendation, even with deference to the board’s representative
character, is “particularly grievous in the context of an adjudicatory proceeding involving
an employee who alleges that management passed him over for a job for which he was
qualified simply because of his union activities.” Section 3-2-15(D) of the Ordinance
effectively removes from an employee the “bargaining” aspect of collective bargaining when
it establishes a process whereby two-thirds of a local board could be comprised of appointees
pursuant to management recommendations. Moreover, the shortcoming of Section 3-2-
15(D) is not merely a difference of language. Rather, the failure of Section 3-2-15(D) to
abide by the PEBA’s requirement that a local board be balanced and, therefore, neutral
affects the substantive and essential rights of public employees seeking to enforce their
rights under the PEBA. See § 10-7E-10(B) (requiring a balanced local board with a third
neutral member); § 10-7E-2 (stating that the purpose of the PEBA is “to guarantee public
employees the right to organize and bargain collectively with their employers”); see also
Deming, 2007-NMCA-069, ¶¶ 8-9 (explaining that the grandfather clause is an exception to
the PEBA requirement and should therefore be construed narrowly to apply only to systems
that permit public employees to collectively bargain).

{11} Additionally, we construe statutes as a whole and consider the provisions in relation
to one another. Regents, 1998-NMSC-020, ¶ 28; see also Deming, 2007-NMCA-069, ¶ 14
(stating that “Regents requires that we interpret the grandfather clause in conjunction with
the other provisions of the PEBA”). We will not construe statutes so as to render a portion
of it surplusage or superfluous. Regents, 1998-NMSC-020, ¶ 28. To apply the PEBA’s

                                               5
grandfather clause to Section 3-2-15(D) in this case would essentially ignore Section 10-7E-
10(B) of the PEBA, rendering as surplusage its requirement that a third neutral member of
a local board be appointed pursuant to the recommendations of the other two members. In
short, the provision of the Ordinance that allows for a public employer to select two
members of the three-member Local Board to adjudicate labor-management disputes does
not productively allow employees to collectively bargain, Regents, 1998-NMSC-020, ¶ 28,
and, as such, violates the purpose of the PEBA, thereby failing the first requirement for
acquiring grandfather status. See § 10-7E-2 (stating the purpose of the PEBA); Deming,
2007-NMCA-069, ¶ 9 (stating the requirements for acquiring grandfather status). The
district court erred in granting the Writ and concluding that the PELRB did not have
jurisdiction.

CONCLUSION

{12} We reverse the district court’s grant of the Writ and denial of the PELRB and
Director Montoya’s motion to dismiss, and we remand for further proceedings in accordance
with this opinion.

{13}    IT IS SO ORDERED.

                                             ____________________________________
                                             JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Judge

____________________________________
ROBERT E. ROBLES, Judge

Topic Index for City of Albuquerque v. Montoya, Docket No. 28,846

AL                            ADMINISTRATIVE LAW AND PROCEDURE
AL-EX                         Exhaustion of Administrative Remedies

AE                            APPEAL AND ERROR
AE-FE                         Fundamental Error

EL                            EMPLOYMENT LAW
EL-CB                         Collective Bargaining
EL-DS                         Discrimination
EL-LU                         Labor Unions
EL-UO                         Union Organizing

                                             6
GV      GOVERNMENT
GV-PE   Public Employees

JD      JURISDICTION
JD-DC   District Court

RE      REMEDIES
RE-WP   Writ of Prohibition
RE-SC   Writ of Superintending Control

ST      STATUTES
ST-AP   Applicability
ST-IP   Interpretation
ST-RC   Rules of Construction




                     7
