HOUSE BILL 351
51st legislature - STATE OF NEW MEXICO - first session, 2013
Candy Spence Ezzell
RELATING TO EMPLOYMENT; ENACTING THE EMPLOYEE PREFERENCE ACT; PROHIBITING MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT; PROHIBITING THE DEDUCTION OF DUES OR FEES TO A LABOR ORGANIZATION FROM THE COMPENSATION OF EMPLOYEES WITHOUT WRITTEN AUTHORIZATION; PROVIDING FOR INVESTIGATION AND ENFORCEMENT; AMENDING A SECTION OF THE PUBLIC EMPLOYEE BARGAINING ACT; PROVIDING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Employee Preference Act".
SECTION 2. [NEW MATERIAL] PUBLIC POLICY.--It is the public policy of New Mexico that all persons shall have, and shall be protected in the exercise of, the right to form, join or assist labor organizations or to refrain from any such activities, freely and without fear of penalty or reprisal.
SECTION 3. [NEW MATERIAL] DEFINITION.--As used in the Employee Preference Act, "labor organization" means a union, organization, agency or employee representation committee of any kind that exists for the purpose, in whole or in part, of dealing with employers concerning wages, rates of pay, hours of work or other conditions of employment.
SECTION 4. [NEW MATERIAL] MANDATORY MEMBERSHIP AND FEES PROHIBITED.--A person shall not be required, as a condition of hiring, promotion or continued employment, to become or remain a member of a labor organization or to pay any dues, fees, assessments or other charges of any kind to a labor organization.
SECTION 5. [NEW MATERIAL] ORGANIZATION APPROVAL PROHIBITED.--An employer shall not require a person to be recommended or approved by or to be cleared through a labor organization as a condition of hiring, promotion or continued employment.
SECTION 6. [NEW MATERIAL] CERTAIN AGREEMENTS ILLEGAL.--An agreement, understanding or practice, written or oral, implied or expressed, between an employer and a labor organization that is in violation of the Employee Preference Act is unlawful.
SECTION 7. [NEW MATERIAL] VOLUNTARY CHECKOFF.--An employer shall not deduct from the wages, earnings or compensation of an employee any dues, fees, assessments or other charges to be held for or paid to a labor organization unless the employer has first received a written authorization for the deduction signed by the employee, which authorization may be revoked by the employee at any time by giving written notice of the revocation to the employer.
SECTION 8. [NEW MATERIAL] INVESTIGATION.--It is the duty of the attorney general and of every district attorney to investigate complaints of violations of the Employee Preference Act and to prosecute a person suspected of violating that act.
SECTION 9. [NEW MATERIAL] ENFORCEMENT.--If, as a result of investigation, the attorney general or a district attorney has good cause to believe that a person is violating or will violate a provision of the Employee Preference Act, the attorney general or district attorney may bring an action for injunctive or other appropriate relief in the district court for the county in which the violation is occurring or will occur or in the district court for Santa Fe county.
SECTION 10. [NEW MATERIAL] PENALTY.--A person who violates any provision of the Employee Preference Act is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment for a definite term not to exceed ninety days or both.
SECTION 11. [NEW MATERIAL] APPLICATION OF ACT.--The provisions of the Employee Preference Act shall not apply to any contract or agreement between an employer and a labor organization in force on the effective date of that act but shall apply to a renewal or extension of the contract or agreement or to a new contract or agreement entered into after the effective date of that act.
SECTION 12. Section 10-7E-17 NMSA 1978 (being Laws 2003, Chapter 4, Section 17 and Laws 2003, Chapter 5, Section 17) is amended to read:
"10-7E-17. SCOPE OF BARGAINING.--
A. Except for retirement programs provided pursuant to the Public Employees Retirement Act or the Educational Retirement Act, public employers and exclusive representatives:
(1) shall bargain in good faith on wages, hours and all other terms and conditions of employment and other issues agreed to by the parties. However, neither the public employer nor the exclusive representative shall be required to agree to a proposal or to make a concession; and
(2) shall enter into written collective bargaining agreements covering employment relations.
B. The obligation to bargain collectively imposed by the Public Employee Bargaining Act shall not be construed as authorizing a public employer and an exclusive representative to enter into an agreement that is in conflict with the provisions of any other statute of this state. In the event of conflict between the provisions of any other statute of this state and an agreement entered into by the public employer and the exclusive representative in collective bargaining, the statutes of this state shall prevail.
C. Payroll deduction of the exclusive representative's membership dues shall be a mandatory subject of bargaining if either party chooses to negotiate the issue. The amount of dues shall be certified in writing by an official of the labor organization and shall not include special assessments, penalties or fines of any type. The public employer shall not honor payroll deductions unless the employer has received a written authorization for the deduction signed by the public employee. Once written authorization is received, the public employer shall honor payroll deductions until the authorization is revoked in writing by the public employee in accordance with the negotiated agreement and for so long as the labor organization is certified as the exclusive representative. During the time that a board certification is in effect for a particular appropriate bargaining unit, the public employer shall not deduct dues for any other labor organization.
D. The scope of bargaining for representatives of public schools as well as educational employees in state agencies shall include, as a mandatory subject of bargaining, the impact of professional and instructional decisions made by the employer.
E. An impasse resolution or an agreement provision by the state and an exclusive representative that requires the expenditure of funds shall be contingent upon the specific appropriation of funds by the legislature and the availability of funds. An 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 agreement provision by a local school board and an exclusive representative that requires the expenditure of funds shall be contingent upon ratification by the appropriate governing body. An arbitration decision shall not require the reappropriation of funds.
F. An agreement shall include a grievance procedure to be used for the settlement of disputes pertaining to employment terms and conditions and related personnel matters. The grievance procedure shall provide for a final and binding determination. The final determination shall constitute an arbitration award within the meaning of the Uniform Arbitration Act; such award shall be subject to judicial review pursuant to the standard set forth in the Uniform Arbitration Act. The costs of an arbitration proceeding conducted pursuant to this subsection shall be shared equally by the parties.
G. The following meetings shall be closed:
(1) meetings for the discussion of bargaining strategy preliminary to collective bargaining negotiations between the public employer and the exclusive representative of the public employees of the public employer;
(2) collective bargaining sessions; and
(3) consultations and impasse resolution procedures at which the public employer and the exclusive representative of the appropriate bargaining unit are present."
SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.
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