August 08, 2012 – State of New Mexico v. American Federation of State, County, and Municipal Employees Council 18, AFL-CIO, CLC, and Communication Workers of America, AFL-CIO, CLC, No. 30,847

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: AUGUST 8, 2012

NO. 30,847
STATE OF NEW MEXICO,

Plaintifff/Movant-A ppellant,
V.

AMERICAN FEDERATION OF STATE, COUNTY,
AND MUNICIPAL EMPLOYEES COUNCIL 18,
AFL-CIO, CLC, and COMMUNICATION WORKERS
OF AMERICA, AFL-CIO, CLC,

Defendants/Respondents-A ppellees.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge

Tinnin Law Firm, P.C.
Robert P. Tinnin, Jr.

Albuquerque, NM

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Thomas L. Stahl

Albuquerque, NM

for Appellant

Youtz & Valdez, P.C.
Shane Y outz
Mananne Bowers

Albuquerque, NM

for Appellees

OPINION
FRY, Judge.
{1} 	Appellees American Federation of State, County, and Municipal Employees,
Council 	18 	(AFSCME) 	and 	Communication 	Workers 	of 	America 	(CWA)
(collectively, the Unions) represent two groups of classified employees who work for
the State of New Mexico. In fiscal year 2009 (FY2009), the State implemented salary
increases for its classified employees that differed from those required by collective
bargaining agreements previously executed by the State and the Unions. Each Union
reacted by filing grievances that were ultimately submitted to arbitration for
resolution. 	The arbitrators determined that the State’s pay package for FY2009
violated the terms of the agreements and accordingly issued awards in favor of the
Unions. 	The State appeals from the district court’s confirmation of the arbitration
awards, arguing that the district court employed an improper standard of review and
that the arbitrators acted in excess of their authority. We affirm.
BACKGROUND
Terms of the Agreements
{2} 	In September 2005, AFSCME and CWA each entered into a collective
bargaining agreement (collectively, the Agreements) with the State that covered, in
relevant part, contractual salary increases for three fiscal years, ending in FY2009.

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This appeal specifically concerns two contractual salary increases for FY2009
required by the Agreements. The first of these contractual salary increases provided
a two percent general salary increase subject to “the Governor’s Recommendation”
for employees in each Union’s bargaining unit that was to be effective the first full
pay period following July 1, 2008. 	The second salary increase was “[s]ubject to
legislative appropriation” and was a compa-ratio based within-band salary increase
that was to be effective the first full pay period following January 1, 2009. 	Both
Agreements were identical with respect to these two contractual salary increase
provisions. In addition, the Agreements provided that:
In the event the salary increases described [above] are not implemented
because the [L]egislature fails to appropriate sufficient funds in any
fiscal year, the Union[s] ha[ve] the right to reopen bargaining over
general salary and within band [salary] increases that would be effective
for the fiscal year following the fiscal year in which the [L]egislature
fails to appropriate sufficient funds[.]
The Agreements included grievance and arbitration provisions to be followed by the
parties in the event of an alleged violation, misapplication, or misinterpretation of the
Agreements.
{3} 	The Union-represented employees constituted a subset of all classified
employees working for the State in FY2009. During the 2008 legislative session at
issue in this case, it is undisputed that the Legislature would have needed to
appropriate approximately $8 million to fund the two salary increases required by the

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Agreements—$5.8 million for employees within the AFSCME bargaining unit and
approximately $1.9 million for the CWA bargaining unit employees. By contrast, the
Legislature would need to appropriate approximately $15.9 million dollars in order
to extend the two salary increases provided for in the Agreements to all eligible
classified employees—both unrepresented workers as well as Union-represented
employees.
Legislative Appropriations for FY2009
{4} 	The Legislature’s appropriation bill for FY2009 appropriated $12,833,000 “to
provide incumbents in agencies governed by the Personnel Act . . . with an average
salary increase of two and four-tenths percent . . . based on employee job performance
as determined by the personnel board.” (Emphasis added.) This increase was to be
effective July 1, 2008. 	A second bill passed by the Legislature provided “an
additional average salary increase of one-half percent” to be effective on July 1, 2008,
that was to be paid by each state agency using its “cash balances, vacancy savings[,]
and other available funds.” (Emphasis added.) This bill authorized the Department
of Finance and Administration to distribute up to $500,000 of the appropriation
contingency fund to those agencies that did not have available funds for the one-half
percent salary increase.

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{5} 	Following the legislative session, the State Personnel Office (SPO) contacted
representatives of the Unions and informed them that it believed the Legislature had
not appropriated sufficient funds to cover the salary increases required by the
Agreements. Two meetings were held between the Unions and SPO to discuss the
legislative appropriations and the pay package that SPO was planning to recommend
to the Personnel Board. 	At the conclusion of the second meeting, the Unions
requested an additional meeting and an opportunity to present a counterproposal to
SPO’s planned recommendation. This request was denied, and the Personnel Board
then approved and the State implemented a pay package for FY2009 that differed not
only from the terms of the Agreements, but also from the pay package discussed by
SPO and the Unions at the two meetings. 	The package that was implemented
provided: “[a] salary increase of [two and four-tenths percent] of pay-band midpoint
to incumbents in agencies governed by the Personnel Act” and “[a]n additional [one-
half percent] of pay-band midpoint salary increase for incumbent employees subject
to the Personnel Act.” 	This flat two and nine-tenths percent salary increase was
effective 	July 	1, 	2008, 	and 	applied 	to 	all 	classified 	employees, 	including
unrepresented and Union-represented employees.

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Arbitration Proceedings
{6} 	Both 	AFSCME 	and 	CWA 	filed 	grievances 	with 	SPO 	following 	the
implementation of the pay package for FY2009. The Unions’ primary argument was
that even if the funding appropriated by the Legislature was insufficient to give all
classified employees the two salary increases contracted for under the Agreements,
there were nonetheless sufficient funds appropriated to fully fund the increases for
Union-represented employees and still provide an “average” of two and four-tenths
percent and an additional “average” of one-half percent in salary increases for all
employees. The Unions also alleged that SPO had negotiated in bad faith by failing
to give the Unions an opportunity to bargain over the pay package that was ultimately
implemented by the State.
{7} 	Unable to resolve their disputes through the grievance process, the State and the
Unions submitted to arbitration. Arbitration between AFSCME and the State occurred
on March 27, 2009, before arbitrator Alvin Goldman. On June 15, 2009, Goldman
issued an opinion and award in favor of AFSCME. 	Goldman determined that the
State had not violated the first salary increase requirement of the AFSCME
Agreement—the 	two percent increase effective on July 1, 2008—because the pay
plan implemented by the State for FY2009 provided an increase of two and nine-
tenths percent on July 1, 2008. 	However, he determined that the State failed to

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provide the compa-ratio increases required by the AFSCME Agreement and,
therefore, the total “received wage increases for bargaining unit employees were less
than would have been received had the pay [package] conformed” with the
requirements of the AFSCME Agreement. Goldman concluded that the $12.5 million
dollars appropriated by the Legislature was “more than enough” to meet the State’s
obligation to pay the AFSCME Agreement increases to Union-represented employees
and “still permit smaller increases for non bargaining unit personnel.”
{8} 	In terms of the award, Goldman directed the State to calculate what the salary
levels would have been for AFSCME-represented employees had they received the
salary increases contemplated by the AFSCME Agreement and, if permitted by
FY2010 allocations, to adjust the FY2010 salary levels to reflect the level they would
have been had the salary increases been provided. In addition, the award directed that
“bargaining unit employees shall be paid the difference between what they were paid
in [FY]2009 and what they would have been paid had their pay been raised by” the
two salary increases required by the AFSCME Agreement.
{9} 	Arbitration between CWA and the State took place at a hearing on May 6, 2009,
before arbitrator John Criswell, during which the parties submitted evidence and
presented testimony. 	On September 25, 2009, Criswell issued what he termed an
“interim award” in favor of CWA. 	He concluded that there was “undisputed

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evidence” demonstrating that the Legislature appropriated sufficient funds for the
salary increases required by the CWA Agreement and, thus, the State improperly
failed to pay the salary increases. Like Goldman in the AFSCME arbitration, Criswell
determined that the language of the legislative appropriation bills required only that
the salary increases received by all classified employees total an “average” of two and
nine-tenths percent and that there was no evidence presented by the State that it “was
impossible to comply with this requirement by granting the [Union-]represented
employees their legally required salary increase[s]” under the terms of the CWA
Agreement “while providing a lesser increase to [an] unrepresented employee[].”
Criswell concluded that there was no evidence presented that the State “owed any
legal obligation to pay to the unrepresented employees the same salary increases that
the [CWA Agreement] called for.”
{10} 	After finding in favor of CWA, Criswell expressed his uncertainty as to the
possible remedies available to make the CWA-represented employees whole. 	He
therefore indicated that the award was of an interim nature and that he would retain
jurisdiction until: (1) the State provided CWA with a list of employees who should
have received the two salary increases required by the CWA Agreement along with
the amounts of the increases for each employee; and (2) the parties attempted to agree

8
on a “proper, legal method” which could permit payment of the two salary increases
to the employees.
District Court’s Review of the Arbitration Awards
{11} 	The State filed a motion in district court seeking judicial review of the
arbitration awards pursuant to the Uniform Arbitration Act (UAA), NMSA 1978,
Sections 44-7A-1 to -32 (2001). The Unions filed cross-motions seeking confirmation
of the awards. 	After consolidating the individual cases involving each Union, the
district court confirmed the arbitration awards. The district court found that while it
“may or may not have reached the same conclusions as the [a]rbitrators, the [c]ourt
d[id] not find the decisions of the [a]rbitrators in each of these cases to have been so
‘palpably mistaken,’ so ‘completely irrational,’ or so violative of public policy as to
warrant the [c]ourt’s substitution of its interpretation and conclusions for that of the
duly chosen arbitrators who had the benefit of first hand review of the testimony and
the subject matter expertise of an experienced arbitrator.” This appeal followed.
DISCUSSION
{12} 	The State raises four issues on appeal that it contends require reversal of the
district court’s confirmation of the AFSCME and CWA arbitration awards. 	As a
preliminary matter, the State contends that the district court applied an improper
standard of review in the proceedings below. The State also challenges substantive

9
aspects of the arbitration awards, arguing that the awards must be vacated because the
arbitrators exceeded their powers under the UAA by: (1) committing “gross error of
fact or law” in determining that the Legislature appropriated sufficient funds to cover
the Agreement salary increases and (2) mandating remedies that violate provisions of
the Public Employee Bargaining Act (PEBA), NMSA 1978, §§ 10-7E-1 to -26 (2003,
as amended through 2005), and the New Mexico Constitution. See § 44-7A-24(a)(4)
(providing that a district court “shall vacate an award made in the arbitration
proceeding” if the arbitrator exceeded his/her powers).
I. 	District Court’s Review of the Arbitration Awards
{13} 	The State initially argues that the district court applied an erroneous standard
of review under Section 44-7A-24(a)(4) in determining whether to confirm or vacate
the arbitration awards. The district court relied on Fernandez v. Farmers Insurance
Co. of Arizona, 115 N.M. 622, 857 P.2d 22 (1993), for the applicable standard of
review. In Fernandez, our Supreme Court emphasized that the UAA “controls the
scope of the district court’s review of an arbitration award” and that such review is
generally limited to allegations that the award was the result of “fraud, partiality,
misconduct, excess of powers, or technical problems in the execution of the award.”
115 N.M. at 625, 857 P.2d at 25. The UAA neither empowers the district court to
review an arbitration award on the merits of the controversy nor grants the district

10
court the authority to review an award for errors of law or fact. Id. at 626, 857 P.2d
at 26.
{14} 	The 	State 	maintains 	that 	the 	district 	court 	should 	have 	conducted 	an
independent review of the arbitration records prior to determining whether the
arbitrators exceeded their powers. This view is contrary to our case law, including
Fernandez, which holds that a district court’s review of an arbitration award is limited
in scope and does not permit de novo review. 	Our Supreme Court noted in In re
Arbitration Between Town of Silver City and Silver City Police Officers Association
that judicial review of arbitration awards is strictly limited and that “[d]e novo review
of the merits of arbitration awards by the district court would only serve to frustrate
the purpose of arbitration, which seeks to further judicial economy by providing a
quick, informal, and less costly alternative to judicial resolution of disputes.” 	115
N.M. 628, 632, 857 P.2d 28, 32 (1993). The district court is not to apply de novo
review and “should simply conduct an evidentiary hearing and enter findings of fact
and conclusions of law” with respect to each statutory basis raised as a ground for
vacating or modifying the award. Id. at 631-32, 857 P.2d at 31-32 (internal quotation
marks and citation omitted). 	Thus, the district court determines, based on the
evidence presented to it, whether the award was the result of “fraud, partiality,

11
misconduct, excess of powers, or technical problems in the execution of the award.”
Fernandez, 115 N.M. at 625, 857 P.2d at 25.
{15} 	We conclude that the standard advocated by the State is a de novo standard that
our case law has firmly rejected. In contrast, the review applied by the district court
was consistent with the standard established by our jurisprudence. 	In the district
court, the parties requested a hearing, filed several written pleadings in support of
their arguments, and submitted the arbitration records and exhibits. 	The district
court’s final order stated that the court held a hearing on the matter, reviewed the
parties’ briefs and the arbitration decisions prior to reaching its decision, and
concluded that there was no ground for vacating the award.
{16} 	The State further argues that the district court’s reliance on Fernandez for the
applicable standard of review was incorrect because Fernandez does not articulate a
standard governing judicial review of arbitration awards under Section 44-7A-
24(a)(4). 	We are not persuaded for two reasons. 	First, the State itself relied on
Fernandez as the appropriate standard of review for the district court in its initial
motion seeking vacatur of the arbitration awards and in its response brief to the
Unions’ cross-motions for confirmation of the awards. 	See Cordova v. Taos Ski
Valley, Inc., 1996-NMCA-009, 121 N.M. 258, 263, 910 P.2d 334, 339 (explaining that
“[a] party who has contributed, at least in part, to perceived shortcomings in a trial

12
court’s ruling should hardly be heard to complain about those shortcomings on
appeal”).
{17} 	Second, the district court’s reliance on Fernandez was not improper. Although
Fernandez was decided under a prior version of the UAA, the basis for vacating an
award due to an arbitrator exceeding his or her powers is the same in both the current
and the previous versions of the UAA. 	Compare NMSA 1978, § 44-7-12(A)(3)
(1971) (repealed 2001), with § 44-7A-24(a)(4). 	The Supreme Court stated in
Fernandez that New Mexico courts should follow the majority view and should “only
find that arbitrators have exceeded their powers when the arbitrators rule on a matter
that is beyond the scope of the arbitration agreement; inconsistent with the arbitration
agreement; removed from their consideration by statute; or removed from their
consideration by case law.” 	Fernandez, 115 N.M. at 628, 857 P.2d at 28 (citations
omitted). Consequently, it was proper for the district court to rely on Fernandez for
guidance in determining whether the arbitrators exceeded their powers in the present
case.
{18} 	We also decline to follow the authority from other jurisdictions that the State
relies on in arguing that the district court should have conducted an independent
review of the arbitration records. 	As demonstrated above, New Mexico appellate
decisions have addressed the standard of review applicable to Section 44-7A-24(a)

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challenges to an arbitrator’s decision, and we therefore see no reason to look for
guidance from other jurisdictions. See Fernandez, 115 N.M. at 628, 857 P.2d at 28
(holding that an arbitrator’s error of law did not equate to the arbitrator having
exceeded his power); see also In re Town of Silver City, 115 N.M. at 632, 857 P.2d
at 32 (involving an argument that an arbitrator exceeded his power by applying an
incorrect standard of law); 	Nat’l Union of Hosp. Emps. v. Bd. of Regents,
2010-NMCA-102, ¶¶ 31-32, 149 N.M. 107, 245 P.3d 51 (involving a request to vacate
an award on the ground that the arbitrator exceeded his powers by conducting a final-
offer arbitration that was contrary to a hospital labor resolution and the PEBA); K.R.
Swerdfeger Constr., Inc. v. Bd. of Regents, 2006-NMCA-117, ¶¶ 1, 18-19, 140 N.M.
374, 142 P.3d 962 (involving a contractor who argued that the arbitrator exceeded his
powers because the award violated public policy).
II. 	Our Standard of Review
{19} 	On appeal, we review a district court’s confirmation of an arbitration award to
determine whether substantial evidence in the record supports the district court’s
findings of fact and whether the district court correctly applied the law to the facts
when making its conclusions of law. Casias v. Dairyland Ins. Co., 1999-NMCA-046,
¶ 8, 126 N.M. 772, 975 P.2d 385. 	Therefore, in this case, we review the district
court’s conclusion that the arbitrators did not exceed their powers and determine

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whether that conclusion flows from sufficiently supported facts and whether it is a
correct application of the UAA’s requirements.
III. 	Whether the Arbitrators Exceeded Their Powers
{20} 	We next address whether the district court erred in determining that the
arbitrators did not exceed their powers under Section 44-7A-24(a)(4). 	As noted
above, an arbitrator is considered to have exceeded his/her powers when the arbitrator
rules on a matter that is beyond the scope of the arbitration agreement, inconsistent
with the arbitration agreement, or removed from the arbitrator’s consideration by
statute or by case law. Fernandez, 115 N.M. at 628, 857 P.2d at 28. In this case, the
State contends that the arbitrators exceeded their powers (1) by determining that the
Legislature had appropriated sufficient funds to cover the salary increases mandated
by the Agreements and (2) by entering awards that violate provisions of the New
Mexico Constitution as well as (3) Section 10-7E-17(E) of the PEBA. We address
each of these arguments in turn.
A. 	The Arbitrators Did Not Exceed Their Powers in Finding That the
Legislature Appropriated Sufficient Funds to Cover the Salary Increases
{21} 	The State argues that the arbitrators exceeded their powers and committed gross
error in finding that the Legislature appropriated sufficient funds to cover both salary
increases required by the Agreements. The State challenges the arbitrators’ legal and
factual findings concerning the language of the two legislative appropriation bills,

15
House Bill 2 (HB2) and Senate Bill 165 (SB165), from the 2008 legislative session.
Specifically, the State argues that the arbitrators erroneously interpreted the phrase
“average salary increase” in the bills and that the arbitrators made faulty calculations
in determining whether the legislative appropriations were sufficient to fund the two
salary increases.
{22} 	We view the State’s arguments as an attempt to have this Court review de novo
the arbitrators’ determinations. We decline to do so. The UAA does not permit de
novo review of the merits of the arbitrations at issue in this case. In re Town of Silver
City, 115 N.M. at 632, 857 P.2d at 32 (emphasizing that the UAA “neither empowers
the district court to review an arbitration award on the merits of the controversy, nor
grants the district court the authority to review an award for errors of law or fact”).
“Judicial reexamination of arbitrators’ rulings on findings of fact and issues of law
. . . prolong adversary proceedings, thereby frustrating the parties’ goals of using
[arbitration as] an expeditious and relatively inexpensive alternative to litigation.”
Fernandez, 115 N.M. at 626, 857 P.2d at 26. 	Consequently, judicial review of
arbitration awards should avoid making an arbitration award “the commencement, not
the end, of litigation.” Id. (internal quotation marks and citation omitted).
{23} 	Our review of the record indicates that during the arbitration proceedings, the
State considered the legal and factual issues it now raises on appeal to be within the

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scope of the arbitrators’ decision-making authority. 	At the start of the arbitrations,
the parties stipulated to a broad statement of issues, including whether the State had
violated the Agreements by implementing the pay package for FY2009 and, if so,
what remedy was appropriate. During both arbitrations, the State presented testimony
concerning its interpretation of the two legislative bills and, specifically, how it
interpreted the language “average salary increase” in these bills. 	The parties also
presented testimony and exhibits concerning the factual issue of whether the funds
appropriated by the Legislature were sufficient to cover the salary increases required
by the Agreements. 	Either expressly or impliedly through its argument before the
arbitrators, the State considered these legal and factual issues to be within the scope
of the arbitration. Accordingly, having agreed to submit these issues to the arbitrators,
the State was bound by the arbitrators’ legal and factual findings on these issues.
United Tech. & Res., Inc. v. Dar Al Islam, 115 N.M. 1, 6, 846 P.2d 307, 312 (1993)
(“Having bitten once at the arbitration apple, [the unsuccessful party] cannot now
take a second bite from the judicial one.”). “So long as the award is made fairly and
honestly and is restricted to the scope of the submission, it must be confirmed by the
district court.” Fernandez, 115 N.M. at 627, 857 P.2d at 27.
{24} 	Thus, just as the district court lacked authority to review the merits of the issues
arbitrated, we are also unable to reweigh the evidence and rule on the merits of the

17
issues arbitrated. Even if the arbitrators committed legal or factual error, as the State
claims on appeal, we see no permissible basis for reviewing the merits of the issues
that were arbitrated. We reiterate that “[l]egal and factual mistakes, such as applying
the wrong standard of proof, do not comprise an abuse of power” under Section 44-
7A-24(a)(4). 	See In re Town of Silver City, 115 N.M. at 632, 857 P.2d at 32
(determining that an arbitrator did not exceed his power by applying the incorrect
standard of proof); see also Fernandez, 115 N.M. at 625-26, 857 P.2d at 25-26
(determining that an arbitrator did not exceed his power in interpreting a statute
concerning uninsured motorist benefits, even if the interpretation was arguably
incorrect, because his actions were within the scope of the arbitration agreement and
the award was fairly and honestly made); K.R. Swerdfeger Constr., 2006-NMCA-117,
¶ 26 (“An arbitrator’s incorrect interpretation of a statute is not sufficient to show that
enforcement of the arbitration award would violate public policy.”).
B. 	The Arbitrators Did Not Exceed Their Powers by Issuing Awards That the
State Contends Require an Unconstitutional Retroactive Salary Increase
{25} 	The State argues that the arbitrators acted in excess of their authority by issuing
awards that allegedly require retroactive salary increases for the Unions’ employees
in violation of Article IV, Section 27 of the New Mexico Constitution. Article IV,
Section 27 provides:

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No law shall be enacted giving any extra compensation to any public
officer, servant, agent or contractor after services are rendered or
contract made; nor shall the compensation of any officer be increased or
diminished during his term of office, except as otherwise provided in this
constitution.
The State maintains that the remedies provided in the arbitration awards constitute
extra compensation for services already performed in violation of Article IV, Section
27.
{26} 	We reject the State’s argument. As noted earlier, the arbitrators determined that
sufficient funds were allocated by the Legislature to cover the salary increases
required by the Agreements and, therefore, that the State violated its contractual
obligations under the Agreements by failing to provide these salary increases in
FY2009. Thus, the arbitrators’ chosen remedy was not payment for services already
performed but, instead, payment that the Unions’ employees were contractually
entitled to at the time they performed their services and failed to receive due to the
State’s breach of its contractual obligations under valid and binding Agreements.
Stated differently, the remedies mandated by the arbitrators were not “extra
compensation” as used in Article IV, Section 27 for services performed in FY2009,
but compensation that the Unions’ employees were entitled to and would have
received were it not for the State’s violation of the Agreements. 	Moreover, the
Unions’ employees cannot be faulted for undertaking grievance and arbitration

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procedures that were resolved after the end of FY2009, which was the fiscal year
during which the contractual salary increases were to take effect. 	We therefore
conclude that the arbitration awards did not require an unconstitutional salary increase
and that the arbitrators did not act in excess of their authority in this regard.
C. 	The Arbitrators Did Not Exceed Their Authority by Issuing Awards That
Allegedly Violated Provisions of the PEBA
{27} 	The State also argues that the arbitrators exceeded their powers by mandating
monetary relief that will require the Legislature to appropriate funds. Emphasizing
that the legislative appropriations at issue in this case were specifically limited to
FY2009, the State contends that the funds are no longer available. Consequently, the
State argues that the monetary relief included in the arbitration awards violates
Section 10-7E-17(E) of the PEBA. In addition, the State asks that we apply the non-
delegation doctrine to vacate the arbitration awards.
{28} 	Section 10-7E-17 of PEBA covers the scope of bargaining between public
employers and labor representatives. In relevant part, Subsection 17(E) provides that:
E. 	An impasse resolution or an agreement provision by the
state and an exclusive representative that requires the expenditure of
funds shall be contingent upon the specific appropriation of funds by the
[L]egislature and the availability of funds. . . . An arbitration decision
shall not require the reappropriation of funds.
(Emphasis added.) The State argues that this provision prohibited the arbitrators from
“requiring a reappropriation of funds from an already enacted budget.” The Unions

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argue, however, that Section 10-7E-17 applies only to arbitrations following an
impasse, which is defined under the PEBA as the “failure of a public employer and
an exclusive representative, after good-faith bargaining, to reach agreement in the
course of negotiating a collective bargaining agreement.” Section 10-7E-4(K). The
Unions contend that this appeal arises from grievances and arbitration proceedings
filed after the parties had already negotiated and signed the Agreements; therefore,
they claim that Subsection 17(F)—which does not contain an express reappropriation
prohibition—is applicable here:
F. 	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 [UAA];
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.
Section 10-7E-17(F).
{29} 	We need not determine whether Subsections 17(E) or 17(F) applies to this case.
The State’s argument is premised on its contention that the arbitration awards would
require further appropriation or a reappropriation of funds by the Legislature.
However, the arbitrators determined that the Legislature already appropriated
sufficient funds in FY2009 for the State to meet its contractual obligations under the
Agreements and that the State failed to meet its contractual obligation to distribute the

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funds according to the terms of the Agreements. The State’s representation that it has
already used the funds appropriated by the FY2009 legislative appropriations should
not affect the arbitrators’ decisions and awards in favor of the Unions. There is no
difference between this case and other cases where adverse judgments are rendered
against the State; as in those cases, the State cannot avoid its obligation to comply
with the judgment by maintaining that compliance would require it to seek further
appropriations from the Legislature. Cf. Salazar v. Ramah Navajo Chapter, 567 U.S.
___, 2012 WL 2196799, at *7 (June 18, 2012) (explaining that “[o]nce ‘Congress has
appropriated sufficient legally unrestricted funds to pay the contracts at issue, the
Government normally cannot back out of a promise to pay on grounds of ‘insufficient
appropriations,’ even if the contract uses language such as ‘subject to the availability
of appropriations,’ and even if an agency’s total lump-sum appropriation is
insufficient to pay all the contracts the agency has made’” (quoting Cherokee Nation
of Okla. v. Leavitt, 543 U.S. 631, 637 (2005)) and that this rule “furthers the
Government’s own long-run interest as a reliable contracting partner in the myriad
workaday transaction of its agencies.” 	Salazar, 2012 WL 2196799, at *1 (internal
quotation marks and citation omitted).
{30} 	At oral argument, the State raised a second argument based on Subsection 17(E)
of the PEBA. The State contended that the term “agreement provision” in Subsection

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17(E) means a collective bargaining agreement and, therefore, that the Agreements in
this case were dependent upon the “specific appropriation” of funds by the Legislature
required by that subsection. The State argued that the two legislative appropriation
bills of relevance to this case were not specific enough to meet this requirement
because they did not contain definitive language tying the appropriations to the
Agreements.
{31} 	The term “agreement provision” is not defined in the statute and has not
previously been interpreted by our appellate courts. Assuming without deciding that
Subsection 17(E) applies to the Agreements in this case, we nonetheless conclude that
the legislative appropriations were specific enough to withstand scrutiny. HB 2, the
Legislature’s primary appropriations bill during the 2008 legislative session, included
several provisions discussing appropriations for each state agency or department. The
bill appropriated $12,833,000 dollars “to provide incumbents in agencies governed
by the Personnel Act . . . with an average salary increase of two and four-tenths
percent based on employee job performance as determined by the personnel board”
to be effective on July 1, 2008. This provision within the bill specified the effective
date, the rate of the increase, and that it was an appropriation for all agencies covered
by the Personnel Act. Though the percent of the increase and effective date varied
from those specified in the Agreements, there is no question that this language in HB

23
2 included the Union-represented employees, a subset of “incumbents in agencies
governed by the Personnel Act.”
{32} 	We are not persuaded that the Legislature, in using the term “specific” in
Subsection 17(E), intended for it to be applied in the manner that the State raises. It
would be unrealistic to require the Legislature to specifically delineate within its
appropriation bills all of the contractual salary obligations the State enters into with
various entities, including unions. We therefore conclude that the arbitrators did not
exceed their powers because the awards do not violate Subsection 17(E) of the PEBA.
IV. 	The Dissent’s View
{33} 	We briefly address the arguments asserted in the Dissent. The Dissent contends
that the UAA/Fernandez standard of review we employ in this Opinion is improper
under the circumstances of this case for two primary reasons: (1) our Supreme Court
in Board of Education of Carlsbad Municipal Schools v. Harrell, 118 N.M. 470, 882
P.2d 511 (1994), requires broader judicial review under these circumstances, and (2)
the PEBA itself requires a different standard of judicial review. 	The Dissent
maintains that, under Harrell, the PEBA’s directive in Section 10-7E-17(F) requiring
application of the UAA’s limited judicial review violates the doctrine of separation
of powers and principles of due process. 	Because of these violations, the Dissent
contends, the arbitration awards in this case are subject to more expansive judicial

24
review than permitted by the UAA. The Dissent also maintains that the PEBA itself
restricts an arbitrator to the interpretation of the four corners of the collective
bargaining agreement and precludes interpretation of legislative bills.
{34} 	The problem with the Dissent’s contentions is that the State never raised these
issues or points in this Court, nor were they presented to the arbitrators or the district
court. 	A necessary prerequisite to the Dissent’s position based on Harrell is the
determination that Section 10-7E-17(F) is unconstitutional. See Harrell, 118 N.M. at
473, 882 P.2d at 514 (holding that a provision of the State Personnel Act limiting
judicial review in an appeal from a school board’s decision to discharge a certified
employee was unconstitutional). In their briefs in this Court, none of the parties cited
Harrell or suggested that any part of the PEBA was constitutionally infirm. Nor did
any of the parties argue that the PEBA precluded the arbitrators from interpreting the
appropriation bills. 	In fact, both the State and the Unions asked the arbitrators to
interpret the bills in question, and both presented evidence to aid the arbitrators in
their 	interpretation. 	On 	appeal, 	the 	State 	argues 	only 	that 	the 	arbitrators’
interpretations were legally flawed, not that the interpretations were unauthorized.
{35} 	In our view, it would be unfair to the parties for us, sua sponte, to conceive of
and articulate legal theories that never occurred to the parties and that were not raised
in the proceedings below or on appeal. The State did not make the arguments crafted

25
by the Dissent and, more importantly, the Unions have never had any opportunity to
respond to these unstated arguments. 	Were we to decide this case as the Dissent
suggests, the Unions would be justifiably dismayed that they have been denied the
opportunity to present a different view of Harrell and the PEBA. Our Supreme Court
has admonished that “[c]ourts risk overlooking important facts or legal considerations
when they take it upon themselves to raise, argue, and decide legal questions
overlooked by the lawyers who tailored the case to fit within their legal theories.”
N.M. Dep’t of Human Servs. v. Tapia, 97 N.M. 632, 634, 642 P.2d 1091, 1093 (1982);
see State v. Werner, 115 N.M. 131, 132, 848 P.2d 1, 2 (Ct. App. 1992) (explaining
that appellate courts should not address arguments the parties have failed to brief
unless “there could be no valid reason for the lower court’s action” (internal quotation
marks and citation omitted)), rev’d on other grounds by 117 N.M. 315, 871 P.2d 971
(1994).
{36} 	While the Dissent correctly observes that the standard of review is not subject
to the usual preservation requirements, the Dissent’s contentions cannot reasonably
be characterized as a simple determination of the proper standard of review. Rather,
for us to determine that we should apply something other than the UAA standard
governing the judicial review of arbitration awards, we would first necessarily have
to strike down Section 10-7E-17(F), which requires that any arbitration award “shall

26
be subject to judicial review pursuant to the standard set forth in the [UAA].” Id. The
only way to strike down that statute is to determine it to be unconstitutional, just as
the Supreme Court in Harrell found a provision in the State Personnel Act to be
unconstitutional in order to adopt a different standard of review. This is a proposition
that is far more complex than the simple choice of a de novo or abuse of discretion
standard of review.
{37} 	In addition, the question here is not one of preservation. 	We would be
concerned with preservation if the State had made the Dissent’s contentions on appeal
and the Union had objected on the ground that the arguments were never made below.
Here, the arguments were never made in this Court—at least not until the Dissent
made them. 	We decline to create arguments that the parties themselves have not
raised.
CONCLUSION
{38} 	We affirm the district court’s confirmation of both the AFSCME and the CWA
arbitration awards.

27
{39} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
I CONCUR:
JONATHAN B. SUTIN, Judge
J. MILES HANISEE, Judge (dissenting).

28
HANISEE, Judge (dissenting).
{40} 	At the heart of this case lie separate arbitral awards, each turning on a single
legal 	question: 	whether 	the 	2008 	Legislature, 	by 	its 	$12.8-million-dollar
appropriation bills, intended to specifically fund the State’s 2005 and 2006 collective
bargaining Agreements and thereby trigger salary increases for AFSCME/CWA
bargaining unit employees over and above those awarded to comparably situated, but
unrepresented, 	classified 	public 	employees. 	Both 	arbitrators 	interpreted 	the
Legislature’s stated intention to fund “an average salary increase of two and [nine]-
tenths percent based on employee job performance as determined by the personnel
board” as unambiguously funding the union contracts, and rejected evidence and
argument presented to the contrary. By affirming the district court’s confirmation of
both awards, the majority ratifies application of the Uniform Arbitration Act’s
(UAA’s) built-in standard of review, which is “among the narrowest known to the
law,” permitting vacatur of an arbitral award only if tainted by corruption, fraud,
misconduct, or the like. Bowen v. Amoco Pipeline Co., 254 F.3d 925, 932, 936 (10th
Cir. 2001) (internal quotation marks omitted). 	Consequently, meaningful judicial
review of the arbitrators’ legally determinative fiscal constructions is evaded. 	See
supra, Majority Opinion ¶ 24 (“[W]e are also unable to . . . rule on the merits of the
issues arbitrated[,] . . . [e]ven if the arbitrators committed legal or factual error[.]”).

29
Because I believe that application of the UAA’s standard of review to these arbitral
awards contravenes direct precedent, the New Mexico Constitution, PEBA itself, and
sound public policy, I respectfully dissent.
Standard of Review
{41} 	This Court independently determines the standard of its review. 	Clayton v.
Farmington City Council, 120 N.M. 448, 453, 902 P.2d 1051, 1056 (Ct. App. 1995)
(“[O]ne of our first tasks is to determine the standard of review we should apply in
examining district court judgments.”). This is true even when the parties have failed
to adequately present the issue below, or in this Court. 	Watson v. Town Council of
Bernalillo, 111 N.M. 374, 376, 805 P.2d 641, 643 (Ct. App. 1991); see also State v.
Barrera, 2001-NMSC-014, ¶ 20, 130 N.M. 227, 22 P.3d 1177 (“The standard of
review on appeal is an issue that is separate and distinct from the requirement of
preservation.”). While the majority here precludes application of a standard of review
not specifically advanced by the parties, see supra, Majority Opinion ¶¶ 34-37, my
view is that our appellate obligation incorporates the identification and use of the
standard that is correct as a matter of law.
{42} 	The majority cites the general standard appropriate to our review of a district
court’s confirmation of an arbitral award, which requires that factual findings be
supported by substantial evidence and that applicable law be correctly utilized in

30
relation to the facts. See Casias, 1999-NMCA-046, ¶ 8. But that “standard of review
depends on the nature of the review undertaken by the district court[,]” Clayton, 120
N.M. at 453, 902 P.2d at 1056, which here reviewed the arbitral awards only as
directed by the UAA. 	See § 44-7A-3(a) (“The [UAA] governs an agreement to
arbitrate made on or after [July 1, 2001].”); see also § 10-7E-17(F) (“[D]isputes
pertaining to employment terms and conditions and related personnel matters[,] . . .
shall constitute an arbitration award . . . [and] be subject to judicial review pursuant
to the standard set forth in the [UAA].”). Our New Mexico Supreme Court, however,
has plainly required that a broader, administrative standard of review be applied when
the parties have been compelled to arbitrate by statute. Harrell, 118 N.M. at 485-86,
882 P.2d at 526-27.
{43} 	Harrell distinguished voluntary arbitration from statutorily mandated arbitration
and assigned differing standards of review to each. When arbitration is volitional, a
“limited scope of judicial review of arbitration awards is appropriate [because] the
parties have voluntarily bargained for the decision of an arbitrator and, presumably,
have assumed the risks of and waived objections to that decision.” 	Id. at 476, 882
P.2d at 517 (emphasis added). The Court explained, however, that “[w]hen arbitration
is statutorily mandated as the sole method for resolution of a particular dispute, the
arbitration is not consensual even if a provision for such arbitration is incorporated

31
into a contract.” Id.; see also Rivera v. Am. Gen. Fin. Servs., Inc., 2011-NMSC-033,
¶ 38, 150 N.M. 398, 259 P.3d 803 (“Arbitration is a matter of consent, not coercion[.]”
(internal quotation marks and citation omitted)).
{44} 	While the New Mexico Supreme Court ultimately upheld the enforceability of
statutorily mandated arbitration in Harrell, it declared unconstitutional the State
Personnel Act’s limited standard of review—which is directly analogous to that of the
UAA—when applied to the challenged product of compulsory arbitration:
[D]ue process, together with separation of powers considerations,
requires that parties to statutorily mandated arbitration be offered
meaningful review of the arbitrator’s decision. In order for review of the
arbitrator’s decision to be meaningful, the court must determine whether
the litigant received a fair hearing before an impartial tribunal, whether
the decision is supported by substantial evidence, and whether the
decision is in accordance with law. [Any] provision . . . limiting judicial
review of the arbitrator’s decision to cases “where the decision was
procured by corruption, fraud, deception or collusion” does not permit
meaningful review of the arbitrator’s decision by the court. We therefore
strike th[ese] provision[s] as a violation of due process and as an
unconstitutional delegation of judicial power.
118 N.M. at 485, 882 P.2d at 526.
{45} 	Thus, the appropriate standard of district court review in this case turns on
whether the arbitration herein was compulsory or voluntary. There has been one case
in our jurisprudence to address this question in the context of PEBA, but for reasons
explained below its result is distinguishable. See generally Int’l Ass’n of Firefighters
v. City of Carlsbad, 2009-NMCA-097, ¶ 18, 147 N.M. 6, 216 P.3d 256. 	In

32
International Ass’n of Firefighters, this Court reasoned that the final arbitration
provided for in Section 10-7E-18(B) of PEBA was voluntary, rather than compulsory,
because the parties could have agreed to an alternative impasse procedure under
Section 10-7E-18(C), and because the arbitrator’s election to adopt the “complete,
last, best offer” was contingent on the future discretion of the City in exercising its
independent power to appropriate funds. 	2009-NMCA-097, ¶¶ 7, 13, 18 (internal
quotation marks and citation omitted).
{46} 	The provision of PEBA applicable to this case is very different from that
analyzed in International Ass’n of Firefighters. 	First, the grievance procedures
contained within the 2005 and 2006 Agreements and invoked by the Unions were
adopted pursuant to Section 10-7E-17(F), which mandated binding arbitration for
resolution of disputes arising under the Agreements:
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 [UAA] . . . .
(Emphasis added.)
{47} 	Also, Section 10-7E-17 lacks a comparable opt-out provision such as that
present in International Ass’n of Firefighters, which would have allowed the parties
to agree to a grievance procedure other than binding arbitration. 	And while the

1 The State was separately compelled from the outset—again, by PEBA—to
negotiate and reach agreements with the participatory bargaining units. See § 10-7E-
17(A) (mandating that the State “shall bargain in good faith . . . [and] shall enter into
written collective bargaining agreements covering employment relations”).
33
Agreements at issue are similarly “contingent upon the specific appropriation of funds
by the [L]egislature and the availability of funds[,]” the arbitrators’ decisions herein
occurred as a product of past-funded legislative appropriations. Section 10-7E-17(E).
In contrast, the City in International Ass’n of Firefighters possessed the independent
power to fund the terms adopted by that arbitrator’s decision at some point in the
future if it so chose. 2009-NMCA-097, ¶¶ 3, 12.
{48} 	Given these distinctions, it is my view that the mandatory arbitration clause
provided in Section 10-7E-17(F) and exported into these Agreements, is compulsory
under Harrell. The terms of the Agreements requiring binding arbitration were non-
negotiable. 1 Thus, UAA review of these awards ran structurally afoul of our Supreme
Court’s careful effort to limit cursory judicial review following involuntary resolution
of disputes by an arbitrator. 	Applying Harrell, I would declare the clause within
PEBA’s Section 10-7E-17(F) that limits “judicial review pursuant to the standard set
forth in the Uniform Arbitration Act” to be unconstitutional.
{49} 	Importantly, the applicability of our New Mexico Supreme Court’s analysis
goes beyond the simple determination of whether submission to an arbitrator’s
authority is a product of force or choice. Harrell based its ultimate determination on

34
separation of powers grounds in addition to due process, further rooting its decision
within the New Mexico Constitution. 	See 118 N.M. at 482, 882 P.2d at 523; N.M.
Const. Art. III, § 1 (“The powers of the government of this state are divided into three
distinct departments, the legislative, executive and judicial, and no person or
collection of persons charged with the exercise of powers properly belonging to one
of these departments, shall exercise any powers properly belonging to either of the
others, except as in this constitution otherwise expressly directed or permitted.”). Our
Supreme Court stressed the critical role of the judiciary as a separate and independent
power, vital to the proper operation of government:
The judiciary thus must maintain the power of check over the exercise
of judicial functions by quasi-judicial tribunals in order that those
adjudications will not violate our constitution. The principle of check
requires that the essential attributes of judicial power, vis-a-vis other
governmental branches and agencies, remain in the courts.
Harrell, 118 N.M. at 484, 882 P.2d at 525. Seperately, our Supreme Court has upheld
the Legislature’s constitutional role in assigning the location at which the funds it
chooses to disburse come to rest. State ex rel. Schwartz v. Johnson, 120 N.M. 820,
825, 907 P.2d 1001, 1006 (1995) (“The [L]egislature must exercise its ‘exclusive
power of deciding how, when, and for what purpose the public funds shall be applied
in carrying on the government.’” (citation omitted)).

35
{50} 	In my view, the arbitrators’ interpretations of the Legislature’s intent to
discharge its independent appropriative function ascend to a level of constitutional
significance. Each award is therefore subject to the judiciary’s power of check, and
not the virtual rubberstamp of UAA review. 	Pursuant to Harrell, that check is
provided by way of an administrative agency standard of review. 	See 118 N.M. at
485-86, 882 P.2d at 526-27 (“The scope of review constitutionally required for
compulsory arbitration is the review required for administrative adjudications[,]”
which entails “a determination whether the administrative decision is arbitrary,
unlawful, unreasonable, capricious, or not based on substantial evidence.”). Because
the district court did not employ the appropriate standard of review to these arbitral
awards, I would remand for it to do so.
PEBA Limits Arbitrator Power
{51} 	Further undermining the exclusive application of UAA-derived review to the
question of law at issue is PEBA itself, which expressly limits arbitrator authority to
matters of contractual interpretation within the four corners of a given collective
bargaining agreement. 	Section 10-7E-17(F) (limiting grievance arbitration to “the
settlement of disputes pertaining to employment terms and conditions and related
personnel matters.” (emphasis added)); cf. Agreement Between The State of New
Mexico and State Employee Alliance The Communications Workers of America AFL-

36
CIO, CLC, art. 9, §§ 1(A), 5 (Feb. 1, 2006) (“Allegations of violation, misapplication,
or misinterpretation of this Agreement . . . shall be subject to this negotiated grievance
procedure[,]” and “[t]he arbitrator shall have no power to add to, subtract from, alter,
or modify any of the terms of the Agreement, but may give appropriate interpretation
or application to such terms and provide appropriate relief.” (emphasis added)). Thus,
PEBA too supports the diminution of an arbitrator’s might to questions of law that are
answerable only beyond the confines of collective bargaining agreements.
{52} 	To implement this distinction, PEBA defines two tracks for resolution of
disputes arising between the State and bargaining units: (1) administrative agency
proceedings before the Public Employee Labor Relations Board (the Board) and (2)
binding arbitration. 	Board rulings are subject to a typical administrative agency
standard of review, reversible only when found to be “(1) arbitrary, capricious or an
abuse of discretion; (2) not supported by substantial evidence on the record considered
as a whole; or (3) otherwise not in accordance with law.” 	Section 10-7E-23. 	The
contrasting standard of review for arbitral awards is the far narrower UAA provision
within Section 44-7A-24(a): vacatable only for “fraud, partiality, misconduct, excess

2 Arguably, even under UAA review, these arbitral awards require vacatur
because they are products of the extrinsic interpretation of legislative appropriation,
an area of inquiry that exceeds an arbitrator’s power pursuant to PEBA. The majority,
however, does not address that question based upon its conclusion that the State failed
to preserve the argument with a requisite level of specificity. 	See supra, Majority
Opinion ¶ 23.
37
of powers, or technical problems in the execution of the award.” 2 Fernandez, 115
N.M. at 625, 857 P.2d at 25. Like the dichotomy in Harrell that separates these same
standards of review based upon voluntariness or compulsion, PEBA differentiates
between disputes that are intrinsic to or extrinsic from the Agreement at issue.
{53} 	The limitation of an arbitrator’s reach is expressed by the referral of intrinsic
disputes for arbitration, while legally broader extrinsic matters are resolved by the
Board PEBA created. 	See §§ 10-7E-8, -9 (providing that Board powers and duties
include “the filing of, hearing on and determination of complaints of prohibited
practices”). 	Prohibited practices complaints are defined at Section 10-7E-19, and
include complaints relating to the failure “to comply with a collective bargaining
agreement.” Section 10-7E-19(H). Additionally, PEBA directs that “[t]he board shall
promulgate rules necessary to accomplish and perform its functions and duties.”
Section 10-7E-9(A). One of the regulations promulgated by the Board expresses the
same effort to define an arbitrator’s power in a manner that expresses its outer
boundaries:

3 Also arguably, the nature of the Union’s grievance—which began as a
prohibited practices complaint charging that the State failed to comply with the
Agreements—was unsuited for deferral to arbitration and instead required resolution
by the Board.
38
If the subject matter of a prohibited practices complaint requires the
interpretation of a collective bargaining agreement; and the parties
waive in writing any objections to timeliness or other procedural
impediments 	to 	the 	processing 	of 	a 	grievance, 	and 	the 	director
determines that the resolution of the contractual dispute likely will
resolve the issues raised in the prohibited practices complaint, then the
director may, on the motion of any party, defer further processing of the
complaint until the grievance procedure has been exhausted and an
arbitrator’s award has been issued.
11.21.3.22(A) NMAC (02/28/2005) (emphasis added) 3 ; accord S. Barry Paisner &
Michelle R. Haubert-Barela, Correcting the Imbalance: 	The New Mexico Public
Employee Bargaining Act and the Statutory Right Provided to Public Employees, 37
N.M. L. Rev. 357, 373 (2007) (noting that under the Civil Service Reform Act a more
rigorous review process applies to unfair labor practices, whereas an arbitrator’s
“interpretation 	of 	the 	collective 	bargaining 	agreement 	. 	. 	. 	remains 	largely
unreviewable”).
{54} 	The proper confinement of an arbitrator’s power to the contracts which create
it also enjoys broad historical support. The United States Supreme Court, for instance,
has recognized that:
[A]n arbitrator is confined to interpretation and application of the
collective bargaining agreement . . . . Thus the arbitrator has authority
to resolve only questions of contractual rights . . . . [T]he specialized

39
competence of arbitrators pertains primarily to the law of the shop, not
the law of the land. . . . [T]he resolution of statutory or constitutional
issues is a primary responsibility of courts . . . .”
Alexander v. Gardner-Denver Co., 415 U.S. 36, 53-57 (1974) (first alteration in
original) (internal quotation marks and citations omitted). 	Thus, pursuant to the
language contained within the Agreements and PEBA itself, judicial review is
required as to whether these arbitrators erred as a matter of law, and not simply
whether they exceeded their powers or were corrupt.
Public Policy
{55} 	Lastly, under the UAA the decision of an arbitrator cannot be vacated for legal
error or contravention of public policy. See Fernandez, 115 N.M. at 627-28, 857 P.2d
at 27-28 (noting that arbitral awards are not reviewable for legal error); see also K.R.
Swerdfeger Constr., 2006-NMCA-117, ¶ 19 (“[We are] not convinced . . . that
anything in the UAA permits a court to vacate an arbitration award on public policy
grounds.”). 	Accordingly, today’s Opinion also leaves unanswered the question of
whether the discrepant entitlement of select classified employees to participate in non-
commensurate wage increases comports with New Mexico public policy.
{56} 	Pursuant to the Agreements, employees within the represented bargaining units
were each entitled to claim both a two percent general salary increase, as well as a
within-band increase of a compa-ratio-determined amount between one percent and

40
three and one-half percent, each contingent upon funding. When added together, these
increases meant that a represented employee’s combined anticipated raise ranged from
three percent to five and one-half percent. Unrepresented employees within parallel
occupational classifications, but who were not included within AFSCME or CWA’s
bargaining units, stood to gain no increase pursuant to the Agreements. See contra §
10-7E-2 (“The purpose of [PEBA] is to . . . promote harmonious and cooperative
relationships between public employers and public employees and to protect the
public interest . . . .”). Today’s ruling affirms that the State is bound by its 2005 and
2006 Agreements, thereby setting aside the State’s effectuation of the 2008 legislative
appropriations to provide a two and nine-tenths percent, across-the-board salary
increase for all eligible state employees—union represented or not.
{57} 	It appears to me to be contrary to public policy for eligible state employees to
be awarded substantially differing income increases for the performance of parallel
public services, when that determination is based upon union representation and not
upon merit. See State v. Pub. Safety Emps. Ass’n, 798 P.2d 1281, 1286 (Alaska 1990)
(“[T]he merit system and the principle of like pay for like work are fundamental to
public employment.”). 	The result this Court reaches today prevents us from
discharging our constitutional duty to determine whether the inequitable impact of the
Agreements comports with the even-handedness with which New Mexico citizens

41
expect state government to treat and compensate public employees who perform state
business on a day-to-day basis. See Hartford Ins. Co. v. Cline, 2006-NMSC-033, ¶
8, 140 N.M. 16, 139 P.3d 176 (“The predominant voice behind the declaration of
public policy of the state must come from the [L]egislature, with an additional
supporting role played by the courts and the executive department . . . .”). Had the
district court applied the administrative standard of review required by Harrell and
established within PEBA, this would not be the case.
{58} 	Because I cannot agree with the manner in which the majority resolves the
issues in this appeal, I respectfully dissent.
J. MILES HANISEE, Judge