SENATE BILL 1058
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Linda M. Lopez
AN ACT
RELATING TO PUBLIC EMPLOYMENT; ALLOWING NEGOTIATION OF COLLECTIVE BARGAINING AGREEMENTS THAT CONFLICT WITH STATE LAW ONLY WHEN THEIR ENFORCEMENT IS SUBJECT TO CHANGES IN STATE LAW; REQUIRING THAT COLLECTIVE BARGAINING AGREEMENT TERMS PREVAIL WHEN IN CONFLICT WITH PERSONNEL BOARD RULES; ESTABLISHING REQUIREMENTS FOR AN EMPLOYEE'S RIGHT TO APPEAL OR FILE A GRIEVANCE PROCEDURE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 10-7E-17 NMSA 1978 (being Laws 2003, Chapter 4, Section 17 and Laws 2003, Chapter 5, Section 17) is amended to read:
"10-7E-17. SCOPE OF BARGAINING.--
A. Except for retirement programs provided pursuant to the Public Employees Retirement Act or the Educational Retirement Act, public employers and exclusive representatives:
(1) shall bargain in good faith on wages, hours and all other terms and conditions of employment and other issues agreed to by the parties. However, neither the public employer nor the exclusive representative shall be required to agree to a proposal or to make a concession; and
(2) shall enter into written collective bargaining agreements covering employment relations.
B. The obligation to bargain collectively imposed by the Public Employee Bargaining Act shall not be construed as authorizing a public employer and an exclusive representative to enter into an agreement that is in conflict with the provisions of any other statute of this state, unless the public employer and the exclusive representative understand that the agreement only will become effective if the applicable law is amended by the legislature. 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 public 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 2. [NEW MATERIAL] PERSONNEL BOARD RULES--CONFLICT WITH COLLECTIVE BARGAINING AGREEMENTS.--In the event of a conflict between a rule promulgated by the personnel board and the terms of a collective bargaining agreement negotiated pursuant to the Public Employee Bargaining Act, the terms of the collective bargaining agreement shall prevail.
Section 3. Section 10-9-18 NMSA 1978 (being Laws 1980, Chapter 47, Section 2, as amended) is amended to read:
"10-9-18. APPEALS BY EMPLOYEES TO THE BOARD--FILING OF GRIEVANCE.--
A. An employee who is dismissed, demoted or suspended may, within thirty days after the dismissal, demotion or suspension, pursue only one of the following options:
(1) the employee may appeal to the board. The appealing employee and the agency whose action is reviewed have the right to be heard publicly and to present facts pertinent to the appeal; or
(2) the employee may file a grievance in accordance with an applicable collective bargaining agreement negotiated pursuant to the Public Employee Bargaining Act.
B. An employee has exercised the employee's right to appeal or file a grievance pursuant to Subsection A of this section when the employee timely files a notice of appeal pursuant to the board's procedures or files a grievance pursuant to the collective bargaining agreement's grievance procedure, whichever occurs first.
[B.] C. An applicant denied permission to take an examination or who is disqualified may appeal to the board.
[C.] D. The technical rules of evidence shall not apply to appeals to the board.
[D.] E. A record shall be made of the hearing, which shall be transcribed if there is an appeal to the district court. Costs of the transcripts, including one copy for the board, shall be paid initially by the agency. The cost of the transcripts may be assessed by the court to the losing party on appeal.
[E.] F. The board may designate a hearing officer who may be a member of the board or any qualified state employee to preside over and take evidence at any hearing held pursuant to this section. The hearing officer shall prepare and submit to the board a summary of the evidence taken at the hearing and proposed findings of fact. The board shall render a decision, which shall include findings of fact and conclusions of law.
[F.] G. If the board finds that the action taken by the agency was without just cause, the board may modify the disciplinary action or order the agency to reinstate the appealing employee to his former position or to a position of like status and pay. Every consideration shall be given to placing the appealing employee in the same geographical location in which he was employed prior to the disciplinary action. The board may recommend that the appealing employee be reinstated by an agency other than the one who disciplined the appealing employee. When the board orders an agency to reinstate an appealing employee, the reinstatement shall be effective within thirty days of the board's order. The board may award back pay as of the date of the dismissal, demotion or suspension or as of the later date as the board may specify.
[G.] H. A party aggrieved by the decision of the board made pursuant to this section may appeal the decision to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."
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