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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:57:18 2011.04.27
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2011-NMCA-027
Filing Date: February 7, 2011
Docket No. 29,085
COUNTY OF LOS ALAMOS,
Plaintiff-Appellant,
v.
JOHN PAUL MARTINEZ and
MICHAEL DICKMAN,
Defendants,
ROBBIE STIBBARD, as President of the
Los Alamos Firefighters Association Local #3279,
Appellee.
APPEAL FROM THE DISTRICT COURT OF LOS ALAMOS COUNTY
Daniel A. Sanchez, District Judge
Mary McInerny, County Attorney
Los Alamos, NM
Charles Rennick, LLC
Santa Fe, NM
for Appellant
Hinkle, Hensley, Shanor & Martin, LLP
S. Barry Paisner
Santa Fe, NM
for Appellee
OPINION
VANZI, Judge.
{1} In this appeal, we review the district court’s order denying Plaintiff’s, County of Los Alamos
(County), motion for summary judgment and granting Intervenor’s, Los Alamos Firefighters
Association Local #3279 (Union), cross-motion for summary judgment. The district court
determined that paramedic training contracts are subjects of mandatory bargaining and that the
County may not unilaterally enter into such contracts with Union members without including the
Union in its negotiations. For the reasons that follow, we affirm the decision of the district court.
BACKGROUND
{2} Defendants John Paul Martinez and Michael Dickman (Defendants) were employees of the
Los Alamos County Fire Department and members of the Union. Defendants were accepted to
participate in a voluntary paramedic training program at Eastern New Mexico University in Roswell,
New Mexico. The County offered contracts to Defendants called housing agreements, which
Defendants entered into with the County. The contracts provided that the County would allow
Defendants to continue their employment on paid status with full salary while they attended the
paramedic training, that it would provide per diem or reimbursement for lodging, meals, and travel,
and that it would make a vehicle available to them to drive to and from Roswell.
{3} Defendants agreed that in return they would comply with several provisions in the contract,
including maintaining employment as firefighter paramedics with the County for at least two years
after completion of the fourteen-month training program. A failure to abide by the terms of the
contract could result in disciplinary action up to and including termination. Further, Defendants
agreed that if they failed to complete the training or maintain employment with the County as
provided by the contract, they would reimburse the County for all expenses incurred by the County
associated with the training. The County could, in its sole discretion, waive the reimbursement
requirement for good cause shown.
{4} Both Defendants executed a contract with the County, and both completed the paramedic
training program. Martinez signed his contract and remained employed with the County for seven
months after completing the program. He then voluntarily left his employment without making
reimbursement. Dickman signed his contract and remained employed for six months after
completing the program. He also voluntarily left his employment without making reimbursement.
{5} The County and the Union were parties to a collective bargaining agreement (CBA) that
covered Defendant’s bargaining unit, effective January 1, 2004, through December 31, 2005. The
CBA contained provisions relating to wages, hours, and terms and conditions of employment. The
paramedic training contracts, however, were not covered by the CBA.
{6} In addition to the specific provisions relating to wages, hours, and terms and conditions of
employment, the CBA contained a management-rights clause that gave management certain specific
operational and policy rights, as well as “all rights not specifically limited by this [CBA].” Finally,
the CBA contained a “zipper clause,” which provided that the CBA was the “complete and only
agreement between the parties,” that all the mandatory subjects of collective bargaining had been
“discussed and negotiated upon,” and that each party waived the right “to bargain collectively with
respect to any subject matter not specifically referred to or covered in [the CBA.]”
{7} The County filed suit against Defendants for breach of contract and restitution. Some
months later, in early 2007, the Union moved to intervene through its President, Robbie Stibbard.
The motion was approved in a stipulated order permitting intervention and a complaint was filed.
The complaint in intervention requested a declaratory judgment that the paramedic training contracts
were void because the issue involved a subject of mandatory bargaining that had not been negotiated
with the Union and the contracts were therefore unenforceable.
{8} The County and the Union subsequently filed motions for summary judgment, and a hearing
was held on both motions. After the hearing, the district court granted the Union’s motion for
summary and declaratory judgment and denied the County’s motion for summary judgment. The
district court entered an order on the two summary judgment motions as well as a stipulated order
dismissing all the remaining claims of the parties. This appeal timely followed.
{9} The County raises four issues on appeal: (1) the district court erred in granting the Union’s
motion for summary judgment on the basis that the paramedic training contracts contained terms and
conditions of employment that are subjects of mandatory bargaining; (2) the district court erred in
denying the County’s motion for summary judgment based on the employer’s right to negotiate
paramedic training contracts pursuant to its management-rights authority; (3) the district court erred
in granting the Union’s motion for summary judgment insofar as a balancing of interests presents
a genuine issue of material fact; and (4) the district court erred in denying the County’s motion for
summary judgment based on the Union’s waiver of bargaining rights set forth in the zipper clause
of the CBA. We address the first three issues raised by the County together, and we then turn to its
argument relating to waiver under the zipper clause.
DISCUSSION
Standard of Review
{10} “Summary judgment is appropriate where there are no genuine issues of material fact and
the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-
NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “An appeal from the grant of a motion for summary
judgment presents a question of law and is reviewed de novo.” Montgomery v. Lomos Altos, Inc.,
2007-NMSC-002, ¶ 16, 141 N.M. 21, 150 P.3d 971. “The meaning of language used in a statute is
a question of law that we review de novo.” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16,
132 N.M. 382, 49 P.3d 61.
The Paramedic Training Contracts Are Subjects of Mandatory Bargaining
{11} The threshold question that the County asserts we must address in this case is whether the
paramedic training contracts contained terms or conditions of employment such that they are
mandatory subjects of collective bargaining that had not been negotiated. Under both NMSA 1978,
Section 10-7E-17(A)(1) (2003), of the Public Employee Bargaining Act (PEBA), and the County
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Labor Management Relations Ordinance (the Ordinance), Los Alamos County, N.M., Code § 30-
44(a) (2005), an employer is obligated to bargain in good faith on all wages, hours, and other terms
and conditions of employment. Any direct communication with a union-represented employee made
for the purpose of altering terms and conditions of employment, therefore, constitutes a violation
of the PEBA. See Permanente Med. Group, Inc., 332 N.L.R.B. 1143, 1144 (2000) (noting that direct
communications with employees made “for the purpose of establishing or changing wages, hours,
and terms and conditions of employment or undercutting the Union’s role in bargaining” constitutes
improper direct dealing).
{12} There is no definition of the phrase “wages, hours, and other terms and conditions of
employment” in either the PEBA or the Ordinance so as to delineate exactly what constitutes a
subject of mandatory bargaining. Thus, the issue of whether the paramedic training contracts are
subjects of mandatory bargaining appears to be one of first impression in New Mexico. For the
reasons that follow, however, we need not reach that determination today.
{13} This case was decided on summary judgment. The issues were those raised in the two
motions filed by the County and Union. Whether the paramedic training contracts were mandatory
subjects of bargaining was not a matter of contention in either of the two summary judgment
motions. For the purpose of the motions, the County agreed that the paramedic training contracts
were mandatory subjects of bargaining. The Union’s summary judgment motion in the district court
asserted that the training contracts were mandatory subjects of bargaining and, therefore, were not
enforceable. The County responded that, assuming for the purposes of the motion, that the
paramedic training contracts were mandatory subjects of bargaining, the contracts were enforceable
because of the management-rights clause and because of waiver. The County sought summary
judgment on the same basis as that stated in its response to the Union’s motion. The district court
ruled in the Union’s favor, essentially holding that the management-rights and zipper clauses could
not override or defeat the County’s obligation to engage in collective bargaining on the subject of
the paramedic training contracts.
{14} The County’s first argument on appeal is that we should reverse on a ground that was not
a part of the summary judgment proceedings, namely, that the paramedic training contracts were not
mandatory subjects of bargaining. The County summarizes its issue on appeal as follows:
The County requests that this Court hold that the training agreements are not terms
and conditions of employment and that the management-rights clause be given effect
as a matter of law. Alternatively, applying the balancing test, this Court should find
that the predominant concern is a matter of public policy, subject to the management-
rights clause.
{15} We will not address the County’s contention to the extent that it is based on the argument
that the paramedic training contracts were not terms and conditions of employment. See Spectron
Dev. Lab. v. Am. Hollow Boring Co., 1997-NMCA-025, ¶ 32, 123 N.M. 170, 936 P.2d 852 (“We
review the case litigated below, not the case that is fleshed out for the first time on appeal.”
(alteration omitted) (internal quotation marks and citation omitted)). The County did not oppose the
Union’s or Defendants’ claims in the district court and seek a trial or judgment on the premise that
the paramedic training contracts were not mandatory subjects of bargaining, nor did the County offer
any evidence of that question. When arguing the motions for summary judgment, the County
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conceded that the paramedic training contracts were mandatory subjects of bargaining during the
following colloquy between the district court and the County’s counsel:
THE COURT: I do, Mr. Graeser. I recognize, and I understand, that the
County’s reliance is basically on two issues, one the contractual agreement and the
contractual nature of the bargaining agreement. I understand that. The second is the
zipper clause. But let me ask you the particular action, and I am not sure what you
said, and I thought I wrote it down, but what is your position with respect to the
subject of this issue being in the Collective Bargaining Agreement? Is your position
that it’s a mandatory subject?
MR. GRAESER: Your Honor, certainly for the purpose of this motion I can
agree it’s a mandatory subjective collective bargaining. I think that’s an issue to
determine during bargaining for the next contract, but I don’t suspect there will be
a lot of debate about that.
THE COURT: So you agree that it is a mandatory subject?
MR. GRAESER: Again, in my role of representing the County for the
purposes of this case, I will agree to that, yes.
{16} In its oral ruling at the conclusion of the hearing on the motions, the district court
confirmed—without objection or concern expressed by the County—that “[h]ere we are talking
about a mandatory subject of the [CBA], and we all agree that this is a mandatory subject.” Neither
as a part of its argument in the district court, nor as a follow-up to the foregoing colloquy and oral
ruling, did the County suggest to the district court that if the court were to grant the Union’s motion
and deny the County’s motion, the County wanted to proceed to trial to prove that the training
contracts were not subjects of mandatory bargaining. “Facts stipulated to are not reviewable on
appeal.” Haaland v. Baltzley, 110 N.M. 585, 587, 798 P.2d 186, 188 (1990).
{17} The County’s second contention on appeal is that the concept of management- rights and the
language and breadth of the management-rights provision provide the legal basis for enforcing the
training contracts notwithstanding that the training contracts are mandatory subjects of bargaining.
The County argues that this Court should adopt a balancing test, by which the court is to weigh the
interests of the employees against those of management. The County then argues that under that
balancing of interests test, the district court should have favored management-rights as the
predominant interest. We see nothing in the record indicating that the County raised this balancing
test in the district court or that the district court considered it, and the County concedes as much.
Thus, we will not address this balancing-test argument. See Rule 12-216(A) NMRA (“To preserve
a question for review it must appear that a ruling or decision by the district court was fairly
invoked[.]”); Woolwine v. Furr’s, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987)
(same).
{18} We note that in arguing that the management-rights provision should be given effect, the
County argues that “the present case does not contain a well-developed record as to the nature of
the interests,” and that the balancing of interests presents a genuine issue of material fact requiring
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remand to the district court. For the reason just discussed in regard to the County’s preservation
failure, and also because the County did not raise this specific ground in the district court, we do not
address this argument. Woolwine, 106 N.M. at 496, 745 P.2d at 721.
{19} Accordingly, the County is left with an argument that the plain language and breadth of the
management-rights provision must be given effect notwithstanding that the paramedic training
contracts are subjects of mandatory bargaining. The County’s argument is antithetical to the very
concept of mandatory subjects of bargaining which, by its terms, means that these are subjects about
which the parties must bargain. NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342 (1958).
We recognize that a union can contractually waive its right to mandatory bargaining if the waiver
is expressed clearly and unmistakably. Metro. Edison Co. v. NLRB, 460 U.S. 693, 705, 708 (1983).
However, courts will not infer a waiver “unless it is clear that the parties were aware of their rights
and made the conscious choice, for whatever reason, to waive them.” NLRB v. New York Tel. Co.,
930 F.2d 1009, 1011 (2d Cir. 1991). In this case, the County has pointed to no clear and
unmistakable waiver to bargain over the paramedic training contracts, and we have found none. For
summary judgment purposes with regard to both motions for summary judgment, the County
assumed that the paramedic training contracts were a mandatory subject of bargaining. Under that
assumed fact, the County was foreclosed from unilaterally entering into the contracts with individual
union members instead of entering into the bargaining process with respect to the contracts or the
work under the contracts. Consequently, we see no error in the district court’s summary judgment
dispositions.
The Union Did Not Waive Its Right to Bargain Under the Zipper Clause
{20} The County’s remaining argument is that the Union waived any right to bargain based on a
broad zipper clause containing waiver provisions in the CBA. The clause provides:
The parties agree that this is the complete and only agreement between the
parties. Each party has negotiated on all issues identified for negotiations and such
negotiations have led to this agreement. No additional negotiations will be
conducted on any item, whether contained herein or not, except by mutual agreement
of the parties. This agreement replaces any and all previous agreements between the
parties.
The parties acknowledge that during the negotiations which resulted in this
Agreement, each had the unlimited right and opportunity to make demands and
proposals with respect to all proper subjects of collective bargaining and that all such
subjects have been discussed and negotiated upon and the agreements contained in
this Agreement were arrived at after the free exercise of such rights and
opportunities; therefore, the [County] and the Union, for the life of this Agreement,
each voluntarily and unqualifiedly waives the right and each agrees that the other
shall not be obligated to bargain collectively with respect to any subject matter not
specifically referred to or covered in this Agreement, even though such subject or
matter may not have been within the knowledge or contemplation of either or both
of the parties at the time they negotiated or signed this Agreement.
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{21} At the outset, we note that New Mexico courts have not ruled on whether broad zipper
clauses in a CBA such as the one before us relieves an employer from the duty to bargain. In the
absence of guidance from our own courts, the New Mexico Supreme Court has directed that we
should interpret language in the PEBA “in the manner that the same language of the [National Labor
Relations Act] has been interpreted.” Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-
NMSC-020, ¶ 18, 125 N.M. 401, 962 P.2d 1236.
{22} The National Labor Relations Board (NLRB) has taken two approaches when answering the
question of whether a zipper clause in a CBA can by its terms eliminate otherwise binding practices.
Prior to 1974, the [NLRB] strictly applied the rule that only “clear and unmistakable”
language in the contract expressly waiving the right to negotiate over a particular
subject would suffice to relieve a party of the duty to bargain. This was especially
the case with broad “zipper” clauses which stated that the contract was the complete
agreement between the parties on all subjects. Such clauses, standing alone, did not
constitute a sufficiently clear and unmistakable waiver as to a specific bargaining
item.
1 Charles J. Morris, The Developing Labor Law 642 (2d ed. 1983) (footnote omitted).
{23} In 1974, the NLRB modified its approach so that the language of broad zipper clauses could,
in fact, support a contractual waiver defense. The new standard required zipper clauses to be given
“such effect as the negotiating history and other surrounding circumstances seem to make
appropriate.” Radioear Corp., 214 N.L.R.B. 362, 364 (1974); see also Aeronca, Inc., 253 N.L.R.B.
261, 264 (1980) (noting that a contractual right to have an issue bargained effectively can be waived
only on “showing of a clear relinquishment of the right which is to be decided on the facts and
circumstances surrounding the making of the contract as well as the language of the contract itself”),
enforcement denied on other grounds by Aeronca, Inc. v. NLRB, 650 F.2d 501 (4th Cir. 1981). As
a result, under this approach, the expectations caused by the actions of the opposing party are
relevant to whether there has been a contractual waiver. See AMCAR Div., ACF Indus., Inc. v.
NLRB, 592 F.2d 422, 429 (8th Cir. 1979); S. Materials Co. v. Teamsters Local Union No. 822, 198
N.L.R.B. 257-258 (1972).
{24} Notwithstanding the NLRB’s guidance on evaluating contractual waiver defenses, the federal
circuit courts are split on the issue, with some circuits following a more flexible approach, while
others continue to apply other analyses. Compare, e.g., NLRB v. Auto Crane Co., 536 F.2d 310,
311-12 (10th Cir. 1976) (denying enforcement of an NLRB order finding a Section 8(a)(5) violation
in the employer’s unilateral imposition of a wage increase and thrift plan during the term of an
agreement; holding the zipper clause of the labor contract—including the phrase referring to “any
matter or subject not specifically referred to or covered in” the contract—constituted a clear waiver
of the right to bargain), with NLRB v. Challenge-Cook Bros. of Ohio, Inc., 843 F.2d 230, 233-34 (6th
Cir. 1988) (granting enforcement of an NLRB order holding that the employer violated Section
8(a)(1) and (a)(5) of the National Labor Relations Act, finding that the zipper clause did not amount
to a relinquishment of the right to bargain over effects of the employer’s unilateral shift of
production from one bargaining unit to another).
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{25} The Union here argues that the “clear and unmistakable” language is the standard that we
should apply in this case. The County, on the other hand, urges this Court to follow the decisions
of the federal circuit courts that have found that broad-type waiver clauses satisfy the clear and
unmistakable language. In our view, the answer does not call for a rigid rule, formulated without
regard for the bargaining postures, past practices, and agreements of the parties for two reasons.
First, notwithstanding the split in the circuits, the NLRB has continued to adhere to the broader
position taken in Radioear. See e.g., Temple-Eastex, Inc., 228 N.L.R.B. 203 (1977), rev’d on other
grounds, 579 F.2d 932 (5th Cir. 1978); A-1 Fire Protection, Inc., 233 N.L.R.B. 38 (1977), remanded
in part, 600 F.2d 918 (D.C. Cir. 1979). Moreover, given our Supreme Court’s direction in this area,
we believe that application of the reformulated standard described by the NLRB in Radioear is the
more reasoned approach to deciding the question of whether the language of the CBA expressly
waived the right to negotiate the paramedic training contracts. See Las Cruces Prof’l Fire Fighters
v. City of Las Cruces, 123 N.M. 239, 243, 938 P.2d 1384, 1388 (1997) (instructing that
interpretations of the NLRA by the National Labor Relations Board and reviewing courts should act
as a guide in interpreting similar provisions of the PEBA).
{26} We observe that there is virtually no evidence in the record and no argument in the district
court in connection with bargaining history, expectations of the parties, past practices, or
surrounding circumstances for the purpose of supporting or rejecting waiver on summary judgment.
Additionally, the parties never argued to the district court that there were disputes of fact requiring
a trial. They have also not done so on appeal. Therefore, we do not consider the bargaining history,
the parties’ interpretation of the language, or whether the case should be remanded for trial on the
issue of waiver. Woolwine, 106 N.M. at 496, 745 P.2d at 721. The district court did not err in
determining in the summary judgment proceeding that, as a matter of law, the Union did not waive
its right to bargain based on the zipper clause.
CONCLUSION
{27} For the reasons set forth above, we affirm the decision of the district court.
{28} IT IS SO ORDERED.
________________________________
LINDA M. VANZI, Judge
WE CONCUR:
_______________________________
JONATHAN B. SUTIN, Judge
_______________________________
MICHAEL E. VIGIL, Judge
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Topic Index for County of Los Alamos v. Martinez, Docket No. 29,085
AE APPEAL AND ERROR
AE-SR Standard of Review
CP CIVIL PROCEDURE
CP-SJ Summary Judgment
CN CONTRACTS
CN-BR Breach
EL EMPLOYMENT LAW
EL-CB Collective Bargaining
EL-GR Employee Grievances
EL-EP Employer’s Policies
EL-LU Labor Unions
GV GOVERNMENT
GV-PE Public Employees
ST STATUTES
ST-IP Interpretation
ST-LI Legislative Intent
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