SENATE BILL 380
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Gerald P. Ortiz y Pino
AN ACT
RELATING TO EMPLOYMENT; ENACTING THE ACCESS TO QUALITY CHILD CARE WORKFORCE ACT; PROVIDING A PROCESS FOR REPRESENTATION FOR EMPLOYEES OF NONRESIDENTIAL CHILD CARE CENTERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Access to Quality Child Care Workforce Act".
Section 2. FINDINGS--PURPOSE.--
A. The legislature finds that child care centers perform an essential service in this state, but lack an organized voice on issues that affect the manner in which they carry out their profession. Child care centers should be given the option to organize themselves and select representatives for the purpose of discussing with the state the conditions of their employment, including the stability, funding and operation of child care programs and the expansion of quality child care.
B. The purpose of the Access to Quality Child Care Workforce Act is to allow child care centers to organize and bargain collectively and to provide state action immunity under federal and state antitrust laws for the joint activities of those caregivers and their exclusive bargaining representatives to the extent such activities are authorized. The purpose of the Access to Quality Child Care Workforce Act is not to modify the rights of employers and employees under the National Labor Relations Act, but to retain the state action exemption to the application of federal and state antitrust laws to the extent that the activities of the caregivers and their representatives are authorized under the Access to Quality Child Care Workforce Act.
Section 3. DEFINITIONS.--As used in the Access to Quality Child Care Workforce Act:
A. "board" means the public employee labor relations board;
B. "caregiver" means an individual over the age of eighteen who directly cares for, serves and supervises children in a child care center and includes the directors of a child care center;
C. "child care center" means a facility that:
(1) employs caregivers in a nonresidential setting;
(2) provides care, services, education and supervision to children for less than twenty-four hours per day;
(3) receives state subsidies; and
(4) is licensed by the department;
D. "department" means the children, youth and families department;
E. "designated unit representative" means a labor organization that is certified by the board to represent all caregivers in a child care center for the purpose of bargaining collectively;
F. "labor organization" means an employee organization whose purpose is the representation of a unit in meetings and consulting and conferring with the state on matters pertaining to the Access to Quality Child Care Workforce Act; and
G. "unit" means all caregivers employed in a child care center.
Section 4. DEMONSTRATION OF MAJORITY DESIGNATION.--
A. A labor organization seeking to be certified as the designated unit representative of a unit shall submit authorization cards approving the labor organization's representation, signed within twelve months of their submission by the majority of caregivers constituting the unit, to the board.
B. The board or its designee shall review the authorization cards and, upon a determination that a majority of the caregivers in a child care center have designated a labor organization to be the designated unit representative, shall certify that labor organization as the designated unit representative.
C. If the board determines that at least thirty percent, but no more than fifty percent, of the caregivers in a child care center have designated a labor organization to be the designated unit representative, the unit shall conduct an election in a manner directed by the board and consistent with mail-in ballot election procedures. If the majority of caregivers in the child care center elects a labor organization as the designated unit representative, the board shall certify that labor organization as the designated unit representative.
D. State agencies, including the department, shall provide the board with any information reasonably necessary to determine the size of a unit and the identities of the unit's members within ten business days of a written request for the information. The board shall take all necessary steps to protect the confidentiality of unit member information, including requiring limitations on dissemination of information.
E. A person seeking to challenge the certification of a designated unit representative may submit information to the board indicating that a majority of the unit members wish to be represented by a different representative, or do not wish to be represented under the terms of the Access to Quality Child Care Workforce Act. The board shall determine whether the information provides a reasonable basis for such a conclusion. The board may adopt a process to verify that all procedures leading to the certification of a designated unit representative are properly followed, including a review of the submission of authorization cards and of the election. The board may review a challenged certification unless a review had been made within the previous two years.
Section 5. NEGOTIATIONS.--
A. The department shall meet with a certified designated unit representative for the purpose of entering into a written agreement. The agreement may address the following issues:
(1) the stability, funding and operation of child care programs;
(2) expansion of quality child care;
(3) improvement of working conditions;
(4) state subsidies;
(5) health and retirement benefits or payments;
(6) professional development and training;
(7) committees; and
(8) grievance procedures.
B. If the issues discussed pursuant to Subsection A of this section require the participation or approval of other state agencies, those agencies shall participate in the discussions.
C. Any agreement reached by the parties to a negotiation shall be reduced to a written agreement. If an agreement is reached, the department shall submit as a part of its proposed yearly operating budget a request for funds necessary to implement the agreement or for legislation necessary to implement the agreement. If adequate funds are not available to implement an agreement, the agreement shall be reopened solely for the purpose of renegotiating the funding necessary to implement the agreement.
D. If any provision of the agreement requires legislative action, including the appropriation of funds, in order to be effective, the parties to the agreement shall jointly seek legislation or appropriation.
E. In the event any dispute arises under the terms of the Access to Quality Child Care Workforce Act, on the application of any designated unit representative, the department or any other involved state agency, the board may direct the parties to engage in binding arbitration for non-economic issues under such terms and conditions as the board deems appropriate.
F. After the expiration date of an agreement entered into under this section, all of the terms and conditions specified in the agreement shall remain in effect until the effective date of a subsequent agreement between the parties to the original agreement.
G. If a significant revenue shortfall occurs resulting in reduced appropriations after the compensation and benefit provisions of an agreement are approved, the parties to the agreement shall immediately enter into negotiations for a mutually agreed modification of the agreement.
Section 6. LIMITATIONS.--Nothing in the Access to Quality Child Care Workforce Act shall:
A. permit caregivers collectively to engage in any strike or work action to secure any right or privilege from the state or any of its agencies or political subdivisions and to preclude workers from their right to strike pursuant to the National Labor Relations Act;
B. interfere with any right a child care center or any organization that represents the child care center may otherwise have to meet, correspond with or otherwise appear before a state agency; or
C. allow the department to discriminate against a child care center because the caregivers are represented by a designated unit representative.
Section 7. RIGHTS OF REPRESENTATIVE.--
A. The department shall enter into an agreement with a designated unit representative to provide for an administrative fee to be paid to the representative for the costs of representation of caregivers and for the administration of any agreement reached pursuant to the Access to Quality Child Care Workforce Act. The department shall deduct the administrative fee from the monthly amount of any additional child care subsidy due to a child care center and transmit the administrative fee to the designated unit representative, not to exceed two percent of the subsidy.
B. A child care center that is operated by a church or other religious entity for which payment of an administrative fee is contrary to bona fide religious tenets shall pay an amount equivalent to the administrative fee to a nonreligious charity or to another charitable organization mutually agreed upon by the child care center and the designated unit representative to which the center would otherwise pay the administrative fee. The child care center shall furnish written proof that such payment has been made. If the child care center and the designated unit representative do not reach agreement on the identity of an appropriate charitable organization, the board shall designate the charitable organization.
Section 8. SEVERABILITY.--If any part or application of the Access to Quality Child Care Workforce Act is held invalid, the remainder of its application to other situations or persons shall not be affected.
Section 9. PREEMPTION.--If any part of the Access to Quality Child Care Workforce Act is found to be in conflict with federal requirements that are a condition to the allocation of federal funds to the state, the conflicting part of the Access to Quality Child Care Workforce Act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of the Access to Quality Child Care Workforce Act in its application to the agencies concerned. Rules adopted under that act shall meet federal requirements that are a necessary condition to the receipt of federal funds by the state.
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