December 02, 2014 – City of Albuquerque v. American Federation of State, County, and Municipal Employees Local 1888, No. 32,917

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 2, 2014
NO. 32,917
CITY OF ALBUQUERQUE,
Respondent,
v.
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES
Local 1888, et.al.,
Petitioners.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ted C. Baca, District Judge
City of Albuquerque
David Tourek, City Attorney
Rebecca E. Wardlaw, Assistant City Attorney
Samantha M. Hults, Assistant City Attorney
Albuquerque, NM
French & Associates, P.C.
Paula I. Forney
Stephen G. French
Albuquerque, NM
for Respondent

Youtz & Valdez, P.C.
Shane Youtz
Stephen Curtice
James Montalbano
Albuquerque, NM
for Petitioners

OPINION
GARCIA, Judge.
{1} 	We granted the American Federation of State, County, and Municipal
Employees’ (AFSCME) petition for writ of certiorari. AFSCME seeks review of a
district court order that affirmed in part and reversed in part the administrative
decision made by the Public Employee Labor Relations Board (the PELRB). The
district court determined that the PELRB properly dismissed AFSCME’s prohibited
practice complaints against the City of Albuquerque (the City) because the PELRB
did not have jurisdiction to hear those complaints. The district court also ruled that the
PELRB had no authority to “remand” the dismissed prohibited practices complaints
to the City’s Labor Management Relations Board (the LMRB).
{2} 	The critical issue involves the grandfather status of the LMRB under the Public
Employee Bargaining Act (the PEBA). For approximately eighteen months, the
LMRB was not functioning to resolve employee complaints because the board was
missing one of its required three members. AFSCME asserted that the PELRB had
jurisdiction under the PEBA to hear the prohibited practice complaints filed during
the time period that the LMRB was not functioning. Alternatively, AFSCME asserts
that the PELRB has jurisdiction to remand these specific prohibited practice
complaints directly to the LMRB once it began to function again. Under the

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undisputed factual circumstances presented for review, we affirm.
BACKGROUND
The Complaints
{3} 	AFSCME represents the City’s employees in their collective bargaining and
labor disputes with the City. Between September 2010 and June 2011, AFSCME filed
several prohibited practice complaints against the City. It did not file these complaints
with the LMRB, but instead filed them directly with the PELRB. It alleged in these
complaints that the PELRB had jurisdiction to hear them because the LMRB had been
“non-functional since December, 2009.”
The PELRB’s Dismissal and Remand
{4} 	The City asked the PELRB to dismiss the subject complaints that were filed
directly with the PELRB. It argued that the City was not subject to the PELRB’s
jurisdiction because it has grandfather status under the PEBA and the LMRB has
exclusive jurisdiction to hear those complaints against the City that AFSCME filed
with the PELRB.
{5} 	The PELRB’s hearing officer recommended that the complaints be dismissed.
He concluded that the PELRB did not have jurisdiction over the complaints because,
at the time of his recommendation, the LMRB had resumed functioning to process

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employee complaints against the City. In reaching this conclusion, the PELRB hearing
officer suggested that the PELRB would have jurisdiction over the complaints if the
LMRB was not “productive” or “functioning” at the time of his recommendation. The
hearing officer also recommended that the complaints be “remanded” to the LMRB.
The 	PELRB 	then 	issued 	a 	final 	decision 	that 	adopted 	the 	hearing 	officer’s
recommendations to dismiss the complaints and remand them to the LMRB.
The City’s Appeal to the District Court
{6} 	The City appealed the PELRB’s decision to the district court. It argued that the
PELRB had no jurisdiction to hear the complaints—even if LMRB was not hearing
them at the time of the PELRB decision—and thus, it had no authority to remand the
complaints to the LMRB. The district court agreed with the City that the PELRB did
not have jurisdiction to hear the complaints and that it also lacked authority to remand
the complaints to the LMRB. It effectively rejected the argument that the PELRB
could exercise any type of jurisdiction over the complaints at the time the PELRB
decision was rendered.
DISCUSSION
{7} 	In its brief in chief, AFSCME renews the arguments it made in front of the
PELRB and the district court. It argues that the PELRB may assume jurisdiction over

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complaints involving a public employer entitled to grandfather status under the PEBA
when that employer’s labor relations board is not operating at the time, and thus, that
the PELRB also had the authority to remand the complaints to the LMRB once it
returned to an operating status.
I. 	General Principles and Standard of Review
{8} 	“Administrative bodies are the creatures of statutes.” Pub. Serv. Co. of N.M. v.
N.M. Envtl. Improvement Bd., 1976-NMCA-039, ¶ 7, 89 N.M. 223, 549 P.2d 638.
They can act only on matters that are within the scope of the authority that a statute
has delegated to them “either expressly or by necessary implication.” Jones v. Holiday
Inn Express, 2014-NMCA-082, ¶ 9, 331 P.3d 992 (internal quotation marks and
citation omitted); see Pub. Serv. Co. of N.M., 1976-NMCA-039, ¶ 7.
{9} 	Whether an administrative body has acted beyond the scope of its authority is
a question of statutory construction that we review de novo. See Jones, 2014-NMCA-
082, ¶ 10; Leonard v. Payday Prof’l/Bio-Cal Comp., 2008-NMCA-034, ¶ 11, 143
N.M. 637, 179 P.3d 1245. When construing a statute, we “determine and give effect
to legislative intent” by looking to the plain meaning of the statute’s words and
reading its provisions “together to produce a harmonious whole.” Jones, 2014-
NMCA-082, ¶ 10 (internal quotation marks and citations omitted). We begin by

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looking to the state and local labor laws involved in this case.
II. 	The City’s Labor-Management Relations Ordinance
{10} 	In the early 1970’s, Albuquerque’s city council adopted an ordinance governing
the “[l]abor-[m]anagement [r]elations” between the City and its employees (the
LMRO). See Albuquerque, N.M., Ordinances ch. 3, art. II, §§ 3-2-1 to -18 (1971, as
amended through 2002). Among other things, the LMRO gives City employees the
right 	to 	organize 	for 	the 	purpose 	of 	collectively 	bargaining 	with 	the 	City.
Albuquerque, N.M., Ordinances ch. 3, art. II, §§ 3-2-2(A) and 3-2-3. And the LMRO
prohibits the City and its employees from engaging in certain conduct, which it calls,
“prohibited practices.” Albuquerque, N.M., Ordinance 	ch. 3, art. II § 3-2-9. {11}
The LMRO requires that a three-member board “be formed[] to assist in the
implementation 	and 	administration 	of 	the 	[ordinance].” 	Albuquerque, 	N.M.,
Ordinance § 3-2-15. When a City employee believes that the City has engaged in a
“prohibited practice,” he or she must submit a complaint to the LMRB within thirty
days from the date that the alleged prohibited practice occurred. Albuquerque, N.M.,
Ordinance § 3-2-9(D). The City has five days to answer this complaint and, within
five days of the City’s answer, the LMRB must schedule a hearing. Id. Although the
LMRO provides an avenue for the City or an employee to appeal the LMRB’s

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decision, Albuquerque, N.M., Ordinance § 3-2-10(D), it does not identify or provide
a specific remedy where the LMRB fails to timely render a decision.
III. 	The PEBA
{12} 	About twenty years after the City adopted its LMRO, the Legislature first
enacted a statewide labor-management relations law for public employees (the
PEBA). See City of Albuquerque v. Montoya, 2012-NMSC-007, ¶ 9, 274 P.3d 108.
The 	PEBA 	“guarantees 	public 	employees 	the 	right 	to 	organize 	and 	bargain
collectively with their employers.” Id. (alteration, internal quotation marks, and
citation omitted); see NMSA 1978, § 10-7E-2 (2003). And it created the statewide
PELRB. NMSA 1978, § 10-7E-8(A) (2003). The PELRB “has the power to enforce
provisions of the [PEBA.]” NMSA 1978, § 10-7E-9(A), (F) (2003).
{13} 	The PEBA includes a grandfather clause for public employers who, like the
City, had adopted their own collective bargaining systems before the PEBA was
enacted. NMSA 1978, § 10-7E-26(A) (2003); Montoya, 2012-NMSC-007, ¶ 9. This
grandfather clause allows a public employer to “continue to operate under [its own]
provisions and procedures” where two conditions are met. Section 10-7E-26(A). The
first condition is that the public employer must have “adopted by ordinance,
resolution[,] or charter amendment a system of provisions and procedures permitting

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employees to form, join[,] or assist a labor organization for the purpose of bargaining
collectively.” Id.; see Montoya, 2012-NMSC-007, ¶ 10. The second condition is that
this system must have been adopted before October 1, 1991. Section 10-7E-26(A); see
Montoya, 2012-NMSC-007, ¶ 10. Additionally, if a grandfathered public employer’s
pre-existing ordinance, resolution, or charter amendment “substantial[ly] change[s]
after January 1, 2003[,]” the grandfathered public employer must comply with
additional provisions enumerated in Section 10-7E-26(B) of the PEBA. Section 10-
7E-26(A). Thus, as long as a public employer’s system of provisions and procedures
meets the two conditions for grandfather status and the written policy adopting that
system has not substantially changed after January 1, 2003, the employer does not
have to comply with any other provisions of the PEBA. Id.; see Montoya, 2012-
NMSC-007, ¶¶ 9, 11 (stating that Section 10-7E-26(A) is a “grandfather clause” that
“remove[s] from the statute’s reach a class that would otherwise be encompassed by
its language” (internal quotation marks and citation omitted)); see alsoCity of Deming
v. Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 6, 141 N.M. 686, 160 P.3d
595 (recognizing that if the grandfather clause applies, “the PEBA does not apply”).
{14} 	The PEBA defines “collective bargaining” as “the act of negotiating between
a public employer and an exclusive representative for the purpose of entering into a

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written agreement regarding wages, hours[,] and other terms and conditions of
employment[.]” NMSA 1978, § 10-7E-4(F) (2003) (internal quotation marks and
citation omitted). The PEBA does not require grandfathered public employers, whose
collective bargaining systems have not substantially changed after January 1, 2003,
to have local boards that are actively adjudicating employee grievances.
IV. 	Analysis
{15} 	AFSCME does not dispute that the City’s LMRO is entitled to grandfather
status under the PEBA and that the LMRO has not substantially changed since
January 1, 2003. Instead, AFSCME points to the PEBA’s language that allows
grandfathered public employers to “continue to operate” under their pre-existing
systems. See § 10-7E-26(A). It submits that this language implies that the PELRB
could hear complaints involving grandfathered public employers if the local boards
created under those systems were not in fact “operating” or “functioning” to hear
complaints. We disagree.
{16} 	The PELRB was created by the PEBA and its authority is limited to those
matters that the PEBA has delegated to it “either expressly or by necessary
implication.” Jones, 2014-NMCA-082, ¶ 9 (internal quotation marks and citation
omitted); see Pub. Serv. Co. of N.M., 1976-NMCA-039, ¶ 7; see also § 10-7E-8(A)

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(creating the PELRB). The PEBA does not expressly delegate any authority to the
PELRB to hear complaints involving grandfathered public employers. But, by
implication, the PELRB has the power to determine in the first place whether a public
employer or aspects of its labor relations system meet the conditions for grandfather
status. See Deming Firefighters Local 4521, 2007-NMCA-069, ¶ 14 (“[T]he PELRB
has the initial ability to determine its jurisdiction[.]”).
{17} 	Once the determination is made that a public employer and its labor relations
system has grandfather status and that its collective bargaining system has not
substantially changed after January 1, 2003, no other provision of the PEBA applies
to that employer. Id. ¶ 6 (explaining that if the grandfather clause applies, “the PEBA
does not apply”). And, if the public employer is not subject to the terms of the PEBA,
then the PELRB has no jurisdiction to hear its complaints because the PELRB can
only enforce the PEBA— it cannot enforce the LMRO. See § 10-7E-9(F) (noting that
the PELRB “has the power to enforce provisions of the [PEBA]”); Regents of Univ.
of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 4, 125 N.M. 401, 962 P.2d
1236 (recognizing that the “PEBA created the PELRB, whose function is the
administration of [the] PEBA”); Deming Firefighters Local 4521, 2007-NMCA-069,
¶ 6 (“[B]ecause the PEBA does not apply, the [PELRB] does not have jurisdiction.”).

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{18} 	We therefore agree with the district court’s conclusion that the PELRB did not
have jurisdiction to hear AFSCME’s complaints and that it did not act “in accordance
with law” when it remanded the complaints to the LMRB. See Regents, 1998-NMSC-
020, ¶ 16 (recognizing that a court may reverse the PELRB’s actions where those
actions are “arbitrary, capricious[,] or an abuse of discretion; . . . not supported by
substantial evidence on the record taken as a whole; or . . . otherwise not in
accordance with law”). Complaints cannot be “remanded” to a tribunal if they did not
originate there. See Black’s Law Dictionary 1102 (abridged 9th ed. 2010) (defining
“remand” as meaning “[t]o send (a case or claim) back to the court or tribunal from
which it came for some further action”); see also Mid-Ohio Liquid Fertilizers, Inc. v.
Lowe, 469 N.E.2d 1019, 1021 (Ohio Ct. App. 1984) (“To remand is to send back.
Further, the term implies that what is being sent back is returned from where it came.
‘Remand’ is subject to no other construction.”); Los Alamos Cnty. v. Beery, 1984-
NMSC-050, ¶ 3, 101 N.M. 157, 679 P.2d 825 (stating that an “order of remand simply
returns the jurisdiction of the cause to the lower court in which it originated”). And
the PEBA does not grant the PELRB the authority, either expressly or by necessary
implication, to transfer complaints against a public employer to other tribunals. See
§10-7E-9 (“Board; powers and duties.”).

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{19} 	We note that this decision is limited to the narrow issue of jurisdiction under
the PEBA. AFSCME has not challenged whether the City’s LMRO continued to be
entitled to grandfather status because the LMRB was not “operating” for over eighteen
months. It also did not raise any arguments involving due process, equity, or other
legal principles. Thus, we do not address these issues. See State v. Bell, 2014-NMCA-
___, ¶ 19, ___ P.3d ___ (No. 31,890, Sept. 9, 2014) (“We do not address issues or
questions unraised by litigants.”). AFSCME has not asked this Court to review the
decision of the PELRB under a legal principle that might allow us to employ the right-
for-any-reason doctrine. Under the circumstances, we will not consider any other legal
principle under the theory that the PELRB decision was right for any reason. See
Meiboom v. Watson, 2000-NMSC-004, ¶ 20,128 N.M. 536, 994 P.2d 1154 (stating
that appellate courts, will not assume the role of the fact finder and delve into fact-
dependent inquiries for purposes of a “right for any reason” analysis).
V. 	AFSCME’s Lack of Any Remedy Argument
{20} 	We disagree with AFSCME’s final argument that the district court’s decision
will result in “an impossible legal vacuum” and create a “right without a remedy.”
NMSA 1978, Section 44-2-4 (1984) provides an example of at least one action that
a union may take when a local board is not functioning: When “any inferior tribunal,

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corporation, board[,] or person” fails to perform its duties, the affected parties may
apply to the district court for a writ of mandamus to compel that public body to act.
Id. (emphasis added) (providing that the “[p]urpose” of a mandamus writ is “to
compel the performance of an act which the law specially enjoins as a duty resulting
from an office, trust or station” and that it “may require an inferior tribunal to . . .
proceed to the discharge of any of its functions”). AFSCME does not discuss or argue
the availability of this or any other potential remedy.
CONCLUSION
{21} 	The order entered by the district court is affirmed.
{22} 	IT IS SO ORDERED.
__________________________________
TIMOTHY L. GARCIA, Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Judge
___________________________________
MICHAEL E. VIGIL, Judge