April 17, 2013 – American Federation of State, County and Municipal Employees (AFSCME) Council 18, AFL-CIO, CLC, AFSCME Local 1888, AFSCME Local 3022, AFSCME Local 624, and AFSCME Local 2962 v. The Cityof Albuquerque, No. 31,631

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	APRIL 17, 2013
NO. 31,631
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
(AFSCME) COUNCIL 18, AFL-CIO, CLC,
AFSCME LOCAL 1888, AFSCME LOCAL
3022, AFSCME LOCAL 624, and AFSCME
LOCAL 2962,
Plaintiffs-Appellees,
v.
THE CITY OF ALBUQUERQUE,
Defendant-Appellant,
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Clay P. Campbell, District Judge
Youtz & Valdez, P.C.
Shane C. Youtz
Stephen Curtice
Albuquerque, NM
for Appellees
City of Albuquerque
David Tourek, City Attorney
Rebecca E. Wardlaw, Assistant City Attorney
Michael I. Garcia, Assistant City Attorney
Gregory S. Wheeler, Assistant City Attorney

Samantha Hults, Assistant City Attorney
Rachel Trafican, Assistant City Attorney
Albuquerque, NM
Conklin, Woodcock & Ziegler, P.C.
Robin A. Goble
Albuquerque, NM
for Appellant

OPINION
FRY, Judge.
{1} 	The City of Albuquerque (the City) appeals the district court’s order granting
multiple chapters of the American Federation of State, County and Municipal
Employees (the Unions) injunctive relief. The district court ordered the City to honor
expired collective bargaining agreements (CBAs) until new CBAs were successfully
negotiated pursuant to the Public Employee Bargaining Act’s (PEBA) “evergreen
provision.” See NMSA 1978, Section 10-7E-18(D) (2003). The City argued, in part,
that its Labor-Management Relations Ordinance (LMRO), Albuquerque, N.M.,
Ordinances ch. 3, art. 2, §§ 3-2-1 to -18 (1974, as amended through 2002), was
entitled to grandfather status under NMSA 1978, Section 10-7E-26(A) (2003), and
therefore exempt from compliance with the PEBA’s evergreen provision. Because we
agree with the City and conclude that the City’s collective bargaining procedures are
exempt from compliance with the evergreen provision, we reverse.
BACKGROUND
{2} 	The relationship between the City and the Unions is governed by the City’s
LMRO. The LMRO was enacted in 1974 and was most recently amended in 2002.
See Albuquerque, N.M., Ordinances, §§ 3-2-1 to -18. The LMRO includes impasse

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resolution procedures, but it does not require that an expired CBA remain in effect
until a successor CBA is reached. See id. § 3-2-14.
{3} 	On June 30, 2011, a number of CBAs between the City and the Unions expired.
Despite negotiations, the parties were unable to reach agreement on successor CBAs.
Once the CBAs expired, the City notified the Unions that it would no longer honor a
provision of the CBAs that required the City to compensate union members for union
business conducted during city work time. The City stated that it would, however,
grant union representatives leave without pay so that they could continue to represent
employees in grievance meetings, hearings, or arbitrations and that it would “offer
other arrangements to accommodate efficient management/labor relations.”
{4} 	The Unions sought injunctive relief, seeking to compel the City to comply with
the expired CBAs until the parties had successfully negotiated successor agreements.
The Unions argued that the PEBA’s evergreen provision required the expired CBAs
to remain in effect until new agreements were reached. Section 10-7E-18(D) (“In the
event that an impasse continues after the expiration of a contract, the existing contract
will continue in full force and effect until it is replaced by a subsequent agreement.”).
The district court agreed with the Unions and granted the Unions’ motion for

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injunctive relief, requiring the City to abide by the terms of the previous CBAs. The
City now appeals.
DISCUSSION
Standard of Review
{5} 	Whether collective bargaining procedures with grandfather status under Section
10-7E-26(A) are required to comply with the PEBA’s evergreen provision is an issue
of statutory construction, which we review de novo. City of Albuquerque v. Montoya,
2012-NMSC-007, ¶ 12, 274 P.3d 108. 	“In construing a statute, our charge is to
determine and give effect to the Legislature’s intent.” Marbob Energy Corp. v. N.M.
Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. “We
will construe the entire statute as a whole so that all the provisions will be considered
in relation to one another.” 	Regents of Univ. of N.M. v. N.M. Fed’n of Teachers,
1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236. 	Statutes must also be
construed so that “no part of the statute is rendered surplusage or superfluous,” In re
Rehab.of W. Investors Life Ins. Co., 100 N.M. 370, 373, 671 P.2d 31, 34 (1983), and
we will not “read into a statute . . . language which is not there.” Burroughs v. Bd. of
Cnty. Comm’rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975).

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The PEBA’s Grandfather Clause
{6} 	Consistent with its purpose to guarantee public employees the right to organize
and collectively bargain with their employers, the PEBA contains several provisions
and procedures to ensure an orderly, harmonious, and efficient collective bargaining
process for public employers and employees. NMSA 1978, § 10-7E-2 (2003). But
the PEBA also includes an exemption for public employers, like the City, that adopted
a system of procedures for collective bargaining prior to October 1, 1991. 	The
applicable grandfather clause states:
A public employer other than the state that prior to October 1, 1991[,]
adopted by ordinance, resolution or charter amendment a system of
provisions and procedures permitting employees to form, join or assist
a labor organization for the purpose of bargaining collectively through
exclusive representatives may continue to operate under those provisions
and procedures. Any substantial change after January 1, 2003[,] to any
ordinance, resolution or charter amendment shall subject the public
employer to full compliance with the provisions of Subsection B of
Section 26 . . . of the [PEBA].
Section 10-7E-26(A).
{7} 	Our Supreme Court has delineated a two-part test for determining when a public
employer’s procedures are entitled to grandfather status under the predecessor version
of Section 10-7E-26(A). 	Regents, 1998-NMSC-020, ¶¶ 34-35 (construing PEBA,
Section 10-7D-26(A) (repealed 1999) (current version at Section 10-7E-26(A)).

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Tracking the language of the grandfather clause, the test requires that (1) a public
employer has in place “a system of provisions and procedures permitting employees
to form, join or assist any labor organization for the purpose of bargaining collectively
through exclusive representatives” and (2) the public employer adopted the system of
procedures before October 1, 1991. 	City of Deming v. Deming Firefighters Local
4521, 2007-NMCA-069, ¶ 9, 141 N.M. 686, 160 P.3d 595 (emphasis, internal
quotation marks, and citation omitted) (applying the Regents, 1998-NMSC-020, ¶ 34,
test to the re-enacted PEBA grandfather clause under Section 10-7E-26(A)). This test
is narrowly construed and applies to specific provisions of the public employer’s
system of procedures rather than to the policy as a whole. Regents, 1998-NMSC-020,
¶ 35. “In other words, portions of an employer’s collective-bargaining system may
fail this two-part test while the remainder may qualify for grandfather status.” Id.
The District Court’s Decision
{8} 	The district court concluded that the PEBA’s evergreen provision applies
regardless of the LMRO’s grandfather status. Although the district court’s reasoning
is not entirely clear, it appears that the court was persuaded by the Unions’ argument
that 	non-compliance with the PEBA’s evergreen clause would result in the City’s
being able to unilaterally impose new conditions of employment without those

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conditions having been the result of a good faith collective bargaining process.
According to the Unions on appeal, this unilateral control is entirely inconsistent with
the basic rights guaranteed by the PEBA, which was designed “to guarantee public
employees the right to organize and bargain collectively with their employers, to
promote harmonious and cooperative relationships between public employers and
public employees and to protect the public interest by ensuring, at all times, the
orderly operation and functioning of the state and its political subdivisions.” Section
10-7E-2. Therefore, they argue, regardless of whether the City enjoys grandfather
status under the PEBA, the PEBA nonetheless imposes on the City’s collective
bargaining procedures a requirement that the expired CBAs remain in effect until new
agreements are reached.
{9} 	As an initial matter, we are not persuaded that the absence of an evergreen
provision in the LMRO fundamentally violates the PEBA. 	The LMRO does not
permit the City to unilaterally impose conditions of employment once a CBA has
expired. 	Instead, the LMRO includes provisions for impasse resolution through
mediation and voluntary binding arbitration. These provisions ensure that the Unions
are participants in the determination of employment conditions even after a CBA has
expired. This is consistent with the PEBA’s overarching purpose.

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{10} 	Furthermore, the Legislature’s inclusion of a two-section grandfather clause
indicates its intent that certain public employers should be exempt from compliance
with every requirement of the PEBA. The first section of the clause, Subsection A
(quoted above in Paragraph 6), specifically provides that a public employer, other than
the state, which has enacted a collective bargaining system prior to October 1, 1991,
“may continue to operate under those provisions and procedures” despite the
requirements of the PEBA. 	Section 10-7E-26(A). 	The second section of the
grandfather clause, Subsection B, by contrast, requires public employers that adopted
their collective bargaining systems after October 1, 1991, to include in those systems
additional provisions and procedures in order to be otherwise exempt from the PEBA.
See Section 10-7E-26(B)(1) to (9). Among the provisions that must be included are
“impasse resolution procedures equivalent to those set forth in [Section 10-7E-18].”
Section 10-7E-26(B)(8). The evergreen provision at issue is among Section 10-7E-
18’s designated impasse resolution procedures.
{11} 	These two subsections of the grandfather clause guide us in interpreting the
PEBA as a whole and establish that the Legislature could not have intended the
PEBA’s evergreen clause to apply to all public-employer collective bargaining
systems, regardless of grandfather status, as the Unions argue and as the district court

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held. 	Had the Legislature intended to impose the PEBA’s impasse resolution
procedures, including the evergreen provision, on all public employee bargaining
procedures regardless of grandfather status, there would be no reason to distinguish
between public employers that enacted their systems before October 1, 1991, and
those that enacted their systems after that date. By requiring the latter to include an
evergreen provision and by exempting the former from that requirement, the
Legislature indicated that it did not intend the evergreen provision to be mandatory
in all cases.
{12} 	We therefore reject the Unions’ argument that the City must comply with the
PEBA’s evergreen clause regardless of the City’s grandfather status. The Unions’
alternative argument is that, although the City enacted its LMRO prior to October 1,
1991, the City’s LMRO is not entitled to grandfather status because, in the absence
of an evergreen clause, the LMRO violates the grandfather clause’s requirement for
“bargaining collectively.” We must determine whether the Legislature intended to
extend grandfather status to an LMRO like the City’s that does not include an
evergreen provision.

1Although the unions in AFSCME Council 18 also argued that the absence of
an evergreen provision precluded the city from attaining grandfather status, see 2013-
NMCA-012, ¶¶ 12-13, this Court appeared to limit its holding to the absence of
binding-impasse arbitration. Id. ¶¶ 19, 20, 23.
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Legislative Intent and the Grandfather Clause
{13} 	We find guidance in our recent decision in American Federation of State,
County and Municipal Employees (AFSCME) Council 18 v. City of Albuquerque,
2013-NMCA-012, 293 P.3d 943 (AFSCME Council 18), cert. granted, 2013-
NMCERT-001 ___ P.3d ___. In that case, the unions argued that the city’s impasse
procedures were not binding, as required by the PEBA, and, therefore, that the LMRO
“[did] not satisfy the ‘collective bargaining’ requirement for grandfather status.”1 Id.
¶¶ 12-13. This is similar to the argument the Unions make in the present case to the
effect that the absence of an evergreen provision in the LMRO is inconsistent with the
notion of collective bargaining. 	We rejected the unions’ argument in AFSCME
Council 18 because it “attache[d] an additional requirement to the PEBA’s grandfather
clause” by “demand[ing] that we evaluate the effectiveness of the LMRO as an avenue
for collective bargaining.” 	Id. ¶ 14. 	We concluded that the PEBA’s grandfather
clause does not include this requirement because it “requires only that the system
adopted permit ‘employees to form, join or assist a labor organization for the purpose

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of bargaining collectively through exclusive representatives’.” Id. (quoting Section
10-7E-26(A)). 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 written agreement regarding wages, hours and other terms and conditions of
employment.” 	NMSA 1978, Section 10-7E-4(F) (2003) (internal quotation marks
omitted). It says nothing about the relative effectiveness of the procedures adopted.
See City of Deming, 2007-NMCA-069, ¶¶ 22-24 (stating that application of the
grandfather clause is not dependent on an evaluation of the quality or effectiveness of
the collective bargaining procedures).
{14} 	This analysis applies equally to the absence of an evergreen provision.
According to the Unions, the LMRO’s failure to include an evergreen provision
constitutes ineffective “collective bargaining” and, as a result, the City does not
qualify for grandfather status. 	But, as we said in AFSCME Council 18, the
grandfather clause does not include a requirement of effectiveness, and we will not
read one into it. See City of Deming, 2007-NMCA-069, ¶ 23 (“We do not give effect
to or embrace legislative intent if we add language to a statute that the [L]egislature
did not adopt.”).

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{15} 	In AFSCME Council 18, this Court also relied on the history of the PEBA,
whose original version included “an effectiveness component” in the language of its
grandfather clause. 2013-NMCA-012, ¶ 15. However, the Legislature removed this
language when it reenacted the PEBA in 2003, id., and we inferred from this “that the
Legislature intended that a public employer’s system of provisions and procedures
permitting collective bargaining would not be subject to that type of [effectiveness]
scrutiny to achieve grandfather status.” Id.
{16} 	In addition, as we noted above and as we pointed out in AFSCME Council 18,
the Legislature made a distinction between public employers, other than the state, that
adopted their collective bargaining systems before October 1, 1991, and those that
adopted those systems after October 1, 1991. 	Id. ¶ 17. The latter employers must
include in their collective bargaining systems “impasse resolution procedures
equivalent to those set forth in Section 18 . . . of the [PEBA],” which procedures
include the evergreen provision at issue. 	Section 10-7E-26(B)(8). 	However, the
Legislature specifically did not impose these requirements on employers, like the City,
that enacted their systems before October 1, 1991. Section 10-7E-26(A). Therefore,
we conclude here, as we did under similar circumstances in AFSCME Council 18, that
the Legislature did not intend that a public employer like the City must include an

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evergreen provision in its collective bargaining procedures in order to achieve
grandfather status.
{17} 	We agree with the Unions that the PEBA’s impasse resolution procedures,
including the evergreen provision, would likely provide a more effective avenue for
a favorable resolution to the current impasse. But that does not require us to disregard
the clear legislative direction that grandfathered systems of collective bargaining
under Section 10-7E-26(A) be exempt from compliance with these evergreen
procedures. 	Cf. Regents, 1998-NMSC-020, ¶ 25 (“A grandfather clause preserves
something old, while the remainder of the law of which it is a part institutes something
new. A grandfather clause may have the effect of relieving an entity from submitting
to new restrictions, or the clause may have the reverse effect of permitting the entity
to avoid broadening the scope of its activities.”).
{18} 	Because of our disposition on this issue, we need not address the City’s
remaining arguments concerning the expired CBAs’ alleged conflict with the Anti-
Donation clause of Article IX, Section 14, of the New Mexico Constitution, or their
alleged violation of the Bateman Act, NMSA 1978, Sections 6-6-11 to -18 (1897, as
amended through 1999).

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CONCLUSION
{19} 	For the foregoing reasons, we reverse the district court’s order granting the
Unions preliminary and permanent injunctions requiring the City to honor the expired
CBAs pending successful negotiation of successor CBAs.
{20} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
I CONCUR:
MICHAEL E. VIGIL, Judge
TIMOTHY L. GARCIA, Judge (specially concurring).

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GARCIA, Judge (specially concurring).	1
{21} 	I agree with the majority’s position that language in AFSCME Council 18,	2
2013-NMCA-012, ¶¶ 12-17 and City of Deming, 2007-NMCA-069, ¶¶ 21-24, appear	3
to control our decision in this case. I write to specially concur because in AFSCME	4
Council 18, I asked our Supreme Court to re-address City of Deming and the	5
grandfather status issue where the City’s LMRO did not contain any final impasse	6
resolution procedure that was binding on the City. 	AFSCME Council 18, 2013-	7
NMCA-012, ¶¶ 30-32 (Garcia, J., specially concurring). 	Because certiorari was	8
granted by the Supreme Court in AFSCME Council 18 and remains pending at this	9
time, I believe that our ruling in this case could be nullified by the outcome of that	10
appeal. See id.	11
__________________________________	12
TIMOTHY L. GARCIA, Judge	13