44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999
RELATING TO EMPLOYER-EMPLOYEE RELATIONS; ENACTING THE AGRICULTURAL EMPLOYEE BARGAINING ACT; GRANTING CERTAIN RIGHTS IN CERTAIN CIRCUMSTANCES; PROVIDING RIGHTS, RESPONSIBILITIES AND PROCEDURES IN THE EMPLOYMENT RELATIONSHIP BETWEEN AGRICULTURAL EMPLOYERS AND AGRICULTURAL EMPLOYEES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Agricultural Employee Bargaining Act".
Section 2. PURPOSE.--The purpose of the Agricultural Employee Bargaining Act is to allow agricultural employees to organize and bargain collectively with their employers, to promote harmonious and cooperative relationships between employers and employees and to protect the public interest.
Section 3. DEFINITIONS.--As used in the Agricultural Employee Bargaining Act:
A. "appropriate bargaining unit" means a group of agricultural employees petitioning to the board for the purpose of collective bargaining;
B. "board" means the agricultural employee bargaining board;
C. "certification" means recognition by the board that an employee organization is the exclusive representative for all employees in an appropriate bargaining unit for the purposes of collective bargaining, fulfilling the employee organization's role in the administration of a collective bargaining agreement and, subject to the provisions of Section 11 of the Agricultural Employee Bargaining Act, the handling of impasses and disputes, until the employee organization is replaced by another employee organization, decertified, dissolved or ceases to function as the exclusive representative of an appropriate bargaining unit;
D. "collective bargaining" means the performance of the mutual obligations of the employer, acting solely or through the employer's designee and the exclusive representative:
(1) to meet at reasonable times;
(2) to confer and negotiate in good faith; and
(3) to execute a written agreement with respect to the wages, hours, terms and other conditions of employment not in conflict with federal or state laws;
E. "dispute" means a disagreement between an employer and an exclusive representative concerning the interpretation or application of a collective bargaining agreement;
F. "employee" means any person employed by an agricultural employer;
G. "employee organization" means any organization in which agricultural employees participate and that, subject to the provisions of the Agricultural Employee Bargaining Act, deals with agricultural employers concerning hours and wages, impasses, disputes, personnel policies and practices or other matters affecting the terms and conditions of employment;
H. "employer" means any person, corporation, association, partnership or other business entity engaged in any agricultural, horticultural or livestock-raising enterprise and includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodity, the raising of livestock, bees, fur-bearing animals or poultry and any practice performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market and delivery to storage, to market or to carriers for transportation to market;
I. "exclusive representative" means the agricultural employee organization that as a result of certification by the board has the right and duty, subject to the provisions of Section 11 of the Agricultural Employee Bargaining Act, to represent all employees in an appropriate bargaining unit;
J. "impasse" means failure of an employer and an exclusive representative, after good faith bargaining, to reach agreement in the course of negotiating a collective bargaining agreement;
K. "prohibited practice" means a practice listed in Section 16 or 17 of the Agricultural Employee Bargaining Act; and
L. "supervisor" or "foreman" means a person employed by an employer, acting in the interest of the employer, whose duties include one or more of the following: hiring, transferring, directing, suspending, laying off, recalling, promoting, discharging, assigning, rewarding or disciplining other employees; adjusting their disputes and grievances; or effectively recommending any of the foregoing actions.
Section 4. RIGHTS OF EMPLOYEES.--Employees have the right to form, join or assist and to refrain from forming or joining an agricultural employee organization for the purpose of collective bargaining through representatives freely chosen by employees without interference, restraint or coercion; provided that a collective bargaining agreement may require membership in a particular organization as a condition of employment.
Section 5. RIGHTS OF EMPLOYERS.--Subject to existing law, an employer has the right to:
A. direct the work of, hire or promote its employees and, for just cause, demote, suspend, discharge, assign, transfer or terminate its employees;
B. determine qualifications for employment;
C. maintain the efficiency of its operations;
D. take actions, not otherwise permissible pursuant to the Agricultural Employee Bargaining Act, as may be necessary to carry on the agricultural enterprise of the employer during a period of war, declared or undeclared, or civil insurrection. These actions must cease as soon as possible after the circumstance prompting the actions is abated; and
E. manage, and exercise judgment on, all matters not covered by the Agricultural Employee Bargaining Act or by a collective bargaining agreement then in effect between the employer and an exclusive representative.
Section 6. AGRICULTURAL EMPLOYEE BARGAINING BOARD.--
A. The "agricultural employee bargaining board" is created, consisting of three members appointed by the governor with the consent of the senate.
B. One board member shall have a minimum of five years' experience in representing organized labor. One board member shall have a minimum of five years' experience in representing management. The third board member, who shall be board chairman and the executive director of the board, shall be a person in labor relations who has not represented organized labor or management.
C. The initial term of one board member expires on July 1, 2001; of the second board member on July 1, 2003; and of the board chairman on July 1, 2005. Subsequent terms are for six years or less, so that the term of one member expires on June 30 of each odd-numbered year.
D. No board member may be removed from his position by the governor except for incompetency, neglect of duty or malfeasance in office.
E. The board chairman or director shall be paid a salary of sixty thousand dollars ($60,000) a year.
F. Each board member shall be paid per diem and mileage in accordance with the provisions of the Per Diem and Mileage Act.
Section 7. BOARD POWERS AND DUTIES.--The board shall:
A. perform the functions of the board pursuant to the Agricultural Employee Bargaining Act;
B. hire personnel as is reasonably necessary to carry out its functions and duties pursuant to the Agricultural Employee Bargaining Act;
C. prepare budget requests for its operations;
D. make an annual report to the governor at the end of each fiscal year;
E. represent the public interest in the improvement of employer-employee relations in agricultural enterprises;
F. establish procedures for the designation of appropriate bargaining units;
G. establish procedures for the selection, certification and decertification of exclusive representatives;
H. establish procedures for the filing of, hearing on and the disposition of complaints of prohibited practices. The procedures shall:
(1) provide that complaints be filed within six months of the date of the alleged prohibited practice;
(2) provide for both complaints and defenses thereto being amply and fairly presented;
(3) require the board to make findings of fact and conclusions of law and issue an order disposing of the complaint. The burden of proof shall be proof by the preponderance of the evidence;
(4) list the remedies available to persons who establish that a prohibited practice has been committed. The remedies may include cease-and-desist orders, reinstatement and restoration with or without back pay and employee benefit from time of discharge of an employee. The remedies shall not include monetary fines or anything otherwise prohibited by law; and
(5) require a record of all hearings to be made;
I. hold hearings and make inquiries necessary to carry out the board's functions and responsibilities;
J. prepare annually, after reviewing nominations submitted by employers and employee organizations, lists of qualified persons, broadly representative of the public, to serve as mediators, fact-finders or arbitrators; and
K. conduct studies on problems pertaining to employee-employer relations and request the information and data from employers and employee organizations necessary to carry out the board's functions and responsibilities.
Section 8. AGRICULTURAL EMPLOYEE BARGAINING BOARD RULES.--
A. The board shall promulgate rules necessary to carry out the purposes of the Agricultural Employee Bargaining Act. Prior to the adoption, amendment or repeal of any rule, the board shall at least thirty days prior to its proposed action:
(1) publish notice of the proposed action in newspapers to give reasonable notice to interested persons or groups; and
(2) mail a copy of notices of proposed actions to any person or group filing a written request therefor, the request to be renewed yearly, and paying a reasonable fee fixed by the board. The fees are appropriated to the board.
B. All notices of proposed actions shall:
(1) give the time and place of any public hearing or state the manner in which data, views or arguments may be submitted to the board by any interested person or group;
(2) either state the express terms or fully describe the substance of the proposed action or fully set forth the subjects and issues involved; and
(3) state where a copy of the proposed rule may be obtained.
C. The board shall, at the hearing, afford all interested persons or groups reasonable opportunity to submit data, views or arguments orally or in writing. The board shall consider fully all written and oral submissions respecting the proposed action.
Section 9. APPROPRIATE BARGAINING UNITS.--
A. The board shall, upon receipt of a petition for a representation election filed by an employee organization pursuant to the provisions of Subsection A of Section 10 of the Agricultural Employee Bargaining Act, designate appropriate bargaining units for collective bargaining. Appropriate bargaining units will be established on a basis that will assure a clear and identifiable interest in employment terms and conditions and related matters among the employees involved, whether the employees involved are a branch of the agricultural industry or are co-workers in a single agricultural enterprise. Essential factors in determining appropriate bargaining units include the history of collective bargaining and the assurance to employees of the fullest freedom in exercising the rights guaranteed by the Agricultural Employee Bargaining Act.
B. In the event of a disagreement between the employer and employee organization or employee organizations concerning composition of an appropriate bargaining unit, the board shall hold a public hearing before designating an appropriate bargaining unit.
Section 10. ELECTIONS.--
A. Whenever, in accordance with rules prescribed by the board, a petition is filed by an employee organization, showing written proof of at least thirty percent representation of the employees in an appropriate bargaining unit, the board shall conduct a secret ballot representation election to determine whether and by which employee organization the employees desire to be represented for the purpose of collective bargaining. The ballot also shall contain the names of any other employee organizations showing written proof of at least ten percent representation of the employees within the appropriate bargaining unit.
B. In any valid election in which none of the choices on the ballot receives a majority of the valid votes cast, a runoff election between the two choices receiving the largest number of valid votes cast in the initial election shall be conducted. The board shall certify the results of the election, and where an employee organization receives a majority of the valid votes cast, the board shall certify the employee organization as the exclusive representative of all employees in the appropriate bargaining unit for the purpose of collective bargaining.
C. No representation election shall be conducted for an appropriate bargaining unit if a valid election, including all necessary runoff elections, has been conducted in the twelve-month period preceding the proposed representation election.
D. If an employee organization requests, an employer may recognize, and the board may certify, an employee organization as the exclusive representative of an appropriate bargaining unit, after a reasonable notice period and without a secret ballot representation election, if:
(1) a neutral third party has verified the signatures on authorization cards designating the requesting employee organization to represent the employees of the appropriate bargaining unit for the purpose of collective bargaining;
(2) the board is satisfied that the employee organization represents a majority of the employees in the appropriate bargaining unit; and
(3) no other employee organizations file written proof of at least ten percent representation of the employees in the appropriate bargaining unit.
E. Despite any other provision of this section, the board may certify an employee organization as the exclusive representative of all employees in the appropriate bargaining unit for the purpose of collective bargaining if the board determines that a free election was not or cannot be conducted due to the commission of one or more prohibited practices by the employer.
Section 11. EXCLUSIVE REPRESENTATIVE.--
A. The employee organization that has been certified by the board as representing the employees in an appropriate bargaining unit shall be the exclusive representative of all employees in the appropriate bargaining unit for the purposes of collective bargaining, the administration of any collective bargaining agreement and, subject to the provisions of Subsection B of this section, the handling of impasses and disputes.
B. This section does not prevent an employee, acting individually, from presenting a grievance without the intervention of the exclusive representative, provided that the employee is not represented by an employee organization other than the exclusive representative. At any hearing on a grievance brought by an employee individually, the exclusive representative shall be afforded the opportunity to be present. Any adjustment made shall not be inconsistent with, or in violation of, the collective bargaining agreement then in effect between the employer and the exclusive representative.
Section 12. DECERTIFICATION OF EXCLUSIVE REPRESENTATIVE.--
A. Employees or employee organizations may initiate decertification of an employee organization as the exclusive representative if thirty percent of the employees in the appropriate bargaining unit make a written request to the board for a decertification election.
B. When there is a collective bargaining agreement in effect, a request for a decertification election must be made to the board no earlier than ninety days and no later than sixty days before the expiration of the collective bargaining agreement. A collective bargaining agreement for a period longer than five years shall not be a bar to a representation or decertification election after the fifth year of such agreement. Requests for decertification on contracts that extend beyond five years may be made at any time after the completion of the fifth year but shall be made within sixty to ninety days before the anniversary date of the contract.
C. When an exclusive representative has been certified but no collective bargaining agreement is in effect, the board shall not accept a request for a decertification election earlier than twelve months subsequent to a certification of an employee organization as an exclusive representative.
Section 13. SCOPE OF BARGAINING.--Employers and exclusive representatives have the duty to bargain in good faith on wages, hours, terms and other conditions of employment and to execute in writing any agreement reached. However, neither the employer nor the exclusive representative shall be required to agree to a proposal or to make a concession.
Section 14. IMPASSE RESOLUTION.--
A. An employer has the power to enter into a written agreement with the exclusive representative setting forth an impasse resolution procedure. The procedure may culminate with a final and binding decision-making method.
B. A collective bargaining agreement may include a dispute and impasse resolution procedure. The procedure may culminate with a final and binding decision-making method.
C. If there are no procedures established pursuant to Subsection A or B of this section, the employer or exclusive representative may request the assistance of the board by submitting to the board and to the other party to the impasse a clear, concise statement of each issue on which an impasse exists together with a certificate as to its good faith belief in the contents of the statement. The board, after such request, may determine that an impasse exists on any issue. If the board determines that an impasse exists and desires to render assistance in resolving the impasse, the board shall notify the employer and exclusive representative of its intent to render assistance. The board shall render assistance to resolve the impasse according to the schedule in Paragraphs (1), (2) and (3) of this subsection.
(1) The board shall appoint a mediator from the list of mediators maintained by the board within three calendar days after the date of impasse. The date of impasse is the day on which the board determines that an impasse exists.
(2) If the impasse continues ten calendar days after the date of impasse, the board shall appoint a fact-finder from the list of fact-finders maintained by the board within thirteen calendar days after the date of impasse. The fact-finder has, in addition to powers delegated to him by the board, the power to make recommendations for the resolution of the impasse. The fact-finder shall transmit his findings of fact and any recommendations for the resolution of the impasse to the employer and exclusive representative within twenty-three calendar days after the date of impasse. If the impasse remains unresolved twenty-eight calendar days after the date of impasse, the board shall make public the fact-finder's findings of fact and any recommendations if the impasse is not referred to arbitration by agreement of the employer and exclusive representative.
(3) If the impasse continues twenty-eight calendar days after the date of impasse, the employer and exclusive representative shall submit the remaining differences to arbitration. The arbitration shall result in a final decision binding on the employer and exclusive representative. The arbitrator shall be selected by agreement of the employer and exclusive representative. If the employer and exclusive representative fail to agree on an arbitrator or for any reason there is a delay in the naming of the arbitrator agreed upon, the employer and exclusive representative shall jointly request the federal mediation and conciliation service or the American arbitration association to appoint the arbitrator. If the impasse remains unresolved forty calendar days after the date of impasse, the arbitrator shall transmit his findings and his final and binding decision on resolution of the impasse to the employer and exclusive representative. The employer and exclusive representative shall enter into a collective bargaining agreement or take whatever action is necessary to carry out the decision of the arbitrator.
D. The costs of mediation, fact-finding and arbitration undertaken pursuant to Subsection C of this section shall be borne equally by the employer and the exclusive representative.
Section 15. DISPUTE RESOLUTION.--A collective bargaining agreement may include a dispute resolution procedure. The procedure may culminate with a final and binding decision-making method.
Section 16. PROHIBITED PRACTICES BY EMPLOYERS.--It is a prohibited practice for an employer or its representatives to:
A. discriminate against an employee with regard to the terms and conditions of employment because of race, color, religion, creed, age, sex, national origin or political affiliation;
B. interfere with, restrain or coerce any employee in the exercise of any right guaranteed pursuant to the Agricultural Employee Bargaining Act;
C. dominate or interfere in the formation, existence or administration of any employee organization except as authorized by the terms of a collective bargaining agreement;
D. discriminate in regard to hiring, tenure or any term or condition of employment in order to encourage or discourage membership in any employee organization;
E. discharge or otherwise discriminate against an employee because he has signed or filed an affidavit, petition or complaint or given any information or testimony pursuant to the provisions of the Agricultural Employee Bargaining Act or because an employee has formed, joined or chosen to be represented by an employee organization;
F. refused to bargain collectively in good faith with the exclusive representative; or
G. refuse or fail to comply with any provision of the Agricultural Employee Bargaining Act or rule of the board.
Section 17. PROHIBITED PRACTICES BY EMPLOYEE ORGANIZATIONS.--It is a prohibited practice for an employee organization or its representative to:
A. discriminate against an employee with regard to employee organization membership because of race, color, religion, creed, age, sex, national origin or political affiliation;
B. interfere with, restrain or coerce any employee in the exercise of any right guaranteed by the provisions of the Agricultural Employee Bargaining Act;
C. refuse to bargain collectively in good faith with an employer, if an employee organization is the exclusive representative; or
D. refuse or fail to comply with any provision of the Agricultural Employee Bargaining Act or rule of the board.
Section 18. BOARD--ADDITIONAL POWERS AND DUTIES.--
A. For the purpose of carrying out the Agricultural Employee Bargaining Act, the board may, subject to the laws of privilege, require the furnishing of information, the attendance or deposition of witnesses and the production of books, records, papers or other objects necessary and proper for such purposes. The board may also delegate authority to require any of the foregoing to mediators, fact-finders and arbitrators.
B. In furtherance of the powers granted by Subsection A this section, the board and its delegates may issue subpoenas requiring, upon reasonable notice, the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence or documents, relating to any matter in question. The board and its delegates may administer oaths and affirmations, examine witnesses and receive evidence.
C. The board may prescribe the form of subpoena, but it shall adhere, insofar as practicable, to the form used in civil actions in the district court. Witnesses shall be paid the same fees for attendance and travel as in civil actions in the district court. Witness fees shall be paid by the person requesting the witnesses' attendance.
Section 19. ENFORCEMENT.--
A. All collective bargaining and other agreements between employers and exclusive representatives are valid and enforceable according to their terms when entered into in accordance with provisions of the Agricultural Employee Bargaining Act. Actions for violation of such agreements shall be brought in the district court for the county in which the agricultural enterprise is located.
B. In case of disobedience to a subpoena issued and served in accordance with Section 17 of the Agricultural Employee Bargaining Act, or of a lawful board order, decision or requirement for information or in case of the refusal of a person to testify to a matter regarding which the person may be interrogated lawfully in a hearing before a board or its delegate, the board may apply to the district court for the county in which the agricultural enterprise is located for an order to compel compliance with the subpoena, order, decision, furnishing of information or giving of testimony. Forthwith, the district court shall cite the respondent to appear and shall hear the matter as expeditiously as possible. If the disobedience or refusal is found to be unjustified, the district court shall enter an order requiring compliance in full or as modified. Disobedience of the court order shall be punished as contempt of the district court in the same manner and by the same procedure as provided for like conduct committed in the course of judicial proceedings.
Section 20. JUDICIAL REVIEW.--
A. A person affected by a final regulation, order or decision of the board may appeal to the district court for the county in which the agricultural enterprise is located for further relief. All appeals shall be upon the record made at the hearing. All appeals to the district court shall be taken within thirty days of the date of the final regulation, order or decision of the board and if not so taken, the regulation, order or decision is conclusive.
B. The procedure for perfecting an appeal to the district court consists of the timely filing of a notice of appeal with a copy attached of the regulation, order or decision from which appeal is taken. The appellant shall certify in the notice of appeal that arrangements have been made with the board for preparation of a sufficient number of transcripts of the record of the hearing on which the appeal depends to support his appeal to the court.
C. Upon appeal, the district court shall set aside a regulation, order or decision of the board only if found to be:
(1) arbitrary, capricious or an abuse of discretion;
(2) not supported by substantial evidence; or
(3) otherwise not in accordance with law.
D. A decision of the district court rendered pursuant to Subsection C of this section may be appealed to the supreme court by a party to the appeal to the district court.
Section 21. EXISTING COLLECTIVE BARGAINING UNITS.--Nothing in the Agricultural Employee Bargaining Act requires that the composition of an existing collective bargaining unit be altered nor does it prohibit the continuation of any such bargaining unit.
Section 22. EXISTING COLLECTIVE BARGAINING AGREEMENTS.--Nothing in the Agricultural Employee Bargaining Act shall be construed to annul or modify a collective bargaining agreement entered into between an employer and an exclusive representative prior to the effective date of the Agricultural Employee Bargaining Act. A collective bargaining agreement entered into between an employer and an exclusive representative prior to the effective date of the Agricultural Employee Bargaining Act may, with the consent of the parties to such agreement, be renewed or continued.
Section 23. APPROPRIATION.--Two hundred thousand dollars ($200,000) is appropriated from the general fund to the agricultural employee bargaining board for expenditure in fiscal year 2000 for the purpose of carrying out the provisions of the Agricultural Employee Bargaining Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2000 shall revert to the general fund.
Section 24. SEVERABILITY.--If any part or application of the Agricultural Employee Bargaining Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Section 25. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.