February 07, 2011 – County of Los Alamos v. John Paul Martinez and Michael Dickman, No. 29,085

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: February 7, 2011

NO. 29,085

COUNTY OF LOS ALAMOS,
Plaintiff-A ppellant,

V.

JOHN PAUL MARTINEZ and
MICHAEL DICKMAN,

Defendants,

ROBBIE STIBBARD, as President of the
Los Alamos Firefighters Association Local #5279,

Appellee.

APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
Daniel A. Sanchez, District Judge

Mary McInemy, County Attomey
Los Alamos, NM

Charles Rennick, LLC
Santa Fe, NM

for Appellant

Hinkle, Hensley, Shanor & Martin, LLP
S. Barry Paisner
Santa Fe, NM

for Appellee

OPINION
VANZI, Judge.
{1} 	In this appeal, we review the district court’s order denying Plaintiff’s, County
of Los Alamos (County), motion for summary judgment and granting Intervenor’s,
Los Alamos Firefighters Association Local #3279 (Union), cross-motion for summary
judgment. The district court determined that paramedic training contracts are subjects
of mandatory bargaining and that the County may not unilaterally enter into such
contracts with Union members without including the Union in its negotiations. For
the reasons that follow, we affirm the decision of the district court.
BACKGROUND
{2} 	Defendants John Paul Martinez and Michael Dickman (Defendants) were
employees of the Los Alamos County Fire Department and members of the Union.
Defendants were accepted to participate in a voluntary paramedic training program at
Eastern New Mexico University in Roswell, New Mexico. 	The County offered
contracts to Defendants called housing agreements, which Defendants entered into
with the County. The contracts provided that the County would allow Defendants to
continue their employment on paid status with full salary while they attended the
paramedic training, that it would provide per diem or reimbursement for lodging,
meals, and travel, and that it would make a vehicle available to them to drive to and

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from Roswell.
{3} 	Defendants agreed that in return they would comply with several provisions in
the contract, including maintaining employment as firefighter paramedics with the
County for at least two years after completion of the fourteen-month training program.
A failure to abide by the terms of the contract could result in disciplinary action up to
and including termination. Further, Defendants agreed that if they failed to complete
the training or maintain employment with the County as provided by the contract, they
would reimburse the County for all expenses incurred by the County associated with
the training. 	The County could, in its sole discretion, waive the reimbursement
requirement for good cause shown.
{4} 	Both Defendants executed a contract with the County, and both completed the
paramedic training program. Martinez signed his contract and remained employed
with the County for seven months after completing the program. He then voluntarily
left his employment without making reimbursement. Dickman signed his contract
and remained employed for six months after completing the program. 	He also
voluntarily left his employment without making reimbursement.
{5} 	The County and the Union were parties to a collective bargaining agreement
(CBA) that covered Defendant’s bargaining unit, effective January 1, 2004, through
December 31, 2005. 	The CBA contained provisions relating to wages, hours, and
terms and conditions of employment. 	The paramedic training contracts, however,

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were not covered by the CBA.
{6} 	In addition to the specific provisions relating to wages, hours, and terms and
conditions of employment, the CBA contained a management-rights clause that gave
management certain specific operational and policy rights, as well as “all rights not
specifically limited by this [CBA].” Finally, the CBA contained a “zipper clause,”
which provided that the CBA was the “complete and only agreement between the
parties,” that all the mandatory subjects of collective bargaining had been “discussed
and negotiated upon,” and that each party waived the right “to bargain collectively
with respect to any subject matter not specifically referred to or covered in [the
CBA.]”
{7} 	The County filed suit against Defendants for breach of contract and restitution.
Some months later, in early 2007, the Union moved to intervene through its President,
Robbie Stibbard. 	The motion was approved in a stipulated order permitting
intervention and a complaint was filed. The complaint in intervention requested a
declaratory judgment that the paramedic training contracts were void because the issue
involved a subject of mandatory bargaining that had not been negotiated with the
Union and the contracts were therefore unenforceable.
{8} 	The County and the Union subsequently filed motions for summary judgment,
and a hearing was held on both motions. After the hearing, the district court granted
the Union’s motion for summary and declaratory judgment and denied the County’s

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motion for summary judgment. 	The district court entered an order on the two
summary judgment motions as well as a stipulated order dismissing all the remaining
claims of the parties. This appeal timely followed.
{9} 	The County raises four issues on appeal: (1) the district court erred in granting
the Union’s motion for summary judgment on the basis that the paramedic training
contracts contained terms and conditions of employment that are subjects of
mandatory bargaining; (2) the district court erred in denying the County’s motion for
summary judgment based on the employer’s right to negotiate paramedic training
contracts pursuant to its management-rights authority; (3) the district court erred in
granting the Union’s motion for summary judgment insofar as a balancing of interests
presents a genuine issue of material fact; and (4) the district court erred in denying the
County’s motion for summary judgment based on the Union’s waiver of bargaining
rights set forth in the zipper clause of the CBA. 	We address the first three issues
raised by the County together, and we then turn to its argument relating to waiver
under the zipper clause.
DISCUSSION
Standard of Review
{10} 	“Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law.” Self v. United

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Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “An appeal
from the grant of a motion for summary judgment presents a question of law and is
reviewed de novo.” Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶ 16, 141
N.M. 21, 150 P.3d 971. “The meaning of language used in a statute is a question of
law that we review de novo.” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16,
132 N.M. 382, 49 P.3d 61.
The Paramedic Training Contracts Are Subjects of Mandatory Bargaining
{11} 	The threshold question that the County asserts we must address in this case is
whether 	the 	paramedic 	training 	contracts 	contained 	terms 	or 	conditions 	of
employment such that they are mandatory subjects of collective bargaining that had
not been negotiated. Under both NMSA 1978, Section 10-7E-17(A)(1) (2003), of the
Public Employee Bargaining Act (PEBA), and the County Labor Management
Relations Ordinance (the Ordinance), Los Alamos County, N.M., Code § 30-44(a)
(2005), an employer is obligated to bargain in good faith on all wages, hours, and
other terms and conditions of employment. Any direct communication with a union-
represented employee made for the purpose of altering terms and conditions of
employment, therefore, constitutes a violation of the PEBA. 	See Permanente Med.
Group, Inc., 332 N.L.R.B. 1143, 1144 (2000) (noting that direct communications with
employees made “for the purpose of establishing or changing wages, hours, and terms
and conditions of employment or undercutting the Union’s role in bargaining”

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constitutes improper direct dealing).
{12} 	There is no definition of the phrase “wages, hours, and other terms and
conditions of employment” in either the PEBA or the Ordinance so as to delineate
exactly what constitutes a subject of mandatory bargaining. 	Thus, the issue of
whether the paramedic training contracts are subjects of mandatory bargaining appears
to be one of first impression in New Mexico. For the reasons that follow, however,
we need not reach that determination today.
{13} 	This case was decided on summary judgment. The issues were those raised in
the two motions filed by the County and Union. 	Whether the paramedic training
contracts were mandatory subjects of bargaining was not a matter of contention in
either of the two summary judgment motions. For the purpose of the motions, the
County agreed that the paramedic training contracts were mandatory subjects of
bargaining. The Union’s summary judgment motion in the district court asserted that
the training contracts were mandatory subjects of bargaining and, therefore, were not
enforceable. The County responded that, assuming for the purposes of the motion,
that the paramedic training contracts were mandatory subjects of bargaining, the
contracts were enforceable because of the management-rights clause and because of
waiver. The County sought summary judgment on the same basis as that stated in its
response to the Union’s motion. 	The district court ruled in the Union’s favor,
essentially holding that the management-rights and zipper clauses could not override

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or defeat the County’s obligation to engage in collective bargaining on the subject of
the paramedic training contracts.
{14} 	The County’s first argument on appeal is that we should reverse on a ground
that was not a part of the summary judgment proceedings, namely, that the paramedic
training 	contracts 	were 	not 	mandatory 	subjects 	of 	bargaining. 	The 	County
summarizes its issue on appeal as follows:
The County requests that this Court hold that the training agreements are
not terms and conditions of employment and that the management-rights
clause be given effect as a matter of law. 	Alternatively, applying the
balancing test, this Court should find that the predominant concern is a
matter of public policy, subject to the management-rights clause.
{15} 	We will not address the County’s contention to the extent that it is based on the
argument that the paramedic training contracts were not terms and conditions of
employment. See Spectron Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025,
¶ 32, 123 N.M. 170, 936 P.2d 852 (“We review the case litigated below, not the case
that is fleshed out for the first time on appeal.” (alteration omitted) (internal quotation
marks and citation omitted)). The County did not oppose the Union’s or Defendants’
claims in the district court and seek a trial or judgment on the premise that the
paramedic training contracts were not mandatory subjects of bargaining. Nor did the
County offer any evidence of that question. When arguing the motions for summary
judgment, the County conceded that the paramedic training contracts were mandatory
subjects of bargaining during the following colloquy between the district court and the

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County’s counsel:
THE COURT: I do, Mr. Graeser. I recognize, and I understand,
that the County’s reliance is basically on two issues, one the contractual
agreement and the contractual nature of the bargaining agreement. 	I
understand that. The second is the zipper clause. But let me ask you the
particular action, and I am not sure what you said, and I thought I wrote
it down, but what is your position with respect to the subject of this issue
being in the Collective Bargaining Agreement? Is your position that it’s
a mandatory subject?
MR. GRAESER: Your Honor, certainly for the purpose of this
motion I can agree it’s a mandatory subjective collective bargaining. I
think that’s an issue to determine during bargaining for the next contract,
but I don’t suspect there will be a lot of debate about that.
THE COURT: So you agree that it is a mandatory subject?
MR. GRAESER: Again, in my role of representing the County for
the purposes of this case, I will agree to that, yes.
{16} 	In its oral ruling at the conclusion of the hearing on the motions, the district
court confirmed—without objection or concern expressed by the County—that “[h]ere
we are talking about a mandatory subject of the [CBA], and we all agree that this is
a mandatory subject.” Neither as a part of its argument in the district court, nor as a
follow-up to the foregoing colloquy and oral ruling, did the County suggest to the
district court that if the court were to grant the Union’s motion and deny the County’s
motion, the County wanted to proceed to trial to prove that the training contracts were
not subjects of mandatory bargaining. 	“Facts stipulated to are not reviewable on
appeal.” Haaland v. Baltzley, 110 N.M. 585, 587, 798 P.2d 186, 188 (1990) .

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{17} 	The County’s second contention on appeal is that the concept of management-
rights and the language and breadth of the management-rights provision provide the
legal basis for enforcing the training contracts notwithstanding that the training
contracts are mandatory subjects of bargaining. The County argues that this Court
should adopt a balancing test, by which the court is to weigh the interests of the
employees against those of management. 	The County then argues that under that
balancing of interests test, the district court should have favored management-rights
as the predominant interest. We see nothing in the record indicating that the County
raised this balancing test in the district court or that the district court considered it, and
the County concedes as much. Thus, we will not address this balancing-test argument.
See Rule 12-216(A) NMRA (“To preserve a question for review it must appear that
a ruling or decision by the district court was fairly invoked[.]”); Woolwine v. Furr’s,
Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987) (same).
{18} 	We note that in arguing that the management-rights provision should be given
effect, the County argues that “the present case does not contain a well-developed
record as to the nature of the interests,” and that the balancing of interests presents a
genuine issue of material fact requiring remand to the district court. For the reason
just discussed in regard to the County’s preservation failure, and also because the
County did not raise this specific ground in the district court, we do not address this
argument. Woolwine, 106 N.M. at 496, 745 P.2d at 721.

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{19} 	Accordingly, the County is left with an argument that the plain language and
breadth of the management-rights provision must be given effect notwithstanding that
the paramedic training contracts are subjects of mandatory bargaining. The County’s
argument is antithetical to the very concept of mandatory subjects of bargaining
which, by its terms, means that these are subjects about which the parties must
bargain. 	NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958). 	We
recognize that a union can contractually waive its right to mandatory bargaining if the
waiver is expressed clearly and unmistakably. Metro. Edison Co. v. NLRB, 460 U.S.
693, 705, 708 (1983). However, courts will not infer a waiver “unless it is clear that
the parties were aware of their rights and made the conscious choice, for whatever
reason, to waive them.” NLRB v. New York Tel. Co., 930 F.2d 1009, 1011 (2d Cir.
1991). In this case, the County has pointed to no clear and unmistakable waiver to
bargain over the paramedic training contracts, and we have found none. For summary
judgment purposes with regard to both motions for summary judgment, the County
assumed that the paramedic training contracts were a mandatory subject of bargaining.
Under that assumed fact, the County was foreclosed from unilaterally entering into the
contracts with individual union members instead of entering into the bargaining
process with respect to the contracts or the work under the contracts. Consequently,
we see no error in the district court’s summary judgment dispositions. The Union Did
Not Waive Its Right to Bargain Under the Zipper Clause

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{20} 	The County’s remaining argument is that the Union waived any right to bargain
based on a broad zipper clause containing waiver provisions in the CBA. The clause
provides:
The parties agree that this is the complete and only agreement
between the parties. Each party has negotiated on all issues identified
for negotiations and such negotiations have led to this agreement. No
additional negotiations will be conducted on any item, whether contained
herein or not, except by mutual agreement of the parties. This agreement
replaces any and all previous agreements between the parties.
The parties acknowledge that during the negotiations which
resulted in this Agreement, each had the unlimited right and opportunity
to make demands and proposals with respect to all proper subjects of
collective bargaining and that all such subjects have been discussed and
negotiated upon and the agreements contained in this Agreement were
arrived at after the free exercise of such rights and opportunities;
therefore, the [County] and the Union, for the life of this Agreement,
each voluntarily and unqualifiedly waives the right and each agrees that
the other shall not be obligated to bargain collectively with respect to any
subject matter not specifically referred to or covered in this Agreement,
even though such subject or matter may not have been within the
knowledge or contemplation of either or both of the parties at the time
they negotiated or signed this Agreement.
{21} 	At the outset, we note that New Mexico courts have not ruled on whether broad
zipper clauses in a CBA such as the one before us relieves an employer from the duty
to bargain. 	In the absence of guidance from our own courts, the New Mexico
Supreme Court has directed that we should interpret language in the PEBA “in the
manner that the same language of the [National Labor Relations Act] has been
interpreted.” Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020,

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¶ 18, 125 N.M. 401, 962 P.2d 1236.
{22} 	The National Labor Relations Board (NLRB) has taken two approaches when
answering the question of whether a zipper clause in a CBA can by its terms eliminate
otherwise binding practices.
Prior to 1974, the [NLRB] strictly applied the rule that only “clear and
unmistakable” language in the contract expressly waiving the right to
negotiate over a particular subject would suffice to relieve a party of the
duty to bargain. This was especially the case with broad “zipper” clauses
which stated that the contract was the complete agreement between the
parties on all subjects. Such clauses, standing alone, did not constitute
a sufficiently clear and unmistakable waiver as to a specific bargaining
item.
1 Charles J. Morris, The Developing Labor Law 642 (2d ed. 1983) (footnote omitted).
{23} 	In 1974, the NLRB modified its approach so that the language of broad zipper
clauses could, in fact, support a contractual waiver defense. 	The new standard
required zipper clauses to be given “such effect as the negotiating history and other
surrounding circumstances seem to make appropriate.” Radioear Corp., 214 N.L.R.B.
362, 364 (1974); see also Aeronca, Inc., 253 N.L.R.B. 261, 264 (1980) (noting that
a contractual right to have an issue bargained effectively can be waived only on
“showing of a clear relinquishment of the right which is to be decided on the facts and
circumstances surrounding the making of the contract as well as the language of the
contract itself”), enforcement denied on other grounds by Aeronca, Inc. v. NLRB, 650
F.2d 501 (4th Cir. 1981). As a result, under this approach, the expectations caused by

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the actions of the opposing party are relevant to whether there has been a contractual
waiver. 	See AMCAR Div., ACF Indus., Inc. v. NLRB, 592 F.2d 422, 429 (8th Cir.
1979); S. Materials Co. v. Teamsters Local Union No. 822, 198 N.L.R.B. 257-258
(1972).
{24} 	Notwithstanding the NLRB’s guidance on evaluating contractual waiver
defenses, the federal circuit courts are split on the issue, with some circuits following
a more flexible approach, while others continue to apply other analyses. Compare,
e.g., NLRB v. Auto Crane Co., 536 F.2d 310, 311-12 (10th Cir. 1976) (denying
enforcement of an NLRB order finding a Section 8(a)(5) violation in the employer’s
unilateral imposition of a wage increase and thrift plan during the term of an
agreement; holding the zipper clause of the labor contract—including the phrase
referring to “any matter or subject not specifically referred to or covered in” the
contract—constituted a clear waiver of the right to bargain), 	with NLRB v.
Challenge-Cook Bros. of Ohio, Inc., 843 F.2d 230, 233-34 (6th Cir. 1988) (granting
enforcement of an NLRB order holding that the employer violated Section 8(a)(1) and
(a)(5) of the National Labor Relations Act, finding that the zipper clause did not
amount to a relinquishment of the right to bargain over effects of the employer’s
unilateral shift of production from one bargaining unit to another).
{25} 	The Union here argues that the “clear and unmistakable” language is the
standard that we should apply in this case. The County, on the other hand, urges this

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Court to follow the decisions of the federal circuit courts that have found that broad-
type waiver clauses satisfy the clear and unmistakable language. 	In our view, the
answer does not call for a rigid rule, formulated without regard for the bargaining
postures, past practices, and agreements of the parties for two reasons. 	First,
notwithstanding the split in the circuits, the NLRB has continued to adhere to the
broader position taken in Radioear. See e.g., Temple-Eastex, Inc., 228 N.L.R.B. 203
(1977), rev’d on other grounds, 579 F.2d 932 (5th Cir. 1978); A-1 Fire Protection,
Inc., 233 N.L.R.B. 38 (1977), remanded in part, 600 F.2d 918 (D.C. Cir. 1979).
Moreover, given our Supreme Court’s direction in this area, we believe that
application of the reformulated standard described by the NLRB in Radioear is the
more reasoned approach to deciding the question of whether the language of the CBA
expressly waived the right to negotiate the paramedic training contracts. 	See Las
Cruces Prof’l Fire Fighters v. City of Las Cruces, 123 N.M. 239, 243, 938 P.2d 1384,
1388 (1997) (instructing that interpretations of the NLRA by the National Labor
Relations Board and reviewing courts should act as a guide in interpreting similar
provisions of the PEBA).
{26} 	We observe that there is virtually no evidence in the record and no argument
in the district court in connection with bargaining history, expectations of the parties,
past practices, or surrounding circumstances for the purpose of supporting or rejecting
waiver on summary judgment. Additionally, the parties never argued to the district

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court that there were disputes of fact requiring a trial. They have also not done so on
appeal. 	Therefore, 	we 	do 	not 	consider 	the 	bargaining 	history, 	the 	parties’
interpretation of the language, or whether the case should be remanded for trial on the
issue of waiver. Woolwine, 106 N.M. at 496, 745 P.2d at 721. The district court did
not err in determining in the summary judgment proceeding that, as a matter of law,
the Union did not waive its right to bargain based on the zipper clause.
CONCLUSION
{27} 	For the reasons set forth above, we affirm the decision of the district court.
{28} 	IT IS SO ORDERED.
________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_______________________________
JONATHAN B. SUTIN, Judge
_______________________________
MICHAEL E. VIGIL, Judge