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SPONSOR: |
Lujan, B. |
DATE TYPED: |
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HB |
508/aHGUCA/aHFl#1/aSPAC/aSFl#1 |
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SHORT TITLE: |
Public Employee Bargaining Act |
SB |
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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 |
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|
|
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|
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$0.1
See Narrative |
Recurring |
General
Fund |
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|
$0.1
See Narrative |
Recurring |
Local
Government Funds |
(Parenthesis
( ) Indicate Expenditure Decreases)
Relates to: SB 46/SPACS/aSFC
LFC Files
Responses Received From
Attorney General’s Office (AGO)
State Highway and Transportation Department
(SHTD)
New Mexico Department of Labor (NMDOL)
SUMMARY
Synopsis
of the SFl#1 Amendment
The Senate Floor amendment #1 to House Bill 508
makes a non-substantive grammatical correction to page 33, line 13 pertaining
to payroll dues deductions.
Synopsis
of the SPAC Amendment
The Senate Public Affairs Committee amendment to
House Bill 508 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 HFL Amendment
The House Floor amendment to House Bill
508/aHGUAC strikes the $327.0 appropriation included in Section 29 of the bill.
In fiscal year 1999,
$219.0 was budgeted for the Public Employee Labor Relations Board. Since HB 508/aHGUAC/aHFl#1 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 HGUCA Amendment
The House Government and Urban Affairs Committee
amendment to House Bill 508 corrects several non-substantive grammatical errors
in the original bill. One such change however, item number 14 on the HGUCA
report, is incorrect. It should state, “On page 33, line 13, strike “deduction”
and insert in lieu thereof “deductions”.
Substantive changes arising from the HGUCA
amendment to HB 508 are outlined below:
q Changing the word levels to steps significantly changes the meaning of Section 18(D), page 26, line 23. This change implies that only formal pay plan step or pay grade increases could be frozen in the event of expired contracts. Contractual provisions mandating cost of living adjustments, lump-sum payments and many other types of pay increases would be open to debate.
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 levels steps or grades of compensation contained in
the existing contract.
q The
HGUAC amendment to Section 18(A)(5), page 25, line 2, clarifies that an arbitrator’s
final and binding decision must also comply with the provisions of Subsection E
of Section 17, as outlined below:
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.
q HGUAC
report items 8 and 11 appear to address a concern raised by the Attorney
General’s Office:
Section 18. Impasse Resolution
(Resolved by HGUAC amendment items 8 and 11)
Paragraph
(A)(5), page 25, lines 10-12 and Paragraph (B)(2). These paragraphs contain impasse procedures
that provide for judicial review of an arbitrator’s decision under the standard
set forth in the Uniform Arbitration Act.
That standard has been judicially modified in situations where
arbitration is required by statute.
According to the New Mexico Supreme Court, the proper standard for
judicial review of an arbitrator’s decision in those situations is “whether the
arbitrator’s award is arbitrary, unlawful, unreasonable, capricious or not
based on substantial evidence on the whole record” and allows for de novo
review of conclusions of law. Board of
Educ. of
Synopsis
of Original Bill
House Bill 508
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.
Probationary employees may be included in public
schools appropriate bargaining units.
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 HB 508 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.
HB 508 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 steps 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 3-15. 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.
Page
31, lines 17-19. 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.
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 6, could be
amended by deleting all of the current language beginning with the sentence on
line 6 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.”
(Corrected in HB
508/aHGUAC amendment) Section 18, page 24, line 9 and page 26,
line 12 contain typographical errors. The words “hearing” should be changed to
‘bearing”.
RLG/prr:njw