{ "id": 4245406, "name": "INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Local 1687 AFL-CIO, Plaintiff-Appellee, v. CITY OF CARLSBAD, a New Mexico Municipal Corporation, Defendant-Appellant", "name_abbreviation": "International Ass'n of Firefighters v. City of Carlsbad", "decision_date": "2009-06-23", "docket_number": "No. 28,189", "first_page": "6", "last_page": "14", "citations": [ { "type": "official", "cite": "147 N.M. 6" }, { "type": "parallel", "cite": "2009-NMCA-097" }, { "type": "parallel", "cite": "216 P.3d 256" } ], "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": "2001-NMCA-038", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352543 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0539-01" ] }, { "cite": "839 P.2d 1080", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10377615 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "1089" }, { "page": "1090-91" } ], "opinion_index": 0, "case_paths": [ "/p2d/839/1080-01" ] }, { "cite": "2003-NMCA-134", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77110 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0533-01" ] }, { "cite": "118 N.M. 470", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563571 ], "weight": 7, "year": 1994, "pin_cites": [ { "page": "477" }, { "page": "518" }, { "parenthetical": "alteration in original" }, { "page": "476, 486" }, { "page": "517, 527" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0470-01" ] }, { "cite": "2003-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15883 ], "weight": 4, "pin_cites": [ { "page": "\u00b62" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0661-01" ] }, { "cite": "1998-NMCA-050", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834155 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0049-01" ] }, { "cite": "1998-NMCA-037", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834271 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "\u00b6 24", "parenthetical": "presuming that the Legislature is aware of existing law when enacting statutes" }, { "parenthetical": "presuming that the Legislature is aware of existing law when enacting statutes" }, { "parenthetical": "presuming that the Legislature is aware of existing law when enacting statutes" }, { "page": "\u00b624" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0001-01" ] }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 28" }, { "page": "\u00b628" }, { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "2007-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670129 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0686-01" ] }, { "cite": "37 N.M. L.Rev. 357", "category": "journals:journal", "reporter": "N.M. L. Rev.", "year": 2007, "pin_cites": [ { "parenthetical": "discussing the history surrounding the enactment of New Mexico's PEBA" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 975, "char_count": 27540, "ocr_confidence": 0.68, "pagerank": { "raw": 1.465845227723057e-07, "percentile": 0.6582447470875715 }, "sha256": "73983d1c1e703816794695f9c29778265ef0791c74e6a3d77cda262e47d64431", "simhash": "1:1ef707ca2e3eb79e", "word_count": 4315 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CYNTHIA A. FRY, Chief Judge, and ROBERT E. ROBLES, Judge." ], "parties": [ "INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Local 1687 AFL-CIO, Plaintiff-Appellee, v. CITY OF CARLSBAD, a New Mexico Municipal Corporation, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} The Public Employee Bargaining Act (PEBA), NMSA 1978, \u00a7\u00a7 10-7E-1 to -26 (2003, as amended through 2005), provides for final, binding arbitration as an impasse procedure in the event a public employer and an exclusive representative of its employees reach an impasse that cannot be mediated in negotiations under the PEBA. Section 10-7E-18(B). The PEBA further provides that an impasse resolution between such parties that requires an expenditure of funds \u201cshall be contingent upon the specific appropriation of funds by the [L]egislature and the availability of funds.\u201d Section 10-7E-17(E). We address in this appeal the tension between these provisions. We hold, as a matter of statutory interpretation, that Section 10-7E-17(E) (the contingency provision) prevails. The district court reached the opposite conclusion. We therefore reverse its grant of summary judgment to Plaintiff International Association of Firefighters, Local 1687, AFL-CIO (Union) and its denial of summary judgment to Defendant City of Carlsbad (City) and, in turn, award judgment to the City.\nBACKGROUND\n{2} The Union is the collective bargaining agent for the City\u2019s firefighters. It is their exclusive representative under Section 10-7E-15. The City and the Union have long engaged in collective bargaining and have had numerous collective bargaining agreements in place that set terms as to wages and working conditions. The last collective bargaining agreement expired on April 14, 2006.\n{3} In negotiating for a new collective bargaining agreement, the Union and the City reached agreement on all issues except wages, on which issue they reached an impasse. They entered into a memorandum of understanding (MOU), stating that \u201c[t]he impasse procedures as defined under [Section 10-7E-18(B)] will govern the process for resolution of this impasse.\u201d They selected an arbitrator, who, after conducting an arbitration proceeding, entered an arbitration award, on May 25, 2007, based on the Union\u2019s last, best offer. The award addresses a three-year period, granting a 3.25% wage increase in the first fiscal year, FY 2006-2007; a 15% one-time increase in addition to a 3% increase in FY 2007-2008; and a 3% increase in FY 2008-2009. The arbitrator specified that the award \u201cmakes no determination as to the economic capability of the City of Carlsbad as that decision must be left to the authority and determination of the City Council.\u201d The City did not appropriate funds in its FY 2007-2008 budget to put into effect the award\u2019s one-time 15% increase.\n{4} The Union filed a complaint seeking enforcement of the arbitration award and an injunction, followed by a motion for partial summary judgment. The City responded with a counter-motion for summary judgment. The district court held a hearing on the motions and ruled from the bench in the Union\u2019s favor. It later entered numerous orders in conjunction with its ruling. The pertinent orders for the purposes of this appeal are (1) the order granting summary judgment and confirming the arbitration award, (2) the amended order issuing a writ of mandamus compelling the City to comply with the arbitration award, and (3) the order granting the Union\u2019s request for attorney fees and costs in the amount of $46,927. The City appeals from these orders.\nENACTMENT AND RE-ENACTMENT OF IMPASSE PROCEDURES\n{5} The Legislature originally enacted the PEBA in 1992 with a sunset provision to take effect in 1999. NMSA1978, \u00a7\u00a7 10-7D-1 to - 26 (1992, as amended through 1998) (repealed 1999). It re-enacted the PEBA in 2003 in mostly the same form as the original version. See \u00a7\u00a7 10-7E-1 to -26. See generally S. Barry Paisner & Michelle R. Haubert-Barela, Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees, 37 N.M. L.Rev. 357 (2007) (discussing the history surrounding the enactment of New Mexico\u2019s PEBA). The purpose in both versions was the same, \u201cto 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.\u201d Section 10-7E-2; \u00a7 10-7D-2. In its re-enactment, the Legislature made a significant change to the impasse resolution procedures. It instituted arbitration as a final procedure in resolving an impasse in negotiations between a public employer and an exclusive representative of public employees. See \u00a7 10-7E-18(B); \u00a7 10-7D-18(B). It also expanded the scope of language limiting the ability of negotiating parties in circumstances that require the expenditure of funds. See \u00a7\u00a7 10-7E-17(E), 10-7E-18(B); \u00a7 10-7D-17(E).\n{6} We begin our analysis with these provisions and their reflection of legislative intent. We then address the Union\u2019s several arguments that bear on the legislative intent. We finally consider the Union\u2019s position that genuine issues of material fact remain so as to defeat summary judgment in favor of the City.\nLEGISLATIVE INTENT OF IMPASSE PROCEDURES\n{7} The impasse resolution procedures that the Legislature adopted in the PEBA in 2003 included two alternatives for resolving an impasse in negotiations. The parties could (1) engage in mediation, which would lead to arbitration, or (2) enter into a written agreement to use an alternative procedure. Section 10-7E-18 containing these procedures provides, as pertinent to this appeal:\n(B) The following impasse procedures shall be followed by all public employers and exclusive representatives, except the state and the state\u2019s exclusive representatives:\n(1) if an impasse occurs, either party may request from the board or local board that a mediator be assigned to the negotiations unless the parties can agree on a mediator. A mediator with the federal mediation and conciliation service shall be assigned by the board or local board to assist negotiations unless the parties agree to another mediator; and\n(2) if the impasse continues after a thirty-day mediation period, either party may request a list of seven arbitrators from the federal mediation and conciliation service. One arbitrator shall be chosen by the parties by alternately striking names from such list. Who strikes first shall be determined by coin toss. The arbitrator shall render a final, binding, written decision resolving unresolved issues pursuant to [Section 10-7E-17(E) ] of the [PEBA] and the Uniform Arbitration Aet[, NMSA 1978, \u00a7\u00a7 44-7A-l to -32 (2001),] no later than thirty days after the arbitrator has been notified of his or her selection by the parties. The arbitrator\u2019s decision shall be limited to a selection of one of the two parties\u2019 complete, last, best offer. The costs of an arbitrator and the arbitrator\u2019s related costs conducted pursuant to this subsection shall be shared equally by the parties. Each party shall be responsible for bearing the cost of presenting its case. The decision shall be subject to judicial review pursuant to the standard set forth in the Uniform Arbitration Act.\n(C) A public employer other than the state may enter into a written agreement with the exclusive representative setting forth an alternative impasse resolution procedure.\n{8} Of the alternative procedures of Section 10-7E-18, the parties elected a hybrid; they entered into an agreement, the MOU, that would fit the requirements of Subsection C and agreed to proceed directly to arbitration under Subsection B. Acting under Subsection B, the parties selected an arbitrator, who, as the statute demands, entered a written decision within thirty days based on the Union\u2019s last, best offer. Section 10-7E-18(B)(2). Subsection B calls for the arbitrator\u2019s decision to be a \u201cfinal, binding\u201d one. Section 10-7E-18(B)(2).\n{9} Section 10-7E-18(B) also provides for the arbitrator\u2019s decision to be \u201cpursuant to\u201d Section 10-7E-17(E). Section 10-7E-17(E) states, in pertinent part:\nAn impasse resolution or an agreement provision by a public employer other than the state or the public schools and an exclusive representative that requires the expenditure of funds shall be contingent upon the specific appropriation of funds by the appropriate governing body and the availability of funds____An arbitration decision shall not require the reappropriation of funds.\nThe tension in the language of Section 10-7E-18(B)(2) and Section 10-7E-17(E) providing for a final, binding arbitration decision that is contingent upon the appropriation and availability of funds presents the issue in this case and requires interpretation of the PEBA. The district court interpreted the PEBA to conclude that the arbitrator\u2019s award was final and binding on the parties. On appeal, we review de novo a district court\u2019s interpretation of a statute. City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, \u00b6 6, 141 N.M. 686, 160 P.3d 595. In doing so, we endeavor to fulfill the intent of the Legislature in enacting the statute. Regents of Univ. of N.M. v. N.M. Fed\u2019n of Teachers, 1998-NMSC-020, \u00b6 28, 125 N.M. 401, 962 P.2d 1236.\n{10} The Union urges us to accept the district court\u2019s interpretation by highlighting the Legislature\u2019s language in Section 10-7E-18(B)(2) that the arbitrator \u201cshall render a final, binding\u201d decision. It supports its position with policy arguments stressing the legislative purpose of guaranteeing public employees the right to organize and collectively bargain with public employers. Section 10-7E-2. According to the Union, the Legislature intended mandatory arbitration to be an essential tool of public employees in the collective bargaining process because the PEBA forbids striking by public employees, a right available to private sector employees. Therefore, the Union continues, unless mandatory arbitration is final and binding, the collective bargaining right of public employees guaranteed by the PEBA will not be meaningful.\n{11} When engaging in statutory construction, we look first to the plain language of the statute and construe it \u201cin its entirety, considering all provisions in relation to each other.\u201d City of Deming, 2007-NMCA-069, \u00b6 21. We seek to give meaning to all parts of the statute, such that no portion is rendered surplusage or meaningless. Regents of Univ. of N.M., 1998-NMSC-020, \u00b628. With this foundation for our analysis, the Union argues that an interpretation of the PEBA contrary to that made by the district court would render the \u201cfinal, binding\u201d language of Section 10-7E-18(B)(2) meaningless. We reach the opposite conclusion.\n{12} Section 10-7E-18(B)(2) states that an arbitrator shall enter a final, binding decision and also that such decision must be pursuant to Section 10-7E-17(E). Section 10-17E-17(E) makes an impasse resolution that requires the expenditure of funds contingent upon the appropriation and availability of funds. By framing the arbitrator\u2019s authority in this manner in Section 10-7E-18(B), the Legislature qualified the arbitrator\u2019s authority with the language of Section 10-7E-17(E). See Kahrs v. Sanchez, 1998-NMCA-037, \u00b6 24, 125 N.M. 1, 956 P.2d 132 (1997) (presuming that the Legislature is aware of existing law when enacting statutes). Indeed, if we were to determine, as we believe the district court did, that the arbitrator could act under Section 10-7E-18(B)(2) in a final and binding way without reference to the requirements of Section 10-7E-17(E), we would be ignoring the legislative language of Section 10-7E-18(B)(2) and considering its reference to Section 10-7E-17(E) to be meaningless. See Regents of Univ. of N.M., 1998-NMSC-020, \u00b6 28 (mandating that no part of a statute is surplusage). Instead, we can give meaning to the two sections in relation to each other by reading the qualification of Section 10-7E-17(E) to define the arbitrator\u2019s authority to render a final, binding decision: it is contingent upon the appropriation and availability of funds when the decision requires the expenditure of funds.\n{13} As to the Union\u2019s policy arguments, while we agree with the Union regarding the importance of finality in the collective bargaining process, the legislative purpose of the PEBA also includes ensuring \u201cthe orderly operation and functioning\u201d of political subdivisions. Section 10-7E-2. Section 10-7E-17(E) comports with this purpose because it subjects an arbitration award to the appropriation and availability of funds of a political subdivision. From the language of the PEBA, we cannot agree with the Union that the Legislature, when considering a balance of the public interests, raised the need for binding arbitration above the stability of public funds. Indeed, the 1992 version of the PEBA did not provide for mandatory arbitration as an impasse procedure and, for public employers other than the state and their employees\u2019 exclusive representatives, provided only factfinding and recommendations by a factfinder. Section 10-7D-18(B). It also prohibited strikes. Section 10-7D-21(A). When adopting arbitration in 2003, the Legislature did not mandate arbitration but, instead, provided it as an option. And while the Legislature required that any arbitration be final and binding, it subjected it to the contingency of the appropriation and availability of funds that had been part of the 1992 version of the PEBA. Sections 10-7E-17(E), 10-7E-18(B); \u00a7 10-7D-17(E). It continued to leave to governmental entities the ability to manage and appropriate their public funds. See \u00a7 10-7E-17(E). The 2003 version of the PEBA simply did not go as far as the Union argues.\nTHE UNION\u2019S OTHER LEGISLATIVE INTENT ARGUMENTS\nLimited Role of Section 10-7E-17(E)\n{14} The Union makes several arguments differing from our interpretation. It argues in part that the Legislature did not intend Section 10-7E-17(E) to apply in this case. According to the Union, Section 10-7E-17(E) only provides that the contingency of appropriation and availability of funds apply to \u201c[a]n impasse resolution or an agreement provision by a public employer ... and an exclusive representative that requires the expenditure of funds.\u201d (Emphasis added.) It contends that if the procedure in this case is an impasse resolution, it was \u201cby\u201d the arbitrator, not the City and the Union. It concludes that the only part of Section 10-7E-17(E) that applies to Section 10-7E-18(B) is the last sentence that forbids an arbitration decision from requiring the reappropriation of funds.\n{15} We cannot agree with the Union\u2019s reading of the statutory provisions. First, arbitration is an impasse resolution procedure that results in an impasse resolution. Section 10-7E-18(B) provides the \u201cimpasse procedures\u201d to be followed by public employers other than the state and their employees\u2019 exclusive representatives. It provides arbitration as the ultimate procedure. Section 10-7E-18(B)(2). The arbitration procedure requires a decision by an arbitrator \u201cresolving unresolved issues.\u201d Id. Section 10-7E-18(B)(2) intends that the decision and the procedure used to reach it constitute an impasse resolution. Second, the 2003 version of the PEBA modified both Section 10-7D-18(B) and Section 10-7D-17(E). The Legislature made reference to Section 10-7E-17(E) in Section 10-7E-18(B) in 2003 when it enacted the new impasse resolution procedures. In addition, the 1992 version provided in pertinent part: \u201cAny agreement provision by a public employer other than the state or the public schools and an exclusive representative that requires the expenditure of funds shall be contingent upon the specific appropriation for wages by the appropriate governing body and the availability of funds.\u201d Section 10-7D-17(E). By changing the language to pertain to \u201c[a]n impasse resolution or an agreement provision by a public employer other than the state or the public schools and an exclusive representative\u201d and by referencing Section 10-7E-17(E) in Section 10-7E-18(B), the Legislature linked Section 10-7E-17(E) with Section 10-7E-18(B) so that the impasse resolution alternatives discussed in Section 10-7E-18(B) applied to both sections. See Quantum Corp. v. State Taxation & Revenue Dep\u2019t, 1998-NMCA-050, \u00b6 8, 125 N.M. 49, 956 P.2d 848 (stating that statutes should be construed together with other statutes on the same subject matter). Third, as drafted, Section 10-7E-18(B)(2) refers to the entirety of Section 10-7E-17(E), not only the last sentence. If the Legislature intended to only refer to the last sentence, it could have done so, or even incorporated it into Section 10-7E-18(B)(2). See Kahrs, 1998-NMCA-037, \u00b624 (presuming that the Legislature is aware of existing law when enacting statutes).\n{16} The Union also contends that our interpretation of the PEBA would render the last sentence of Section 10-7E-17(E) meaningless. The Union states that the sentence was added when the Legislature added the arbitration provision to Section 10-7E-18(B). It reasons that \u201creappropriation\u201d is a form of \u201cappropriation,\u201d and Section 10-7E-17(E) already provided that an arbitrator could not \u201cappropriate funds.\u201d However, re-appropriation is different from appropriation because it involves a modification of existing appropriations. Moreover, the Union contends that there is no reappropriation issue in this case. Additionally, we cannot agree with the Union that Section 10-7E-18(B)(2) controls over Section 10-7E-17(E) because it is the more specific statute. The legislative language specifically states its intent that we construe Section 10-7E-17(E) as part of Section 10-7E-18(B)(2). This argument would require that we ignore the Legislature\u2019s specific reference to Section 10-7E-17(E) in Section 10-7E-18(B)(2).\nFairness and Due Process\n{17} The Union further argues that our interpretation is unfair and violative of due process. It contends that it is unfair because it is one-sided to allow the City the opportunity to avoid an arbitration decision without giving the Union the same opportunity. It notes the public policy favoring arbitration and cites Padilla v. State Farm Mutual Automobile Insurance Co., 2003-NMSC-011, 133 N.M. 661, 68 P.3d 901, in which our Supreme Court considered a provision in an insurance contract that provided for mandatory arbitration to be binding only if it did not exceed the limits of the Mandatory Financial Responsibility Act (MFRA), NMSA 1978, \u00a7\u00a7 66-5-201 to -239 (1978, as amended through 2003), and otherwise allowed either party to file a de novo appeal. Padilla, 2003-NMSC-011, \u00b62. The Court held the contractual provision to be void as substantively unconscionable because it was incompatible with the public policies of encouraging arbitration and protecting persons from uninsured drivers as expressed in the MFRA. Id. \u00b6\u00b62, 13-14. However, in this case, we are not addressing the application of statutory policies to a contractual provision between private parties, as in Padilla. Rather, our issues involve the interpretation of the Legislature\u2019s policies that it set forth in the PEBA. As we have discussed, the Legislature engaged in a balancing of policies in enacting the PEBA. The contingency language of Section 10-7E-17(E) that protects the public fiscally when funds are not available to meet an arbitrator\u2019s decision fulfills one of the stated purposes in the statute. See \u00a7 10-7E-2.\n{18} With regard to due process, the Union also relies on Board of Education of Carlsbad Municipal Schools v. Harrell, 118 N.M. 470, 882 P.2d 511 (1994), to contend that due process restraints apply to arbitration under the PEBA. In Harrell, our Supreme Court applied due process requirements to the compulsory arbitration process of NMSA 1978, Section 22-10-17.1 (1993). Harrell, 118 N.M. at 477, 882 P.2d at 518. It stressed the difference between voluntary and compulsory arbitration.\nWhile voluntary arbitration may be conducted using any procedure acceptable to the participants, compulsory arbitration must comport with due process. [V]oluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.\nId. (alteration in original) (internal quotation marks and citation omitted). It concluded that the arbitration was compulsory, even though the employee contractually consented to submit his grievance to arbitration, because the statute imposed a mandatory arbitration requirement and that the statute violated due process insofar as it restricted judicial review of the arbitrator\u2019s decision. Id. at 476, 486, 882 P.2d at 517, 527. The PEBA is very different. Section 10-7E-18(C) enables a public employer other than the state and an exclusive representative to agree in writing to any impasse resolution procedure, notwithstanding the procedures set forth in Section 10-7E-18(B)(2) that call for arbitration. Arbitration becomes mandatory only if the parties elect to proceed under Section 10-7E-18(B), as the Union and the City did by their MOU. Harrell does not apply to this case. Moreover, the contingency provisions of Section 10-7E-17(E) that recognize that a public entity may not have the funds available to comply with an arbitrator\u2019s decision are reasonably designed to fulfill the statutory purpose of protecting the public interest \u201cby ensuring, at all times, the orderly operation and functioning\u201d of the City. Section 10-7E-2; see Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, \u00b6 15, 134 N.M. 533, 80 P.3d 470 (explaining that an argument for due process requires a balancing of the private interest and the risk of erroneous deprivation against the government\u2019s interest).\nInterpretation of the MOU\n{19} The Union makes the additional argument that the parties agreed to binding arbitration because they did not refer to Section 10-7E-17(E) in the MOU. The MOU states: \u201cThe impasse procedures as defined under [Section 10-7E-18(B)] will govern the process for resolution of this impasse.\u201d According to the Union, because the MOU refers only to the impasse procedures of Section 10-7E-18(B) and does not reference Section 10-7E-17(E), Section 10-7E-17(E) should not be considered to resolve this impasse. We do not agree. The parties expressly agreed to use the \u201cimpasse procedures as defined under\u201d Section 10-7E-18(B). Those procedures specifically reference Section 10-7E-17(E). Even though the parties did not mention Section 10-7E-17(E), the impasse procedures of Section 10-7E-18(B), as designated by the parties, incorporate Section 10-7E-17(E).\nAppropriation of Funds\n{20} The Union alternatively argues that even if Section 10-7E-17(E) applies, the arbitrator\u2019s salary award did not require the appropriation of funds so as to trigger Section 10-7E-17(E). The Union suggests, citing Municipality of Anchorage v. Anchorage Police Department Employees Ass\u2019n, 839 P.2d 1080 (Alaska 1992), that the City could have accommodated the arbitration award by shifting funds or by cutting other expenditures. However, Municipality of Anchorage is not on point. It involved an ordinance that mandated binding arbitration, and the pertinent issue was whether the potential for judicial enforcement of an arbitrator\u2019s award under the ordinance unconstitutionally delegated the power to appropriate funds. Id. at 1089. The court observed in that context that the executive and legislative branches of government must provide the required funding for collective bargaining arbitration awards because they are part of the contractual negotiations. Id. at 1090-91. The case before us does not raise that issue. Moreover, as distinguished from the ordinance in Municipality of Anchorage, the PEBA provides that arbitration decisions requiring the expenditure of funds are contingent upon the appropriation and availability of funds. Section 10-7E-17(E).\n{21} Nor do we agree with the Union that the district court\u2019s judgment, confirmation of the arbitrator\u2019s award, and writ of mandamus require the City\u2019s compliance without regard to any appropriation. The argument simply ignores the question of the appropriation and availability of funds as set forth in Section 10-7E-17(E).\nABSENCE OF GENUINE ISSUE OF MATERIAL FACT\n{22} The district court granted the Union\u2019s motion for summary judgment and denied the City\u2019s counter-motion for summary judgment. When the district court acts on counter-motions for summary judgment based on a common legal issue, this Court may reverse both the grant of one motion and the denial of the other and award judgment on the previously denied motion. Cuevas v. State Farm Mut. Auto. Ins. Co., 2001-NMCA-038, \u00b6 6, 130 N.M. 539, 28 P.3d 527.\n{23} The Union asserts that it would not be appropriate for us to award judgment to the City because genuine issues of material fact remain that must be resolved at trial. See Rule 1-056(C) NMRA (stating that summary judgment is appropriate if the summary judgment record shows \u201cthat there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law\u201d). The Union first contends that issues of fact remain concerning its claims that (1) the City breached its obligation under the PEBA \u201cto negotiate in good faith by arbitrarily and without adequate grounds failing to honor the arbitration award\u201d and (2) the City defrauded the Union by \u201cpretending that the arbitration award would bind it and luring [the Union] into executing the arbitration agreement.\u201d However, the Union did not raise these claims in its complaint. It mentions such claims in one of its briefs in conjunction with the counter-motions for summary judgment, referring to Paragraphs 27-29 of its complaint. However, those paragraphs merely recite allegations that the City budgeted for portions, but not all, of the arbitrator\u2019s award. The complaint does not contain any claim that the City breached its obligation under the PEBA to negotiate in good faith or that it defrauded the Union.\n{24} The Union also contends that there are issues of fact that must be resolved due to the ambiguity of the MOU. But we do not agree that the MOU is ambiguous. As we have discussed, it clearly requires the parties to follow the impasse procedures of Section 10-7E-18(B). That section unambiguously incorporates Section 10-7E-17(E). There is no remaining factual issue.\nCONCLUSION\n{25} Under the PEBA, an arbitration award requiring a public employer other than the state to expend funds is contingent upon the appropriation and availability of funds. We reverse the district court\u2019s grant of summary judgment to the Union and denial of summary judgment to the City. We award judgment to the City. Because we reverse on the merits, we also reverse the district court\u2019s award of attorney fees and costs to the Union.\n{26} IT IS SO ORDERED.\nWE CONCUR: CYNTHIA A. FRY, Chief Judge, and ROBERT E. ROBLES, Judge.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "W.T. Martin, Jr., Kenneth D. Dugan, Lane T. Martin, The Martin Law Firm, Carlsbad, NM, for Appellee.", "Virginia A. Anderman, Charlotte Lamont, Miller Stratvert P.A., Albuquerque, NM, for Appellant." ], "corrections": "", "head_matter": "2009-NMCA-097\n216 P.3d 256\nINTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Local 1687 AFL-CIO, Plaintiff-Appellee, v. CITY OF CARLSBAD, a New Mexico Municipal Corporation, Defendant-Appellant.\nNo. 28,189.\nCourt of Appeals of New Mexico.\nJune 23, 2009.\nCertiorari Denied, No. 31,833, July 30, 2009.\nW.T. Martin, Jr., Kenneth D. Dugan, Lane T. Martin, The Martin Law Firm, Carlsbad, NM, for Appellee.\nVirginia A. Anderman, Charlotte Lamont, Miller Stratvert P.A., Albuquerque, NM, for Appellant." }, "file_name": "0006-01", "first_page_order": 42, "last_page_order": 50 }