Communication Workers of Am. v. State

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number:

3 Filing Date: February 21, 2019

4 No. A-1-CA-36331

5 COMMUNICATION WORKERS OF
6 AMERICA, AFL-CIO,

7 Appellant/Cross-Appellee-Petitioner,

8 v.

9 STATE OF NEW MEXICO,

10 Appellee/Cross-Appellant-Respondent.

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

13 Youtz & Valdez, P.C.
14 Shane Youtz
15 Stephen Curtice
16 James A. Montalbano
17 Albuquerque, NM

18 Rosenblatt & Gosch, PLLC
19 Stanley M. Gosch
20 Greenwood Village, CO

21 for Appellant

22 Hector H. Balderas, Attorney General
23 Lori Chavez, Assistant Attorney General
24 Santa Fe, NM
1 Holcomb Law Office
2 Dina Eileen Holcomb
3 Albuquerque, NM

4 for Appellee
 1 OPINION

2 VARGAS, Judge.

3 {1} This case arises from a prohibited practice complaint filed by the

4 Communications Workers of America, AFL-CIO (the Union) against the State of

5 New Mexico (the State). In its complaint, the Union argued that the State violated

6 the Public Employee Bargaining Act (the PEBA). The Public Employee Labor

7 Relations Board’s (the Board) Executive Director, Thomas J. Griego, designated as

8 the hearing officer, found the State violated NMSA 1978, Section 10-7E-19(B)

9 (2003) (prohibiting public employers from interfering with, restraining, or coercing

10 public employees in the exercise of their rights guaranteed under the PEBA) and

11 Section 10-7E-19(F) (prohibiting public employers from refusing to bargain

12 collectively in good faith with the exclusive representative). The Board adopted the

13 Hearing Officer’s findings and conclusions, with the exception of those related to

14 the Hearing Officer’s finding of a violation of Section 10-7E-19(F). The district

15 court, reviewing the case in its appellate capacity, affirmed the Board’s decision

16 that no violation of Section 10-7E-19(F) occurred and reversed the Board’s

17 decision insofar as it found a violation of Section 10-7E-19(B). Having granted the

18 Union’s petition for a writ of certiorari under Rule 12-505 NMRA, we reverse the

19 district court with instructions to remand to the Board for proceedings consistent

20 with this opinion.
 1 I. BACKGROUND

2 {2} The State has long maintained a practice whereby a bargaining unit

3 employee who files a grievance may use state-paid time to prepare for and

4 participate in grievance meetings, subject to the discretion of the employee’s

5 supervisor. Prior to the enactment of the original version of the Public Employee

6 Bargaining Act (PEBA I), NMSA 1978, §§ 10-7D-1 to -26 (1992, repealed 1999),

7 bargaining unit employees were paid for time spent in grievance meetings. In

8 1994, following PEBA I’s enactment, the Union and State entered into a collective

9 bargaining agreement (CBA). In the 1994 CBA, the parties agreed that:

10 The Employer shall allow [u]nion officials and stewards who
11 are employees (hereinafter referred to as “employee officials”) to
12 attend, on paid status, meetings agreed to by the parties for purposes
13 of administration of this Agreement, including grievance hearings.
14 Employee officials may investigate and process grievances on
15 paid status for reasonable periods of time during their normal working
16 hours. Where an employee official needs to consult with another
17 employee concerning a grievance, both employees shall request
18 permission to do so.

19 Under this CBA, bargaining unit employees were paid for time spent preparing for

20 and participating in grievance meetings, provided they received approval from

21 their supervisor. The 1994 CBA contained a “zipper clause,” which provided:

22 This agreement shall be deemed the final and complete
23 agreement between the parties and expresses the entire understanding
24 of the Employer and the Unions. This agreement supersedes any and
25 all previous agreements and all conflicting agency and departmental
26 rules, policies and regulations on the same matters except as otherwise
27 specifically provided herein.
2
 1 ....

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

15 {3} Following PEBA I’s repeal in 1999, the Union and State operated for four

16 years without a CBA. During this time, bargaining unit employees continued to be

17 paid for time spent preparing for and participating in grievance meetings. In 2004,

18 after the passage of PEBA II, NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended

19 through 2005), the State and the Union entered into a second CBA. The 2004 CBA

20 largely kept the same language regarding paid time for union officials and

21 stewards, adding limitations on union officials’ and stewards’ use of union time.

22 Under the 2004 CBA, bargaining unit employees continued to be paid for time

23 spent preparing for and participating in grievance meetings, provided they received

24 approval from their supervisor. The 2004 CBA’s zipper clause contained similar

25 language to that of the 1994 CBA, though it deleted the waiver language and stated

26 only:
3
 1 [F]or the duration of this Agreement, the Employer is not
2 obligated to bargain over Union initiated changes in terms and
3 conditions of employment unless such changes are proposed pursuant
4 to the terms of this Agreement.

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

13 {4} In 2009, the State and the Union entered into a third CBA, which remains in

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

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

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

27 ....

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

4
 1 Section 3 goes on to provide time and procedural parameters for the grant of union

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

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

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

8 Under the 2009 CBA, bargaining unit employees continued to be paid for time

9 spent preparing for and participating in grievance meetings, and were paid with

10 either “[u]nion time” or “paid time,” i.e., “regular time.” The 2009 CBA retained

11 the language of the 2004 CBA’s zipper clause.

12 {5} On December 10, 2013, the Union submitted a grievance on behalf of

13 Jacqueline Quintana. Therein, the Union asserted: “[Quintana] requested union

14 time to meet with [the] representative regarding [a prior] grievance. Management

15 denied use of [u]nion time stating the grievant was not a [u]nion [o]fficial or

16 [u]nion [s]teward.” Quintana subsequently received an e-mail from manager Leon

17 Lopez, explaining he could not grant union time because Quintana was not a union

18 official or steward, which “ha[d] been confirmed with [the Office of Human

19 Resources].” He again wrote to Quintana on December 20, 2013, stating that

20 “[m]anagement denied you[r] request for union time because the grievant was not

21 a [u]nion [o]fficial or [u]nion [s]teward.” After citing Article 2, Section 3 of the

22 2009 CBA, Lopez agreed with management’s decision, stating, “You are not a
5
 1 [u]nion [o]fficial or a [u]nion [s]teward; therefore, you would not be entitled to the

2 use of union time.”

3 {6} After the Union continued through the grievance procedure on behalf of

4 Quintana, Behavioral Health Services Division Deputy Director, Karen Meador,

5 wrote to Quintana on January 23, 2014, also upholding management’s decision,

6 citing Article 2 of the CBA and stating, “As discussed in the [January 14, 2014]

7 face to face meeting, the Department remains firm in not allowing employees who

8 are neither union stewards nor union officials the opportunity to utilize union time

9 to meet with the Union regarding grievances.” The Union’s Local 7076 President,

10 Donald Alire, subsequently received a letter dated February 12, 2014, from Human

11 Services Department (HSD) Deputy Cabinet Secretary Charissa Saavedra,

12 reiterating HSD’s position that it “has never allowed employees to use union time

13 to meet with a union representative.” Contrary to Deputy Secretary Saavedra’s

14 claim, Robin Gould, the staff representative for the Union, stated that on February

15 25, 2014, HSD Human Resources Director Johnna Padilla and Gould “agreed that

16 workers were on paid time.”

17 {7} After discovering that State agencies were granting bargaining unit

18 employees paid time for time spent in grievance meetings, Sandy Martinez, the

19 State Labor Relations Director, “informed the agencies that [u]nion time only

20 applies to [u]nion officers and stewards and the ‘union time’ code should only be

6
1 used for officers and stewards.” Director Martinez sent a letter on March 5, 2014,

2 to Alire, quoting

7
 1 Article 2, Section 3 of the CBA and stating:

2 Please be advised that the State is taking action to ensure that state
3 agencies comply with the above-referenced language. Accordingly,
4 effective the pay period beginning March 29, 2014[,] paid union time
5 will be applied appropriately for union stewards and officers only.
6 Pursuant to Article 2, § 3, bargaining unit employees are not entitled
7 to paid-time of union time. All past practices with regard to paid
8 union time and paid state time that deviated from the above-
9 referenced language of the CBA are ceased.

10 The Union did not request to bargain regarding the change referenced in the State’s

11 notice, instead choosing to wait six months before filing a prohibited practices

12 complaint. The Union argued the State’s March 5, 2014, “notice informed the

13 [Union] of the [State]’s intent to unilaterally rescind the parties’ February 25th

14 agreement and unilaterally change terms and conditions for the rest of the

15 bargaining unit.” The Union claimed the State’s actions violated Section 10-7E-

16 19(A), (B), (D), (F), and (G).

17 A. The Hearing Officer

18 {8} The parties agreed to submit the matter to the Hearing Officer. After

19 reviewing the parties’ briefs, affidavits, and exhibits, the Hearing Officer found the

20 terms of the CBA to be ambiguous with regard to payment of bargaining unit

21 employees for time spent preparing for and participating in grievance meetings.

22 Consequently, the Hearing Officer considered the Union’s unchallenged evidence

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

24 and participating in grievance meetings. Indeed, the State’s own witness, Labor
8
 1 Relations Administrator Ronald Herrera, stated that he was “aware of at least five

2 (5) instances occurring in 2012 and 2013 in which employees of one (1) agency,

3 the Department of Cultural Affairs, who were not union officers or union stewards,

4 were coded as utilizing union time in the payroll system.” Relying on the State’s

5 March 5, 2014, letter acknowledgement of a past practice, the affidavit statements

6 of Gould and Alire that the State has engaged in this practice, and six bargaining

7 unit employees’ statements and exhibits establishing they were paid either “union

8 time” or “paid time” for time they spent in grievance meetings, the Hearing Officer

9 determined “the past practice of paying employees for preparing and attending

10 their own grievance meetings as either union time or regular work time [was]

11 clearly established.” As a result, the Hearing Officer concluded that “the State

12 violated PEBA § 10-7E-19(B) when it unilaterally altered a mandatory subject of

13 bargaining and a longstanding past practice thereby unlawfully restraining and

14 interfering with employees’ rights under PEBA.”

15 {9} The Hearing Officer also determined that the State violated Section 10-7E-

16 19(F) by unilaterally altering a mandatory subject of bargaining. The Hearing

17 Officer concluded that the Union was relieved of its duty to request bargaining

18 after receiving the March 5, 2014, letter because the State presented the Union with

19 a fait accompli, thereby rendering any request to bargain fruitless. The Hearing

9
 1 Officer found the Union had not established a violation of Section 10-7E-19(A),

2 (D), or (G). The State appealed the Hearing Officer’s decision to the Board.

3 B. The Board

4 {10} The Board convened on April 7, 2015, to hear the State’s appeal. After

5 hearing argument from both parties, the Board voted to adopt the Hearing Officer’s

6 findings of fact, conclusions of law and rationale “with the exception of those

7 relating to finding a violation of PEBA § 10-7E-19(F).” In explaining its decision

8 to reverse the Hearing Officer’s Section 10-7E-19(F) recommendation, the Board

9 stated “that the Union did not adequately explain why it took no action in a six-

10 month period to request bargaining.” Both parties appealed the adverse portions of

11 the Board’s decision regarding Section 10-7E-19(B) and (F) to the district court.

12 C. The District Court

13 {11} The district court reviewed the case in its appellate capacity under Rule 1-

14 074 NMRA. The district court affirmed the Board’s finding that no violation of

15 Section 10-7E-19(F) occurred, explaining that the Union was not relieved of its

16 duty to request bargaining because the State provided the Union with sufficient

17 time to do so and had not implemented the change before notifying the Union. The

18 district court reversed the Board’s finding that the State violated Section 10-7E-

19 19(B) because such a finding appeared “inconsistent” with the Board’s decision in

10
 1 favor of the State on the Section 10-7E-19(F) issue. Upon the Union’s petition, this

2 Court granted certiorari.

II. DISCUSSION

3 {12} The Union argues the State violated Section 10-7E-19(B) and (F) by

4 unilaterally altering a binding past practice regarding the compensation of

5 bargaining unit employees for time spent preparing for and participating in

6 grievance meetings. The State argues in response that there was no binding past

7 practice and, even if there was, the district court correctly determined that the

8 Union was required to request bargaining on the issue and failed to do so. We are

9 therefore asked to determine (1) whether a binding past practice existed that

10 constituted a mandatory subject of bargaining, and (2) whether the State’s notice to

11 the Union regarding the change in past practice constituted a fait accompli, thereby

12 precluding a finding that the Union’s failure to request bargaining served as a

13 waiver of its right to bargain.

14 A. Standard of Review

15 {13} “Upon a grant of a petition for writ of certiorari under Rule 12-505, this

16 Court conducts the same review of an administrative order as the district court

17 sitting in its appellate capacity, while at the same time determining whether the

18 district court erred in the first appeal.” N.M. Corr. Dep’t v. AFSCME, Council 18,

19 2018-NMCA-007, ¶ 9, 409 P.3d 983 (internal quotation marks and citation omitted

11
 1 omitted), cert. denied, ___-NMCERT-___ (No. S-1-SC-36688, Oct. 24, 2017).

2 “We independently review the entire record of the administrative hearing to

3 determine whether the [Board]’s decision was arbitrary and capricious, not

4 supported by substantial evidence, or otherwise not in accordance with law.” Id.

5 (internal quotation marks and citation omitted); see NMSA 1978, § 10-7E-23(B)

6 (providing the standard of review from the board to the district court). “When

7 reviewing an administrative agency’s conclusions of law, we review de novo.”

8 AFSCME, Council 18, 2018-NMCA-007, ¶ 9 (internal quotation marks and citation

9 omitted). Similarly, “[w]e apply a de novo standard of review to administrative

10 rulings regarding statutory construction.” Id. (alteration, internal quotation marks,

11 and citation omitted). “In the absence of guidance from our own courts, [our] New

12 Mexico Supreme Court has directed that we should interpret language in the PEBA

13 in the manner that the same language of the National Labor Relations Act has been

14 interpreted.” Cty. of Los Alamos v. Martinez, 2011-NMCA-027, ¶ 21, 150 N.M.

15 326, 258 P.3d 1118 (alteration, internal quotation marks, and citation omitted); see

16 Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶ 18, 125

17 N.M. 401, 962 P.2d 1236. “We will not disturb the agency’s factual findings if

18 supported by substantial evidence, although we engage in a whole record review.”

19 Montano v. N.M. Real Estate Appraiser’s Bd., 2009-NMCA-009, ¶ 8, 145 N.M.

20 494, 200 P.3d 544. “Substantial evidence is evidence that a reasonable mind would

12
 1 regard as adequate to support a conclusion.” Id. ¶ 9 (internal quotation marks and

2 citation omitted).

B. Past Practice

3 {14} Before discussing the legal impact of the State’s March 5, 2014, letter on the

4 parties’ claimed past practice regarding “union time” and “paid time,” we must

5 first determine whether a past practice existed. The evidence establishing the

6 State’s past practice of paying bargaining unit employees to prepare for and

7 participate in grievance meetings, subject to supervisory approval, was

8 unchallenged in the parties’ briefs, affidavits, and exhibits submitted to the Hearing

9 Officer. Moreover, Director Martinez acknowledged the past practice in her March

10 5, 2014, letter stating, “All past practices with regard to paid union time and paid

11 state time . . . are ceased.” We therefore defer to the Board’s finding that this past

12 practice existed. See Montano, 2009-NMCA-009, ¶ 8 (“We will not disturb the

13 agency’s factual findings if supported by substantial evidence, although we engage

14 in a whole record review.”).

15 {15} Having determined a past practice existed, we must now consider whether

16 the past practice is binding on the parties notwithstanding the terms of the CBA.

17 The interpretation of a CBA’s terms “is not confined to the express provisions of

18 the contract, as the industrial common law—the practices of the industry and the

19 shop—is equally a part of the collective bargaining agreement although not

13
 1 expressed in it.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

2 363 U.S. 574, 581-82 (1960); see Cruz-Martinez v. Dep’t of Homeland Sec., 410

3 F.3d 1366, 1370 (Fed. Cir. 2005) (“Clear and long-standing practices of the

4 parties—in other words, ‘past practices’—can establish terms of the agreement that

5 are as binding as any specific written provision. . . . Generally, factors relevant to a

6 finding of a binding past practice are the duration and consistency of its application

7 and the parties’ acquiescence in it.”); Webb v. ABF Freight Sys., Inc., 155 F.3d

8 1230, 1243 (10th Cir. 1998) (“It is well-established that when interpreting the

9 terms of a labor contract, a fact-finder is entitled—and indeed, in some cases

10 required—to look to the past practices of the parties and the ‘common law of the

11 shop’ to determine the parties’ contractual obligations.”); see also § 10-7E-

12 17(A)(1) (providing that “public employers and exclusive representatives . . . shall

13 bargain in good faith on wages, hours and all other terms and conditions of

14 employment and other issues agreed to by the parties”). As we have previously

15 indicated, the “common law of the shop,” i.e., past practices, are used to interpret

16 ambiguous phrases contained in a CBA. See Alarcon v. Albuquerque Pub. Sch. Bd.

17 of Educ., 2018-NMCA-021, ¶ 74, 413 P.3d 507, cert. denied, ___-NMCERT-___

18 (No. S-1-SC-36811, Jan. 23, 2018).

19 {16} In the present case, the Hearing Officer determined that the CBA was

20 ambiguous regarding the grant of “union time,” concluding that the “CBA does not

14
 1 limit the use of ‘union time’ solely to union officers and stewards—its use is a

2 matter of an employee’s supervisor’s discretion.” The Hearing Officer thus

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

4 than the reasonable exercise of a supervisor’s discretion.” The Hearing Officer’s

5 Report and Recommendation, including his findings of fact, conclusions of law

6 and rationale, were adopted by the Board, except those findings relating to the

7 State’s refusal to bargain in good faith. We acknowledge the absence of express

8 language including bargaining unit employees in the list of those entitled to paid

9 status for grievance meetings. However, in light of the parties’ course of dealing

10 throughout the years, and the language in the CBA providing that “both employees

11 shall request and obtain prior permission” in those instances where “a union officer

12 or steward desires to consult with another employee concerning a grievance on

13 work time,” we agree with the Board that there is an ambiguity with respect to the

14 type of employees entitled to “union time” for purposes of grievance meetings. See

15 ConocoPhillips Co. v. Lyons, 2013-NMSC-009, ¶ 23, 299 P.3d 844 (“In evaluating

16 whether a term is ambiguous, a court may hear evidence of the circumstances

17 surrounding the making of the contract and of any relevant usage of trade, course

18 of dealing, and course of performance.” (internal quotation marks and citation

19 omitted)). Moreover, given the CBA’s silence on the issue of granting “paid time,”

20 i.e., “regular time,” for grievance meetings, we conclude the CBA is ambiguous on

15
 1 this matter as well. The State, relying on E.I. Du Pont & Co., Inc., 294 N.L.R.B.

2 563 (1989), argues that any past practice regarding the grant of “union time” or

3 “paid time” to bargaining unit employees for time preparing for and participating

4 in grievance meetings cannot be considered an implied term of the CBA. E.I. Du

5 Pont & Co., Inc. states:

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

15 Id. at 563. However, in this case, we are not faced with a past practice that is

16 inconsistent with a CBA’s terms—here, the CBA’s terms are ambiguous on the

17 subject matter.

18 {17} Nonetheless, the State argues that binding application of the past practice is

19 prohibited by the CBA’s zipper clause. This Court adopted the National Labor

20 Relation Board’s standard in Radioear Corp., 214 N.L.R.B. 362 (1974), to

21 determine whether a zipper clause eliminated an otherwise binding past practice.

22 Martinez, 2011-NMCA-027, ¶¶ 22-25. In Radioear Corp., the National Labor

23 Relations Board concluded:

24 [T]he answer to the question of the employer’s bargaining obligation
25 does not, in our view, call for a rigid rule, formulated without regard
16
 1 for the bargaining postures, proposals, and agreements of the parties,
2 but rather, more appropriately, should take into consideration such
3 various factors as (a) the precise wording of, and emphasis placed
4 upon, any zipper clause agreed upon; (b) other proposals advanced
5 and accepted or rejected during bargaining; (c) the completeness of
6 the bargaining agreement as an integration[—]hence the applicability
7 or inapplicability of the parol evidence rule; and (d) practices by the
8 same parties, or other parties, under other collective-bargaining
9 agreements.

10 214 N.L.R.B. at 363 (alteration and internal quotation marks omitted). In the

11 absence of Board findings regarding the zipper clause’s effect, if any, on the past

12 practice involved in the present case, we conclude the Board acted arbitrarily and

13 capriciously in determining that the parties’ past practice on the issue of granting

14 “union time” or “paid time” to bargaining unit employees is as binding as the

15 written provisions of the CBA, and is therefore a mandatory subject of bargaining.

16 See Bernalillo Cty. Health Care Corp. v. N.M. Pub. Regulation Comm’n, 2014-

17 NMSC-008, ¶ 9, 319 P.3d 1284 (“An agency’s ruling is arbitrary and capricious if

18 the agency failed to consider an important aspect of the problem[.]” (internal

19 quotation marks and citation omitted)). Given the fact-bound nature of the effect of

20 the zipper clause on the past practice, we remand to the Board to make necessary

21 findings and to determine whether the past practice is binding notwithstanding the

22 CBA’s zipper clause. If the Board determines the past practice is binding, the

23 Board must then, consistent with the remainder of this decision, determine whether

24 the State’s change of this past practice violated the PEBA.

17
 1 C. Request to Bargain

2 {18} The Union argues the Board and the district court erred in finding no

3 violation of Section 10-7E-19(F) and that the district court erred in reversing the

4 Board’s finding that the State violated the Union’s Section 10-7E-19(B) derivative

5 claim. 1 The Union’s claims under both Subsection (F) and Subsection (B) of

6 Section 10-7E-19 are based on the State’s purported refusal to bargain prior to

7 eliminating the past practice of paying bargaining unit employees for time spent

8 preparing for and participating in grievance meetings, subject to supervisory

9 approval; as such, we address Subsection (F) and Subsection (B) together. Section

10 10-7E-19(F) provides: “A public employer or his representative shall not . . . refuse

11 to bargain collectively in good faith with the exclusive representative[.]” Section

12 10-7E-19(B) provides: “A public employer or his representative shall

13 not . . . interfere with, restrain or coerce a public employee in the exercise of a right

14 guaranteed pursuant to the Public Employee Bargaining Act[.]” Section 10-7E-

15 17(A)(1) sets forth the scope of bargaining: “[P]ublic employers and exclusive

16 representatives . . . shall bargain in good faith on wages, hours and all other terms

17 and conditions of employment and other issues agreed to by the parties.” Similarly,

1
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, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to
support an argument, we may assume no such authority exists.”).
18
 1 the National Labor Relations Act (NLRA) prohibits an employer from “refus[ing]

2 to bargain collectively with the representatives of his employees,” 29 U.S.C.

3 § 158(a)(5) (2012), and further provides that the duty “to bargain collectively is the

4 performance of the mutual obligation of the employer and the representative of the

5 employees to . . . confer in good faith with respect to wages, hours, and other terms

6 and conditions of employment[.]” 29 U.S.C. § 158(d).

{19} As the United States Supreme Court has held:

7 Clearly, the duty [to bargain collectively] may be violated without a
8 general failure of subjective good faith; for there is no occasion to
9 consider the issue of good faith if a party has refused even to negotiate
10 in fact—‘to meet and confer’—about any of the mandatory subjects.
11 A refusal to negotiate in fact as to any subject which is within [§]
12 8(d), and about which the union seeks to negotiate, violates [§] 8(a)(5)
13 though the employer has every desire to reach agreement with the
14 union upon an over-all collective agreement and earnestly and in all
15 good faith bargains to that end. We hold that an employer’s unilateral
16 change in conditions of employment under negotiation is similarly a
17 violation of [§] 8(a)(5), for it is a circumvention of the duty to
18 negotiate which frustrates the objectives of [§] 8(a)(5) much as does a
19 flat refusal.

20 NLRB v. Katz, 369 U.S. 736, 743 (1962) (alteration and footnotes omitted); see

21 Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991) (“Sections 8(a)(5) and

22 8(d) of the NLRA . . . require an employer to bargain in good faith with respect to

23 wages, hours, and other terms and conditions of employment. . . . The Board has

24 determined, with our acceptance, that an employer commits an unfair labor

25 practice if, without bargaining to impasse, it effects a unilateral change of an

19
 1 existing term or condition of employment.” (internal quotation marks and citation

2 omitted)).

3 {20} To avoid waiving its right to bargain, a union has an obligation to request

4 bargaining when an employer unilaterally changes a mandatory subject of

5 bargaining. See Ciba-Geigy Pharm. Div., 264 N.L.R.B. 1013, 1017 (1982)

6 (“Despite the fact that an employer may have made a unilateral change in a

7 mandatory subject of bargaining, it is well settled that such action may have been

8 permissible if the union had waived its right to bargain over the particular

9 matter.”). A union will not, however, “be held to have waived bargaining over a

10 change that is presented to it as a fait accompli.” Dresser-Rand Co. v. NLRB, 838

11 F.3d 512, 518 (5th Cir. 2016) (internal quotation marks and citation omitted). We

12 adopt the National Labor Relations Board’s interpretation of what constitutes a fait

13 accompli: “[I]f the notice is too short a time before implementation or because the

14 employer has no intention of changing its mind, then the notice is nothing more

15 than informing the union of a fait accompli.” Ciba-Geigy Pharm. Div., 264

16 N.L.R.B. at 1017. Under this analysis, we glean two methods of establishing a fait

17 accompli: timing or intent. See Haddon Craftsmen, Inc., 300 N.L.R.B. 789, 790

18 (1990) (analyzing the union’s claim of a fait accompli under both the timeliness of

19 the notice and the employer’s intent); accord Aggregate Indus. v. NLRB, 824 F.3d

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 1 1095, 1103-05 (D.C. Cir. 2016); Gratiot Cmty. Hosp. v. NLRB, 51 F.3d 1255, 1260

2 (6th Cir. 1995).

3 1. The Timing of the State’s Notice

4 {21} In this case, the Board’s sole explanation for finding no violation of Section

5 10-7E-19(F) centered on the timing of the State’s notice. “To be timely, the notice

6 must be given sufficiently in advance of actual implementation of the change to

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

8 at 1017. Although the Union argues on appeal that the State’s notice was untimely,

9 it expressly waived this argument during the Board hearing. As a result, we will

10 not review this argument on appeal. See Selmeczki v. N.M. Dep’t of Corr., 2006-

11 NMCA-024, ¶¶ 23-24, 139 N.M. 122, 129 P.3d 158 (explaining that we “require

12 preservation of issues raised on appeal from an administrative decision[,]” and

13 declining to review an issue waived by a party during an administrative

14 proceeding).

15 2. The State’s Intent

16 {22} Beyond the timing of the State’s notice, the Board did not address whether

17 the State’s notice constituted a fait accompli because the State had no intention of

18 altering its plans. The language contained in an employer’s notice of changes to

19 mandatory subjects of bargaining may be insufficient to establish a fait accompli

20 on its own. See Aggregate Indus., 824 F.3d at 1103 (concluding that the

21
 1 employer’s notice to the union that it was “going to” enact a policy change was its

2 announcement of a bargaining position, not its unwillingness to negotiate).

3 However, the notice’s language, in conjunction with additional evidence of the

4 employer’s fixed intent, may serve to establish a fait accompli. See Mercy Hosp.,

5 311 N.L.R.B. 869, 873 (1993) (“The [b]oard looks for objective evidence in

6 determining whether an employer has unlawfully presented a union with a fait

7 accompli. Further, an employer’s use of positive language in presenting its

8 proposal does not constitute an indication that a request for bargaining would be

9 futile.” (internal quotation marks omitted)); Haddon Craftsmen, Inc., 300 N.L.R.B.

10 at 790 (explaining that the record “yields no objective evidence that, at this point,

11 the [employer] acted in a manner that relieved the [u]nion of its obligation to

12 request bargaining by, e.g., informing the [u]nion that bargaining would be futile

13 or by implementing the changes before announcing them to the [u]nion” (footnote

14 omitted)).

15 {23} Significantly, the Board’s decision contains no indication that it considered

16 the possibility that the State had already implemented, or was in the process of

17 implementing, its stated shift in policy, so as to warrant a finding that the State had

18 no intention of changing its mind. However, Director Martinez’s affidavit sheds

19 some light on this issue:

20 5. Due to the misinterpretation by State agencies of the application
21 of [u]nion time, I informed the agencies that [u]nion time only
22
 1 applies to [u]nion officers and stewards and the “union time”
2 code should only be used for officers and stewards.

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

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

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

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

14 implemented, or began implementing, its shift in policy when it sent the March 5,

15 2014, letter to Alire. Such an inference is further supported by the facts and

16 circumstances of the Quintana grievance, which reflect that, well prior to Director

17 Martinez’s March 5, 2014, notice, the State denied Quintana’s request for union

18 time to participate in a grievance meeting and later agreed with the Union that

19 “workers were on paid time.”

20 {24} The Board failed to consider the State’s intent in determining whether it

21 presented the Union with a fait accompli. The Board’s decision was therefore

22 arbitrary and capricious, see Bernalillo Cty. Health Care Corp., 2014-NMSC-008,

23 ¶ 9 (“An agency’s ruling is arbitrary and capricious if the agency failed to consider

23
1 an important aspect of the problem[.]” (internal quotation marks and citation

2 omitted)), and we remand for the Board to consider this issue as well.

3 III. CONCLUSION

4 {25} We reverse the district court with instructions to remand to the Board for a

5 determination of whether the CBA’s zipper clause eliminated the past practice of

6 paying bargaining unit employees for time spent preparing for and participating in

7 grievance meetings in light of the factors provided in Radioear, and, if not,

8 whether the State’s actions constituted a fait accompli on the basis of the State’s

9 intent, thereby excusing the Union from requesting bargaining.

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1 {26} IT IS SO ORDERED.

2 ______________________________
3 JULIE J. VARGAS, Judge

WE CONCUR:

4 ________________________________________
5 J. MILES HANISEE, Judge

6 ________________________________________
7 JENNIFER L. ATTREP, Judge

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