AN ACT
RELATING TO PUBLIC EMPLOYEES; ENACTING
THE PUBLIC EMPLOYEE BARGAINING ACT.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the
"Public Employee Bargaining Act".
Section 2. PURPOSE OF ACT.--The purpose of the Public
Employee Bargaining Act is to 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.
Section 3. CONFLICTS.--In the event of conflict with
other laws, the provisions of the Public Employee Bargaining Act shall
supersede other previously enacted legislation and regulations; provided that
the Public Employee Bargaining Act shall not supersede the provisions of the
Bateman Act, the Personnel Act, Sections 10-7-1 through 10-7-19 NMSA 1978, the
Group Benefits Act, the Per Diem and Mileage Act, the Retiree Health Care Act,
public employee retirement laws or the Tort Claims Act.
Section 4. DEFINITIONS.--As used in the Public Employee
Bargaining Act:
A. "appropriate bargaining unit" means
a group of public employees designated by the board or local board for the
purpose of collective bargaining;
B. "appropriate governing body" means
the policymaking body or individual representing a public employer as
designated in Section 7 of the Public Employee Bargaining Act;
C. "authorization card" means a signed
affirmation by a member of an appropriate bargaining unit designating a
particular organization as exclusive representative;
D. "board" means the public employee
labor relations board;
E. "certification" means the
designation by the board or local board of a labor organization as the
exclusive representative for all public employees in an appropriate bargaining
unit;
F. "collective bargaining" means the
act of negotiating between a public employer and an exclusive representative
for the purpose of entering into a written agreement regarding wages, hours and
other terms and conditions of employment;
G. "confidential employee" means a
person who devotes a majority of his time to assisting and acting in a
confidential capacity with respect to a person who formulates, determines and
effectuates management policies;
H. "emergency" means a one-time crisis
that was unforeseen and unavoidable;
I. "exclusive representative" means a
labor organization that, as a result of certification, has the right to
represent all public employees in an appropriate bargaining unit for the
purposes of collective bargaining;
J. "fair share" means the payment to a
labor organization which is the exclusive representative for an appropriate
bargaining unit by an employee of that bargaining unit who is not a member of
that labor organization equal to a certain percentage of membership dues. Such figure is to be calculated based on
United States and New Mexico statutes and case law identifying those
expenditures by a labor organization which are permissibly chargeable to all
employees in the appropriate bargaining unit under United States and New Mexico
statutes and case law, including but not limited to all expenditures incurred
by the labor organization in negotiating the contract applicable to all
employees in the appropriate bargaining unit, servicing such contract and
representing all such employees in grievances and disciplinary actions;
K. "impasse" means failure of a public
employer and an exclusive representative, after good-faith bargaining, to reach
agreement in the course of negotiating a collective bargaining agreement;
L. "labor organization" means an
employee organization, one of whose purposes is the representation of public
employees in collective bargaining and in otherwise meeting, consulting and
conferring with employers on matters pertaining to employment relations;
M. "local board" means a local labor
relations board established by a public employer, other than the state, through
ordinance, resolution or charter amendment;
N. "lockout" means an act by a public
employer to prevent its employees from going to work for the purpose of
resisting the demands of the employees' exclusive representative or for the
purpose of gaining a concession from the exclusive representative;
O. "management employee" means an
employee who is engaged primarily in executive and management functions and is
charged with the responsibility of developing, administering or effectuating
management policies. An employee shall
not be deemed a management employee solely because the employee participates in
cooperative decision-making programs on an occasional basis;
P. "mediation" means assistance by an
impartial third party to resolve an impasse between a public employer and an
exclusive representative regarding employment relations through interpretation,
suggestion and advice;
Q. "professional employee" means an
employee whose work is predominantly intellectual and varied in character and
whose work involves the consistent exercise of discretion and judgment in its
performance and requires knowledge of an advanced nature in a field of learning
customarily requiring specialized study at an institution of higher education or
its equivalent. The work of a
professional employee is of such character that the output or result
accomplished cannot be standardized in relation to a given period of time;
R. "public employee" means a regular
nonprobationary employee of a public employer; provided that, in the public
schools, "public employee" shall also include a regular probationary
employee;
S. "public employer" means the state
or a political subdivision thereof, including a municipality that has adopted a
home rule charter, and does not include a government of an Indian nation, tribe
or pueblo, provided that state educational institutions as provided in Article
12, Section 11 of the constitution of New Mexico shall be considered public
employers other than state for collective bargaining purposes only;
T. "strike" means a public employee's
refusal, in concerted action with other public employees, to report for duty or
his willful absence in whole or in part from the full, faithful and proper
performance of the duties of employment for the purpose of inducing,
influencing or coercing a change in the conditions, compensation, rights,
privileges or obligations of public employment; and
U. "supervisor" means an employee who
devotes a majority of work time to supervisory duties, who customarily and
regularly directs the work of two or more other employees and who has the
authority in the interest of the employer to hire, promote or discipline other
employees or to recommend such actions effectively, but "supervisor"
does not include an individual who performs merely routine, incidental or
clerical duties or who occasionally assumes a supervisory or directory role or
whose duties are substantially similar to those of his subordinates and does
not include a lead employee or an employee who participates in peer review or
occasional employee evaluation programs.
Section 5. RIGHTS OF PUBLIC EMPLOYEES.--Public
employees, other than management employees and confidential employees, may
form, join or assist a labor organization for the purpose of collective
bargaining through representatives chosen by public employees without
interference, restraint or coercion and shall have the right to refuse any such
activities.
Section 6. RIGHTS OF PUBLIC EMPLOYERS.--Unless limited
by the provisions of a collective bargaining agreement or by other statutory
provision, a public employer may:
A. direct the work of, hire, promote, assign,
transfer, demote, suspend, discharge or terminate public employees;
B. determine qualifications for employment and
the nature and content of personnel examinations;
C. take actions as may be necessary to carry out
the mission of the public employer in emergencies; and
D. retain all rights not specifically limited by
a collective bargaining agreement or by the Public Employee Bargaining Act.
Section 7. APPROPRIATE GOVERNING BODY--PUBLIC
EMPLOYER.--The appropriate governing body of a public employer is the
policymaking individual or body representing the public employer. 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. At the local level, the
appropriate governing body is the elected or appointed representative body or
individual charged with management of the local public body. In the event of dispute, the board shall
determine the appropriate governing body.
Section 8. PUBLIC EMPLOYEE LABOR RELATIONS
BOARD--CREATED--TERMS--QUALIFICATIONS.--
A. The "public employee labor relations
board" is created. The board
consists of three members appointed by the governor. The governor shall appoint one member
recommended by organized labor representatives actively involved in
representing public employees, one member recommended by public employers
actively involved in collective bargaining and one member jointly recommended
by the other two appointees.
B. Except for appointments made in 2003, board
members shall serve for a period of three years with terms commencing on July
1. Vacancies shall be filled by
appointment by the governor in the same manner as the original appointment, and
such appointments shall only be made for the remainder of the unexpired term. A board member may serve an unlimited number
of terms.
C. During the term for which he is appointed, a
board member shall not hold or seek any other political office or public
employment or be an employee of a labor organization or an organization
representing public employees or public employers.
D. Each board member shall be paid per diem and
mileage in accordance with the provisions of the Per Diem and Mileage Act.
E. For the purpose of making initial
appointments to the board in 2003, the governor shall designate one member to
serve a one-year term, one member to serve a two-year term and one member to
serve a three-year term. Thereafter, all
members shall be appointed for three-year terms.
Section 9. BOARD--POWERS AND DUTIES.--
A. The board shall promulgate rules necessary to
accomplish and perform its functions and duties as established in the Public
Employee Bargaining Act, including the establishment of procedures for:
(1) the designation of appropriate bargaining
units;
(2) the selection, certification and
decertification of exclusive representatives; and
(3) the filing of, hearing on and determination
of complaints of prohibited practices.
B. The board shall:
(1) hold hearings and make inquiries necessary to
carry out its functions and duties;
(2) conduct studies on problems pertaining to
employee-employer relations; and
(3) request from public employers and labor
organizations the information and data necessary to carry out the board's
functions and responsibilities.
C. The board may issue subpoenas requiring, upon
reasonable notice, the attendance and testimony of witnesses and the production
of evidence, including books, records, correspondence or documents relating to
the matter in question. 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. The board may administer oaths and
affirmations, examine witnesses and receive evidence.
D. The board shall decide issues by majority
vote and shall issue its decisions in the form of written orders and opinions.
E. The board may hire personnel or contract
with third parties as it deems necessary
to assist it in carrying out its functions.
F. The board has the power to enforce provisions
of the Public Employee Bargaining Act through the imposition of appropriate
administrative remedies.
G. A rule promulgated by the board or a local
board shall not require, directly or indirectly, as a condition of continuous
employment, a public employee covered by the Public Employee Bargaining Act to
pay money to a labor organization that is certified as an exclusive
representative. 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.
Section 10. LOCAL BOARD--CREATED.--
A. With the approval of the board, a public
employer other than the state may, by ordinance, resolution or charter
amendment, create a local board similar to the public employee labor relations
board. Once created and approved, the
local board shall assume the duties and responsibilities of the public employee
labor relations board. A local board
shall follow all procedures and provisions of the Public Employee Bargaining
Act unless otherwise approved by the board.
B. The local board shall be composed of three
members appointed by the public employer.
One member shall be appointed on the recommendation of individuals
representing labor, one member shall be appointed on the recommendation of
individuals representing management and one member shall be appointed on the
recommendation of the first two appointees.
C. Local board members shall serve one-year
terms. Local board members may serve an
unlimited number of terms. Vacancies
shall be filled in the same manner as the original appointment, and such appointments
shall only be made for the remainder of the unexpired term.
D. During the term for which he is appointed, a
local board member shall not hold or seek any other political office or public
employment or be an employee of a union or an organization representing public
employees or public employers.
E. Each local board member shall be paid per
diem and mileage in accordance with the provisions of the Per Diem and Mileage
Act.
Section 11. LOCAL BOARD--POWERS AND DUTIES.--
A. The local board shall promulgate rules
necessary to accomplish and perform its functions and duties as established in
the Public Employee Bargaining Act, including the establishment of procedures
for:
(1) the designation of appropriate bargaining
units;
(2) the selection, certification and
decertification of exclusive representatives; and
(3) the filing of, hearing on and determination
of complaints of prohibited practices.
B. The local board shall:
(1) hold hearings and make inquiries necessary to
carry out its functions and duties;
(2) request information and data from public
employers and labor organizations to carry out the local board's functions and
responsibilities; and
(3) hire personnel or contract with third parties
as the appropriate governing body deems necessary to assist the local board in
carrying out its functions.
C. The local board may issue subpoenas
requiring, upon reasonable notice, the attendance and testimony of witnesses
and the production of evidence, including books, records, correspondence or
documents relating to the matter in question.
The local 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. The local board may administer
oaths and affirmations, examine witnesses and receive evidence.
D. The local board shall decide all issues by
majority vote and shall issue its decisions in the form of written orders and
opinions.
E. The local board has the power to enforce
provisions of the Public Employee Bargaining Act or a local collective
bargaining ordinance, resolution or charter amendment through the imposition of
appropriate administrative remedies.
Section 12. HEARING PROCEDURES.--
A. The board or local board may hold hearings
for the purposes of:
(1) information gathering and inquiry;
(2) adopting rules; and
(3) adjudicating disputes and enforcing the
provisions of the Public Employee Bargaining Act and rules adopted pursuant to
that act.
B. The board or local board shall adopt rules
setting forth procedures to be followed during hearings of the board or local
board. The procedures adopted for
conducting adjudicatory hearings shall meet all minimal due process
requirements of the state and federal constitutions.
C. The board or local board may appoint a
hearing examiner to conduct any adjudicatory hearing authorized by the board or
local board. At the conclusion of the
hearing, the examiner shall prepare a written report, including findings and
recommendations, all of which shall be submitted to the board or local board
for its decision.
D. A rule proposed to be adopted by the board or
local board that affects a person or governmental entity outside of the board
or local board and its staff shall not be adopted, amended or repealed without
public hearing and comment on the proposed action before the board or local
board. The public hearing shall be held
after notice of the subject matter of the rule, the action proposed to be
taken, the time and place of the hearing, the manner in which interested persons
may present their views and the method by which copies of the proposed rule,
proposed amendment or repeal of an existing rule may be obtained. All meetings of the board shall be held in
Santa Fe. All meetings of local boards
shall be held in the county of residence of the local public employer. Notice shall be published once at least
thirty days prior to the hearing date in a newspaper of general circulation in
the state or, in the case of a local board hearing, in a newspaper of general
circulation in the county, and notice shall be mailed at least thirty days
prior to the hearing date to all persons who have made a written request for
advance notice of hearings.
E. All adopted rules shall be filed in
accordance with applicable state statutes.
F. A verbatim record made by electronic or other
suitable means shall be made of every rulemaking and adjudicatory hearing. The record shall not be transcribed unless
required for judicial review or unless ordered by the board or local board.
Section 13. APPROPRIATE BARGAINING UNITS.--
A. The board or local board shall, upon receipt
of a petition for a representation election filed by a labor organization,
designate the appropriate bargaining units for collective bargaining. Appropriate bargaining units shall 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. Occupational groups shall generally be
identified as blue-collar, secretarial clerical, technical, professional,
paraprofessional, police, fire and corrections.
The parties, by mutual agreement, may further consolidate occupational
groups. Essential factors in determining
appropriate bargaining units shall include the principles of efficient
administration of government, the history of collective bargaining and the
assurance to public employees of the fullest freedom in exercising the rights
guaranteed by the Public Employee Bargaining Act.
B. Within thirty days of a disagreement arising
between a public employer and a labor organization concerning the composition
of an appropriate bargaining unit, the board or local board shall hold a
hearing concerning the composition of the bargaining unit before designating an
appropriate bargaining unit.
C. The board or local board shall not include in
an appropriate bargaining unit supervisors, managers or confidential employees.
Section 14. ELECTIONS.--
A. Whenever, in accordance with rules prescribed
by the board or local board, a petition is filed by a labor organization
containing the signatures of at least thirty percent of the public employees in
an appropriate bargaining unit, the board or local board shall conduct a secret
ballot representation election to determine whether and by which labor
organization the public employees in the appropriate bargaining unit shall be
represented. The ballot shall contain
the name of any labor organization submitting a petition containing signatures
of at least thirty percent of the public employees in the appropriate
bargaining unit. The ballot shall also
contain a provision allowing public employees to indicate whether they do not
desire to be represented by a labor organization. An election shall only be valid if forty
percent of the eligible employees in the bargaining unit vote in the election.
B. Once a labor organization has filed a valid
petition with the board or local board calling for a representation election,
other labor organizations may seek to be placed on the ballot. Such an organization shall file a petition
containing the signatures of not less than thirty percent of the public
employees in the appropriate bargaining unit no later than ten days after the
board or the local board and the public employer post a written notice that the
petition in Subsection A of this section has been filed by a labor
organization.
C. As an alternative to the provisions of
Subsection A of this section, a public employer and a labor organization with a
reasonable basis for claiming to represent a majority of the employees in an
appropriate bargaining unit may establish an alternative appropriate procedure
for determining majority status. The
procedure may include a labor organization's submission of authorization cards
from a majority of the employees in an appropriate bargaining unit. The board
or local board shall not certify an appropriate bargaining unit if the public
employer objects to the certification without an election.
D. If a labor organization receives a majority
of votes cast, it shall be certified as the exclusive representative of all
public employees in the appropriate bargaining unit. Within fifteen days of an election in which
no labor organization receives a majority of the votes cast, a runoff election
between the two choices receiving the largest number of votes cast shall be
conducted. The board or local board
shall certify the results of the election, and, when a labor organization
receives a majority of the votes cast, the board or local board shall certify
the labor organization as the exclusive representative of all public employees
in the appropriate bargaining unit.
E. An election shall not be conducted if an
election or runoff election has been conducted in the twelve-month period
immediately preceding the proposed representation election. An election shall not be held during the term
of an existing collective bargaining agreement, except as provided in Section
16 of the Public Employee Bargaining Act.
Section 15. EXCLUSIVE REPRESENTATION.--
A. A labor organization that has been certified
by the board or local board as representing the public employees in the
appropriate bargaining unit shall be the exclusive representative of all public
employees in the appropriate bargaining unit.
The exclusive representative shall act for all public employees in the
appropriate bargaining unit and negotiate a collective bargaining agreement
covering all public employees in the appropriate bargaining unit. The exclusive representative shall represent
the interests of all public employees in the appropriate bargaining unit
without discrimination or regard to membership in the labor organization.
B. This section does not prevent a public
employee, acting individually, from presenting a grievance without the intervention
of the exclusive representative. At a
hearing on a grievance brought by a public employee individually, the exclusive
representative shall be afforded the opportunity to be present and make its
views known. An adjustment made shall
not be inconsistent with or in violation of the collective bargaining agreement
then in effect between the public employer and the exclusive representative.
Section 16. DECERTIFICATION OF EXCLUSIVE
REPRESENTATIVE.--
A. A member of a labor organization or the labor
organization itself may initiate decertification of a labor organization as the
exclusive representative if thirty percent of the public employees in the
appropriate bargaining unit make a written request to the board or local board
for a decertification election.
Decertification elections shall be held in a manner prescribed by rule
of the board. An election shall only be
valid if forty percent of the eligible employees in the bargaining unit vote in
the election.
B. When there is a collective bargaining
agreement in effect, a request for a decertification election shall be made to
the board or local board no earlier than ninety days and no later than sixty
days before the expiration of the collective bargaining agreement; provided,
however, a request for an election may be filed at any time after the
expiration of the third year of a collective bargaining agreement with a term
of more than three years.
C. When, within the time period prescribed in
Subsection B of this section, a competing labor organization files a petition
containing signatures of at least thirty percent of the public employees in the
appropriate bargaining unit, a representation election rather than a
decertification election shall be conducted.
D. When an exclusive representative has been
certified but no collective bargaining agreement is in effect, the board or local
board shall not accept a request for a decertification election earlier than
twelve months subsequent to a labor organization's certification as the
exclusive representative.
Section 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 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 18. IMPASSE RESOLUTION.--
A. The following negotiations and impasse
procedures shall be followed by the state and exclusive representatives for
state employees:
(1) a request to the state for the commencement
of initial negotiations shall be filed in writing by the exclusive
representative no later than June 1 of the year in which negotiations are to
take place. Negotiations shall begin no
later than July 1 of that year;
(2) in subsequent years, negotiations agreed to
by the parties shall begin no later than August 1 following the submission of
written notice to the state by the exclusive representative no later than July
1 of the year in which negotiations are to take place;
(3) if an impasse occurs during negotiations
between the parties, and if an agreement is not reached by the parties by
October 1, either party may request mediation services from the board. A mediator from the federal mediation and
conciliation service shall be assigned by the board to assist in negotiations
unless the parties agree to another mediator;
(4) the mediator shall provide services to the
parties until the parties reach agreement or the mediator believes that
mediation services are no longer helpful or until November 1, whichever occurs
first; and
(5) if the impasse continues after November 1,
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 Subsection E of Section 17 of the Public Employee Bargaining Act
and the Uniform Arbitration Act no later than thirty days after the arbitrator
has been notified of his or her selection by the parties. The arbitrator's decision shall be limited to
a selection of one of the two parties' complete, last, best offer. The costs of an arbitrator and the
arbitrator's 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.
B. The following impasse procedures shall be
followed by all public employers and exclusive representatives, except the
state and the state's exclusive representatives:
(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
(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 Subsection E of Section 17 of the Public Employee Bargaining
Act and the Uniform Arbitration Act no later than thirty days after the
arbitrator has been notified of his or her selection by the parties. The arbitrator's decision shall be limited to
a selection of one of the two parties' complete, last, best offer. The costs of an arbitrator and the
arbitrator's 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.
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.
D. In the event that an impasse continues after
the expiration of a contract, the existing contract will continue in full force
and effect until it is replaced by a subsequent written agreement. However, this shall not require the public
employer to increase any employees’ levels, steps or grades of
compensation contained in the existing contract.
Section 19. PUBLIC EMPLOYERS--PROHIBITED PRACTICES.--A
public employer or his representative shall not:
A. discriminate against a public employee with
regard to terms and conditions of employment because of the employee's
membership in a labor organization;
B. interfere with, restrain or coerce a public
employee in the exercise of a right guaranteed pursuant to the Public Employee
Bargaining Act;
C. dominate or interfere in the formation,
existence or administration of a labor organization;
D. discriminate in regard to hiring, tenure or a
term or condition of employment in order to encourage or discourage membership
in a labor organization;
E. discharge or otherwise discriminate against a
public employee because he has signed or filed an affidavit, petition,
grievance or complaint or given information or testimony pursuant to the
provisions of the Public Employee Bargaining Act or because a public employee is
forming, joining or choosing to be represented by a labor organization;
F. refuse to bargain collectively in good faith
with the exclusive representative;
G. refuse or fail to comply with a provision of
the Public Employee Bargaining Act or board rule; or
H. refuse or fail to comply with a collective
bargaining agreement.
Section 20. PUBLIC EMPLOYEES--LABOR
ORGANIZATIONS--PROHIBITED PRACTICES.--A public employee or labor organization
or its representative shall not:
A. discriminate against a public employee with
regard to labor organization membership because of race, color, religion,
creed, age, sex or national origin;
B. interfere with, restrain or coerce any public
employee in the exercise of a right guaranteed pursuant to the provisions of
the Public Employee Bargaining Act;
C. refuse to bargain collectively in good faith
with a public employer;
D. refuse or fail to comply with a collective
bargaining or other agreement with the public employer;
E. refuse or fail to comply with a provision of
the Public Employee Bargaining Act; or
F. picket homes or private businesses of elected
officials or public employees.
Section 21. STRIKES AND LOCKOUTS PROHIBITED.--
A. A public employee or labor organization shall
not engage in a strike. A labor
organization shall not cause, instigate, encourage or support a public employee
strike. A public employer shall not
cause, instigate or engage in a public employee lockout.
B. A public employer may apply to the district
court for injunctive relief to end a strike, and an exclusive representative of
public employees affected by a lockout may apply to the district court for
injunctive relief to end a lockout.
C. The board or local board, upon a clear and
convincing showing of proof at a hearing that a labor organization directly
caused or instigated a public employee strike, may impose appropriate penalties
on that labor organization, up to and including decertificaton of the labor
organization with respect to any of its bargaining units which struck as a
result of such causation or instigation.
Section 22. AGREEMENTS VALID--ENFORCEMENT.--Collective
bargaining agreements and other agreements between public employers and exclusive
representatives shall be valid and enforceable according to their terms when
entered into in accordance with the provisions of the Public Employee
Bargaining Act.
Section 23. JUDICIAL ENFORCEMENT--STANDARD OF REVIEW.--
A. The board or local board may request the
district court to enforce orders issued pursuant to the Public Employee
Bargaining Act, including those for appropriate temporary relief and
restraining orders. The court shall
consider the request for enforcement on the record made before the board or
local board. It shall uphold the action
of the board or local board and take appropriate action to enforce it unless it
concludes that the order is:
(1) arbitrary, capricious or an abuse of
discretion;
(2) not supported by substantial evidence on the
record considered as a whole; or
(3) otherwise not in accordance with law.
B. A person or party, including a labor
organization affected by a final rule, order or decision of the board or local
board, may appeal to the district court for further relief. All such appeals shall be based upon the
record made at the board or local board hearing. All such appeals to the district court shall be
taken within thirty days of the date of the final rule, order or decision of
the board or local board. Actions taken
by the board or local board shall be affirmed unless the court concludes that
the action is:
(1) arbitrary, capricious or an abuse of
discretion;
(2) not supported by substantial evidence on the
record considered as a whole; or
(3) otherwise not in accordance with the law.
Section
24. EXISTING COLLECTIVE BARGAINING
UNITS.--
A. Bargaining units established prior to July 1,
1999 shall continue to be recognized as appropriate bargaining units for the
purposes of the Public Employee Bargaining Act.
Bargaining units established between July 1, 1999 and the effective date
of that act shall continue in effect only if the unit is covered by a
collective bargaining agreement on the date of this act.
B. A labor organization that was recognized by a
public employer as the exclusive representative of an appropriate bargaining
unit on June 30, 1999 shall be recognized as the exclusive representative of
the unit on the effective date of the Public Employee Bargaining Act; provided,
however, that the public employer shall not enter into a new collective
bargaining agreement pursuant to this subsection unless the labor organization
demonstrates majority support to the public employer pursuant to Section 14 of
the Public Employee Bargaining Act. A
labor organization which attempts and fails to show majority support shall no
longer be recognized as the exclusive bargaining representative of that unit.
Section 25. EXISTING COLLECTIVE BARGAINING AGREEMENTS.‑‑
Nothing in the Public Employee
Bargaining Act shall be construed to annul or modify a collective bargaining
agreement entered into between a public employer and an exclusive
representative prior to the effective date of the Public Employee Bargaining
Act. Nor shall anything in the Public
Employee Bargaining Act be construed to annul or modify the status of an
existing or recognized exclusive representative.
Section 26. EXISTING ORDINANCES PROVIDING FOR PUBLIC
EMPLOYEE BARGAINING.--
A. A public employer other than the state that
prior to October 1, 1991 adopted by ordinance, resolution or charter amendment
a system of provisions and procedures permitting employees to form, join or
assist a labor organization for the purpose of bargaining collectively through
exclusive representatives may continue to operate under those provisions and
procedures. Any substantial change after
January 1, 2003 to any ordinance, resolution or charter amendment shall subject
the public employer to full compliance with the provisions of Subsection B of
Section 26 of the Public Employee Bargaining Act.
B. A public employer other than the state that
subsequent to October 1, 1991 adopts by ordinance, resolution or charter
amendment a system of provisions and procedures permitting employees to form,
join or assist a labor organization for the purpose of bargaining collectively
through exclusive representatives freely chosen by its employees may operate
under those provisions and procedures rather than those set forth in the Public
Employee Bargaining Act; provided that the employer shall comply with the provisions
of Sections 8 through 12 and Subsection D of Section 17 of that act and
provided the following provisions and procedures are included in each
ordinance, resolution or charter amendment:
(1) the right of public employees to form, join
or assist employee organizations for the purpose of achieving collective
bargaining;
(2) procedures for the identification of
appropriate bargaining units, certification elections and decertification
elections equivalent to those set forth in the Public Employee Bargaining Act;
(3) the right of a labor organization to be
certified as an exclusive representative;
(4) the right of an exclusive representative to
negotiate all wages, hours and other terms and conditions of employment for
public employees in the appropriate bargaining unit;
(5) the obligation to incorporate agreements
reached by the public employer and the exclusive representative into a
collective bargaining agreement;
(6) a requirement that grievance procedures
culminating with binding arbitration be negotiated;
(7) a requirement that payroll deductions for the
exclusive representative's membership dues be negotiated if requested by the
exclusive representative;
(8) impasse resolution procedures equivalent to
those set forth in Section 18 of the Public Employee Bargaining Act; and
(9) prohibited practices for the public employer,
public employees and labor organizations that promote the principles
established in Sections 19 through 21 of the Public Employee Bargaining Act.
Section 27. SEVERABILITY.--If any part or application of
the Public Employee Bargaining Act is held invalid, the remainder or its
application to other situations or persons shall not be affected.
Section 28. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.
HB 508
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