March 11, 2013 – David Luginbuhl v. City of Gallup, Gallup Police Department, No. 31,910

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _____________
Filing Date: March 11, 2013
NO. 31,910
DAVID LUGINBUHL,
Petitioner/Appellant,
v.
CITY OF GALLUP,
GALLUP POLICE DEPARTMENT,
Respondents/Appellees.
APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Robert Aragon, District Judge
Vega Lynn Law Offices, LLC
Rosario D. Vega Lynn
Albuquerque, NM
for Appellant
Mason and Isaacson, PA
Thomas Lynn Isaacson
Gallup, NM
for Appellee

OPINION
ZAMORA, Judge.
{1} 	Petitioner David Luginbuhl appeals from the district court’s denial of his
petition for injunctive relief seeking to block the City of Gallup (City) and the Gallup
Police Department (GPD) from forcing him to resolve his employment dispute
through arbitration. Petitioner argues that because he is not a dues-paying member of
the Gallup Police Officer’s Association (Union), he should not be forced to abide by
the arbitration clause of the Collective Bargaining Agreement (CBA) between the
Union, which represents members of the GPD, and the City, but rather that he should
be allowed to pursue relief immediately in the district court to seek redress for his
dismissal from the GPD. We disagree, and we affirm the district court for the reasons
that follow.
BACKGROUND
{2} 	Petitioner was a full-time police officer for the GPD from October 27, 2007,
until his termination on June 8, 2011. During his time of employment he chose not
to join the Union, did not pay dues, and never sought the assistance of the Union.
{3} 	The City recognized the Union “as the exclusive collective bargaining
representative for the regular full-time non-probationary sworn police officers
(Certified), Patrolman First Class (PFC), and Sergeants.” 	Despite his decision to
decline union membership, Petitioner acknowledges that he was a regular full-time

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non-probationary sworn police officer employed by the GPD and a member of the
bargaining unit covered by the CBA.
{4} 	The CBA contains all issues introduced for negotiation and agreed by and
between the Union and the City. There were forty-two matters negotiated and reduced
to writing, including but not limited to annual clothing allowances for uniforms; rules
regarding firearms; time off and various types of leave, including holidays; vacation
and holiday benefits; health coverage and salary compensation; overtime and extra-
duty assignments and pay; layoff and recall procedures; the filling of vacancies; the
disciplinary process; and a grievance and appeal process. 	The CBA took effect in
November 2008 and remained in effect until November 2011, and was the operative
agreement at the time of Petitioner’s June 2011 dismissal and implementation of the
grievance process. 	The grievance procedure begins when an employee “file[s] a
written grievance within seven (7) days of the date the employee knew or should have
known of the issue that generated the disciplinary action.”
{5} 	Petitioner initiated the grievance procedure to challenge his termination. He
followed the first three steps of the grievance process: 	(1) a meeting between the
employee and his or her supervisor, (2) a meeting between the employee and the
police chief, and (3) a meeting with the city manager to help resolve the dispute.
However, he elected not to follow through with the fourth and final step: arbitration.
Instead, claiming he was not bound by the CBA because of his non-union status, he

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filed his petition in district court seeking injunctive relief. 	A hearing was held on
December 20, 2011, at the end of which the petition was denied, with a written order
following on January 4, 2012. This appeal followed, and we address the question of
whether the district court properly denied the petition.
DISCUSSION
I. 	Standard of Review
{6} 	“Any request for injunctive relief is directed to the sound discretion of the
[district] court.” 	Cunningham v. Gross, 102 N.M. 723, 725, 699 P.2d 1075, 1077
(1985). 	“When a [district] court misapprehends the law, the court abuses its
discretion.” Smart v. Carpenter, 2005-NMCA-056, ¶ 6, 139 N.M. 524, 134 P.3d 811;
see Aragon v. Brown, 2003-NMCA-126, ¶ 9, 134 N.M. 459, 78 P.3d 913 (stating that
a district court abuses its discretion “when it applies an incorrect standard, incorrect
substantive law, or its discretionary decision is premised on a misapprehension of the
law”). 	A district court’s conclusions of law are reviewed de novo. 	Smart, 2005-
NMCA-056, ¶ 7. 	To the extent we address constitutional issues, our review is de
novo. State v. Pacheco, 2007-NMSC-009, ¶ 12, 141 N.M. 340, 155 P.3d 745.
II. 	Writ of Prohibition
{7} 	We begin by noting that Petitioner sought a writ of prohibition from the district
court as well as a temporary restraining order and preliminary injunction. A district
court may issue a writ of prohibition “provided, that no such writs shall issue directed

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to judges or courts of equal or superior jurisdiction.” N.M. Const. art. VI, § 13; see
State v. Valerio, 2012-NMCA-022, ¶ 16, 273 P.3d 12 (“District courts have the
authority . . . to issue writs of prohibition to courts of inferior jurisdiction.”), cert.
denied, 2012-NMCERT-___, 291 P3d. 598. 	“It is well established that the
extraordinary writ of prohibition is generally available only in cases where there is no
adequate remedy at law.” Valerio, 2012-NMCA-022, ¶ 23; see 17 McQuillin Mun.
Corp. § 49:80, 556 (3d ed. 2004) (noting the “fundamental fact that the purpose of the
writ is to prevent the lower body from assuming jurisdiction with which it is not
legally vested, or where having jurisdiction, it has exceeded its legitimate powers”);
State ex rel. Wells v. Hough, 91 S.W. 905, 915 (Mo. 1906) (“Its chief function is to
keep inferior courts within the orbit of their rightful jurisdiction.”).
{8} 	The City contends that the district court was without jurisdiction to grant the
request for a writ of prohibition because the municipality is not an “inferior court” as
contemplated by the constitutional provision. As discussed below, we decide that no
injunctive relief in any form—whether it be a writ of prohibition, temporary
restraining order, or a preliminary injunction—is proper in this case, because
arbitration is the proper forum for Petitioner’s grievance. 	Therefore, we need not
address the question of whether a writ of prohibition may issue from a district court

1Petitioner did not join an arbitrator as a party to his petition for a writ of
prohibition, so we also need not decide whether an arbitrator or arbitration proceeding
stands as an “inferior court” for purposes of a district court issuing a writ of
prohibition.
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to a municipality or an arm of a municipality. 1 We now proceed to the issues raised
by Petitioner’s appeal.
III. 	Whether Petitioner is Subject to the Public Employee Bargaining Act
{9} 	Petitioner contends that he filed a grievance according to the City’s personnel
rules and regulations for non-union employees, and not a grievance pursuant to the
CBA. The primary difference between the two processes is that the CBA requires
arbitration. Public employers and employees in New Mexico are also subject to the
Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003, as
amended through 2005). Whether the Petitioner has a duty to arbitrate depends on
whether or not he falls within the strictures of the PEBA.
{10} 	The PEBA identifies the parties to a collective bargaining agreement. A “public
employer” is defined as “the state or a political subdivision thereof,” and a “public
employee” is “a regular non[-]probationary employee of a public employer.” Section
10-7E-4(R), (S) (internal quotation marks omitted). 	Petitioner is a regular non-
probationary employee of the City, a municipal corporation of the State of New
Mexico, as a member of the GPD. An “appropriate bargaining unit” is defined as “a
group of public employees designated by the board or local board for the purpose of

2 The Union is an affiliate of the Fraternal Order of Police, and the McKinley
County Lodge No. 7 Fraternal Order of Police.
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collective bargaining.” Section 10-7E-4(A) (internal quotation marks omitted). As
noted above, Petitioner concedes that, as a regular full-time sworn police officer with
the GPD, he was a member of the bargaining unit.
{11} 	A “labor organization” is defined as “an employee organization, one of whose
purposes is the representation of public employees in collective bargaining,” and a
labor organization is an “exclusive representative” when it “has the right to represent
all public employees in an appropriate bargaining unit for the purposes of collective
bargaining.” Section 10-7E-4(I), (L) (internal quotation marks and citation omitted).
The City recognized the Union as the exclusive bargaining representative. The City
and the Union 2 entered into a [CBA] that was in effect from November 2008 to
November 2011. 	As required by the PEBA, the CBA contained a grievance
procedure. Section10-7E-17(F) states:
An agreement shall include a grievance procedure to be used for the
settlement of disputes pertaining to employment terms and conditions
and related personnel matters. The grievance procedure shall provide for
a final and binding determination. 	The final determination shall
constitute an arbitration award within the meaning of the Uniform
Arbitration Act [(UAA)] [NMSA 1978, §§44-7A-1 to 28 (2001)]; such
award shall be subject to judicial review pursuant to the standard set
forth in the [UAA]. The costs of an arbitration proceeding conducted
pursuant to this subsection shall be shared equally by the parties.

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{12} 	Section 34 of the CBA sets forth the grievance and appeal procedures and the
four-step grievance process, which includes the arbitration provision. The arbitration
provision states that the “decision of the [a]rbitrator shall be final and binding on both
the [p]arties.”
{13} 	We conclude petitioner is a public employee, working for a public employer,
and he is therefore subject to the PEBA, the November 2008 to November 2011 CBA,
and the four-step grievance procedure provided for within that CBA, which includes
arbitration, prior to seeking judicial review.
IV. 	Whether the Arbitration Clause Is Unsupported by Consideration or
Vague
{14} 	As a threshold matter, Petitioner argues that the arbitration agreement is
unenforceable because it is unsupported by consideration. He also contends that the
arbitration clause at issue is impermissibly vague insofar as it is “unclear and too
broad” and fails to satisfy the United States Supreme Court’s requirement that the
agreement to arbitrate “must be clear and unmistakable.” Wright v. Universal Mar.
Serv. Corp., 525 U.S. 70, 80 (1998).
A. 	Consideration
{15} 	“A legally enforceable contract is a prerequisite to arbitration under the [UAA],
and without such a contract, the parties will not be forced to arbitrate.” Strausberg v.
Laurel Healthcare Providers, LLC, 2012-NMCA-006, ¶ 15, 	269 P.3d 914, cert.

8
granted 2012-NMCERT-001, 291 P.3d 599. 	For such a contract to be legally
enforceable, 	New 	Mexico 	courts 	require 	evidence 	of 	an 	“offer, 	acceptance,
consideration[,] and mutual assent.” Piano v. Premier Distrib. Co., 2005-NMCA-018,
¶ 6, 137 N.M. 57, 107 P.3d 11 (internal quotation marks and citation omitted).
“Consideration consists of a promise to do something that a party is under no legal
obligation to do or to forbear from doing something he has a legal right to do.” 	Id.
(internal quotation marks and citation omitted).
{16} 	Arbitration clauses in employment contracts have been widely held to include
consideration on the part of an employee from the inception of the contract. 	See
generally, Stephen F. Befort, Unilateral Alteration of Public Sector Collective
Bargaining Agreements and the Contract Clause, 59 Buff. J. Int’l L.1, 50 (2011).
Such arbitration clauses are “reciprocal in nature” and “courts treat the employee’s
promise to arbitrate as supported by the employer’s promise to do the same.” Rachel
Arnow-Richman, Cubewrap Contracts: The Rise of Delayed Term, Standard Form
Employment Agreements, 49 Ariz L. Rev. 637, 649 (2007). The Wyoming Supreme
Court has declared that benefits found in employment handbooks are supported by
consideration which “consists of the benefit of an orderly, cooperative and loyal work
force.” 	Leithead v. Am. Colloid Co., 721 P.2d 1059, 1062-63 (Wyo. 1986). 	The
United States Supreme Court has characterized consideration in a CBA as “the

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arbitration agreement being the ‘quid pro quo’ for the agreement not to strike.” United
Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578 n.4 (1960).
{17} 	Courts 	in 	other 	jurisdictions 	also 	find 	disparate 	ways 	to 	characterize
consideration in an employment contract arbitration clause. See, e.g., Oblix, Inc. v.
Winiecki, 374 F.3d 488, 491 (7th Cir. 2004) (stating a worker’s salary is consideration
for an arbitration clause); Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th
Cir. 2002) (stating that an employer’s “promise to be bound by the arbitration process
itself serves as adequate consideration”); Barker v. Golf U.S.A., Inc., 154 F.3d 788,
792 (8th Cir. 1998) (stating that “consideration for a contract as a whole covers the
arbitration clause”); Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126,
1131 (7th Cir. 1997) (stating that “consideration for one party’s promise to arbitrate
is the other party’s promise to do the same”); In re Halliburton Co., 80 S.W.3d 566,
569 (Tex. 2002) (same); Walters v. A.A.A. Waterproofing, Inc., 85 P.3d 389, 392
(Wash. Ct. App. 2004) (same). By contrast, a lack of consideration for an arbitration
agreement is most commonly found when the employer has the unilateral right to
modify the arbitration clause, which is not present in the case before us. See Richard
A. Bales, Contract Formation Issues in Employment Arbitration, 44 Brandeis L.J.
415, 450-51 (2006).
{18} 	Here, we note that the parties to the CBA mutually agreed to arbitrate
grievances, and we presume that the CBA was negotiated in good faith and comported

10
with 	the 	PEBA’s 	stated 	purpose 	“to 	promote 	harmonious 	and 	cooperative
relationships between public employers and public employees.” 	Section 10-7E-2.
Furthermore, as the City points out, Petitioner, as an undisputed member of the
bargaining unit, enjoyed the benefits of the CBA’s provisions, including increased
compensation for serving as a member of the emergency response team, vacation and
holiday pay, a clothing allowance, and seniority rights. We adopt the reasoning of
other courts that find an arbitration clause in a validly negotiated CBA does not fail
for lack of consideration, and we conclude that the CBA at issue was supported by
adequate consideration.
B. 	Vagueness
{19} 	We are guided by the principle that a reviewing court “should view with
suspicion an attempt to persuade it to become entangled in the construction of the
substantive provisions of a labor agreement, even through the back door of
interpreting the arbitration clause, when the alternative is to utilize the services of an
arbitrator.” 	United Steelworkers, 363 U.S. at 585. 	In the case before us, the
arbitration clause applies to “any written dispute which may arise between the
[p]arties regarding disciplinary actions resulting in written reprimands through
dismissal or a violation of this agreement.” 	After following the initial three-step
process of meeting with the supervisor, police chief, and city manager, a grievant may
then proceed to the fourth and final step, arbitration:

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If the employee is not satisfied with the City Manager’s decision, the
[Union] and the employee (grievant) may within seven (7) days of the
City Manager’s decision, give notice to the City that the issue needs to
[be] resolved by arbitration.
Arbitration - The arbitration proceeding shall be conducted by an
experienced labor management relations arbitrator to be selected by the
City and the [Union]. The Federal Mediation and Conciliation Service
(FMCS) shall be requested by the [p]arties to provide a list of eligible
arbitrator names. . . . The decision of the Arbitrator shall be final and
binding on both the [p]arties. The cost of the arbitration will be borne
equally by both [p]arties.
{20} 	Petitioner argues that the arbitration clause lacks “explicit language in the
CBA” regarding the type of grievances that are subject to binding arbitration. We
disagree. 	The four-step grievance process culminating in arbitration covers “any
written dispute” between a member of the bargaining unit and the employer, and the
arbitration process itself is set forth in detail. 	As stated previously, the PEBA
mandates that CBAs require binding arbitration to settle disputes.
{21} 	In addition to the statutory requirement of binding arbitration, New Mexico
courts have encouraged arbitration in settling disputes. 	See Durham v. Guest,
2009-NMSC-007, ¶ 32, 145 N.M. 694, 204 P.3d 19 (stating that “New Mexico has a
strong public policy in favor of arbitration as a form of dispute resolution”); Clay v.
N.M. Title Loans, Inc., 2012-NMCA-102, ¶ 6, 288 P.3d 888 (calling arbitration “a
highly favored form of dispute resolution” (internal quotation marks and citation
omitted)), cert. denied, 2012-NMCERT-009, ___ P.3d ___. We recently noted that

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“any doubts concerning the scope of arbitrable issues should be resolved in favor of
arbitration, whether the problem at hand is the construction of the contract language
itself or an allegation of waiver, delay, or a like defense to arbitrability.” 	Clay,
2012-NMCA-102, ¶ 7 (internal quotation marks and citation omitted). We have also
encouraged courts to broadly construe arbitration provisions. 	Felts v. CLK Mgmt.,
Inc., 2011-NMCA-062, ¶ 22, 149 N.M. 681, 254 P.3d 124 (stating that “when the
parties agree to arbitrate any potential claims or disputes arising out of their
relationships by contract or otherwise, the arbitration agreement will be given broad
interpretation unless the parties themselves limit arbitration to specific areas or
matters” (alteration, internal quotation marks, and citation omitted)), cert. granted,
2011-NMCERT-006, 150 N.M. 763, 266 P.3d 632. 	“A [CBA] should be held to
include the right to arbitrate a specific grievance not expressly excluded by its terms,
and doubt should be resolved in favor of arbitration.” 	Jones v. Int’l Union of
Operating Eng’rs, 72 N.M. 322, 331, 383 P.2d 571, 577 (1963); see AT & T Techs.,
Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986) (reinforcing the idea of
a “presumption of arbitrability” and concluding that “[d]oubts should be resolved in
favor 	of 	coverage” 	(internal 	quotation 	marks 	and 	citation 	omitted)). 	When
interpreting an arbitration clause “courts will apply the plain meaning of the contract
language as written in interpreting terms of a contract.” Christmas v. Cimarron Realty
Co., 98 N.M. 330, 332, 648 P.2d 788, 790 (1982).

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{22} 	Giving a broad reading to the arbitration clause at issue and indulging the
presumption in favor of arbitrability, we find unavailing Petitioner’s contention that
the clause is vague or unclear. The settlement of any written dispute brought by a
member of the bargaining unit, under the plain language of both the CBA and the
PEBA, is to culminate in binding arbitration. By engaging in the grievance process,
Petitioner initiated a written dispute, and like all members of the bargaining unit he
is covered by the contract’s grievance procedure. The CBA’s arbitration clause is not
vague or uncertain in its application.
{23} 	Although we have concluded that Petitioner is a member of the bargaining unit,
subject to the PEBA, the CBA, and its arbitration clause, it is important that we
address Petitioner’s contention that, as a non-union member, he is exempt from the
CBA’s grievance procedure and thus is being denied an adequate remedy at law.
V. 	Application of the Arbitration Clause to a Non-Union Member of the
Bargaining Unit
{24} 	Petitioner argues that because he is not a member of the Union he is not bound
by the CBA’s arbitration clause. He further contends that requiring him to arbitrate
his grievance rather than proceed to district court denies him his right to seek redress
in the courts. We take those arguments in order.
A. 	Whether Petitioner is Bound by the Arbitration Clause

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{25} 	“Parties contracting to resolve disputes by arbitration are bound by their
agreement. 	The terms of the agreement define the scope of the jurisdiction,
conditions, limitations[,] and restrictions on the matters to be arbitrated.” Christmas,
98 N.M. at 332, 648 P.2d at 790 (citation omitted). “Thus, when parties have agreed
to arbitrate, the courts must compel arbitration.” 	Santa Fe Techs., Inc. v. Argus
Networks, Inc., 2002-NMCA-030, ¶ 51, 131 N.M. 772, 42 P.3d 1221.
{26} 	In the case before us, the CBA defines a bargaining unit employee as “an
employee who occupies a position within the department that has been identified as
appropriate for inclusion in the bargaining unit and who has completed the required
twelve (12) month probationary period.” 	The PEBA defines an “appropriate
bargaining unit” as “a group of public employees designated by the [public employee
labor relations] board or local board for the purpose of collective bargaining.” Section
10-7E-4(A) (internal quotation marks omitted). 	The PEBA further dictates that
“[a]ppropriate bargaining units shall be established on the basis of occupational
groups or clear and identifiable communities of interest in employment terms and
conditions and related personnel matters among the public employees involved.
Occupational groups shall generally be identified as blue-collar, secretarial clerical,
technical, professional, paraprofessional, police, fire[,] and corrections.” Section 10-
7E-13(A) (emphasis added).
{27} 	The PEBA further provides that:

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A. 	A labor organization that has been certified by the board or
local board as representing the public employees in the appropriate
bargaining unit shall be the exclusive representative of all public
employees 	in 	the 	appropriate 	bargaining 	unit. 	The 	exclusive
representative shall act for all public employees in the appropriate
bargaining unit and negotiate a [CBA] covering all public employees in
the appropriate bargaining unit. 	The exclusive representative shall
represent the interests of all public employees in the appropriate
bargaining unit without discrimination or regard to membership in the
labor organization.
B. 	This section does not prevent a public employee, acting
individually, from presenting a grievance without the intervention of the
exclusive representative. 	At a hearing on a grievance brought by a
public employee individually, the exclusive representative shall be
afforded the opportunity to be present and make its views known. An
adjustment made shall not be inconsistent with or in violation of the
[CBA] then in effect between the public employer and the exclusive
representative.
Section 10-7E-15(A), (B) (emphasis added). Finally, the PEBA states that a public
employee shall not “refuse or fail to comply with a collective bargaining or other
agreement with the public employer.” Section 10-7E-20(D).
{28} 	Plaintiff’s contention that, as a non-union member of the bargaining unit, he is
not bound by the agreement to arbitrate disputes is refuted by the plain language of
the PEBA. It is also at odds with the long-standing reasoning of the United States
Supreme Court, which has stated: 	“The labor organization chosen to be the
representative of the craft or class of employees is thus chosen to represent all of its
members, regardless of their union affiliations or want of them.” Steele v. Louisville
& N.R. Co., 323 U.S. 192, 200 (1944); see Bhd. of Ry. and Steamship Clerks v. Fla.

16
E. Coast Ry. Co., 384 U.S. 238, 246 (1966) (“The union remains the bargaining
representative of all the employees in the designated craft, whether union members or
not.”). Our Supreme Court has also held that, in a collective bargaining setting, “the
[terms] ‘union members’ and ‘employees,’ as contemplated by the contracting parties,
are one and the same.” Key v. George E. Breece Lumber Co., 45 N.M. 397, 402, 115
P.2d 622, 625 (1941). 	Other jurisdictions concur. 	See, e.g., Corzine v. Bhd. of
Locomotive Eng’rs, 147 F.3d 651, 652 (7th Cir. 1998); Journeymen Pipe Fitters Local
392 v. N.L.R.B., 712 F.2d 225, 228 (6th Cir. 1983) (per curiam); Queen Mary Rests.
Corp. v. N.L.R.B., 560 F.2d 403, 409 (9th Cir. 1977); Dillon v. Am. Brass Co., 60 A.2d
661, 663 (Conn. 1948); Bouchard Transp. Co., Inc. v. Connors, 811 So. 2d 787, 788-
89 (Fla. Dist. Ct. App. 2002); Gorham v. City of Kansas City, 590 P.2d 1051, 1057
(Kan. 1979) (“A majority of the employees having voted in favor of representation,
[a]ll are represented whether they be members of the employee organization or not,
and whether or not they agree with all of the policies, acts, and contracts of the
employee organization.”); Holley v. Painters Local Union No. 318, 376 S.W.2d 44,
47 (Tex. App. 1964) (“Contractual provisions covering wages and conditions apply
equally to all employees, whether union or nonunion.”).
{29} 	Even the City’s Labor Management Relations Ordinance states that “a CBA
cover[s] all employees in the bargaining unit.” 	City of Gallup, N.M., Labor
Management Relations Ordinance ch. 12, § 1-12-12 (2008). 	The ordinance also

17
requires a union to fairly represent “all employees in the bargaining unit without
discrimination or regard to membership or nonmembership in the labor organization.”
Id. Finally, the City’s ordinance requires all employees to abide by the contract and
to follow “the required negotiated grievance procedure negotiated by the parties.”
Gallup, N.M., Ordinance § 1-12-17(A)(5).
{30} 	In the case before us, it is undisputed that Petitioner is a member of the
bargaining unit that negotiated the CBA, including its valid arbitration clause, with
the City. For decades, both New Mexico case law and federal labor jurisprudence
have recognized that the terms and conditions of a CBA, including arbitration clauses,
apply to all members of the bargaining unit. We therefore conclude that Petitioner is
bound by the requirement of the CBA as well as the PEBA and that a grievance
challenging the termination of employment is subject to binding arbitration.
B. 	Petitioner’s Right to Seek Redress in the Courts
{31} 	“The right of access to the courts is one aspect of the right to petition the
government for redress of grievances, as guaranteed by the First Amendment to the
U.S. Constitution, and also is protected by the provisions protecting due process of
law[.]” Bd. of Educ. of Carlsbad Mun. Schs. v. Harrell, 118 N.M. 470, 480, 882 P.2d
511, 521 (1994). Petitioner sought injunctive relief to avoid suffering “irreparable
harm” if forced to arbitrate his grievance. We note that “[i]njunctions are harsh and
drastic remedies which should issue only in extreme cases of pressing necessity and

18
only where there is no adequate and complete remedy at law.” 	Hill v. Cmty. of
Damien of Molokai, 1996-NMSC-008, ¶ 51, 121 N.M. 353, 911 P.2d 861 (internal
quotation marks and citation omitted). We look to see whether binding arbitration,
subject to the appeals process, provides Petitioner with an adequate and complete
remedy at law.
{32} 	Our Supreme Court has recently reaffirmed the notion that “the State has
ratified, if not encouraged, arbitration as a form of dispute resolution.” 	Durham,
2009-NMSC-007, ¶ 32. 	Foundational federal law supports that premise as well:
“The present federal policy is to promote industrial stabilization through the [CBA].
A major factor in achieving industrial peace is the inclusion of a provision for
arbitration of grievances in the [CBA].” United Steelworkers, 363 U.S. at 578.
{33} 	As noted above, New Mexico’s PEBA requires all CBAs to provide for a
grievance procedure that culminates in binding arbitration of disputes. 	Section
10-7E-17(F). That mandate comports with federal labor policy and jurisprudence and
goes to the roots of the relationship between employers and their workforce. “Since
arbitration of labor disputes has quite different functions from arbitration under an
ordinary commercial agreement, the hostility evinced by courts toward arbitration of
commercial agreements has no place here. 	For arbitration of labor disputes under
[CBA]s is part and parcel of the collective bargaining process itself.” 	United
Steelworkers, 363 U.S. at 578.

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{34} 	Petitioner’s attempt to characterize himself as a non-union victim of the
Union’s duties to represent all members of the bargaining unit also falters under the
weight of decades of federal labor policy. The United States Supreme Court has noted
that the fact that labor unions “balance the economic interests of some employees
against the needs of the larger work force as they negotiate [CBA]s and implement
them . . . does not justify singling out an arbitration provision for disfavored
treatment.” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 270 (2009). “Congress sought
to secure to all members of the unit the benefits of their collective strength and
bargaining power, in full awareness that the superior strength of some individuals or
groups might be subordinated to the interest of the majority.” Id. at 270-71 (internal
quotation marks and citation omitted); see id. at 271 (further noting that “the benefits
of organized labor outweigh the sacrifice of individual liberty that this system
necessarily demands”). 	Any claim that the union is denying a member of the
collective bargaining unit his day in court, the Court concluded, “amounts to a
collateral attack on the [National Labor Relations Act].” Id.
{35} 	Arbitration is not a deficient or substandard forum for resolving workplace
disputes. The United States Supreme Court recently affirmed the idea that requiring
arbitration of even statutory claims does not infringe upon an individual’s right to seek
redress in the courts. See id. at 249 (“[T]he decision to resolve ADEA claims by way
of arbitration instead of litigation does not waive the statutory right to be free from

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workplace age discrimination; it waives only the right to seek relief from a court in
the first instance.”).
{36} 	Here, Petitioner is not without recourse in the courts; he retains the right to
appeal any arbitration decision to the district court. Section 44-7A-29(a)(6). “The
general rule is, however, that an individual employee must show that he has exhausted
the grievance procedures provided by the agreement as a condition to his right to
maintain an action in court.” 	Jones, 72 N.M. at 326, 383 P.2d at 574. In the case
before us, exhausting the grievance procedures would require submitting the dispute
to binding arbitration.
{37} 	Our Supreme Court has long held that the appeals process suffices to serve as
a check on lower courts, which are presumed to be fair and impartial. 	See Bd. of
Comm’rs of Guadalupe Cnty., 29 N.M. 244, 260, 223 P. 516, 520 (“There are other
reasons why the alternative writ of prohibition was improvidently issued by us. There
is another and an adequate remedy by appeal. . . . Courts are to be always presumed
to act fairly and impartially, and to administer justice to all the people.”). We presume
that arbitration provides an adequate forum for Petitioner to have his claim
adjudicated, subject to review by a district court acting in its appellate capacity. Our
Supreme Court has stated: “There is a spirit of confidence and respect which should
at all times be entertained between courts of superior and inferior jurisdiction. And
that a question pending before an inferior court will be correctly decided should

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always be assumed by us.” 	Id. at 261, 223 P. at 521. 	The United States Supreme
Court agrees: 	“This presumption of arbitrability for labor disputes recognizes the
greater institutional competence of arbitrators in interpreting [CBA]s, furthers the
national labor policy of peaceful resolution of labor disputes[,] and thus best accords
with the parties’ presumed objectives in pursuing collective bargaining.” 	AT & T
Techs., Inc., 475 U.S. at 650 (emphasis added) (internal quotation marks and citation
omitted).
{38} 	We conclude that arbitration provides an adequate and complete forum and
remedy at law for disputes governed by the CBA, including Petitioner’s grievance for
his termination from his position as a police officer for the City.
VI. 	Impact on a Potential Claim Under the Tort Claims Act
{39} 	Finally, Petitioner points out that he has served notice to the City and GPD of
a tort claim against them under the New Mexico Tort Claims Act (NMTCA), NMSA
1978, § 41-4-12 (1977). He contends that the GPD is trying “to negotiate away” his
“statutorily created individual right[]” of pursuing his claim under the NMTCA by
blocking his access to district court. He argues that the PEBA does not supersede the
NMTCA and that he should be allowed to pursue that claim in court.
{40} 	The potential tort claim pertains to Petitioner’s arrest related to a domestic
incident that occurred before his dismissal. Petitioner did not mention a claim under
the NMTCA in his petition to the district court. The filing of notice of a claim under

22
the NMTCA was mentioned in passing at the beginning of the December 20, 2011,
hearing on the petition.
{41} 	Petitioner’s brief in chief fails to explain how the issue before us—whether he
must arbitrate the dispute over his termination from the GPD—has any bearing on his
right to pursue legal redress for an unrelated tort claim. At no time was the potential
tort claim considered by the district court as part of the petition for injunctive relief
or at the hearing. This issue was therefore not properly preserved for review. 	See
Schuster v. State Dep’t of Taxation & Revenue, 2012-NMSC-025, ¶ 33, 283 P.3d 288
(“To preserve an argument for appellate review, it must appear that an appellant fairly
invoked a ruling of the trial court on the same grounds argued in the appellate court.”
(internal quotation marks and citation omitted)); Crutchfield v. N.M. Dep’t of Taxation
& Revenue, 2005-NMCA-022, ¶ 14, 137 N.M. 26, 106 P.3d 1273. (“[O]n appeal, the
party must specifically point out where, in the record, the party invoked the court’s
ruling on the issue. Absent that citation to the record or any obvious preservation, we
will not consider the issue.”). Because the district court did not have an opportunity
to consider or rule on this issue, it is not properly before this Court. 	See Barron v.
Evangelical Lutheran Good Samaritan Soc’y, 2011-NMCA-094, ¶ 48, 150 N.M. 669,
265 P.3d 720.
CONCLUSION
{42} 	For the foregoing reasons, we affirm the ruling of the district court.

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IT IS SO ORDERED.
______________________________
M. MONICA ZAMORA, Judge
WE CONCUR:
__________________________________
CYNTHIA A. FRY, Judge
__________________________________
J. MILES HANISEE, Judge