NEW MEXICO CORRECTIONS DEPARTMENT, Appellant-Petitioner, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 18, AFL-CIO, Appellee-Respondent.
Docket No. A-1-CA-34737
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
September 5, 2017
2018-NMCA-007
Certiorari Denied, October 24, 2017, No. S-1-SC-36688
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
David K. Thomson, District Judge
Paula E. Ganz
Jennifer R. James
Deputy General Counsel
New Mexico Corrections Department
Santa Fe, NM
for Appellant
Shane Youtz
Stephen Curtice
James A. Montalbano
Youtz & Valdez, P.C.
Albuquerque, NM
for Appellee
HANISEE, Judge.
{1} The State of New Mexico Corrections Department (the Department) appeals the district court‘s denial of the Department‘s motion for reconsideration following the district court‘s on-record affirmance and adoption of the Public Employee Labor Relations Board‘s (PELRB) September 2009 order and the PELRB hearing examiner‘s July 2009 order, both of which found the Department to have committed a prohibited practice in violation of
BACKGROUND
{2} On February 10, 2009, Respondent filed a prohibited practices complaint (PPC) with the PELRB against the Department, alleging that the Department had violated
{3} The purpose of labor-management meetings is to provide the Department and the union an opportunity to resolve issues that arise in the workplace in order to promote a cooperative relationship between the parties and enhance the orderly operation and functioning of the Department‘s facilities. Policy review meetings, such as the one held on January 26, 2009, are a type of labor-management meeting that is convened when the Department proposes policy changes affecting the CBA. Such meetings are typically convened by the Department‘s Human Resources Bureau Chief Elona Cruz, who is the Department‘s administrator of the CBA. When convened, representatives of both Department management and employee officials are required to attend per the CBA.
{4} Cruz used a state vehicle to attend such meetings, including the meeting on January 26, 2009. On approximately a dozen occasions from 2005 through 2008, Cruz granted employee officials permission to do the same. In January 2009 Cruz issued a directive to the Department, disallowing use of state vehicles by employee officials. Cruz‘s directive was in response to direction she received from the State Personnel Office (SPO), which had received a legal opinion (the opinion) in December 2008 from the General Services Department‘s (GSD) general counsel that concluded that state law prohibits the use of state vehicles by union officials and stewards, including employee officials. The opinion responded to a general inquiry from SPO Director Sandra Perez regarding an issue that had arisen during negotiations between the state and different unions, including AFSCME, and did not address the specific factual scenario presented in this case.
{5} According to GSD Secretary Arturo Jaramillo, GSD is the only state agency with the authority to own, lease, and insure state vehicles. GSD is also the only state agency with the authority to establish rules and regulations for the use of state vehicles. Secretary Jaramillo explained that under the New Mexico Administrative Code, the general eligibility requirements for using a state vehicle are: (1) status as a state employee, (2) possession of a valid driver‘s license, (3) completion of a defensive driving course, and (4) the use must be “in furtherance of official state business.” He also testified that the term “official state business” is not defined by statute or regulation, and determinations of whether use of a vehicle is in furtherance of official state business are made on a case-by-case basis, taking into consideration “the whole complex” of facts, not just one particular fact. When asked whether, in general, there are instances where a union official‘s use of a vehicle would be in furtherance of official state business, Secretary Jaramillo responded, “I could envision that, where the interests of the state and the union relat[e] to resolution of a matter of common interest, I would argue that is in furtherance of state business.” He offered grievance meetings as an example of a type of labor-management meeting that would qualify for use of state vehicles by employee officials because such meetings are “in furtherance of official state business because it would be in the state‘s interests to resolve grievances.” As an example
{6} The hearing examiner concluded that “[a] state employee who is also a union official of a state bargaining unit is on official state business while attending labor-management relations meetings, grievance meetings[,] and other meetings necessary for the administration of the [CBA].” As such, he determined that the Department had committed a prohibited practice in violation of
{7} The Department appealed the PELRB‘s decision to district court, arguing that the decision was not in accordance with law. Specifically, the Department argued that the decision conflicts with myriad statutes—including
DISCUSSION
{8} The ultimate question we must answer in this case is whether the PELRB erred in concluding that the Department committed a prohibited practice by not allowing employee officials to use a state vehicle to attend a policy review meeting called by the Department when management employees were allowed to use a state vehicle to attend the same meeting.
Standard of Review
{9} “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.” City of Albuquerque v. AFSCME Council 18 ex rel. Puccini, 2011-NMCA-021, ¶ 8, 149 N.M. 379, 249 P.3d 510 (alteration, internal quotation marks, and citation omitted). “In reviewing an administrative decision, we apply a whole-record standard of review.” Town & Country Food Stores, Inc. v. N.M. Reg. & Licensing Dep‘t, 2012-NMCA-046, ¶ 8, 277 P.3d 490 (internal quotation marks and citation omitted). “We independently review the entire record of the administrative hearing to determine whether the [PELRB]‘s decision was arbitrary and capricious, not supported by substantial evidence, or otherwise not in accordance with law.” Puccini, 2011-NMCA-021, ¶ 8 (internal quotation marks and citation omitted). “When reviewing an administrative agency‘s conclusions of law, we review de novo.” Id. We “apply a de novo standard of review to [administrative] rulings regarding statutory construction.” Albuquerque Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Reg. Comm‘n (ABCWUA), 2010-NMSC-013, ¶ 50, 148 N.M. 21, 229 P.3d 494. We “will generally defer to an agency‘s reasonable interpretation of its own ambiguous regulations, especially where the subject of the regulation implicates agency expertise[.]” Id. ¶ 51 (internal quotation marks and
The PEBA: Intent and Prohibited Practices
{10} The Legislature declared the purpose of the PEBA as being “[(1)] to guarantee public employees the right to organize and bargain collectively with their employers[;] [(2)] to promote harmonious and cooperative relationships between public employers and public employees[;] and [(3)] to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.”
{11} Here, the uncontroverted facts are that the Department treated state employees who were members of the union (Blair and Molina) differently than a state employee who was not (Cruz) by allowing the non-union employee to use a state vehicle to attend the same Department-called meeting for which the union employees’ request to use a state vehicle had been denied. The Department has never argued that it did not treat Blair and Molina differently based on their union status but instead offers a variety of possible reasons why its conduct does not violate
1. Whether Anti-Union Animus Is Required to Establish Discriminatory Treatment Under Section 10-7E-19(A) of the PEBA
{12} The Department first argues that we should interpret
2. Whether the 2005 CBA‘s Silence Regarding Use of a State Vehicle by Employee Officials Is Dispositive as to Whether Section 10-7E-19(A) Was Violated
{14} The Department also relies on the absence of a provision in the CBA establishing an express right of employee officials to use state vehicles to attend labor-management meetings to defend its actions. The Department argues that “[t]he use of state vehicles does not follow from the bargained-for right to be paid for certain [union] activities, precisely because the 2005 CBA does not also confer the right to use state vehicles.” But whether the CBA provides a right to use state vehicles is simply the beginning of the inquiry, not the end because while parties may agree to supplement statutory rights under a contract, the public policy of freedom to contract yields when a contract‘s terms contravene existing law. See Acacia Mut. Life Ins. Co. v. Am. Gen. Life Ins. Co., 1990-NMSC-107, ¶ 1, 111 N.M. 106, 802 P.2d 11 (“The right to contract is jealously guarded by [New Mexico courts], but if a contractual clause clearly contravenes a positive rule of law, it cannot be enforced[.]“). In other words, the absence of a CBA provision allowing use of a state vehicle is merely evidence that the parties did not reach a bargained-for agreement to allow such use by right and establishes nothing more than the Department did not breach the terms of the CBA. It does not somehow either waive the general protections of the PEBA or establish that the Department did not violate its statutory obligations under
3. Whether Employee Officials Attending a Policy Review Meeting With the Department Are Acting In Furtherance of Official State Business
{15} The Department primarily defends its disparate treatment of Blair and Molina by arguing that their attendance at the policy review meeting was not “in furtherance of official state business” but was rather for the purpose of furthering the “union‘s agenda” and “union business.” The Department relies on state statutory and regulatory law—specifically the TSA, and its companion regulations, 1.5.3 NMAC (10/28/1985, as amended through 7/30/2015)—to support its contention that it was prohibited from allowing Blair and Molina to use a state vehicle to attend the policy review meeting. In effect, the Department‘s argument, if correct, would establish that the Department treated Blair and Molina differently not “because of” their union status (a prohibited reason for discriminating against them) but because of their ineligibility to drive a state vehicle (a non-prohibited reason).
New Mexico Statutory and Regulatory Law Regarding Use of State Vehicles
{16} The TSA defines “state vehicle” as “an automobile, van, sport-utility truck, pickup truck or other vehicle . . . used by a state agency to transport passengers or property[.]”
{17} Neither the TSA nor regulations promulgated thereunder defines or provides further guidance regarding what is meant by the phrase “in furtherance of official state business.” Secretary Jaramillo acknowledged that there is “no official definition” of what is considered “official state business” and explained that GSD considers whether a proposed use of a state vehicle is “in furtherance of official state business” on a case-by-case basis and that the determination is heavily fact-driven. He did not categorically reject the possibility of use of a state vehicle by employee officials, explaining that whether use of a vehicle is appropriate depends on the type of meeting and the facts of each case. Secretary Jaramillo did include meetings to discuss “matter[s] of common interest” among those that are “in furtherance of official state business” but did not affirmatively opine that the January 2009 policy review meeting was a qualifying meeting. The Department fails to argue how the phrase should be construed, instead summarily concluding—without explanation or citation to authority—that “union business” can never be “in furtherance of official state business” because “union business” and “state business” are inherently mutually exclusive. Because resolution of this case turns on whether Blair and Molina were eligible to use a state vehicle depending on whether they were acting “in furtherance of official state business,” we must first discern what is meant by that phrase. See Fitzhugh v. N.M. Dep‘t of Labor, 1996-NMSC-044, ¶ 22, 122 N.M. 173, 922 P.2d 555 (explaining that an appellate court “may always substitute its interpretation of the law for that of the agency‘s because it is the function of the courts to interpret the law” (internal quotation marks and citation omitted)).
{18} When a phrase in a regulation is ambiguous and not further defined, we “turn to the dictionary to ascertain its common and ordinary meaning.” ABCWUA, 2010-NMSC-013, ¶ 82. The term “furtherance” means “[t]he act or process of facilitating the progress of something or of making it more likely to occur; promotion or advancement.” Black‘s Law Dictionary 790 (10th ed. 2014). The term “official” means “[a]uthorized or approved by a proper authority.” Id. 1259. The term “business” means “that with which one is principally and seriously concerned[.]” The Random House Dictionary of the English Language 201 (unabridged ed. 1971). Thus, one is acting “in furtherance of official state business” when one is facilitating the progress of or advancing a matter—authorized or approved by the state—with which the state is principally and seriously concerned. We emphasize that we examine the facts under this test on a case-by-case basis.
Analysis
{19} The Department effectively concedes that the January 2009 policy review meeting involved “official state business” as evidenced by its decision to allow Cruz to drive a state vehicle to the meeting. It argues, however, that “[union] representatives who attend a meeting on behalf of [the union] are not on state business in the same sense as [Department] employees who attend the meeting on behalf of [the Department] as the managerial
{20} The Department‘s contention that corrections officer and AFSCME Local 3422 statewide president Lee Ortega “testified that he attends [policy review] meetings on behalf of AFSCME[] on ‘union time’ ” is cherry-picked evidence that not only violates our appellate rules, see Rule 12-318(A)(3) NMRA (requiring that a party challenging the sufficiency of evidence “include[] the substance of the evidence bearing on the proposition“), but improperly characterizes Ortega‘s testimony. Ortega, in fact, resisted adopting the Department‘s conclusory labeling scheme that attempted to pigeonhole the parties’ interests as evidenced by the following exchange:
Q: As state president [of Local 3422], when you are working with management is it not true that you‘re wearing your AFSCME hat?
A: I‘m wearing my—I‘m trying to help other people. I mean, it‘s not an ‘AFSCME’ thing, it‘s not—. You know, if you can settle it with the Department before it gets to be an issue, it‘s, you know—
Q: As president [of AFSCME Local 3422], are you not furthering the agenda of AFSCME?
A: I‘m furthering the agenda of the corrections officers.
. . . .
Q: You just testified that you‘re representing the correctional officers. You‘re representing them under the guise of AFSCME, though, correct?
A: Yeah, I guess, yeah.
. . . .
Q: When you go to management meetings or policy reviews, isn‘t it true you‘re on union time?
A: Yes.
Q: You‘re not on state time. You‘re not on regular work hour time, you‘re on union time, correct?
A: Well, we‘re getting paid by the state, but they call it ‘union time’ for tracking purposes.
The Department relies heavily on both this testimony and that of Cruz and Perez, which summarily concluded that employee officials who are on “union time” are “conducting union business” and, thus, cannot be furthering official state business. However, the Department fails to cite any authority to support its argument that any activity that is administratively coded as “union time” is categorically not “in furtherance of official state business.” See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (explaining that where a party cites no authority to support an argument, the appellate courts may assume no such authority exists). Furthermore, the testimony and labels on which the Department relies fail to address the ultimate question in this case: whether Blair and Molina‘s attendance at the meeting and participation in the discussion regarding proposed policy changes advanced or facilitated the progress (i.e., was in furtherance) of the Department implementing its proposed policy changes (official state business). It is to that question that we now turn.
{21} We begin by noting that the type of meeting for which state vehicle use was requested in this case was a policy review meeting that was held at a state facility, convened by management, and attended only by state employees. Cruz acknowledged that under the CBA, such meetings are required to be held when management proposes changes to policies affecting the Department‘s facilities in order to “allow the union the opportunity to comment on [the proposed changes].” Representatives of both management and the union are required to attend
{22} Because a meeting between management and employee officials is a required step in the process of implementing operational changes at the Department‘s facilities, and because the Department cannot implement its proposed changes without first conferring with employee officials, it follows that employee officials who attend policy review meetings are integral in facilitating the progress of matters affecting and of principal concern to the State of New Mexico, i.e., they are acting in furtherance of official state business. Even assuming one of the outcomes of such meetings is that the parties agree to modify a proposed policy based on the input of employee officials and that the modification “benefits” the corrections officers that the employee officials are representing, that does not change the fact that the meeting has resulted in the furtherance of official state business. In essence, the Department‘s position is that any discussion with employee officials involving matters that may promote the union‘s “agenda” or that may result in a benefit to the union or its members can never be in furtherance of official state business. Such a position is simply at odds with
CONCLUSION
{23} For the foregoing reasons, we affirm the district court‘s affirmance of the PELRB‘s order.
{24} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
STEPHEN G. FRENCH, Judge