February 4, 2019- AFSCME v. City of Las Vegas, New Mexico, No. A-1-CA-35840

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

AMERICAN FEDERATION OF STATE, Filed 2/4/2019 10:56 AM
COUNTY AND MUNICIPAL EMPLOYEES, MF
COUNCIL 18, AFL-CIO, LOCAL 2851, w
Mark a
Appellant-Petitioner,
Vv. NO. A-1-CA-35840

CITY OF LAS VEGAS, NEW MEXICO,
Appellee-Respondent.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Abigail Aragon, District Judge

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

James A. Montalbano
Albuquerque, NM

for Appellant
Holcomb Law Office
Dina E. Holcomb
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
HANISEE, Judge.
3. The American Federation of State, County and Municipal* Employees,

Council 18, AFSCME Local 2851 (AFSCME) appeals from the district court’s |

order upholding the administrative decision of the City of Las Vegas Labor

I Management Relations Board1 (the Board), which dismissed AFSCME's petition
2 seeking to accrete, or add, certain employees of the City of Las Vegas (the City)
3 into the existing "blue and white collar bargaining unit." AFSCME argues, inter
4 alia, that the district court erred in determining that "the record supports the
5 [Board's] decision." We conclude that the record as presently constituted does not
6 support the 	Board's 	decision 	and, 	therefore, 	reverse 	and 	remand 	for 	further
7 proceedings consistent with this opinion. 2
8 BACKGROUND
9 	{2} 	AFSCME 	filed 	a 	"Petition 	for 	Clarification 	(Accretion)" 	(AFSCME's
IO 	petition) with the Board seeking to accrete various positions into an existing
11 	bargaining unit covering City employees. While all 	of the positions included
12 "supervisor" 	as 	part 	of the job title, 	AFSCME 	asserted that the 	employees
13 	occupying the positions were not themselves "supervisors" as that term is defined
14 under the Public Employees Bargain Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26
15 	(2003, as amended through 2005). On March 10, 2015, the Board held an all-day
16 hearing (merits hearing), at which employees then holding the positions at issue
1The Board and the City were both named as defendants in AFSCME' s
appeal to the 	district court, 	but the Board was 	dismissed 	as 	a party on its
unopposed motion on August 1, 2016.
2Because we reverse on this basis, we do not reach AFSCME' s arguments
that the Board (1) violated the Open Meetings Act, NMSA 1978, §§ 10-15-1 to -4
(1974, as amended through 2013), by voting on AFSCME's petition in closed
session, and (2) improperly assigned the burden of proof to AFSCME.
2

I testified, as did some of their subordinates, AFSCME officials, and managerial
2 representatives 	from the City. In addition to taking witness testimony, the Board
3 received for its consideration numerous exhibits submitted by the parties, as well
4 as a post-hearing brief from each party.
5 {3} 	On April 27, 2015, the Board met to consider AFSCME's petition. When it
6 convened, the Board's chairman called the meeting to order and stated, "[W]e
7 haven't had a chance . . . to get together and go over the information" related to
8 AFSCME's petition and that "[w]hat we'd like to do is call into executive session
9 for . . . at least 	15 	minutes before we actually start the meeting." After an
IO 	unspecified period of time, the chairman returned and announced, "[W]e are out of
11 	executive session[,]" explained that the board members had considered all of the
12 information before them, 	and proceeded to allow another board member "go
13 	through the decisions" of the Board. That board member explained that the Board
14 had "considered a number of factors ... includ[ing] the definition of supervisor ...
15 	[and] the relevant arguments that have been presented both in the briefs and the
16 attached case law." He further explained that "one of the things that we keyed off
17 on 	was 	the 	definition 	of 	federal 	law 	in 	regards 	to 	exercising 	independent
18 judgment," which he described as "one of the overriding principles for all the
19 positions that we're going to be discussing." As to each of the five individuals
20 whose position the petition sought to accrete into the unit, the Board summarily
3

1 concluded that "[AFSCME] ha[d] not met its burden of proof to accrete." For only
2 one of the individuals, Benito Lujan, did the Board identify specific evidence-the
3 testimony of one employee supervised by Lujan that "she had been told by Mr.
4 Lujan that he would write her up if she did certain things"-to support its denial of
5 the petition to 	accrete. 	The Board issued an oral ruling denying AFSCME' s
6 petition and excluding the five positions from the bargaining unit.
7 	{4} 	Nearly five months later, on September 10, 2015, the Board issued a two-
8 page order, titled "Order Dismissing Clarification Petition." The order contains
9 neither a discussion of the evidence nor findings of fact to support the Board's
10 decision and provides no explanation of the Board's ruling, despite the governing
11 	Board rule requiring that it file a report within fifteen days following the close of a
12 hearing in which it makes findings of fact and conclusions of law and "adequately
13 	explain[s] the Board's reasoning." City of Las Vegas, Labor/Mgmt. Relations Bd.,
14 Rules & Regulations, § II, Rule 2.13. Instead, the order merely states that the
15 	Board found that AFSCME "has not met its burden 	of proof to 	accrete the
16 position[s] into the bargaining unit."
17 	{5} 	The next day, AFSCME filed its notice of appeal in the district court 	and·
18 	sent a letter to the Board to request the preparation and filing of the record proper
19 in accordance with Rule 1-074 NMRA (providing procedures to be followed in
20 appeals from administrative agencies to the district courts). When the Board still
4

1 had not filed the record nearly three months later, see Rule l-,074(H) (providing
2 that the agency shall file the record on appeal within thirty days, unless otherwise
3 provided by law), AFSCME moved for an order to show cause. The day after
4 AFSCME filed a request for hearing on its motion, the Board filed approximately
5 two hundred pages of documents designated as the "Record Proper." Three weeks
6 later, the Board filed an "Amended Record Proper," containing numerous new
7 documents and some, but not all, of the records originally filed in the "Record
8 Proper" and totaling nearly four hundred pages. AFSCME thereafter withdrew its
9 motion for an order to show cause.
10 	{6} 	The district court held a hearing on August 4, 2016. AFSCME argued that
11 	the Board's decision "goes against the overwhelming evidence and is not based at
12 all on substantial evidence" and that it "failed to apply the facts to black letter law
13 	when it comes to whether someone is a supervisor, manager, 	or confidential
14 employee." AFSCME noted that the Board's decision failed to even specify what
15 	exemption-.i.e., supervisor, manager, or confidential employee-it found applied
16 to justify denying the petitioning employees their presumptive right to join a
17 bargaining unit. 3 AFSCME also argued that the Board's reliance on federal law
3 The 	City's 	Labor 	Management 	Relations 	Ordinance 	(the 	Ordinance)
provides that "[e]mployees, other than management, supervisory, confidential, and
probationary employees, may form, join, or assist any labor organization for the
purpose of collective bargaining." Las Vegas, N.M., Code Ordinances ch. 48, Part
I, § 48-5.
5

1 and the Board's reference to the "independent judgment" standard applied under
2 federal law evinced a clear misapprehension of the law because New Mexico does
3 not follow the federal definition of "supervisor." AFSCME represented to the
4 district court that each of the employees who testified said that they did not devote
5 more than fifty percent of their time to supervisory work, which AFSCME argued
6 alone 	establishes 	that 	the 	five 	employees 	do 	not 	meet 	the 	applicable 	legal
7 definition of "supervisor." 4
8 	{7} 	The City argued that AFSCME had not met its burden to show that there
9 was insufficient evidence to support the Board's decision and that AFSCME was
10 	impermissibly trying to 	reargue the 	case 	before 	the 	district 	court. 	The 	City
11 	primarily focused on what it contended was AFSCME's failure to apprise the
12 district court of the evidence AFSCME presented that the Board failed to consider.
13 	The 	City 	argued that there 	was 	substantial 	evidence to 	support the 	Board's
14 decision, specifically the Board's determination that AFSCME did not "meet [its]
4 The Ordinance defines "supervisor" as "[a]n employee who devotes a
majority amount of work time to supervisory duties, who customarily and regularly
directs the work of two or more other employees, and who has the authority in the
interest of the employer to pire, promote, or discipline other employees or to
recommend such actions effectively." Las Vegas, N.M., Code Ordinances ch. 48,
Part I, § 48-4. The definition further specifies that it "does not include individuals
who perform merely routine, incidental, or clerical duties or who occasionally
assume supervisory or directory roles or whose duties are substantially similar to
those of their subordinates and does not include lead employees or employees who
occasionally participate in peer review or evaluation of employees."
6

1 burden." The City repeatedly asserted that AFSCME had failed to provide citations
2 to support its assertions regarding the testimony given at the merits hearing.
3 {8} 	In rebuttal, 	AFSCME 	explained 	its 	failure 	to 	provide 	citations 	for 	its
4 recounting of the evidence-specifically the testimony by employees at the merits
5 hearing-by 	pointing 	out that the Board had never provided a transcript or
6 recording of the merits hearing. The district court questioned both parties about the
7 lack of (1) findings of fact and conclusions of law from the Board, and (2) a
8 recording or transcript of the merits hearing. AFSCME noted that "the record is
9 lacking a recording of the hearing or a transcript of the hearing" and that "if the
10 court were curious, that might be helpful." However, AFSCME also state~ that it
11 	did not think the district court would be "much more enlightened by listening to
12 the 	recording" 	given 	that 	AFSCME 	had 	made 	"accurate 	and 	honest"
13 	representations in its brief regarding what was said at the merits hearing. The City,
14 for its part, told the district court that there was "about nine hours' worth of
15 testimony" and assured the court that it had cited to the relevant portions of the
16 hearing in its briefing. Thus, the parties agreed on little more than that the case
17 could be decided on the record before the district court and that the district court
18 need not remand for findings or order the record supplemented with a recording or
19 transcript of the merits hearing, a premise with which we disagree.
7

1 {9} 	On August 15, 2016, the district court entered its own two-page written
2 order upholding the Board's decision. The district court concluded that "the record
3 supports the [Board's] decision[,]" that the decision "is not arbitrary, capricious, or
4 contrary to law[,]" and that the Board "acted appropriately and within its scope of
5 authority." We granted AFSCME's ensuing petition for a writ of certiorari. See
6 Rule 12-505(D)(2)(d) NMRA.
7 DISCUSSION
8 Standard of Review
9 	{10} 	"Upon a grant of a petition for writ of certiorari under Rule 12-505," this
10 Court "conducts the same review of an administrative order as the district court
11 	sitting in its appellate capacity, while at the same time determining whether the
12 district court erred in the first appeal." City ofAlbuquerque v. AFSCME Council 18
13 	ex rel. Puccini, 2011-NMCA-021, ,-r 8, 149 N.M. 379, 249 P.3d 510 (alteration,
14 internal quotation marks, and citation omitted). Applying that same standard, this
15 	Court reviews the action of the Board to determine whether its decision was
16 "arbitrary, capricious, or an abuse 	of discretion; not supported by substantial
17 evidence in the record; or, otherwise not in accordance with law." Rio Grande
18 	Chapter of the Sierra Club v. N.M Mining Comm'n, 2003-NMSC-005, ,-r 17, 133
19 N.M. 97, 61 P .3d 806. A ruling by the Board "is arbitrary and capricious if it is
20 unreasonable or without a rational basis, when viewed in light of the whole
8

1 record." Id. "This standard requires that we independently review the entire record
2 	of the administrative hearing to determine whether the decision was arbitrary and
3 capricious, not supported by substantial evidence, or otherwise not in accordance
4 with law." 2727 San Pedro LLC v. Bernalillo Cty. Assessor, 2017-NMCA-008,
5 ,r 15, 389 P.3d 287. In an administrative appeal involving a question of substantial
6 evidence, "we review the district court's ruling by independently examining the
7 entire record, keeping in mind that a reviewing court may not substitute its
8 judgment for that of the [agency]." Gallup Westside Dev., LLC v. City of Gallup,
9 2004-NMCA-010, ,r 11, 135 N.M. 30, 84 P.3d 78. The question in a substantial
10 evidence review is not whether a different result could have been reached but
11 	"whether the record supports the result reached[.]" Id.
12 The 	Deficient 	Record 	Necessitates 	Reversal, 	Remand, 	and 	Further
13 	Proceedings
14 	{11} 	We begin by noting the overall failure of the Board (and the City, following
15 the Board's dismissal from the case) to comply with its obligations under Rule 1-
16 07 4, which sets forth specific rules to be followed in administrative appeals to the
17 district court. As noted above, it took months for the Board to file the "Record
18 Proper" in the district court in clear violation of Rule 1-074(H) (providing that the
19 agency shall file the record on appeal "within thirty (30) days after the filing of the
20 	notice of appeal with the agency"). The Board then filed an "Amended Record
21 	Proper" some three weeks later. On the face of the filings, neither the purported
9

1 record nor the amended record 	complies with the basic requirements of Rule 1-
2 074(H), specifically that "the agency shall number consecutively ... the pages of
3 the record on appeal[,]" which are to "be organized by date submitted to the
4 agency beginning with the earliest paper or pleading[.]" Id. 	More importantly,
5 from a substantive standpoint, the Board's filings fail to comply with Rule 	1-
6 074(H)(2), which provides that "the record on appeal shall consist of . .. a copy of
7 all papers, pleadings, and exhibits filed in the proceedings of the agency, entered
8 into or made a part of the proceedings of the agency, or actually presented to the
9 agency in conjunction with the hearing[.]" (Emphasis added.) As an example, the
10 Board;s "Amended Record Proper" purports to include the post-hearing briefs
11 	submitted by the City and AFSCME, relied upon by the Board in reaching its
12 decision, and cited by the City in its brief to the district court. However, after a
13 	diligent search, this Court has been unable to locate those briefs.
14 	{12} 	While the aforementioned deficiencies hamper efficient appellate review, it
15 	is the Board's and the City's failure to file a transcript or recording of the merits
16 h_earing in accordance with Rule 1-07 4(H)( 4) (providing that the record on appeal
17 shall consist of "the transcript of the proceedings, if any"), that renders impossible
18 	any meaningful appellate review. As stated, we are required-as was the district
19 	court in its own appellate capacity-to review the record as a whole. Because
20 neither a transcript nor a recording is part of the record before us, we assume that
10

1 the district court did not order the City to supplement the record on appeal, despite
2 the parties' acknowledgment and the district court's awareness that the district
3 court did not have the complete record before it. The unexplained absence of a
4 hearing recording or transcript necessarily forecloses effective appellate review-
s both at the 	district court and before 	us-of whether the 	Board's 	decision 1s
6 supported by substantial evidence in the record when viewed as a whole.
7 {13} 	The City argues .on appeal that AFSCME "bears the burden of bringing a
8 record that is sufficient to support its contentions" and that AFSCME' s "failure to
9 satisfy this burden" and comply with Rule 12-318 NMRA's requirements to cite
10 the record proper in support of any arguments made "is grounds for striking
11 	[AFSCME's] brief in chief in its entirety or declining to address contentions made
12 therein." While Rule 1-074(H)(4) provides that the party "desiring a copy of the
13 	transcript of the proceedings shall be responsible for paying the cost, if any, of
14 preparing such copy[,]" the rule is clear that it is the agency's responsibility to
15 timely file the record proper in the district court. Rule 1-074(H). The City can
16 hardly be heard to complain that AFSCME failed to comply with applicable rules
17 requiring it to support its arguments with citations to the record, see Rule 	1-
18 	074(K)(3) (requiring arguments to be supported by "citations to ... the record on
19 appeal relied upon") and Rule 12-318(A)(4) ( requiring arguments to be supported
20 with "citations to ... [the] record proper, transcript of proceedings, or exhibits
11

1 relied on"), when it was the City's responsibility in the first instance to provide a
2 complete record to the district court and repeatedly failed to do so.
3 	{14} 	Troubling also is the City's failure to comply with its own obligations-
4 identical to 	AFSCME's-to 	provide citations to the record in support 	of its
5 argument that there was substantial evidence _to support the Board's decision. See
6 Rule 1-074(L) ("The appellee's response shall conform to the requirements of
7 Subparagraphs (1) to (4) of Paragraph K of this rule[.]"); Rule 12-318(B) ("An
8 answer 	brief shall 	conform 	to 	the 	requirements 	of 	the 	brief in 	chiefl. ]").
9 Conspicuously absent from the City's presentation in the district court was any
10 discussion whatsoever of the evidence-testimonial or otherwise-that supported
11 	the Board's decision that each of the five positions was ineligible for accretion to
12 the unit. See Gallup Westside Dev., LLC, 2004-NMCA-010,, 11 (explaining that
13 	the question to be answered in a substantial evidence challenge is "whether the
14 record supports the result reached"). 	Instead, the City merely pointed to the
15 	Board's 	verbal 	explanation 	of 	the 	generic 	"bases"-i.e., 	the 	definition 	of
16 supervisor, the parties' arguments in their briefs, unspecified "case law," and the
17 testimony of one of Lujan's employees-it relied on to conclude that AFSMCE
18 	"had not met its burden of proof' to support the Board's decision. But the question
19 before the district court was not whether the Board properly concluded that
20 AFSCME had not met its burden of proof. Rather, in order to affirm the Board's
12

1 decision, the record on the whole had to contain substantial evidence to support the
2 Board's ultimate determination that each of the five positions AFSC:ME sought to
3 accrete to the unit was not appropriate for accretion. For the same reasons we
4 cannot now determine this issue, neither could the district court have done so on
5 the incomplete and inadequate record on appeal before it.
6 {15} 	Notably, Rule 1-074(1) provides that "[i]f anything material to either party is
7 omitted from the record on appeal by error or accident, the parties by stipulation,
8 or the agency on request, or the district court, on proper suggestion or on its own
9 initiative, may direct that the omission be corrected and a supplemental record
10 transmitted to the district court[.]" While the rule provides the district court
11 	discretion to "direct that the omission be corrected[,]" Id. 	we conclude that the
12 district court erred here in failing to direct the City to supplement the record on
13 	appeal with the transcript or recording of the merits hearing given that the primary
14 	issue before the district court was whether there was substantial evidence to
15 	support 	the 	Board's 	denial 	of 	AFSMCE's 	petition. 	Under 	different
16 circumstances-for example, where the district court is presented with purely legal
17 questions in an administrative appeal-the failure to correct such an omission may
18 not constitute error. But because of the nature of AFSCME's appeal and the whole-
19 record standard of review, the district court could not have properly carried out its
20 responsibilities under Rule 1-074 without undertaking an independent review of
13

1 the entire record, including, critically, the merits hearing, as well as all evidence
2 presented to the Board. Particularly given the absence of findings 	of fact and
3 conclusions of law by the Board and the scant reasoning provided by the Board at
4 the April 27, 2015, meeting when it rendered its decision on AFSCME's petition,
5 the district court was not in a position to draw an informed conclusion as to
6 whether the Board's decision was or was not supported by substantial evidence
7 without reviewing the whole record as the rule requires it to do.
8 	{16} 	We, therefore, reverse the order of the district court affirming the decision of
9 the Board and remand to the district court with instructions that it (1) direct the
10 City to timely file a proper and complete record in accordance with all of the
11 	requirements of Rule 1-074(H), and (2) undertake whole record review of the
12 entire record to determine whether substantial evidence supports the Board's
13 	determination that none of the five positions is eligible for accretion. In the event
14 that no recording of the merits hearing was ever made or currently exists, the
15 	district court shall vacate the Board's decision and remand the case to the Board
16 with instructions that it conduct a new merits hearing that shall be recorded in
17 accordance with the Board's rules.
18 {17} 	This opinion is not to be construed as restricting in any way the district
19 court's ability to exercise its discretion under Rule 1-074 to effectuate proper
20 appellate review of the Board's decision. See, e.g., Rule 1-074(X)(4) (providing
14

1 that the district court may "take such action as it deems appropriate" in the event
2 that 	it 	determines 	that 	any 	party 	has 	failed 	to 	comply 	with 	Rule 	1-074' s
3 requirements). Indeed, the district court may very well determine on remand that
4 remanding to the Board for findings and conclusions is appropriate despite the
5 parties' contention to the contrary, see Rule 1-074(T)(l), or that the parties should
6 have to rebrief their arguments following the filing of the complete record proper
7 in order to comply with Rule 1-074(K)-(M). The critical point we emphasize is that
8 this Court's inability-despite our best, and, unfortunately, wasted, 	efforts-to
9 even reach the merits of this appeal, much less resolve them, directly stems from
10 the 	combined 	failures 	of the 	parties 	and the 	district 	court to 	adhere to 	the
11 	straightforward 	and 	sensible 	requirements 	set 	forth 	in 	Rule 	1-074. 	Those
12 requirements, as evidenced by this case, exist for a reason, and care should be
13 	taken to comply with them in order to facilitate the meaningful appellate review of
14 administrative decisions as contemplated by the rule.
15 	CONCLUSION
16 	{18} 	For the foregoing reasons, we reverse the district court's order affirming the
17 Board's decision and remand for proceedings in accordance herewith.
18 	{19}
19
20
IT IS SO ORDERED.
J. MILES HANISEE, Judge
15

1
WE CONCUR:
2 3
LINDA M. VANZI, Judge
4 5
Cie J.Vargas
JULIE J. VARGAS, Judge
16