author: ATTREP, Judge.

text:
    TEXASFILE LLC, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LEA and Keith Manes, in his capacity as Lea County Clerk and Custodian of Public Property Records, Defendants-Appellees.
    NO. A-1-CA-34919
    Court of Appeals of New Mexico.
    Filing Date: February 12, 2019 Certiorari Denied, August 8, 2019, No. S-1-SC-37578
    Peifer, Hanson & Mullins, P.A., Gregory P. Williams, Charles R. Peifer, Albuquerque, NM, for Appellant.
    YLAW, P.C., Robert W. Becker, April D. White, Sean E. Garrett, Albuquerque, NM, Miller Stratvert, P.A., Virginia Anderman, Albuquerque, NM, for Appellees.
    InAccord, P.C., Daniel A. Ivey-Soto, NMAC Special Counsel, Albuquerque, NM, New Mexico Association of Counties, Grace Philips, General Counsel, Brandon Huss, Associate Counsel, Santa Fe, NM, for Amicus Curiae New Mexico Association of Counties.
   ATTREP, Judge.

{1} After numerous exchanges, Plaintiff TexasFile, LLC (TexasFile) and Defendant Lea County (the County), through its county clerk, failed to agree on a method or fee for fulfilling TexasFile's public records request for electronic copies of all the County's real property records and associated indexes. TexasFile filed a lawsuit, alleging that the fee set by the County was unreasonable and amounted to a denial of its records request. TexasFile asserted claims under the Inspection of Public Records Act (IPRA), NMSA 1978, §§ 14-2-1 to -12 (1947, as amended through 2018), the Public Records Act, NMSA 1978, §§ 14-3-1 to -23 (1959, as amended through 2015), and the Recording Act, NMSA 1978, §§ 14-8-1 to -17 (1855-56, as amended through 2017). The County moved to dismiss the complaint. The district court granted the motion on the grounds that (1) TexasFile failed to state a claim upon which relief could be granted under IPRA because its records request had not been denied, and (2) neither the Public Records Act nor the Recording Act provided TexasFile a private right of action. We conclude that the Recording Act's production provisions governed the County's obligation with respect to the records request at issue in this case and that the complaint failed to allege any violation of that act. Therefore, we affirm the district court's dismissal of TexasFile's complaint, albeit on different grounds.

BACKGROUND

{2} The relevant facts for purposes of this appeal are undisputed and drawn from the complaint. TexasFile is a Texas-based commercial entity that provides customers online access, for a fee, to real property records from Texas and other states. In October 2013, TexasFile submitted an IPRA request to the County for "an electronic copy of all Lea County real property image and index records that are maintained in digital form by or on behalf of Lea County." The County responded a few days later, explaining that it could "not provide digital copies of [its] records," but that it had "computers and printers available for public use" at a price of 50 cents per page. Further, hard copies of the "indexing records" could be purchased "at a price per record of $.03 and a set[-]up fee of $15.00," with the charges per year averaging between "$1,100.00 and $1,600.00."

{3} Unsatisfied with obtaining the requested information in the form proposed by the County, TexasFile replied to the County's response several months later renewing its request for electronic production. TexasFile noted that a provision in IPRA requires records custodians to provide public records in electronic form when the records are specifically requested in electronic form and "available" in that form. TexasFile asserted that the County's records "were plainly available" electronically, given that the records were accessible on computer terminals at the County's offices. The County responded that Section 14-8-9.1 (2011) of the Recording Act requires that counties redact certain "protected personal identifier information" before third parties may "digitiz[e] or purchas[e]"

records that would otherwise reveal that information. Based on that requirement, and because its records had apparently not yet been redacted, the County advised, "we do not provide digital copies of our records." The County reiterated that it made computers and printers available to the public during normal business hours, and it charged a copy fee of 50 cents per page. The County added that before leaving its offices, any copy "must be inspected for protected personal identifier information," so that redactions could be made as necessary.

{4} TexasFile replied, contending that Section 14-8-9.1(C) (2011) of the Recording Act required the County to make redactions before digitizing records, and asserting that electronic images should be available to TexasFile. The County responded again, explaining that because it did not have a practice of providing electronic images, it was looking at "options and investigating pricing." After a meeting of the board of county commissioners, the County offered to compile and produce its records in electronic form under the following terms. The County would charge "25 cents per image (page), $100 set[-]up fee plus the cost of the [media] used to convey the records." Any employee time expended in excess of four hours would be charged at $25 per hour. The County reported that a rough estimate of the cost of the records spanning the period from July 1, 2011, to May 2014, "would be around $40,000," plus approximately "$7,000" for the associated index. TexasFile, questioning these estimates, asked the County how it "had arrived at a price of 25 cents per image." After reiterating this request several times and receiving no substantive response, TexasFile concluded that the County had "refused to reconsider the 25-cents-per-image fee."

{5} TexasFile then filed its lawsuit in district court, alleging the County's fee demand "for electronic copies of ... real property records [was] unreasonable," based on "reasonable fee" provisions appearing in IPRA, the Public Records Act, and the Recording Act. TexasFile's prayer for relief included a request for a declaratory judgment, "declaring [the County's] quoted fees for electronic copies of Lea County's real property records unreasonable as a matter of law." The County moved to dismiss. The County contended that TexasFile had no cause of action under IPRA because IPRA provides a private cause of action only to those parties whose requests for inspection have been "denied," see § 14-2-12(A)(2), and TexasFile's request was never denied, as the County at all times made clear the records were available for inspection at its offices. The County further maintained that neither the Public Records Act nor the Recording Act provided TexasFile a private right of action. The district court embraced the County's positions, granted the County's motion, and dismissed TexasFile's complaint with prejudice. The court also denied TexasFile's motion for leave to amend its complaint to seek a writ of mandamus under IPRA, Section 14-2-12(B).

{6} TexasFile's principal argument on appeal is that the district court erred in concluding the complaint failed to allege a "denial," as required for private party enforcement under IPRA, Section 14-2-12(A). In short, TexasFile interprets IPRA's enforcement provision to allow requesters to bring actions in scenarios where custodians impose unreasonably high fees, and because TexasFile alleged facts supporting a claim of an unreasonably high fee here, the district court erred in dismissing its IPRA cause of action. TexasFile adds that, even if we decline to adopt its proposed interpretation of IPRA, we should recognize implied private rights of action under the Public Records Act and the Recording Act.

{7} The County responds that TexasFile does not have standing to sue under IPRA because its request has not been denied and only the Attorney General or a local district attorney has standing to bring an IPRA enforcement action not involving a denial. See § 14-2-12(A). The County, along with amicus curiae (New Mexico Association of Counties), next argues that the County's obligation to respond to TexasFile's records request is defined by the Recording Act, as the more specific act, rather than IPRA or the Public Records Act. Because the Recording Act does not require electronic production and permits the County to charge up to $1.00 per page, the County argues that TexasFile's complaint fails to state a claim. The County adds that the Public Records Act and the Recording Act contain no expressions of legislative intent to create implied private rights of action.

DISCUSSION

{8} IPRA and the Recording Act impose competing obligations on the County to respond to TexasFile's request, and thus we are called on to resolve this conflict. We conclude that the Recording Act, as the more specific statute, governed the County's production obligation with respect to TexasFile's records request. Because the Recording Act imposes no requirement on the County to produce its documents electronically, we need not determine whether the County's quoted fee for the electronic production was unreasonable or whether the quoted fee amounts to a denial under IPRA. We further conclude that TexasFile's complaint fails to allege a violation of the production obligations set forth in the Recording Act, and thus we need not decide whether the Recording Act creates a private right of action. Accordingly, we affirm the district court's dismissal of TexasFile's complaint for failure to state a claim upon which relief can be granted.

I. Standard of Review

{9} We review dismissals under Rule 1-012(B)(6) NMRA de novo. See Wolinsky v. N.M. Corr. Dep't , 2018-NMCA-071, ¶ 3, 429 P.3d 991, cert. denied , 2018-NMCERT----- (No. S-1-SC-37287, Oct. 26, 2018). A dismissal for failure to state a claim is warranted only when it appears a claimant cannot recover on any version of facts provable under the claim. See Valdez v. State , 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71. In reviewing these dismissals, we accept as true all well-pleaded factual allegations in the complaint and we resolve any doubts in favor of the complaint's sufficiency. Id. We review de novo the underlying questions of statutory interpretation and application of the relevant statutory provisions to the facts alleged. See Crutchfield v. N.M. Dep't of Taxation & Revenue , 2005-NMCA-022, ¶ 16, 137 N.M. 26, 106 P.3d 1273.

{10} Where, as here, we consider a ground for affirming not relied upon by or presented to the district court, we may affirm as long as application of the new ground does not require us to look beyond the factual allegations raised and considered in the district court and it would not be unfair to the appellant. See Freeman v. Fairchild , 2018-NMSC-023, ¶ 30, 416 P.3d 264 ; Wild Horse Observers Ass'n, Inc. v. N.M. Livestock Bd. , 2016-NMCA-001, ¶ 29, 363 P.3d 1222. Our Supreme Court has explained that an appellee generally need not preserve any specific issues for review and may offer even unpreserved grounds for affirmance on appeal. See Cordova v. World Fin. Corp. of N.M. , 2009-NMSC-021, ¶ 18, 146 N.M. 256, 208 P.3d 901. Thus, we "routinely affirm district court rulings on purely legal issues where the record allows, even when the district court relied on different reasoning, and when the court did not consider the issue at all." Morris v. Brandenburg , 2015-NMCA-100, ¶ 141, 356 P.3d 564, aff'd , 2016-NMSC-027, 376 P.3d 836. Additionally, we are less likely to find unfairness where an argument is raised in the appellate briefs, as it was here, and the appellant has an opportunity to respond, even where the appellant declines the opportunity. See Cordova , 2009-NMSC-021, ¶ 19, 146 N.M. 256, 208 P.3d 901.

II. Relevant Statutory Provisions

A. The Public Records Act Is Not at Issue

{11} In its complaint, TexasFile asserted a separate claim under the Public Records Act, relying specifically on Section 14-3-18(E). This section directs, in relevant part, that "[a] county or municipality that has inserted data in a computer database shall authorize an electronic copy to be made of the computer database ... if the person agrees to pay a reasonable fee." Section 14-3-18(E) (emphasis added). Now on appeal, TexasFile abandons this position-unequivocally maintaining that "Section 14-3-18 of the Public Records Act is not applicable at all because it applies only to a 'computer database.' TexasFile did not request a 'computer database'; instead, its request was for 'Lea County real property image and index records.' " (Emphasis added.

) Further, the County does not assert that the Public Records Act's county database provision in Section 14-3-18 should apply in this case. In sum, neither party has relied on Section 14-3-18 of the Public Records Act as governing the County's obligation in this case, and thus we give no further consideration to that possibility here. See Roselli v. Rio Cmtys. Serv. Station, Inc. , 1990-NMSC-018, ¶ 10, 109 N.M. 509, 787 P.2d 428 (concluding that claims not raised on appeal are abandoned); Titus v. City of Albuquerque , 2011-NMCA-038, ¶ 30, 149 N.M. 556, 252 P.3d 780 ("This Court has no duty to review an argument that is not adequately developed.").

B. IPRA and the Recording Act

{12} IPRA and the Recording Act establish statutory schemes with distinct scopes and objectives. IPRA creates a records inspection scheme of general application, granting, with various exceptions, to "every person ... a right to inspect public records of this state." Section 14-2-1(A). Our Legislature has explained that IPRA's purpose is to ensure that "all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees." Section 14-2-5. Of particular relevance here, IPRA requires that "[a] custodian shall provide a copy of a public record in electronic format if the public record is available in electronic format and an electronic copy is specifically requested." Section 14-2-9(B). IPRA's fee provisions provide that a custodian:

(1) may charge reasonable fees for copying the public records, unless a different fee is otherwise prescribed by law;
(2) shall not charge fees in excess of one dollar ($1.00) per printed page for documents eleven inches by seventeen inches in size or smaller;
(3) may charge the actual costs associated with downloading copies of public records to a computer disk or storage device, including the actual cost of the computer disk or storage device;
(4) may charge the actual costs associated with transmitting copies of public records by mail, electronic mail or facsimile;
(5) may require advance payment of the fees before making copies of public records;
(6) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and
(7) shall provide a receipt, upon request.

Section 14-2-9(C).

{13} The Recording Act, and associated statutes, see NMSA 1978, §§ 14-9-1 to -9 (1851-52, as amended through 1991) (pertaining to the recording of instruments affecting real estate); NMSA 1978, §§ 14-10-1 to -5 (1903, as amended through 2013) (pertaining to the creation and maintenance of a recording index of all recorded instruments affecting real property), have been around for much longer than IPRA, dating back to the mid-nineteenth century. See, e.g. , Section 14-8-1 (1855, as amended through 2011). Our Supreme Court has explained that these recording statutes, taken together, "are intended to protect those having subsequent dealings with the [real property documented and described by real property records]." Romero v. Sanchez , 1971-NMSC-129, ¶ 24, 83 N.M. 358, 492 P.2d 140. They accomplish this goal by "providing a place and a method by which an intending purchaser or encumbrancer can safely determine just what kind of title he is in fact obtaining." Id. ¶ 23 (internal quotation marks and citation omitted). The recording statutes have thus long required that recorded documents be made publicly available in a book of record in the office of the county clerk, see § 14-8-14(A), and they have directed that the book of record is to provide "notice to the public of the contents thereof," Section 14-8-6.

{14} Unlike IPRA, the Recording Act contains no requirement that records be provided in electronic format. Compare § 14-2-9 (IPRA's inspection and production section, requiring electronic production), with § 14-8-14 (the Recording Act's inspection and production section, omitting any electronic production requirement). Likewise, the Recording Act's fee provisions omit the fee requirements pertaining to electronic production and instead provide that a county clerk:

(1) may charge reasonable fees for conducting searches and for reproducing or permitting reproduction of their records as well as for certifying documents;
(2) shall not charge fees in excess of one dollar ($1.00) per page for documents eleven inches by seventeen inches in size or smaller;
(3) may require advance payment of fees before making copies of public records;
(4) shall not charge a fee for the cost of determining whether any public record is subject to disclosure; and
(5) shall provide a receipt, upon request.

Section 14-8-14(B).

III. The Recording Act, Not IPRA, Governs the County's Obligation in This Case

{15} Neither party takes the position that the records TexasFile sought have been or could have been withheld in response to its request. They agree that various statutory provisions require these records to be publicly available and that the County makes them publicly available at its offices. They dispute instead what obligations the County had in responding to TexasFile's records request, given the various statutory provisions at play. And as noted above, IPRA's electronic production directives are at odds with the Recording Act, which contains no requirement that records be produced in electronic form under any circumstances. Compare § 14-2-9, with § 14-8-14.

{16} In interpreting and construing these statutory provisions, we aim to "give effect to the Legislature's intent." Key v. Chrysler Motors Corp. , 1996-NMSC-038, ¶ 13, 121 N.M. 764, 918 P.2d 350. We read statutes in their entirety and construe each provision in relation with all the others, so as "to produce a harmonious whole." Id. ¶ 14. The provisions of one statute, moreover, must be read together in pari materia with other statutes covering the same subject matter, with a presumption that our Legislature enacted each with knowledge of the relevant statutory and common law background. Pub. Serv. Co. v. Pub. Util. Comm'n , 1999-NMSC-040, ¶ 23, 128 N.M. 309, 992 P.2d 860. We construe statutes together when possible to promote the operation and purpose of each. Id. We often achieve this goal by reading a more specific statute as an exception to the provisions of a more general statute and by giving the more specific statute the prevailing effect. See Prod. Credit Ass'n of S. N.M. v. Williamson , 1988-NMSC-041, ¶ 5, 107 N.M. 212, 755 P.2d 56 ("A well established principle of statutory construction recognizes that when one statute deals with a subject in general terms and another deals with a part of the same subject more specifically, the more specific statute will be considered an exception to the general statute, and will apply."); see also Lopez v. Barreras , 1966-NMSC-209, ¶ 12, 77 N.M. 52, 419 P.2d 251 ("Conflicts between general and specific statutes are resolved by giving effect to the specific statute.").

{17} This is not the first time this Court has been called upon to resolve a dispute involving a custodian's obligation to respond to a public records request in the face of two statutes containing divergent duties. See Crutchfield , 2005-NMCA-022, ¶ 1, 137 N.M. 26, 106 P.3d 1273. In Crutchfield , a Texas-based commercial entity made an IPRA request for a copy of the Department of Taxation and Revenue's (the Department) electronic severance tax database. Id. ¶ 4. The Department rejected the request based on Section 14-3-15.1(C) of the Public Records Act, which permits state agencies to impose use restrictions and royalty fees before producing agency databases. Id. ¶ 5. This Court evaluated the Department's obligation to respond to the request given the competing obligations in IPRA and the Public Records Act. We observed that "IPRA unquestionably sets a policy of citizen entitlement to access to public records." Id. ¶ 18. But we explained that Section 14-3-15.1(C) of the Public Records Act sets forth provisions of "very specific application relating specifically to copies of computer databases, and specifying conditions for access to and commercial use of the databases." Id. ¶ 23. IPRA, by contrast, contained no provision specifically addressing requests for copies of a database, and there was no dispute the requester had in fact sought a copy of the Department's database. Id. ¶¶ 4, 23-24. Citing the interpretive canon that the more specific statute controls when two statutes deal with the same subject, this Court concluded that the Legislature must have intended Section 14-3-15.1(C) of the Public Records Act to govern the obligation when requests for databases were made. Id. ¶¶ 23-24. Consequently, Section 14-3-15.1(C) created "an exception to the general public policy [favoring the greatest possible public access] underlying the IPRA." Id. ¶ 24. And because the more specific provision allowed the Department to deny requests for copies of its database where a requester refuses to meet its terms, this Court concluded the Department was entitled to deny the request notwithstanding IPRA. Id. ¶ 27.

{18} We are presented with similarly incongruent statutory obligations, as was the case in Crutchfield , and accordingly we find the analysis in Crutchfield instructive here. IPRA instructs custodians that they must produce records in electronic format when available and requested in that form, see § 14-2-9(B), while the Recording Act imposes no such requirement on county clerks, see § 14-8-14. As Crutchfield explains, when this kind of conflict arises as a result of a public records request, we look to the statute most specifically addressing the "type of record" sought to determine the custodian's obligation in responding. See 2005-NMCA-022, ¶ 24, 137 N.M. 26, 106 P.3d 1273 ; see also Albuquerque Commons P'ship v. City Council of City of Albuquerque , 2011-NMSC-002, ¶ 23, 149 N.M. 308, 248 P.3d 856 ("When faced with two provisions addressing the same topic, we resort to a familiar principle of statutory construction: a statute dealing with a specific subject will be considered an exception to, and given effect over, a more general statute." (internal quotation marks and citation omitted) ). In this case, there is no dispute that TexasFile sought all of the County's real property image and index records, and as TexasFile concedes, the Recording Act establishes a scheme for the filing, recording, and inspection of these records. As explained above, the Recording Act has a long history, aiming to provide a mechanism by which prospective purchasers can examine real property records and placing on county clerks associated duties to make these records available and searchable for the public. See Romero , 1971-NMSC-129, ¶ 24, 83 N.M. 358, 492 P.2d 140 ; see also § 14-8-6 (history). IPRA creates no similarly specific scheme for real property records and, indeed, makes no reference to real property records at all. See §§ 14-2-1 to -12. In light of the breadth and depth of treatment given real property records in the Recording Act and the absence of the same in IPRA, principles of statutory construction, as employed in Crutchfield , counsel that the Recording Act's production provisions govern the County's obligation in responding to TexasFile's request. See Crutchfield , 2005-NMCA-022, ¶ 23, 137 N.M. 26, 106 P.3d 1273 ("When two statutes deal with the same subject, one general and one specific, the specific statute controls.").

{19} Furthermore, in examining recent legislative history, we see no intent on the part of the Legislature to apply IPRA's electronic production requirement to the records request in this case. Both IPRA and the Recording Act were amended in 2011. At that time, the provision requiring the electronic production of documents was added to Section 14-2-9 of IPRA. See § 14-2-9(B) (2011). During the same session, the Legislature revamped the section in the Recording Act pertaining to searching and charging for records maintained in county clerks' offices. Compare § 14-8-14 (1886-87), with § 14-8-14 (2011). That amendment conformed the Recording Act's fee provisions in large part to IPRA's fee provisions. Compare § 14-8-14(B)(2) to (B)(5), with § 14-2-9(C)(1), (2), (5), (6), (7). But significantly, when the Legislature revamped the Recording Act to conform its fee provisions to those set forth in IPRA, it omitted IPRA's electronic production requirement and related fee provisions. See § 14-8-14(B) (listing identical fee provisions as those found in Section 14-2-9(C)(2), (5), (6), (7), but omitting provisions pertaining to electronic production found in Section 14-2-9(C)(3), (4) ). This omission signals the Legislature's intent that IPRA's electronic production requirement and related fee provisions do not apply to records requests like those at issue in this case. See, e.g. , United Rentals Nw., Inc. v. Yearout Mech., Inc. , 2010-NMSC-030, ¶ 25, 148 N.M. 426, 237 P.3d 728 ("[I]f a statute on a particular subject omits a particular provision, inclusion of that provision in another related statute indicates an intent that the provision is not applicable to the statute from which it was omitted." (alteration, internal quotation marks, and citation omitted) ).

{20} There are many reasons the Legislature could have determined that the electronic production requirement in IPRA was unsuitable for real property records filed and recorded in county clerks' offices-one being the safeguarding of protected personal identifier information. Section 14-2-1(B) of IPRA authorizes, but does not require, public bodies to redact protected personal identifier information before permitting inspection or copying. The Recording Act pushes the protection a step further-requiring, as opposed to merely authorizing, that redaction of protected personal identifier information be made before third parties may purchase copies. See § 14-8-9.1(C). And the Recording Act subjects county clerks to damages suffered by injured parties for their failure to comply with the requirements and duties of the Recording Act. Section 14-8-10. So for real property records in particular, the Legislature established heightened protection, perhaps recognizing the additional risks of disclosure of records linking personal identifier information to real property information. See City of Las Cruces v. Pub. Emp. Labor Relations Bd. , 1996-NMSC-024, ¶ 9, 121 N.M. 688, 917 P.2d 451 ("To permit disclosure of certain types of information could threaten the well-being of individual citizens by unnecessarily revealing information of a personal nature." (alteration, internal quotation marks, and citation omitted) ). And it takes little imagination to appreciate the onerous burden county clerks' offices may bear to redact in electronic format protected personal identifier information from their voluminous records in order to ensure the privacy interests of real property owners. This supports our conclusion that the Legislature acted with intention to exempt county clerks from the electronic production requirement in IPRA.

{21} Notwithstanding Crutchfield and basic principles of statutory construction, TexasFile offers various arguments why the County's obligation should be governed not by the Recording Act but instead by IPRA. First, TexasFile points out that New Mexico cases instruct that IPRA provisions are to be construed broadly to carry out its legislative purpose. See, e.g. , San Juan Agr. Water Users Ass'n v. KNME-TV , 2011-NMSC-011, ¶ 15, 150 N.M. 64, 257 P.3d 884 ("Where there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed." (internal quotation marks and citation omitted) ). That principle, TexasFile maintains, suggests we should look to IPRA for the County's obligation. Our above analysis, however, puts this argument to rest-in cases featuring conflicting guidance, we look to the more specific statute for the obligation, even if this "creat[es] an exception to the general public policy underlying the IPRA." Crutchfield , 2005-NMCA-022, ¶ 24, 137 N.M. 26, 106 P.3d 1273.

{22} As an aside, TexasFile contends that a clause in Section 14-8-9.1 (2011) of the Recording Act makes records filed and recorded in county clerks' offices subject to IPRA in its entirety. Section 14-8-9.1(A) (2011), which has since been amended to eliminate the clause TexasFile relies upon, specified that "[e]xcept as provided in this section, all documents filed and recorded in the office of the county clerk are public records, subject to disclosure pursuant to [IPRA ]." (Emphasis added.) TexasFile's contention runs counter to the plain meaning of "disclosure." As used in IPRA, "disclosure" simply means to make a record available for inspection. See § 14-2-9(A) ("Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection ." (emphases added) ); see also Merriam-Webster Dictionary , https://www.merriam-webster.com/dictionary/disclose (last visited on Jan. 19, 2019) (defining "disclose" as "to open up," "to expose to view," "to make known or public"). Had the Legislature intended to import IPRA's electronic production requirement into Section 14-8-9.1(A), it certainly could have chosen words to that effect. See State v. Greenwood , 2012-NMCA-017, ¶ 38, 271 P.3d 753 ("The Legislature knows how to include language in a statute if it so desires." (alteration, internal quotation marks, and citation omitted) ). Furthermore, TexasFile's broad interpretation of the former version of Section 14-8-9.1(A) (2011) would render the Recording Act's production and fee requirements in Section 14-8-14(B) superfluous. See Regents of Univ. of N.M. v. N.M. Fed'n of Teachers , 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 ("Statutes must be construed so that no part of the statute is rendered surplusage or superfluous." (internal quotation marks and citation omitted) ).

{23} In sum, given the conflicting guidance regarding electronic production in IPRA and the Recording Act, the comprehensive and specific treatment of real property records in the Recording Act and the absence of specific treatment in IPRA, the clear omission of an electronic production requirement in the Recording Act, as well as the heightened protection of confidential information in the Recording Act, we conclude that the Recording Act's production requirements governed the County's obligation to respond to TexasFile's records request.

IV. The District Court Correctly Determined That TexasFile Failed to State a Claim

{24} Having concluded that the Recording Act governed the County's obligation here, we next turn to whether the complaint alleged any violations of that act. Under the Recording Act, the County was required to redact any protected personal identifier information before releasing documents to TexasFile. See § 14-8-9.1(C). As TexasFile's complaint makes clear, the County insisted on complying with this obligation. The County also was required to make its records available for TexasFile's inspection during regular business hours. See § 14-8-14(A). The complaint again reflects that the County proposed to meet this requirement. The County also was authorized to charge "reasonable fees" for conducting searches and reproducing its records, along with fees "not in excess of one dollar ($1.00) per page" for documents eleven-by-seventeen inches in size or smaller. See § 14-8-14(B)(1), (2). Whether those authorizations might sometimes conflict is unclear, but they do appear in the conjunctive. Further, TexasFile's complaint alleges that the County quoted a fee of 50 cents per printed page and makes no contention that this fee was unreasonable; the complaint again fails to allege that the County's initial proposal did not comply with Section 14-8-14(B) of the Recording Act. At the same time, the County had no obligation to provide electronic copies because the Recording Act imposes no such obligation, and thus the County's later efforts to accommodate TexasFile gave rise to no violation under any of the provisions TexasFile relies upon. Thus, even if the Recording Act provides a private right of action, the complaint here has failed to allege a violation of that act.

{25} In short, we conclude that TexasFile failed to state a claim upon which relief can be granted and dismissal of the complaint was appropriate. Given TexasFile's failure to state a claim, we further conclude that the district court correctly denied TexasFile's request for declaratory relief. See, e.g. , Am. Linen Supply of N.M., Inc. v. City of Las Cruces , 1963-NMSC-176, ¶ 7, 73 N.M. 30, 385 P.2d 359 ("[U]nless a valid cause of action is stated under the rules of substantive law, there can be no recourse to declaratory judgment procedure to reach the desired end."). Finally, given the lack of any violation of a "clear, mandatory duty" on the facts alleged, the district court correctly denied TexasFile's motion to add a request for mandamus to its complaint. See State ex rel. Whitehead v. Vescovi-Dial , 1997-NMCA-126, ¶¶ 4, 16, 124 N.M. 375, 950 P.2d 818 (concluding mandamus is inappropriate unless "clear-cut mandatory duty" to perform some action is identified).

CONCLUSION

{26} We affirm the district court's dismissal of TexasFile's complaint.

{27} IT IS SO ORDERED.

WE CONCUR:

LINDA M. VANZI, Judge

J. MILES HANISEE, Judge

      In passing, and without explanation, the County asserts that the property records requested by TexasFile are not "public records" as defined in IPRA. We are under no obligation to consider such an undeveloped argument, and given our resolution of this case on other grounds, we do not address this issue. See Titus , 2011-NMCA-038, ¶ 30, 149 N.M. 556, 252 P.3d 780.


source: Caselaw Access Project

author: VARGAS, Judge.

license: Public Domain

text:
    COMMUNICATION WORKERS OF AMERICA, AFL-CIO, Appellant/Cross-Appellee-Petitioner, v. STATE of New Mexico, Appellee/Cross-Appellant-Respondent.
    No. A-1-CA-36331
    Court of Appeals of New Mexico.
    Filing Date: February 21, 2019
    Youtz & Valdez, P.C., Shane Youtz, Stephen Curtice, James A. Montalbano, Albuquerque, NM, Rosenblatt & Gosch, PLLC, Stanley M. Gosch, Greenwood Village, CO, for Appellant
    Hector H. Balderas, Attorney General, Lori Chavez, Assistant Attorney General, Santa Fe, NM, Holcomb Law Office, Dina Eileen Holcomb, Albuquerque, NM, for Appellee
   VARGAS, Judge.

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

I. BACKGROUND

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

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

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

This agreement shall be deemed the final and complete agreement between the parties and expresses the entire understanding of the Employer and the Unions. This agreement supersedes any and all previous agreements and all conflicting agency and departmental rules, policies and regulations on the same matters except as otherwise specifically provided herein.
....
The parties acknowledge that during the negotiations which resulted in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter not removed by law from collective bargaining, and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in this Agreement. Therefore, the Employer and the Unions, for the life of this Agreement, each voluntarily and unqualifiedly waive the right, and each agree that they shall not be obligated to bargain collectively with respect to any subject or matter referred to or covered in this Agreement. However, the parties continue to have a duty to bargain over any subject or matter which was not within the knowledge or contemplation of the parties at the time they negotiated or signed this Agreement.

{3} Following PEBA I's repeal in 1999, the Union and State operated for four years without a CBA. During this time, bargaining unit employees continued to be paid for time spent preparing for and participating in grievance meetings. In 2004, after the passage of PEBA II, NMSA 1978, §§ 10-7E-1 to -26 (2003, as amended through 2005), the State and the Union entered into a second CBA. The 2004 CBA largely kept the same language regarding paid time for union officials and stewards, adding limitations on union officials' and stewards' use of union time. Under the 2004 CBA, bargaining unit employees continued to be paid for time spent preparing for and participating in grievance meetings, provided they received approval from their supervisor. The 2004 CBA's zipper clause contained similar language to that of the 1994 CBA, though it deleted the waiver language and stated only:

[F]or the duration of this Agreement, the Employer is not obligated to bargain over Union initiated changes in terms and conditions of employment unless such changes are proposed pursuant to the terms of this Agreement.
[I]n addition to changes initiated pursuant to its Management Rights (Article 5 of this Agreement), the Employer reserves the right to propose other reasonable changes in the terms and conditions of employment of employees to meet legitimate public service and operating needs, and such changes are subject to negotiation in accordance with the PEBA or any other expedited impasse resolution procedures mutually agreed upon by the parties at the time of such negotiations.

{4} In 2009, the State and the Union entered into a third CBA, which remains in effect. Article 2 of the CBA, titled "Union Rights," provides:

Section 3. The Employer shall allow [u]nion [o]fficers and stewards to attend, on paid status (utilizing the union time code in the time and labor reporting system), meetings agreed to by the parties for purposes of administration of this Agreement including grievance meetings within the parameters set forth in this section's succeeding paragraphs.
Each union officer or steward shall be entitled to use union time to investigate and process grievances, which they are authorized to settle, within the agency to which they are employed, for reasonable periods of time without charge to pay or to leave. Union time must be pre-approved and will not be disapproved except for operational reasons.
....
When a union officer or steward desires to consult with another employee concerning a grievance on work time, both employees shall request and obtain prior permission to do so.

Section 3 goes on to provide time and procedural parameters for the grant of union time. Article 2 also defines the terms "union officer" and "steward":

Union [o]fficer means a classified state employee elected as President, Executive Vice-President, Secretary, Treasurer, Agency Vice-President or as Regional Vice President.
Steward means a classified state employee authorized by the local to administer the [CBA].

Under the 2009 CBA, bargaining unit employees continued to be paid for time spent preparing for and participating in grievance meetings, and were paid with either "[u]nion time" or "paid time," i.e., "regular time." The 2009 CBA retained the language of the 2004 CBA's zipper clause.

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

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

{7} After discovering that State agencies were granting bargaining unit employees paid time for time spent in grievance meetings, Sandy Martinez, the State Labor Relations Director, "informed the agencies that [u]nion time only applies to [u]nion officers and stewards and the 'union time' code should only be used for officers and stewards." Director Martinez sent a letter on March 5, 2014, to Alire, quoting Article 2, Section 3 of the CBA and stating:

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

The Union did not request to bargain regarding the change referenced in the State's notice, instead choosing to wait six months before filing a prohibited practices complaint. The Union argued the State's March 5, 2014, "notice informed the [Union] of the [State]'s intent to unilaterally rescind the parties' February 25th agreement and unilaterally change terms and conditions for the rest of the bargaining unit." The Union claimed the State's actions violated Section 10-7E-19(A), (B), (D), (F), and (G).

A. The Hearing Officer

{8} The parties agreed to submit the matter to the Hearing Officer. After reviewing the parties' briefs, affidavits, and exhibits, the Hearing Officer found the terms of the CBA to be ambiguous with regard to payment of bargaining unit employees for time spent preparing for and participating in grievance meetings. Consequently, the Hearing Officer considered the Union's unchallenged evidence of the parties' past practice of paying bargaining unit employees for preparing for and participating in grievance meetings. Indeed, the State's own witness, Labor Relations Administrator Ronald Herrera, stated that he was "aware of at least five (5) instances occurring in 2012 and 2013 in which employees of one (1) agency, the Department of Cultural Affairs, who were not union officers or union stewards, were coded as utilizing union time in the payroll system." Relying on the State's March 5, 2014, letter acknowledgement of a past practice, the affidavit statements of Gould and Alire that the State has engaged in this practice, and six bargaining unit employees' statements and exhibits establishing they were paid either "union time" or "paid time" for time they spent in grievance meetings, the Hearing Officer determined "the past practice of paying employees for preparing and attending their own grievance meetings as either union time or regular work time [was] clearly established." As a result, the Hearing Officer concluded that "the State violated PEBA § 10-7E-19(B) when it unilaterally altered a mandatory subject of bargaining and a longstanding past practice thereby unlawfully restraining and interfering with employees' rights under PEBA."

{9} The Hearing Officer also determined that the State violated Section 10-7E-19(F) by unilaterally altering a mandatory subject of bargaining. The Hearing Officer concluded that the Union was relieved of its duty to request bargaining after receiving the March 5, 2014, letter because the State presented the Union with a fait accompli , thereby rendering any request to bargain fruitless. The Hearing Officer found the Union had not established a violation of Section 10-7E-19(A), (D), or (G). The State appealed the Hearing Officer's decision to the Board.

B. The Board

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

C. The District Court

{11} The district court reviewed the case in its appellate capacity under Rule 1-074 NMRA. The district court affirmed the Board's finding that no violation of Section 10-7E-19(F) occurred, explaining that the Union was not relieved of its duty to request bargaining because the State provided the Union with sufficient time to do so and had not implemented the change before notifying the Union. The district court reversed the Board's finding that the State violated Section 10-7E-19(B) because such a finding appeared "inconsistent" with the Board's decision in favor of the State on the Section 10-7E-19(F) issue. Upon the Union's petition, this Court granted certiorari.

II. DISCUSSION

{12} The Union argues the State violated Section 10-7E-19(B) and (F) by unilaterally altering a binding past practice regarding the compensation of bargaining unit employees for time spent preparing for and participating in grievance meetings. The State argues in response that there was no binding past practice and, even if there was, the district court correctly determined that the Union was required to request bargaining on the issue and failed to do so. We are therefore asked to determine (1) whether a binding past practice existed that constituted a mandatory subject of bargaining, and (2) whether the State's notice to the Union regarding the change in past practice constituted a fait accompli , thereby precluding a finding that the Union's failure to request bargaining served as a waiver of its right to bargain.

A. Standard of Review

{13} "Upon a grant of a petition for writ of certiorari under Rule 12-505, this Court conducts the same review of an administrative order as the district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal." N.M. Corr. Dep't v. AFSCME, Council 18 , 2018-NMCA-007, ¶ 9, 409 P.3d 983 (internal quotation marks and citation omitted omitted), cert. denied , --- -NMCERT- ---- (No. S-1-SC-36688, Oct. 24, 2017). "We independently review the entire record of the administrative hearing to determine whether the [Board]'s decision was arbitrary and capricious, not supported by substantial evidence, or otherwise not in accordance with law." Id. (internal quotation marks and citation omitted); see NMSA 1978, § 10-7E-23(B) (providing the standard of review from the board to the district court). "When reviewing an administrative agency's conclusions of law, we review de novo." AFSCME, Council 18 , 2018-NMCA-007, ¶ 9, 409 P.3d 983 (internal quotation marks and citation omitted). Similarly, "[w]e apply a de novo standard of review to administrative rulings regarding statutory construction." Id . (alteration, internal quotation marks, and citation omitted). "In the absence of guidance from our own courts, [our] New Mexico Supreme Court has directed that we should interpret language in the PEBA in the manner that the same language of the National Labor Relations Act has been interpreted." Cty. of Los Alamos v. Martinez , 2011-NMCA-027, ¶ 21, 150 N.M. 326, 258 P.3d 1118 (alteration, internal quotation marks, and citation omitted); see Regents of Univ. of N.M. v. N.M. Fed'n of Teachers , 1998-NMSC-020, ¶ 18, 125 N.M. 401, 962 P.2d 1236. "We will not disturb the agency's factual findings if supported by substantial evidence, although we engage in a whole record review." Montano v. N.M. Real Estate Appraiser's Bd. , 2009-NMCA-009, ¶ 8, 145 N.M. 494, 200 P.3d 544. "Substantial evidence is evidence that a reasonable mind would regard as adequate to support a conclusion." Id . ¶ 9 (internal quotation marks and citation omitted).

B. Past Practice

{14} Before discussing the legal impact of the State's March 5, 2014, letter on the parties' claimed past practice regarding "union time" and "paid time," we must first determine whether a past practice existed. The evidence establishing the State's past practice of paying bargaining unit employees to prepare for and participate in grievance meetings, subject to supervisory approval, was unchallenged in the parties' briefs, affidavits, and exhibits submitted to the Hearing Officer. Moreover, Director Martinez acknowledged the past practice in her March 5, 2014, letter stating, "All past practices with regard to paid union time and paid state time ... are ceased." We therefore defer to the Board's finding that this past practice existed. See Montano , 2009-NMCA-009, ¶ 8, 200 P.3d 544 ("We will not disturb the agency's factual findings if supported by substantial evidence, although we engage in a whole record review.").

{15} Having determined a past practice existed, we must now consider whether the past practice is binding on the parties notwithstanding the terms of the CBA. The interpretation of a CBA's terms "is not confined to the express provisions of the contract, as the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it." United Steelworkers of Am. v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 581-82, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; see Cruz-Martinez v. Dep't of Homeland Sec. , 410 F.3d 1366, 1370 (Fed. Cir. 2005) ("Clear and long-standing practices of the parties-in other words, 'past practices'-can establish terms of the agreement that are as binding as any specific written provision.... Generally, factors relevant to a finding of a binding past practice are the duration and consistency of its application and the parties' acquiescence in it."); Webb v. ABF Freight Sys., Inc. , 155 F.3d 1230, 1243 (10th Cir. 1998) ("It is well-established that when interpreting the terms of a labor contract, a fact-finder is entitled-and indeed, in some cases required-to look to the past practices of the parties and the 'common law of the shop' to determine the parties' contractual obligations."); see also § 10-7E-17(A)(1) (providing that "public employers and exclusive representatives ... shall bargain in good faith on wages, hours and all other terms and conditions of employment and other issues agreed to by the parties"). As we have previously indicated, the "common law of the shop," i.e., past practices, are used to interpret ambiguous phrases contained in a CBA. See Alarcon v. Albuquerque Pub. Sch. Bd. of Educ. , 2018-NMCA-021, ¶ 74, 413 P.3d 507, cert. denied , --- -NMCERT- ---- (No. S-1-SC-36811, Jan. 23, 2018).

{16} In the present case, the Hearing Officer determined that the CBA was ambiguous regarding the grant of "union time," concluding that the "CBA does not limit the use of 'union time' solely to union officers and stewards-its use is a matter of an employee's supervisor's discretion." The Hearing Officer thus concluded, "[T]here is no express limitation on [the] use [of 'union time'] other than the reasonable exercise of a supervisor's discretion." The Hearing Officer's Report and Recommendation, including his findings of fact, conclusions of law and rationale, were adopted by the Board, except those findings relating to the State's refusal to bargain in good faith. We acknowledge the absence of express language including bargaining unit employees in the list of those entitled to paid status for grievance meetings. However, in light of the parties' course of dealing throughout the years, and the language in the CBA providing that "both employees shall request and obtain prior permission" in those instances where "a union officer or steward desires to consult with another employee concerning a grievance on work time," we agree with the Board that there is an ambiguity with respect to the type of employees entitled to "union time" for purposes of grievance meetings. See ConocoPhillips Co. v. Lyons , 2013-NMSC-009, ¶ 23, 299 P.3d 844 ("In evaluating whether a term is ambiguous, a court may hear evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and course of performance." (internal quotation marks and citation omitted)). Moreover, given the CBA's silence on the issue of granting "paid time," i.e., "regular time," for grievance meetings, we conclude the CBA is ambiguous on this matter as well. The State, relying on E.I. Du Pont & Co., Inc. , 294 N.L.R.B. 563 (1989), argues that any past practice regarding the grant of "union time" or "paid time" to bargaining unit employees for time preparing for and participating in grievance meetings cannot be considered an implied term of the CBA. E.I. Du Pont & Co., Inc. states:

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

Id. at 563. However, in this case, we are not faced with a past practice that is inconsistent with a CBA's terms-here, the CBA's terms are ambiguous on the subject matter.

{17} Nonetheless, the State argues that binding application of the past practice is prohibited by the CBA's zipper clause. This Court adopted the National Labor Relation Board's standard in Radioear Corp. , 214 N.L.R.B. 362 (1974), to determine whether a zipper clause eliminated an otherwise binding past practice. Martinez , 2011-NMCA-027, ¶¶ 22-25, 258 P.3d 1118. In Radioear Corp. , the National Labor Relations Board concluded:

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

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

C. Request to Bargain

{18} The Union argues the Board and the district court erred in finding no violation of Section 10-7E-19(F) and that the district court erred in reversing the Board's finding that the State violated the Union's Section 10-7E-19(B) derivative claim. The Union's claims under both Subsection (F) and Subsection (B) of Section 10-7E-19 are based on the State's purported refusal to bargain prior to eliminating the past practice of paying bargaining unit employees for time spent preparing for and participating in grievance meetings, subject to supervisory approval; as such, we address Subsection (F) and Subsection (B) together. Section 10-7E-19(F) provides: "A public employer or his representative shall not ... refuse to bargain collectively in good faith with the exclusive representative[.]" Section 10-7E-19(B) provides:

"A public employer or his representative shall not ... interfere with, restrain or coerce a public employee in the exercise of a right guaranteed pursuant to the Public Employee Bargaining Act[.]" Section 10-7E-17(A)(1) sets forth the scope of bargaining: "[P]ublic employers and exclusive representatives ... shall bargain in good faith on wages, hours and all other terms and conditions of employment and other issues agreed to by the parties." Similarly, the National Labor Relations Act (NLRA) prohibits an employer from "refus[ing] to bargain collectively with the representatives of his employees," 29 U.S.C. § 158(a)(5) (2012), and further provides that the duty "to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to ... confer in good faith with respect to wages, hours, and other terms and conditions of employment[.]" 29 U.S.C. § 158(d).

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

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

NLRB v. Katz , 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) (alteration and footnotes omitted); see Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 198, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) ("Sections 8(a)(5) and 8(d) of the NLRA ... require an employer to bargain in good faith with respect to wages, hours, and other terms and conditions of employment. ... The Board has determined, with our acceptance, that an employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment." (internal quotation marks and citation omitted)).

{20} To avoid waiving its right to bargain, a union has an obligation to request bargaining when an employer unilaterally changes a mandatory subject of bargaining. See Ciba-Geigy Pharm. Div. , 264 N.L.R.B. 1013, 1017 (1982) ("Despite the fact that an employer may have made a unilateral change in a mandatory subject of bargaining, it is well settled that such action may have been permissible if the union had waived its right to bargain over the particular matter."). A union will not, however, "be held to have waived bargaining over a change that is presented to it as a fait accompli ." Dresser-Rand Co. v. NLRB , 838 F.3d 512, 518 (5th Cir. 2016) (internal quotation marks and citation omitted). We adopt the National Labor Relations Board's interpretation of what constitutes a fait accompli : "[I]f the notice is too short a time before implementation or because the employer has no intention of changing its mind, then the notice is nothing more than informing the union of a fait accompli ." Ciba-Geigy Pharm. Div. , 264 N.L.R.B. at 1017. Under this analysis, we glean two methods of establishing a fait accompli : timing or intent. See Haddon Craftsmen, Inc. , 300 N.L.R.B. 789, 790 (1990) (analyzing the union's claim of a fait accompli under both the timeliness of the notice and the employer's intent); accord Aggregate Indus. v. NLRB , 824 F.3d 1095, 1103-05 (D.C. Cir. 2016) ; Gratiot Cmty. Hosp. v. NLRB , 51 F.3d 1255, 1260 (6th Cir. 1995).

1. The Timing of the State's Notice

{21} In this case, the Board's sole explanation for finding no violation of Section 10-7E-19(F) centered on the timing of the State's notice. "To be timely, the notice must be given sufficiently in advance of actual implementation of the change to allow a reasonable opportunity to bargain." Ciba-Geigy Pharm. Div. , 264 N.L.R.B. at 1017. Although the Union argues on appeal that the State's notice was untimely, it expressly waived this argument during the Board hearing. As a result, we will not review this argument on appeal. See Selmeczki v. N.M. Dep't of Corr. , 2006-NMCA-024, ¶¶ 23-24, 139 N.M. 122, 129 P.3d 158 (explaining that we "require preservation of issues raised on appeal from an administrative decision[,]" and declining to review an issue waived by a party during an administrative proceeding).

2. The State's Intent

{22} Beyond the timing of the State's notice, the Board did not address whether the State's notice constituted a fait accompli because the State had no intention of altering its plans. The language contained in an employer's notice of changes to mandatory subjects of bargaining may be insufficient to establish a fait accompli on its own. See Aggregate Indus. , 824 F.3d at 1103 (concluding that the employer's notice to the union that it was "going to" enact a policy change was its announcement of a bargaining position, not its unwillingness to negotiate). However, the notice's language, in conjunction with additional evidence of the employer's fixed intent, may serve to establish a fait accompli . See Mercy Hosp. of Buffalo , 311 N.L.R.B. 869, 873 (1993) ("The [b]oard looks for objective evidence in determining whether an employer has unlawfully presented a union with a fait accompli . Further, an employer's use of positive language in presenting its proposal does not constitute an indication that a request for bargaining would be futile." (internal quotation marks omitted)); Haddon Craftsmen, Inc. , 300 N.L.R.B. at 790 (explaining that the record "yields no objective evidence that, at this point, the [employer] acted in a manner that relieved the [u]nion of its obligation to request bargaining by, e.g., informing the [u]nion that bargaining would be futile or by implementing the changes before announcing them to the [u]nion" (footnote omitted)).

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

5. Due to the misinterpretation by State agencies of the application of [u]nion time, I informed the agencies that [u]nion time only applies to [u]nion officers and stewards and the "union time" code should only be used for officers and stewards.
6. I also clarified with State agencies that bargaining unit employees do not have a right to meet with a [u]nion officer or steward regarding a grievance on work time, but that an employee must request to be able to do so from the employee's supervisor.
7. I sent notice to Donald Alire, CWA Local 7076 President, on March 5, 2014, informing him of the State's action to ensure the agencies were complying with the collective bargaining agreement.

Although Director Martinez's statement does not specify the date she informed the agencies of this policy, her statement nonetheless suggests that the State had implemented, or began implementing, its shift in policy when it sent the March 5, 2014, letter to Alire. Such an inference is further supported by the facts and circumstances of the Quintana grievance, which reflect that, well prior to Director Martinez's March 5, 2014, notice, the State denied Quintana's request for union time to participate in a grievance meeting and later agreed with the Union that "workers were on paid time."

{24} The Board failed to consider the State's intent in determining whether it presented the Union with a fait accompli . The Board's decision was therefore arbitrary and capricious, see Bernalillo Cty. Health Care Corp. , 2014-NMSC-008, ¶ 9, 319 P.3d 1284 ("An agency's ruling is arbitrary and capricious if the agency failed to consider an important aspect of the problem[.]" (internal quotation marks and citation omitted)), and we remand for the Board to consider this issue as well.

III. CONCLUSION

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

{26} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JENNIFER L. ATTREP, Judge

      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.").