{ "id": 1224650, "name": "Connie CALLAHAN, Sally Fish, and Anne Waters, Plaintiffs-Appellants, v. NEW MEXICO FEDERATION OF TEACHERS-TVI, ALBUQUERQUE TVI FACULTY FEDERATION LOCAL NO. 4974 AFT, NMFT, and American Federation of Teachers, Defendants-Appellees", "name_abbreviation": "Callahan v. New Mexico Federation of Teachers-TVI", "decision_date": "2005-01-06", "docket_number": "No. 23,645", "first_page": "731", "last_page": "740", "citations": [ { "type": "official", "cite": "136 N.M. 731" }, { "type": "parallel", "cite": "104 P.3d 1122" }, { "type": "parallel", "cite": "2005-NMCA-011" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "591 F.2d 211", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 521711 ], "year": 1979, "pin_cites": [ { "page": "216-17" } ], "opinion_index": 0, "case_paths": [ "/f2d/591/0211-01" ] }, { "cite": "730 F.2d 964", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 16010 ], "pin_cites": [ { "page": "966" } ], "opinion_index": 0, "case_paths": [ "/f2d/730/0964-01" ] }, { "cite": "499 U.S. 65", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317908 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "75", "parenthetical": "\"[A] union owes employees a duty to represent them adequately as well as honestly and in good faith.\"" }, { "parenthetical": "\"[A] union owes employees a duty to represent them adequately as well as honestly and in good faith.\"" }, { "parenthetical": "\"[A] union owes employees a duty to represent them adequately as well as honestly and in good faith.\"" } ], "opinion_index": 0, "case_paths": [ "/us/499/0065-01" ] }, { "cite": "269 F.3d 1185", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9472596 ], "opinion_index": 0, "case_paths": [ "/f3d/269/1185-01" ] }, { "cite": "2001-NMCA-090", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183141 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0087-01" ] }, { "cite": "120 N.M. 724", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559021 ], "weight": 2, "pin_cites": [ { "page": "729" }, { "page": "1133" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0724-01" ] }, { "cite": "120 N.M. 768", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558853 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "771", "parenthetical": "stating that third-party beneficiaries are accorded the traditional contract remedies with respect to the bargain intended for their benefit" }, { "page": "175", "parenthetical": "stating that third-party beneficiaries are accorded the traditional contract remedies with respect to the bargain intended for their benefit" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0768-01" ] }, { "cite": "112 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720175 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "49" }, { "page": "82" }, { "page": "49-50" }, { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0048-01" ] }, { "cite": "473 A.2d 1176", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1984, "pin_cites": [ { "page": "1185" } ], "opinion_index": 0 }, { "cite": "192 Conn. 539", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 684517 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/conn/192/0539-01" ] }, { "cite": "386 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169888 ], "weight": 7, "year": 1967, "pin_cites": [ { "page": "185-86" }, { "page": "190" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/us/386/0171-01" ] }, { "cite": "2003-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15897 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/133/0313-01" ] }, { "cite": "2001-NMCA-042", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352608 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0543-01" ] }, { "cite": "2001-NMSC-015", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352514 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0238-01" ] }, { "cite": "2001-NMCA-081", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183119 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 4" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0128-01" ] }, { "cite": "106 N.M. 530", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708097 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "531" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0530-01" ] }, { "cite": "72 N.M. 322", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856445 ], "weight": 20, "year": 1963, "pin_cites": [ { "page": "325" }, { "page": "573" }, { "page": "330" }, { "page": "576" }, { "page": "326" }, { "page": "574" }, { "page": "327-28" }, { "page": "575-76" }, { "page": "329" }, { "page": "576" }, { "page": "324" }, { "page": "572" }, { "page": "332" }, { "page": "577" }, { "page": "331" }, { "page": "577" }, { "page": "330" }, { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nm/72/0322-01" ] }, { "cite": "114 N.M. 706", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731671 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "709", "parenthetical": "\"A motion to dismiss should be granted only when it appears that the plaintiff is not entitled to recover under any facts provable under the complaint.\"" }, { "page": "803", "parenthetical": "\"A motion to dismiss should be granted only when it appears that the plaintiff is not entitled to recover under any facts provable under the complaint.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0706-01" ] }, { "cite": "99 N.M. 497", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584626 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "499" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0497-01" ] } ], "analysis": { "cardinality": 1102, "char_count": 30174, "ocr_confidence": 0.687, "pagerank": { "raw": 6.315005732208552e-08, "percentile": 0.3883695535917345 }, "sha256": "01a015c0603747045983ac9f554efd1450938bd4668373c248819eef360d9417", "simhash": "1:ba29b1b082989d42", "word_count": 4650 }, "last_updated": "2023-07-14T15:28:59.278788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: A. JOSEPH ALARID and IRA ROBINSON, Judges." ], "parties": [ "Connie CALLAHAN, Sally Fish, and Anne Waters, Plaintiffs-Appellants, v. NEW MEXICO FEDERATION OF TEACHERS-TVI, ALBUQUERQUE TVI FACULTY FEDERATION LOCAL NO. 4974 AFT, NMFT, and American Federation of Teachers, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nKENNEDY, Judge.\n{1} The formal opinion filed on November 19, 2004, is withdrawn. This opinion is filed in its stead.\n{2} Plaintiffs appeal from a district court order dismissing their claims against Defendants New Mexico Federation of Teachers-TVI, Albuquerque TVI Faculty Federation Local No. 4974 AFT, NMFT (Local), and American Federation of Teachers-TVI (AFT) with prejudice pursuant to Rule 1-012(B)(6) NMRA. Plaintiffs\u2019 former employer was not named in the complaint, so that all causes of action were brought against the unions only. Plaintiffs argue that the district court erred in. granting Defendants\u2019 motion to dismiss their action for: (1) breach of a collective bargaining agreement by third-party beneficiaries; (2) breach of duty of fair representation; (3) third-party beneficiary breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) breach of fiduciary duty; (6) negligence and gross negligence claims; and (7) holding that union members are required to exhaust administrative remedies under the New Mexico Public Employee Bargaining Act, NMSA 1978, \u00a7\u00a7 10-7D-1 to -26 (1992) (repealed in 1999) (PEBA). We consider the question of whether union members have a cause of action against their union for misfeasance or malfeasance when the union represents the members\u2019 interests against an employer. We conclude that the union members may maintain such an action. Based on the following, we reverse the district court.\nFACTUAL AND PROCEDURAL BACKGROUND\n{3} The facts of this case are not in dispute. \u201c[I]f a district court grants a motion to dismiss pursuant to Rule 12(b)(6), then the allegations pleaded in the complaint must be taken as true for purposes of an appeal.\u201d Envtl. Improvement Div. of N.M. Health & Env\u2019t Dep\u2019t v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983). We thus assume the truth of the following well-pleaded allegations when assessing whether they are sufficient to state a cause of action.\n{4} Plaintiffs were union employees of the Albuquerque Technical Vocational Institute (TVI) when they were summarily terminated from their positions without notice or explanation. Defendants were labor unions which had a collective bargaining agreement with TVI. Defendants represented Plaintiffs in their grievance action regarding the termination of their employment. As provided by TVI\u2019s collective bargaining agreement and the PEBA statute, Defendants were the sole representatives for Plaintiffs in employment-related arbitration matters. Plaintiffs attempted to utilize the contractual provisions of the collective bargaining agreement for settling disputes.\n{5} Despite actual knowledge of their legitimate defense to the termination and actual knowledge that the penalty of termination was in violation of TVI rules, regulations, and the collective bargaining agreement, Defendants only instituted a perfunctory defense, and did not consult with Plaintiffs before dismissing their grievances and refusing an arbitration hearing, and did not ever ascertain why TVI terminated Plaintiffs. Further, Defendants turned on Plaintiffs, supporting TVI in a pending federal lawsuit in order to gain an advantage with TVI for themselves. Defendants\u2019 actions kept Plaintiffs from being able to \u201ctake appropriate steps to defend themselves.\u201d Further, Defendants\u2019 actions violated the collective bargaining agreement, breaching the covenant of good faith and fair dealing, and were negligent and grossly negligent.\n{6} Defendants contend that while the PEBA and TVI\u2019s policies granted them the status of exclusive representative for collective bargaining purposes, these policies did not allow Defendants to wield that power in the grievance process. They claim that under Section 10-7D-15, Plaintiffs had the option of acting individually in \u201cpresenting] a grievance without the intervention of the exclusive representative.\u201d Further, Defendants argue that Plaintiffs\u2019 case is foreclosed because they failed to exhaust their administrative remedies under PEBA when Plaintiffs went to court rather than bring their grievances against Defendants to the TVI Labor Relations Board or the Public Employee Labor Relations Board (PELRB). Defendants argue that the lack of an exclusive duty to represent Plaintiffs, and Plaintiffs\u2019 failure to seek redress under the collective bargaining agreement, means that Plaintiffs cannot later pursue an action in district court for the claims alleged in their complaint.\n{7} With regard to the breach of contract claim, the district court determined that Plaintiffs claimed that they are third-party beneficiaries to the collective bargaining agreement between Defendants and TVI and therefore must stand in the place of TVI and allege a promise made by Defendants in the collective bargaining agreement to TVI that Defendants later breached. The district court decided that Plaintiffs alleged no such promise that Defendants could have breached. Because no breach of contract claim could be maintained, the district court decided that Plaintiffs claims for breach of the implied covenant of good faith and fair dealing could not be maintained either.\n{8} The claim for breach of fiduciary duty was dismissed because the claim could not \u201clie under the facts asserted by Plaintiff[s].\u201d The claims for negligence and breach of duty of fair representation were dismissed because the district court found that Defendants had broad discretion concerning their bargaining unit members and were not subject to a common law negligence standard. Further, it found that while Defendants \u201cdid owe a duty to Plaintiffs to fairly represent them in their grievances,\u201d PEBA was in effect and possessed an administrative enforcement scheme which must be exhausted.\n{9} Plaintiffs timely appealed the district court\u2019s order dismissing its complaint.\nDISCUSSION\nStandard of Review\n{10} The dismissal of Plaintiffs\u2019 complaint was for failure to state a cause of action, and therefore, the district court did not consider any matters outside the pleadings. A motion to dismiss under Rule 1 \u2014 012(B)(6) is properly granted only when it appears that a plaintiff cannot recover or be entitled to relief under any state of facts provable under tbe claim. Kirkpatrick v. Introspect Healthcare Corp., 114 N.M. 706, 709, 845 P.2d 800, 803 (1992) (\u201cA motion to dismiss should be granted only when it appears that the plaintiff is not entitled to recover under any facts provable under the complaint.\u201d); Jones v. Int\u2019l Union of Operating Eng\u2019rs, 72 N.M. 322, 325, 383 P.2d 571, 573 (1963). We treat all of the complaint\u2019s well-pleaded allegations as true but disregard conclusions of law and unwarranted factual deductions. See Saenz v. Morris, 106 N.M. 530, 531, 746 P.2d 159, 160 (Ct.App. 1987). We apply a de novo standard of review to determine whether the law was correctly applied to the facts. See Kropinak v. ARA Health Sens., Inc., 2001-NMCA-081, \u00b6 4, 131 N.M. 128, 33 P.3d 679.\nExclusive Representation Clause is Irrelevant to Defendants\u2019 Claim\n{11} Although TVI\u2019s policy provides for exclusive representatives to act for and represent all employees in the appropriate bargaining unit and negotiate collective bargaining agreements, the policy also permits an employee, acting individually, to present a grievance without the intervention of the exclusive representative. Defendants seek to rely on Plaintiffs ability to represent themselves as a way around liability for acts they undertook. Just because Defendants had no initial duty to act on Plaintiffs\u2019 behalf does not preclude the formation of a special relationship with Plaintiffs that gives rise to a special duty to Plaintiffs when Defendants did choose to represent employees.\n{12} Despite Defendants\u2019 arguments, this grievance procedure under TVI policy Section 12(E) is \u201cto be used for the settlement of disputes pertaining to employment terms and conditions and related personnel matters.\u201d This procedure does not apply in a case such as this one where employees are suing their unions for claimed breach of duty of fair representation, breach of covenant of good faith and fair dealing, breach of fiduciary duties, and the other claims relating to Defendants\u2019 treatment of Plaintiffs\u2019 grievances against TVI. As stated above, Plaintiffs\u2019 cause of action arises precisely because Defendants undertook their representation in the grievance against TVI and then acted inimieally to their interests. The issue is not whether Plaintiffs could have chosen another course; it is that Defendants allegedly injured Plaintiffs by representing them in the course taken on their behalf.\n{13} Therefore, once Defendants started representing Plaintiffs in the grievance procedure, they had a duty to fairly represent Plaintiffs, and neither the TVI policy nor PEBA contemplates employees taking individual action against their representative union in the midst of the grievance procedure that is already set in motion. This is particularly true when claims have already been \u201csettled\u201d with the employer, by Defendants giving up what Plaintiffs wanted: reinstatement.\n{14} Section 10-7D-15(B) does permit public employees such as Plaintiffs, acting individually, to present a grievance without the intervention of the exclusive representative. However, in this case, Plaintiffs chose to be represented by Defendants, and as such, Defendants owed Plaintiffs a duty to fairly and adequately represent their interests. We do not have case.law on point for this issue. In this case, Plaintiffs contend that they relied on Defendants to fairly represent them, and that by the time Defendants \u201csettled\u201d their claims with TVI, it was too late to go after Defendants since the policies and settlement disallowed reinstatement of Plaintiffs. Additionally, if all the allegations in the complaint are taken as true, we have to conclude that Defendants undertook to be the exclusive representatives for arbitration of Plaintiffs\u2019 grievances. Thus, Defendants had the duty to represent Plaintiffs fairly and adequately.\nExhaustion of Administrative Remedies\n{15} Defendants assert that Plaintiffs did not exhaust their administrative remedies. There is an administrative scheme in place which handles certain types of complaints. One of the provisions of PEBA creates the PELRB, which administers PEBA. See Section 10-7D-8. The PELRB, or in this case, TVI\u2019s Governing Board, is responsible for hearing and determining \u201ccomplaints of prohibited practices\u201d included in the Act. Section 10-7D-9(A)(3). Defendants argue that Plaintiffs should have filed such a prohibited practices complaint with TVI\u2019s Labor Relations Board or the PELRB after Defendants abandoned representation of Plaintiffs in April 1999.\n{16} Generally, unless the available legal or statutory administrative remedies are inadequate, a plaintiff must exhaust all administrative remedies before filing a claim in court for relief. See Sonntag v. Shaw, 2001-NMSC-015, \u00b6 13, 130 N.M. 238, 22 P.3d 1188; Franco v. Carlsbad Mun. Schs., 2001-NMCA-042, \u00b6 20, 130 N.M. 543, 28 P.3d 531. The exhaustion doctrine is closely related to the finality doctrine because if the plaintiff \u201chas not yet exhausted an available administrative remedy, the agency\u2019s action is not yet final.\u201d Richard J. Pierce, Jr., Administrative Law Treatise \u00a7 15.1 at 966 (4th ed.2002) (hereinafter Pierce). One justification for the exhaustion requirement is that \u201cthe legislature creates an agency for the purpose of applying a statutory scheme to particular factual situations.\u201d Pierce, supra \u00a7 15.2 at 970. Yet, we do not require a plaintiff \u201cto exhaust an administrative remedy when that would be an exercise in futility.\u201d Id. at 977.\n{17} Plaintiffs focus their argument on the contention that neither the PEBA nor the TVI labor policies state that unfair representation claims are at any point required to be determined by the TVI Labor Relations Board. Plaintiffs argue that the dismissal of their grievance prevented them from exhausting their contractual remedies. They further contend that they have exhausted all internal remedies provided for by the collective bargaining agreement. They argue that any further exhaustion of remedies with respect to their termination has been waived by Defendants, or would be futile, because after Defendants dismissed and \u201csettled\u201d their grievances at the arbitration level, Plaintiffs could no longer demand an arbitration of their terminations. Plaintiffs maintain that Defendants are not being sued for failing to comply with any provision of the collective bargaining agreement because that agreement does not provide provisions detailing the rights of Plaintiffs alleging a cause of action against Defendants. Rather, Plaintiffs contend that Defendants \u201care being sued for failing to protect [Plaintiffs\u2019] rights by not pursuing a meritorious grievance when [Defendants were] the only entity that could file a demand for arbitration of [Plaintiffs\u2019] dismissals].\u201d\n{18} Section 10-7D-15(B) does allow Plaintiffs to present a grievance without the intervention of the exclusive representative; in this case, Defendants. However, neither this statute nor any other actually requires Plaintiffs to act individually. TVI is not expressly empowered to determine claims of breach of the duty of fair representation between union members, like Plaintiffs, and unions like Defendants. Plaintiffs thus believe that their claims should survive because there is no comprehensive administrative scheme that deals with such disputes, and Plaintiffs\u2019 claims are based on New Mexico common law tort and contract principles, plus the duty of fair representation that is based upon the law set out in Jones, 72 N.M. at 330, 383 P.2d at 576.\n{19} In developing this argument with regard to exhaustion of administrative remedies, both sides rely on Barreras v. State of New Mexico Corrections Department, 2003-NMCA-027, 133 N.M. 313, 62 P.3d 770. In Barreras, we held \u201cthat when an employee\u2019s contractual claim arises from the State Personnel Act, as well as attendant rules, regulations, and agency personnel policies, the employee\u2019s remedies are limited to those set forth in the State Personnel Act.\u201d Id. \u00b62. Although Barreras concerned the State Personnel Act (SPA) and not PEBA, our analysis there concerning whether administrative remedies prevail is much the same.\n{20} In Barreras, the plaintiffs were former state employees who had been discharged from employment in violation of the SPA. Id. \u00b6 3. The Barreras plaintiffs attempted to bypass an administrative appeal to the State Personnel Board (SPB) by filing a lawsuit directly in district court against their former employer, alleging breach of implied contract of employment based on the SPA. Id. \u00b6\u00b6 2-4. The district court concluded that the plaintiffs\u2019 claims were barred as a matter of law. Id. \u00b64. We affirmed that decision after determining that the administrative scheme in place was comprehensive since the SPB in that case was \u201cexpressly empowered to hear appeals from adverse employment actions.\u201d Id. \u00b6 12. In doing so, this Court assessed several factors in determining whether the SPA\u2019s administrative remedies prevailed over an action for damages in district court in light of the fact that the Act \u201ccontains no express language that its administrative remedies either are, or are not, exclusive.\u201d Id. \u00b6 11. \u201cThose factors include[d] the comprehensiveness of the administrative scheme, the availability of judicial review, and the completeness of the administrative remedies afforded.\u201d Id. The general rule is \u201cthat an individual employee must show that he has exhausted the grievance procedures provided by the agreement as a condition to his right to maintain an action in court.\u201d Jones, 72 N.M. at 326, 383 P.2d at 574.\n{21} Unlike Barreras, there is no express empowerment under PEBA as it relates to TVI for the TVI Labor Relations Board to determine claims of breach of the duty of fair representation by a union in an employment dispute. There is also no specific right under PEBA to bring an action against Defendants before the TVI Labor Relations Board for breach of duty of fair representation, breach of fiduciary duties, breach of the union members\u2019 contractual rights, or for breach of Defendants\u2019 promise to file an arbitration. Sections 10-7D-1 to \u2014 26. There is simply no provision for the TVI Labor Relations Board to hear such a dispute at all. Thus, there could be no complete remedy because the TVI Labor Relations Board could not order Defendants to reinstate Plaintiffs with back pay when that underlying claim was settled to Plaintiffs\u2019 detriment (and against their claims) by Defendants with no resolution of Plaintiffs\u2019 termination claims. In this case, Plaintiffs\u2019 claims against Defendants are based on common-law contract labor principles, not directly upon PEBA. See Jones, 72 N.M. at 327-28, 383 P.2d at 575-76. There is no comprehensive scheme arising from PEBA that deals with disputes between unions and their members; Plaintiffs cannot therefore be required to exhaust non-existent administrative remedies in this case. See Vaca v. Sipes, 386 U.S. 171, 185-86, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); see also Fetterman v. Univ. of Conn., 192 Conn. 539, 473 A.2d 1176, 1185 (1984); 48A Am.Jur.2d Labor and Labor Relations \u00a7 3278 (1998).\nPublic Collective Bargaining Agreements and the Duty Owed by Unions to Their Members\n{22} The contract in this case is one between TVI and Defendants. Plaintiffs are not parties to the collective bargaining agreement, which raises the question of whether they may enforce its terms. Although Plaintiffs are not parties to the agreement, they have an interest in the agreement as third-party beneficiaries whom Defendants represented. \u201cThere has always been trouble with tripartite relationships and the labor field has additional complications. The parties affected are the union, the employer, and individual employees, many of whom have conflicting interests.\u201d Jones, 72 N.M. at 329, 383 P.2d at 576. In Jones, which concerned a collective bargaining agreement in the private sector under the National Labor Relations Act (NLRA), a former employee brought an action against his former employer for wrongful discharge and against his labor union. Id. at 324, 383 P.2d at 572. The former employee sought damages against his labor union for its arbitrary, fraudulent, and bad faith violation of its trust as sole bargaining agent, in that it refused to demand that the employee\u2019s grievance be submitted to arbitration. Id. Our Supreme Court held that the employee\u2019s complaint, which was grounded upon an alleged breach of the collective bargaining agreement, stated a cause of action. Id. at 332, 383 P.2d at 577. Although Jones concerned a collective bargaining agreement in the private sector, we should here extend its analysis to this case dealing with public employees.\n{23} Unions representing public employees have broad discretion in handling claims of their members, \u201cand in determining whether there is merit to such claim which warrants the union\u2019s pressing the claim through all of the grievance procedures, including arbitration, and the courts will interfere with the union\u2019s decision not to present an employee\u2019s grievance only in extreme cases.\u201d Id. at 331, 383 P.2d at 577. Thus, a union should only be liable to its members if it acted arbitrarily or in bad faith in its representation or its failure to represent a member against his or her employer. Id. The Jones court implied that unions were under a duty to fairly represent employees in the grievance procedure. Id. at 330, 383 P.2d at 576; see also Vaca, 386 U.S. at 190, 87 S.Ct. 903 (stating that a breach of the duty of fair representation occurs only when a union\u2019s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith). In this ease, taking Plaintiffs\u2019 well-pleaded allegations as true, we conclude that the complaint alleged conduct arising to the level required by Vaca and Jones, and we therefore determine that Defendants can be sued for the alleged breach of their duties as provided by statute and TVI policy. Contrary to Defendants\u2019 contention, although Plaintiffs do not and cannot sue TVI for wrongful discharge, that does not mean that Plaintiffs cannot bring claims against Defendants. We conclude that unions such as Defendants owe a fiduciary duty to their union members such as Plaintiffs to represent those members fairly. Plaintiffs have adequately stated a cause of action and should be able to proceed with it.\n{24} Defendants also rely on TVI\u2019s policies and PEBA Section 10-7D-20(B), (D), and (E), for the proposition that Plaintiffs\u2019 only remedy for Defendants\u2019 actions under these provisions was to file a prohibited practices complaint with the TVI Labor Relations Board with the PERLB under Sections 10-7D-8, -9. We disagree. PEBA and TVI policies, cited for Defendants\u2019 proposition, prohibit organizations such as Defendants from interfering with, restraining, or coercing employees in the exercise of their rights under PEBA or the TVI policies. Section 10-7D-20(B). These policies and statutes also prohibit a union from violating the collective bargaining agreement. Section 10-7D-20(D), (E). Such reliance is inapposite. In this case, Defendants undertook to represent Plaintiffs to secure redress under the collective bargaining agreement. That Defendants may have done this poorly or nefariously so as to tortiously injure Plaintiffs stems from the relationship between Plaintiffs and Defendants, not from the third-party relationship between Plaintiffs and TVI under the collective bargaining agreement. Violation of or interference with collective bargaining rights sets up a measure for consequential damages stemming from the quality of Defendants\u2019 representation, but not the cause of action for the tortious conduct itself.\nRights as Third-Party Beneficiaries for Breach of Contract Claim\n{25} A collective bargaining agreement is a contract between a labor organization and the employer. In this case, Plaintiffs are third-party beneficiaries of the contract and may have an enforceable right against a party to the contract. Fleet Mortgage Corp. v. Schuster, 112 N.M. 48, 49, 811 P.2d 81, 82 (1991). Third-party beneficiaries generally have no greater rights in a contract than does the promisee. See id. at 49-50, 811 P.2d at 82-83; see also Leyba v. Whitley, 120 N.M. 768, 771, 907 P.2d 172, 175 (1995) (stating that third-party beneficiaries are accorded the traditional contract remedies with respect to the bargain intended for their benefit); Archunde v. Int\u2019l Surplus Lines Ins. Co., 120 N.M. 724, 729, 905 P.2d 1128, 1133 (Ct.App.1995). Thus, having based their action upon an alleged breach of the collective bargaining agreement, Plaintiffs\u2019 right to recover damages is determined by the terms and conditions of that agreement.\n{26} The purpose of PEBA\nis to guarantee public employees the right to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between public employers and public employees and to protect the public interest by ensuring, at all times, the orderly operation and functioning of the state and its political subdivisions.\nSection 10-7D-2. With this in mind, Plaintiffs as third-party beneficiaries of the collective bargaining agreement alleged in their complaint that they were entitled to an arbitration hearing for what they claimed was an unfair termination.\nBreach of the Duty of Fair Representation\n{27} The collective bargaining agreement between TVI and Defendants refers to PEBA, which states that no union or its representative shall \u201crefuse or fail to comply with a collective bargaining or other agreement with the public employer.\u201d Section 10-7D-20(D). Plaintiffs argue that the collective bargaining agreement requires that Defendants represent employees in all actions against the employer, and this creates a duty of fair representation between Defendants and Plaintiffs. Plaintiffs argue that they lost the ability to remedy breaches of the agreement between TVI and Defendants through the grievance process, due to Defendants\u2019 alleged breach of its duty of fair representation. See Vaca, 386 U.S. at 186, 87 S.Ct. 903.\n{28} Here, Defendants agreed to undertake representation of Plaintiffs. As a result of their dismissal of Plaintiffs\u2019 claims, allegedly without Plaintiffs\u2019 consent or consultation, Defendants impaired Plaintiffs\u2019 rights under the collective bargaining agreement. In undertaking to represent Plaintiffs, Defendants should have realized that Plaintiffs would not simultaneously seek to represent themselves. See Restatement (Second) of Torts \u00a7 305 (1965) (\u201cAn act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.\u201d). Furthermore, Defendants\u2019 undertaking to represent Plaintiffs created a special relationship between them. See, e.g., Smith v. Bryco Arms, 2001-NMCA-090, \u00b6 25, 131 N.M. 87, 33 P.3d 638 (\u201cAt times a duty is found based on the existence of a \u2018special relationship\u2019 between plaintiff and defendant ... [which] can be ... voluntarily undertaken.\u201d) (citation omitted); Wark v. United States, 269 F.3d 1185 (10th Cir.2001) (\u201cA party may assume duties of care by voluntarily undertaking to render a service.\u201d) (internal quotation marks and citations omitted); Air Line Pilots Ass\u2019n Int\u2019l v. O\u2019Neill, 499 U.S. 65, 75, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (\u201c[A] union owes employees a duty to represent them adequately as well as honestly and in good faith.\u201d). This duty is similar to the duty of good faith that trustees owe their beneficiaries, attorneys owe their clients, and corporate officers owe their shareholders. Id. As stated in the Restatement (Second) of Torts \u00a7 323:\nOne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other\u2019s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if\n(a) his failure to exercise such care increases the risk of such harm, or\n(b) the harm is suffered because of the other\u2019s reliance upon the undertaking.\nWe hold that the duty of fair representation arises from Defendants\u2019 undertaking to act as the exclusive bargaining agent of Plaintiffs. Plaintiffs thus may bring their suit for them claim in this ease.\nDismissal of Defendant AFT\n{29} The district court\u2019s order dismissing Plaintiffs\u2019 claims with prejudice did not specifically rule on this issue regarding whether Defendant AFT was a proper party. Suit may be brought only against the parties to the contract. Defendants maintain that the Local, not the AFT, was the contracting party. Defendants argue that where the local union is designated as the exclusive bargaining agent responsible for representing employees in the prosecution of grievances, only the local union can be held responsible. See Sine v. Local No. 992, Int\u2019l Bhd. of Teamsters, 730 F.2d 964, 966 (4th Cir.1984); Teamsters Local Union No. 3O v. Helms Express, Inc., 591 F.2d 211, 216-17 (3d Cir. 1979). However, the agreement includes AFT as part of the \u201cFederation,\u201d which is the exclusive representative of Plaintiffs. Therefore, although the complaint states that the written collective bargaining agreement was entitled \u201cAGREEMENT BY AND BETWEEN ALBUQUERQUE TVI COMMUNITY COLLEGE GOVERNING BOARD AND ALBUQUERQUE TVI FACULTY FEDERATION LOCAL NO. 4974 NMFT[,]\u201d AFT is included in the definition of \u201cFederation.\u201d Thus, taking all the facts alleged in the complaint as true, we cannot conclude that AFT was not the bargaining agent for Plaintiffs, or a party to the collective bargaining agreement.\nCONCLUSION\n{30} We have held that: (1) Plaintiffs were not required to exhaust administrative remedies; (2) Plaintiffs adequately stated a cause of action in that unions owe a fiduciary duty to their members to represent them fairly, and Plaintiffs have the right to enforce a collective bargaining agreement as third-party beneficiaries; (3) Plaintiffs, as third-party beneficiaries, may bring a third-party claim against Defendants; (4) in undertaking to represent Plaintiffs, Defendants created a special duty to do so adequately and in good faith; and (5) AFT could be a party to the collective bargaining agreement, and thus, suit against it was proper.\n{31} Having so held for the r\u00e9asons set forth above, we reverse the district court\u2019s dismissal of Plaintiffs\u2019 claims against Defendants.\n{32} IT IS SO ORDERED.\nWE CONCUR: A. JOSEPH ALARID and IRA ROBINSON, Judges.\n. The complaint for damages was based on NMSA 1978, \u00a7 10-7D-1 to-26 (1992), which was repealed in 1999 and replaced with the current statute, NMSA 1978, \u00a7 10-7E-1 to-26 (2003). The events of this action occurred during the time the original PEBA was in effect and we will use that version of the PEBA to decide this case.\n. Under Section 10-7D-10, the Albuquerque TVI Community College Governing Board assumed the powers and the duties of the PELRB, which include promulgating rules and regulations, Section 10-7D-9(A), overseeing collective bargaining between public employees and their employers, Section 10-7D-9(A)(1)(2), and enforcing the provisions of PEBA \"through the imposition of appropriate administrative remedies.\u201d Section 10-7D-9(F).", "type": "majority", "author": "KENNEDY, Judge." } ], "attorneys": [ "Steven K. Sanders, Steven K. Sanders & Associates, L.L.C., Albuquerque, NM, for Appellants.", "K. Lee Peifer, Justin Lesky, The Law Offices of K. Lee Peifer, Albuquerque, NM, for Appellees." ], "corrections": "", "head_matter": "2005-NMCA-011\n104 P.3d 1122\nConnie CALLAHAN, Sally Fish, and Anne Waters, Plaintiffs-Appellants, v. NEW MEXICO FEDERATION OF TEACHERS-TVI, ALBUQUERQUE TVI FACULTY FEDERATION LOCAL NO. 4974 AFT, NMFT, and American Federation of Teachers, Defendants-Appellees.\nNo. 23,645.\nCourt of Appeals of New Mexico.\nJan. 6, 2005.\nCertiorari Granted, No. 28,983, Jan. 10, 2005.\nSteven K. Sanders, Steven K. Sanders & Associates, L.L.C., Albuquerque, NM, for Appellants.\nK. Lee Peifer, Justin Lesky, The Law Offices of K. Lee Peifer, Albuquerque, NM, for Appellees." }, "file_name": "0731-01", "first_page_order": 757, "last_page_order": 766 }