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SPONSOR: |
SPAC |
DATE TYPED: |
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HB |
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SHORT TITLE: |
Public Employee Bargaining Act |
SB |
46/SPACS/aSFC/aHLC |
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ANALYST: |
Gilbert |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
|
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
|
$0.1
See Narrative |
Recurring |
General
Fund |
|
|
|
|
$0.1
See Narrative |
Recurring |
Local
Government Funds |
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to: SB 508
LFC Files
Responses Received From
Attorney General’s Office (AGO)
State Highway and Transportation Department
(SHTD)
New Mexico Department of Labor (NMDOL)
New Mexico Corrections Department (NMCD)
SUMMARY
Synopsis
of the HLC Amendment
The House Labor and Human Resources Committee
amendment to the House Committee Substitute for Senate Bill 46 strikes language
that allows the board or local boards to include supervisory employees in
appropriate collective bargaining units, thus effectively prohibiting unionization
of supervisory employees.
Synopsis
of the SFC Amendment
The Senate Finance Committee amendment to Senate
Public Affairs Committee Substitute for Senate Bill 46 strikes the $327.0 appropriation
included in Section 28 of the bill.
In fiscal year 1999,
$219.0 was budgeted for the Public Employee Labor Relations Board. Since SB 46/SPACS/aSFC removes the $327.0
appropriation in this bill, funding for the State Labor Relations Board, budget
for office space and equipment, hiring of staff and contractors, and paying
board per diem and mileage expenses must come from other sources. Costs related
to various administrative hearings must also be funded (e.g., verbatim
transcriptions, recordings, process servers, professional legal support, and
etc.).
Synopsis
of Original Bill
Senate Public Affairs
Committee substitute for Senate Bill 46 guarantees public employees the statutory
right to bargain collectively with their employers for wages, work hours, and
all other terms and conditions of employment.
It creates a board to administer the Act. The board may permit local governments to
create their own boards.
This bill delineates
board authority, defines the rights of public employers and employees, prohibits
strikes and lock-outs, defines appropriate bargaining units, outlines
procedures for union representation elections, establishes the scope of
bargaining, mandates impasse resolution procedures, defines prohibited
practices, and grants judicial enforcement authority.
Significant Issues
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.
The issue of fair share shall be left a
permissive subject of bargaining by the public employer and the exclusive
representative of each bargaining unit.
To
be valid, this bill would require at least 40% of employees in a bargaining
unit to vote in the election of a labor organization or in an election to
decertify a labor organization. Therefore, as few as 21% of the employees in a
bargaining unit could decide the outcome of a union election and subsequently
negotiate a “fair share” provision requiring 100% of employees in the unit to
submit monthly payments to a union.
Section 13A specifies
that supervisory employees represent a valid occupational group and may be
approved as appropriate collective bargaining units, thus allowing union
representation of supervisors.
Impasse procedures, including mediation and
final and binding arbitration are outlined in Section 18. Arbitration decisions
are final and binding pursuant to the Uniform Arbitration Act, and are limited
to a selection of one of the two parties' complete, last, best offer. Such
decisions are subject to judicial review pursuant to the standard set forth in
the Uniform Arbitration Act.
FISCAL IMPLICATIONS
The appropriation of
$327.0 contained in this bill is a recurring expense to the general fund. Any
unexpended or unencumbered balance remaining at the end of fiscal year 2004
shall revert to the general fund.
Since SB 46/SPACS
requires implementation of a State Labor Relations Board, budget for office
space and equipment, hiring of staff and contractors, and paying board per diem
and mileage expenses will be necessary. Costs related to administrative
hearings must also be funded (e.g., verbatim transcriptions, recordings,
process servers, professional legal support, and etc.) In FY99, $219.0 was budgeted for the Public
Employee Labor Relations Board.
Section 17 ensures
that impasse resolutions and negotiated agreement provisions, which require the
expenditure of funds, shall be contingent upon the specific appropriation and
availability of such funds by the legislature or appropriate governing
body. Also, arbitration decisions shall
not require the reappropriation of funds.
Recurring expenses to
county and local government funds may result if such entities decide to
implement local public employee labor relations boards.
SB 46/SPACS mandates
all collective bargaining agreements to include impasse resolution processes
culminating in final and binding arbitration, with costs shared by the
parties.
Section 18D specifies that expired collective bargaining contracts
shall remain in full force and effect until such agreements are replaced by
subsequent agreements. However, in the absence of a new agreement, the Act does
not require the public employer to increase any levels or grades of
compensation contained in the expired contract.
The State and
local governments may incur substantial costs associated with hiring labor relations
professionals, administrative support staff, and staff or contract negotiators.
There will also be costs associated with obtaining legal consultation and
representation. Expenses relating to supervisory training, printing costs, and
staff time away from work for various labor-management negotiations and
grievance meetings must also be considered.
ADMINISTRATIVE IMPLICATIONS
Agency and local
government staff may be required to devote substantial time to
employer-employee relations and related training responsibilities.
CONFLICT
The Attorney
General’s Office (AGO) makes the following recommendation:
Section 23.
Judicial Enforcement—Standard of Review
Paragraph (B) on page
30, lines 7-21. This section governs
judicial review of state and local board decisions. To make it consistent with other laws and
court rules governing review of final agency decisions, this provision might be
revised so that it refers to NMSA 1978, Section 39-3-1.1.
TECHNICAL ISSUES
The AGO recommends the
following changes to HB 508:
Section 7. Appropriate Governing Body – Public Employer
Page
7, lines 20-23. This section created
confusion in the previous Public Employee Bargaining Act that was repealed in
1999. It describes who is the
“appropriate governing body” for certain public employers. In particular, it states that “In the case of
the state, the appropriate governing body is the governor or his designee or,
in the case of a constitutionally created body, the constitutionally designated
head of that body.” The confusing
aspects of this provision include the following:
1.
Does the term “constitutionally created
body” include constitutional offices such as the Attorney General’s Office, the
Land Office, the State Treasurer, the State Auditor and the Secretary of State?
2.
Does the term “constitutionally created
body” include the Boards of Regents of state educational institutions
designated in Article XII, Section 1 of the state constitution?
3.
If constitutionally created bodies do not
include the boards of regents, are those boards considered “public employers
other than the state” for purposes of Section 26 of the bill, which addresses
ordinances providing for public employee bargaining in effect before
Section 12. Hearing Procedures
Paragraph (D) on page 14, lines 19-21. This paragraph refers to “the county of
residence of the local public employer.”
Since the local public employer is apt to be a county, municipality or
other political subdivision, and not a person, it might be preferable to refer
to the “county where the local public employer is located.”
Section 13. Appropriate Bargaining Units
Page 15, lines 14-18. Section 13 governs the designation of
appropriate bargaining units by the state or local boards. It includes a possible change in meaning from
the predecessor Public Employee Bargaining Act that was repealed in 1999. Specifically, it allows bargaining units to
be established on the basis of “occupational groups or clear and
identifiable communities of interest in employment terms and conditions and related
personnel matters among the public employees involved.” (Emphasis added.) This arguably broadens the scope of
permissible bargaining units from the predecessor provision, which might have
been interpreted to require the establishment of bargaining units based on
three criteria, i.e., “occupational groups, a clear and identifiable community
of interest in employment terms and conditions and related personnel matters
among the public employees involved.”
See 1992 N.M. Laws, ch. 9, § 13 (formerly codified at NMSA 1978, §
10-7D-13(A)). See also SB 46, § 13
(same). If the different language in
Section 13 is intended to describe alternative bases for bargaining units, it
would be clearer if the word “and” between the words “conditions” and “related”
was changed to “or”.
Section 17. Scope of Bargaining
Paragraph
(D) on page 22, lines 8-12. This
provision addresses mandatory subjects of bargaining involving representatives
of public schools “as well as educational employees in state agencies….” The
term “educational employees” should be more precisely defined to include those
who perform educational services akin those provided in the public schools; otherwise,
it could be interpreted to apply to any employee in a state agency that
educates members of the public or others in any manner whatsoever, such as
those that teach defensive driving courses, etc.
Section 25. Existing Collective Bargaining Agreements
Page
31, lines 23-25. The last sentence of
this section provides that nothing in the Public Employee Bargaining Act shall
be construed to annul or modify the status of existing exclusive
representatives. This provision is
redundant; under Section 24(A) labor organizations that were recognized as
exclusive representatives as of
OTHER SUBSTANTIVE ISSUES
Sections 19H and 20D
are not traditional prohibited practices.
Refusal or failure of the parties to comply with provisions of a
collective bargaining agreement represents a grievance and should be handled
pursuant to Section 17F. This bill would
allow labor organizations to pursue their complaints through the grievance
process (culminating in binding arbitration) and/or through an unfair labor
practice complaint brought to the Board. Thus, the same issue could be
adjudicated in two separate forums.
Provisions in Section
14B, which relate to labor organizations being allowed to intervene in representation
elections, specify that such labor organizations must present signatures from
30% of bargaining unit employees within ten days after the Labor Relations
Board posts written notice that a petition for election has been filed. Because of the short ten-day notice, such
organizations are generally required to only produce signatures of 10% of
bargaining unit members.
According to the New
Mexico Corrections Department, the “fair share” provision in this bill may
result in constitutional challenges on the grounds of unlawful governmental
“takings”, equal protection or due process grounds by public employees who
choose not to be members but who may, nonetheless, be subject to payroll
deductions of a percentage of dues because such employees indirectly benefit
from negotiated terms for the bargaining unit of which they are a part.
AMENDMENTS
Section 12D at page 14, line 19 could be amended
by substituting the following sentence, “Except as prohibited by Section 17G of
this Act, all meetings of the board shall be held pursuant to the Open Meetings
Act in
Section 23B, at page 30, line 10, could be
amended by deleting all of the current language beginning with the sentence on
line 10 through the end of the section, then substituting the following
sentence, “All such appeals shall be subject to judicial review by an action in
the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.”
RLG/njw:yr