A-1-CA-36331 | Omnilex

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Court of Appeals of New Mexico
Filed 2/21/2019 9:44 AM
Mark Reynolds

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Opinion Number: Filed 2/21/2019 9:44 AM

Filing Date: February 21, 2019 W/k [> [

Mark Reynolds
No. A-1-CA-36331

COMMUNICATION WORKERS OF
AMERICA, AFL-CIO,

Appellant/Cross-Appellee-Petitioner,
V.

STATE OF NEW MEXICO,
Appellee/Cross-Appellant-Respondent.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge

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

James A. Montalbano
Albuquerque, NM

Rosenblatt & Gosch, PLLC
Stanley M. Gosch
Greenwood Village, CO

for Appellant
Hector H. Balderas, Attorney General

Lori Chavez, Assistant Attorney General
Santa Fe, NM

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Holcomb Law Office
Dina Eileen Holcomb
Albuquerque, NM

for Appellee

OPINION

VARGAS, Judge.

{i} This case arises from a prohibited practice complaint filed by the
Communications Workers of America, AFL-CIO (the Union) against the State of
New Mexico (the State). In its complaint, the Union argued that the State violated
the Public Employee Bargaining Act (the PEBA). The Public Employee Labor
Relations Board’s (the Board) Executive Director, Thomas J. Griego, designated as
the hearing officer, found the State violated NMSA 1978, Section 10-7E-19(B)
(2003) (prohibiting public employers from interfering with, restraining, or coercing
public employees in the exercise of their rights guaranteed under the PEBA) and
Section 10-7E-19(F) (prohibiting public employers from refusing to bargain
collectively in good faith with the exclusive representative). The Board adopted the
Hearing Officer’s findings and conclusions, with the exception of those related to
the Hearing Officer’s finding of a violation of Section 10-7E-19(F). The district
court, reviewing the case in its appellate capacity, affirmed the Board’s decision that
no violation of Section 10-7E-19(F) occurred and reversed the Board’s decision
insofar as it found a violation of Section 10-7E-19(B). Having granted the Union’s
petition for a writ of certiorari under Rule 12-505 NMRA, we reverse the district
court with instructions to remand to the Board for proceedings consistent with this

opinion.

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I. BACKGROUND

23 The State has long maintained a practice whereby a bargaining unit employee
who files a grievance may use state-paid time to prepare for and participate in
grievance meetings, subject to the discretion of the employee’s supervisor. Prior to
the enactment of the original version of the Public Employee Bargaining Act (PEBA
I), NMSA 1978, §§ 10-7D-1 to -26 (1992, repealed 1999), bargaining unit
employees were paid for time spent in grievance meetings. In 1994, following
PEBA I’s enactment, the Union and State entered into a collective bargaining
agreement (CBA). In the 1994 CBA, the parties agreed that:

The Employer shall allow [u]nion officials and stewards who are
employees (hereinafter referred to as “employee officials”) to attend,
on paid status, meetings agreed to by the parties for purposes of
administration of this Agreement, including grievance hearings.

Employee officials may investigate and process grievances on
paid status for reasonable periods of time during their normal working
hours. Where an employee official needs to consult with another
employee concerning a grievance, both employees shall request
permission to do so.

Under this CBA, bargaining unit employees were paid for time spent preparing for
and participating in grievance meetings, provided they received approval from their
supervisor. The 1994 CBA contained a “zipper clause,” which provided:

This agreement shall be deemed the final and complete
agreement between the parties and expresses the entire understanding
of the Employer and the Unions. This agreement supersedes any and all
previous agreements and all conflicting agency and departmental rules,
policies and regulations on the same matters except as otherwise
specifically provided herein.

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The parties acknowledge that during the negotiations which
resulted in this Agreement, each had the unlimited right and opportunity
to make demands and proposals with respect to any subject or matter
not removed by law from collective bargaining, and agreements arrived
at by the parties after the exercise of that right and opportunity are set
forth in this Agreement. Therefore, the Employer and the Unions, for
the life of this Agreement, each voluntarily and unqualifiedly waive the
right, and each agree that they shall not be obligated to bargain
collectively with respect to any subject or matter referred to or covered
in this Agreement. However, the parties continue to have a duty to
bargain over any subject or matter which was not within the knowledge
or contemplation of the parties at the time they negotiated or signed this
Agreement.

3}. Following PEBA I’s repeal in 1999, the Union and State operated for four
years without a CBA. During this time, bargaining unit employees continued to be
paid for time spent preparing for and participating in grievance meetings. In 2004,
after the passage of PEBA II, NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended
through 2005), the State and the Union entered into a second CBA. The 2004 CBA
largely kept the same language regarding paid time for union officials and stewards,
adding limitations on union officials’ and stewards’ use of union time. Under the
2004 CBA, bargaining unit employees continued to be paid for time spent preparing
for and participating in grievance meetings, provided they received approval from
their supervisor. The 2004 CBA’s zipper clause contained similar language to that

of the 1994 CBA, though it deleted the waiver language and stated only:

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{4}

[FJor the duration of this Agreement, the Employer is not
obligated to bargain over Union initiated changes in terms and
conditions of employment unless such changes are proposed pursuant
to the terms of this Agreement.

[I]n addition to changes initiated pursuant to its Management
Rights (Article 5 of this Agreement), the Employer reserves the right to
propose other reasonable changes in the terms and conditions of
employment of employees to meet legitimate public service and
operating needs, and such changes are subject to negotiation in
accordance with the PEBA or any other expedited impasse resolution
procedures mutually agreed upon by the parties at the time of such
negotiations.

In 2009, the State and the Union entered into a third CBA, which remains in

effect. Article 2 of the CBA, titled “Union Rights,” provides:

Section 3 goes on to provide time and procedural parameters for the grant of union

Section 3. The Employer shall allow [u]nion [o]fficers and stewards to
attend, on paid status (utilizing the union time code in the time and labor
reporting system), meetings agreed to by the parties for purposes of
administration of this Agreement including grievance meetings within
the parameters set forth in this section’s succeeding paragraphs.

Each union officer or steward shall be entitled to use union time to
investigate and process grievances, which they are authorized to settle,
within the agency to which they are employed, for reasonable periods
of time without charge to pay or to leave. Union time must be pre-
approved and will not be disapproved except for operational reasons.

When a union officer or steward desires to consult with another
employee concerning a grievance on work time, both employees shall
request and obtain prior permission to do so.

time. Article 2 also defines the terms “union officer” and “steward”:

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Union [o]fficer means a classified state employee elected as President,
Executive Vice-President, Secretary, Treasurer, Agency Vice-
President or as Regional Vice President.

Steward means a classified state employee authorized by the local to
administer the [CBA].

Under the 2009 CBA, bargaining unit employees continued to be paid for time spent
preparing for and participating in grievance meetings, and were paid with either
“Tujnion time” or “paid time,” i.e., “regular time.” The 2009 CBA retained the
language of the 2004 CBA’s zipper clause.

45} On December 10, 2013, the Union submitted a grievance on behalf of
Jacqueline Quintana. Therein, the Union asserted: “[Quintana] requested union time
to meet with [the] representative regarding [a prior] grievance. Management denied
use of [u]nion time stating the grievant was not a [u]nion [o]fficial or [uJnion
[s]teward.” Quintana subsequently received an e-mail from manager Leon Lopez,
explaining he could not grant union time because Quintana was not a union official
or steward, which “ha[d] been confirmed with [the Office of Human Resources].”
He again wrote to Quintana on December 20, 2013, stating that “[m]anagement
denied you[r] request for union time because the grievant was not a [uJnion [o]fficial
or [uJnion [s]teward.” After citing Article 2, Section 3 of the 2009 CBA, Lopez
agreed with management’s decision, stating, “You are not a [uJnion [o]fficial or a

[u]nion [s]teward; therefore, you would not be entitled to the use of union time.”

6 After the Union continued through the grievance procedure on behalf of
Quintana, Behavioral Health Services Division Deputy Director, Karen Meador,
wrote to Quintana on January 23, 2014, also upholding management’s decision,
citing Article 2 of the CBA and stating, “As discussed in the [January 14, 2014] face
to face meeting, the Department remains firm in not allowing employees who are
neither union stewards nor union officials the opportunity to utilize union time to
meet with the Union regarding grievances.” The Union’s Local 7076 President,
Donald Alire, subsequently received a letter dated February 12, 2014, from Human
Services Department (HSD) Deputy Cabinet Secretary Charissa Saavedra,
reiterating HSD’s position that it “has never allowed employees to use union time to
meet with a union representative.” Contrary to Deputy Secretary Saavedra’s claim,
Robin Gould, the staff representative for the Union, stated that on February 25, 2014,
HSD Human Resources Director Johnna Padilla and Gould “agreed that workers
were on paid time.”

{3 After discovering that State agencies were granting bargaining unit employees
paid time for time spent in grievance meetings, Sandy Martinez, the State Labor
Relations Director, “informed the agencies that [u]nion time only applies to [u]nion
officers and stewards and the ‘union time’ code should only be used for officers and

stewards.” Director Martinez sent a letter on March 5, 2014, to Alire, quoting

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Article 2, Section 3 of the CBA and stating:
Please be advised that the State is taking action to ensure that state
agencies comply with the above-referenced language. Accordingly,
effective the pay period beginning March 29, 2014[,] paid union time
will be applied appropriately for union stewards and officers only.
Pursuant to Article 2, § 3, bargaining unit employees are not entitled to
paid-time of union time. All past practices with regard to paid union
time and paid state time that deviated from the above-referenced
language of the CBA are ceased.
The Union did not request to bargain regarding the change referenced in the State’s
notice, instead choosing to wait six months before filing a prohibited practices
complaint. The Union argued the State’s March 5, 2014, “notice informed the
[Union] of the [State]’s intent to unilaterally rescind the parties’ February 25th
agreement and unilaterally change terms and conditions for the rest of the bargaining
unit.” The Union claimed the State’s actions violated Section 10-7E-19(A), (B), (D),
(F), and (G).
A. The Hearing Officer
{833 The parties agreed to submit the matter to the Hearing Officer. After
reviewing the parties’ briefs, affidavits, and exhibits, the Hearing Officer found the
terms of the CBA to be ambiguous with regard to payment of bargaining unit
employees for time spent preparing for and participating in grievance meetings.
Consequently, the Hearing Officer considered the Union’s unchallenged evidence

of the parties’ past practice of paying bargaining unit employees for preparing for

and participating in grievance meetings. Indeed, the State’s own witness, Labor

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Relations Administrator Ronald Herrera, stated that he was “aware of at least five
(5) instances occurring in 2012 and 2013 in which employees of one (1) agency, the
Department of Cultural Affairs, who were not union officers or union stewards, were
coded as utilizing union time in the payroll system.” Relying on the State’s March
5, 2014, letter acknowledgement of a past practice, the affidavit statements of Gould
and Alire that the State has engaged in this practice, and six bargaining unit
employees’ statements and exhibits establishing they were paid either “union time”
or “paid time” for time they spent in grievance meetings, the Hearing Officer
determined “the past practice of paying employees for preparing and attending their
own grievance meetings as either union time or regular work time [was] clearly
established.” As a result, the Hearing Officer concluded that “the State violated
PEBA § 10-7E-19(B) when it unilaterally altered a mandatory subject of bargaining
and a longstanding past practice thereby unlawfully restraining and interfering with
employees’ rights under PEBA.”

{9} The Hearing Officer also determined that the State violated Section 10-7E-
19(F) by unilaterally altering a mandatory subject of bargaining. The Hearing
Officer concluded that the Union was relieved of its duty to request bargaining after
receiving the March 5, 2014, letter because the State presented the Union with a fait

accompli, thereby rendering any request to bargain fruitless. The Hearing Officer

found the Union had not established a violation of Section 10-7E-19(A), (D), or (G).
The State appealed the Hearing Officer’s decision to the Board.

B. The Board

{10} The Board convened on April 7, 2015, to hear the State’s appeal. After hearing
argument from both parties, the Board voted to adopt the Hearing Officer’s findings
of fact, conclusions of law and rationale “with the exception of those relating to
finding a violation of PEBA § 10-7E-19(F).” In explaining its decision to reverse the
Hearing Officer’s Section 10-7E-19(F) recommendation, the Board stated “that the
Union did not adequately explain why it took no action in a six-month period to
request bargaining.” Both parties appealed the adverse portions of the Board’s
decision regarding Section 10-7E-19(B) and (F) to the district court.

C. The District Court

{11} The district court reviewed the case in its appellate capacity under Rule 1-074
NMRA. The district court affirmed the Board’s finding that no violation of Section
10-7E-19(F) occurred, explaining that the Union was not relieved of its duty to
request bargaining because the State provided the Union with sufficient time to do
so and had not implemented the change before notifying the Union. The district court
reversed the Board’s finding that the State violated Section 10-7E-19(B) because

such a finding appeared “inconsistent” with the Board’s decision in favor of the State

on the Section 10-7E-19(F) issue. Upon the Union’s petition, this Court granted
certiorari.

II. DISCUSSION
{123 The Union argues the State violated Section 10-7E-19(B) and (F) by

unilaterally altering a binding past practice regarding the compensation of
bargaining unit employees for time spent preparing for and participating in grievance
meetings. The State argues in response that there was no binding past practice and,
even if there was, the district court correctly determined that the Union was required
to request bargaining on the issue and failed to do so. We are therefore asked to
determine (1) whether a binding past practice existed that constituted a mandatory
subject of bargaining, and (2) whether the State’s notice to the Union regarding the
change in past practice constituted a fait accompli, thereby precluding a finding that
the Union’s failure to request bargaining served as a waiver of its right to bargain.
A. Standard of Review

{13} “Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court
conducts the same review of an administrative order as the district court sitting in its
appellate capacity, while at the same time determining whether the district court
erred in the first appeal.” N.M. Corr. Dep’t v. AFSCME, Council 18, 2018-NMCA-
007, § 9, 409 P.3d 983 (internal quotation marks and citation omitted omitted), cert.

denied, __-NMCERT-___(No. S-1-SC-36688, Oct. 24, 2017). “We independently

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review the entire record of the administrative hearing to determine whether the
[Board]’s decision was arbitrary and capricious, not supported by substantial
evidence, or otherwise not in accordance with law.” /d. (internal quotation marks
and citation omitted); see NMSA 1978, § 10-7E-23(B) (providing the standard of
review from the board to the district court). “When reviewing an administrative
agency’s conclusions of law, we review de novo.” AFSCME, Council 18, 2018-
NMCA-007, {9 (internal quotation marks and citation omitted). Similarly, “[w]e
apply a de novo standard of review to administrative rulings regarding statutory
construction.” /d. (alteration, internal quotation marks, and citation omitted). “In the
absence of guidance from our own courts, [our] New Mexico Supreme Court has
directed that we should interpret language in the PEBA in the manner that the same
language of the National Labor Relations Act has been interpreted.” Cty. of Los
Alamos v. Martinez, 2011-NMCA-027, 921, 150 N.M. 326, 258 P.3d 1118
(alteration, internal quotation marks, and citation omitted); see Regents of Univ. of
N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, J 18, 125 N.M. 401, 962 P.2d
1236. “We will not disturb the agency’s factual findings if supported by substantial
evidence, although we engage in a whole record review.” Montano v. N.M. Real
Estate Appraiser’s Bd., 2009-NMCA-009, 98, 145 N.M. 494, 200 P.3d 544.
“Substantial evidence is evidence that a reasonable mind would regard as adequate

to support a conclusion.” /d. J 9 (internal quotation marks and citation omitted).

B. Past Practice

14 Before discussing the legal impact of the State’s March 5, 2014, letter on the
parties’ claimed past practice regarding “union time” and “paid time,” we must first
determine whether a past practice existed. The evidence establishing the State’s past
practice of paying bargaining unit employees to prepare for and participate in
grievance meetings, subject to supervisory approval, was unchallenged in the
parties’ briefs, affidavits, and exhibits submitted to the Hearing Officer. Moreover,
Director Martinez acknowledged the past practice in her March 5, 2014, letter
stating, “All past practices with regard to paid union time and paid state time . . . are
ceased.” We therefore defer to the Board’s finding that this past practice existed. See
Montano, 2009-NMCA-009, § 8 (“We will not disturb the agency’s factual findings
if supported by substantial evidence, although we engage in a whole record
review.”).

{15} Having determined a past practice existed, we must now consider whether the
past practice is binding on the parties notwithstanding the terms of the CBA. The
interpretation of a CBA’s terms “is not confined to the express provisions of the
contract, as the industrial common law—the practices of the industry and the shop—
is equally a part of the collective bargaining agreement although not expressed in
it.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574,

581-82 (1960); see Cruz-Martinez v. Dep’t of Homeland Sec., 410 F.3d 1366, 1370

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(Fed. Cir. 2005) (“Clear and long-standing practices of the parties—in other words,
‘past practices’—can establish terms of the agreement that are as binding as any
specific written provision. ... Generally, factors relevant to a finding of a binding
past practice are the duration and consistency of its application and the parties’
acquiescence in it.”); Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1243 (10th Cir.
1998) (“It is well-established that when interpreting the terms of a labor contract, a
fact-finder is entitled—and indeed, in some cases required—to look to the past
practices of the parties and the ‘common law of the shop’ to determine the parties’
contractual obligations.”); see also § 10-7E-17(A)(1) (providing that “public
employers and exclusive representatives .. . shall bargain in good faith on wages,
hours and all other terms and conditions of employment and other issues agreed to
by the parties”). As we have previously indicated, the “common law of the shop,”
1.€., past practices, are used to interpret ambiguous phrases contained in a CBA. See
Alarcon v. Albuquerque Pub. Sch. Bd. of Educ., 2018-NMCA-021, 9 74, 413 P.3d
507, cert. denied, _ -NMCERT-___ (No. S-1-SC-36811, Jan. 23, 2018).

{16} In the present case, the Hearing Officer determined that the CBA was
ambiguous regarding the grant of “union time,” concluding that the “CBA does not
limit the use of ‘union time’ solely to union officers and stewards—its use is a matter
of an employee’s supervisor’s discretion.” The Hearing Officer thus concluded,

“[T]here is no express limitation on [the] use [of ‘union time’] other than the

reasonable exercise of a supervisor’s discretion.” The Hearing Officer’s Report and
Recommendation, including his findings of fact, conclusions of law and rationale,
were adopted by the Board, except those findings relating to the State’s refusal to
bargain in good faith. We acknowledge the absence of express language including
bargaining unit employees in the list of those entitled to paid status for grievance
meetings. However, in light of the parties’ course of dealing throughout the years,
and the language in the CBA providing that “both employees shall request and obtain
prior permission” in those instances where “a union officer or steward desires to
consult with another employee concerning a grievance on work time,” we agree with
the Board that there is an ambiguity with respect to the type of employees entitled
to “union time” for purposes of grievance meetings. See ConocoPhillips Co. v.
Lyons, 2013-NMSC-009, ¥ 23, 299 P.3d 844 (“In evaluating whether a term is
ambiguous, a court may hear evidence of the circumstances surrounding the making
of the contract and of any relevant usage of trade, course of dealing, and course of
performance.” (internal quotation marks and citation omitted)). Moreover, given the
CBA’s silence on the issue of granting “paid time,” i.e., “regular time,” for grievance
meetings, we conclude the CBA is ambiguous on this matter as well. The State,
relying on E./. Du Pont & Co., Inc., 294 N.L.R.B. 563 (1989), argues that any past

practice regarding the grant of “union time” or “paid time” to bargaining unit

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employees for time preparing for and participating in grievance meetings cannot be
considered an implied term of the CBA. E.J. Du Pont & Co., Inc. states:

In distinguishing between terms of the agreement and existing
practices, we do not suggest that an agreement can never be read as
encompassing past practices that are not specifically written into it. But
where... the contract contains a clause stating that the written
agreement is to be the parties’ “entire Agreement” except as to any later
supplemental agreements “executed in the same manner” as the main
agreement, and the past practices in question are inconsistent with the
written terms, those practices cannot properly be considered implied
terms of the agreement.

Id. at 563. However, in this case, we are not faced with a past practice that is
inconsistent with a CBA’s terms—here, the CBA’s terms are ambiguous on the
subject matter.
{17} Nonetheless, the State argues that binding application of the past practice is
prohibited by the CBA’s zipper clause. This Court adopted the National Labor
Relation Board’s standard in Radioear Corp., 214 N.L.R.B. 362 (1974), to determine
whether a zipper clause eliminated an otherwise binding past practice. Martinez,
2011-NMCA-027, {ff 22-25. In Radioear Corp., the National Labor Relations Board
concluded:

[T]he answer to the question of the employer’s bargaining obligation

does not, in our view, call for a rigid rule, formulated without regard

for the bargaining postures, proposals, and agreements of the parties,

but rather, more appropriately, should take into consideration such

various factors as (a) the precise wording of, and emphasis placed upon,

any zipper clause agreed upon; (b) other proposals advanced and

accepted or rejected during bargaining; (c) the completeness of the
bargaining agreement as an integration[—]hence the applicability or

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inapplicability of the parol evidence rule; and (d) practices by the same
parties, or other parties, under other collective-bargaining agreements.

214N.L.R.B. at 363 (alteration and internal quotation marks omitted). In the absence
of Board findings regarding the zipper clause’s effect, if any, on the past practice
involved in the present case, we conclude the Board acted arbitrarily and
capriciously in determining that the parties’ past practice on the issue of granting
“union time” or “paid time” to bargaining unit employees is as binding as the written
provisions of the CBA, and is therefore a mandatory subject of bargaining. See
Bernalillo Cty. Health Care Corp. v. N.M. Pub. Regulation Comm’n, 2014-NMSC-
008, | 9,319 P.3d 1284 (“An agency’s ruling is arbitrary and capricious if the agency
failed to consider an important aspect of the problem[.]” (internal quotation marks
and citation omitted)). Given the fact-bound nature of the effect of the zipper clause
on the past practice, we remand to the Board to make necessary findings and to
determine whether the past practice is binding notwithstanding the CBA’s zipper
clause. If the Board determines the past practice is binding, the Board must then,
consistent with the remainder of this decision, determine whether the State’s change
of this past practice violated the PEBA.

C. Request to Bargain

{18} The Union argues the Board and the district court erred in finding no violation

of Section 10-7E-19(F) and that the district court erred in reversing the Board’s

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finding that the State violated the Union’s Section 10-7E-19(B) derivative claim.!
The Union’s claims under both Subsection (F) and Subsection (B) of Section 10-7E-
19 are based on the State’s purported refusal to bargain prior to eliminating the past
practice of paying bargaining unit employees for time spent preparing for and
participating in grievance meetings, subject to supervisory approval; as such, we
address Subsection (F) and Subsection (B) together. Section 10-7E-19(F) provides:
“A public employer or his representative shall not . . . refuse to bargain collectively
in good faith with the exclusive representative[.]” Section 10-7E-19(B) provides: “A
public employer or his representative shall not .. . interfere with, restrain or coerce
a public employee in the exercise of a right guaranteed pursuant to the Public
Employee Bargaining Act[.]” Section 10-7E-17(A)(1) sets forth the scope of
bargaining: “[P]Jublic employers and exclusive representatives ... shall bargain in
good faith on wages, hours and all other terms and conditions of employment and
other issues agreed to by the parties.” Similarly, the National Labor Relations Act
(NLRA) prohibits an employer from “refus[ing] to bargain collectively with the
representatives of his employees,” 29 U.S.C. § 158(a)(5) (2012), and further

provides that the duty “to bargain collectively is the performance of the mutual

' To the extent the Union argues an independent, rather than a derivative, basis
for its Section 10-7E-19(B) claim, we decline to review this argument as the Union
has not cited authority for such a proposition. See Curry v. Great Nw. Ins. Co., 2014-
NMCA-031, 428, 320 P.3d 482 (“Where a party cites no authority to support an
argument, we may assume no such authority exists.”).

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obligation of the employer and the representative of the employees to .. . confer in
good faith with respect to wages, hours, and other terms and conditions of
employment[.|” 29 U.S.C. § 158(d).

{193 As the United States Supreme Court has held:

Clearly, the duty [to bargain collectively] may be violated without a
general failure of subjective good faith; for there is no occasion to
consider the issue of good faith if a party has refused even to negotiate
in fact—‘to meet and confer’—about any of the mandatory subjects. A
refusal to negotiate in fact as to any subject which is within [§] 8(d),
and about which the union seeks to negotiate, violates [§] 8(a)(5)
though the employer has every desire to reach agreement with the union
upon an over-all collective agreement and earnestly and in all good faith
bargains to that end. We hold that an employer’s unilateral change in
conditions of employment under negotiation is similarly a violation of
[§] 8(a)(5), for it is a circumvention of the duty to negotiate which
frustrates the objectives of [§] 8(a)(5) much as does a flat refusal.

NERB v. Katz, 369 U.S. 736, 743 (1962) (alteration and footnotes omitted); see
Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991) (“Sections 8(a)(5) and
8(d) of the NLRA .. . require an employer to bargain in good faith with respect to
wages, hours, and other terms and conditions of employment. ... The Board has
determined, with our acceptance, that an employer commits an unfair labor practice
if, without bargaining to impasse, it effects a unilateral change of an existing term
or condition of employment.” (internal quotation marks and citation omitted)).

20} To avoid waiving its right to bargain, a union has an obligation to request
bargaining when an employer unilaterally changes a mandatory subject of

bargaining. See Ciba-Geigy Pharm. Div., 264 N.L.R.B. 1013, 1017 (1982) (“Despite
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the fact that an employer may have made a unilateral change in a mandatory subject
of bargaining, it is well settled that such action may have been permissible if the
union had waived its right to bargain over the particular matter.”). A union will not,
however, “be held to have waived bargaining over a change that is presented to it as
a fait accompli.” Dresser-Rand Co. v. NLRB, 838 F.3d 512, 518 (Sth Cir. 2016)
(internal quotation marks and citation omitted). We adopt the National Labor
Relations Board’s interpretation of what constitutes a fait accompli: “[I]f the notice
is too short a time before implementation or because the employer has no intention
of changing its mind, then the notice is nothing more than informing the union of a
fait accompli.” Ciba-Geigy Pharm. Div., 264 N.L.R.B. at 1017. Under this analysis,
we glean two methods of establishing a fait accompli: timing or intent. See Haddon
Crafismen, Inc., 300 N.L.R.B. 789, 790 (1990) (analyzing the union’s claim of a fait
accompli under both the timeliness of the notice and the employer’s intent); accord
Aggregate Indus. v. NLRB, 824 F.3d 1095, 1103-05 (D.C. Cir. 2016); Gratiot Cmty.
Hosp. v. NLRB, 51 F.3d 1255, 1260 (6th Cir. 1995).

1. The Timing of the State’s Notice

21; In this case, the Board’s sole explanation for finding no violation of Section
10-7E-19(F) centered on the timing of the State’s notice. “To be timely, the notice
must be given sufficiently in advance of actual implementation of the change to

allow a reasonable opportunity to bargain.” Ciba-Geigy Pharm. Div., 264 N.L.R.B.

at 1017. Although the Union argues on appeal that the State’s notice was untimely,
it expressly waived this argument during the Board hearing. As a result, we will not
review this argument on appeal. See Selmeczki v. N.M. Dep’t of Corr., 2006-NMCA-
024, Tf 23-24, 139 N.M. 122, 129 P.3d 158 (explaining that we “require preservation
of issues raised on appeal from an administrative decision[,]” and declining to
review an issue waived by a party during an administrative proceeding).

2. The State’s Intent

{22}. Beyond the timing of the State’s notice, the Board did not address whether the
State’s notice constituted a fait accompli because the State had no intention of
altering its plans. The language contained in an employer’s notice of changes to
mandatory subjects of bargaining may be insufficient to establish a fait accompli on
its own. See Aggregate Indus., 824 F.3d at 1103 (concluding that the employer’s
notice to the union that it was “going to” enact a policy change was its announcement
of a bargaining position, not its unwillingness to negotiate). However, the notice’s
language, in conjunction with additional evidence of the employer’s fixed intent,
may serve to establish a fait accompli. See Mercy Hosp., 311 N.L.R.B. 869, 873
(1993) (“The [bloard looks for objective evidence in determining whether an
employer has unlawfully presented a union with a fait accompli. Further, an
employer’s use of positive language in presenting its proposal does not constitute an

indication that a request for bargaining would be futile.” (internal quotation marks

1]
12
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14

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18
19

20
21
22
23
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omitted)); Haddon Craftsmen, Inc., 300 N.L.R.B. at 790 (explaining that the record
“yields no objective evidence that, at this point, the [employer] acted in a manner
that relieved the [uJnion of its obligation to request bargaining by, e.g., informing
the [u]nion that bargaining would be futile or by implementing the changes before
announcing them to the [u]nion” (footnote omitted)).

23} Significantly, the Board’s decision contains no indication that it considered
the possibility that the State had already implemented, or was in the process of
implementing, its stated shift in policy, so as to warrant a finding that the State had
no intention of changing its mind. However, Director Martinez’s affidavit sheds
some light on this issue:

5. Due to the misinterpretation by State agencies of the application
of [uJnion time, I informed the agencies that [u]nion time only
applies to [u]nion officers and stewards and the “union time”
code should only be used for officers and stewards.

6. I also clarified with State agencies that bargaining unit
employees do not have a right to meet with a [u]nion officer or
steward regarding a grievance on work time, but that an
employee must request to be able to do so from the employee’s
supervisor.

7. I sent notice to Donald Alire, CWA Local 7076 President, on
March 5, 2014, informing him of the State’s action to ensure the
agencies were complying with the collective bargaining
agreement.

Although Director Martinez’s statement does not specify the date she informed the

agencies of this policy, her statement nonetheless suggests that the State had

implemented, or began implementing, its shift in policy when it sent the March 5,
2014, letter to Alire. Such an inference is further supported by the facts and
circumstances of the Quintana grievance, which reflect that, well prior to Director
Martinez’s March 5, 2014, notice, the State denied Quintana’s request for union time
to participate in a grievance meeting and later agreed with the Union that “workers
were on paid time.”

24; The Board failed to consider the State’s intent in determining whether it
presented the Union with a fait accompli. The Board’s decision was therefore
arbitrary and capricious, see Bernalillo Cty. Health Care Corp., 2014-NMSC-008,
4 9 (‘An agency’s ruling is arbitrary and capricious if the agency failed to consider
an important aspect of the problem[.]” (internal quotation marks and citation
omitted)), and we remand for the Board to consider this issue as well.

II. CONCLUSION

425} We reverse the district court with instructions to remand to the Board for a
determination of whether the CBA’s zipper clause eliminated the past practice of
paying bargaining unit employees for time spent preparing for and participating in
grievance meetings in light of the factors provided in Radioear, and, if not, whether
the State’s actions constituted a fait accompli on the basis of the State’s intent,

thereby excusing the Union from requesting bargaining.

—

26} ITISSO ORDERED.

WE CONCUR:

2. WU r—

J. MILES HANISEE, Judge

JENNIFER. ATTREP, Judge

February 21, 2019- Communication Workers of America v. State of New Mexico, No. A-1-CA-36331

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