HOUSE BILL 884
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Keith J. Gardner
AN ACT
RELATING TO EMPLOYMENT LAW; ENACTING THE EMPLOYEE SECRET BALLOT PROTECTION ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Employee Secret Ballot Protection Act".
Section 2. FINDINGS.--The legislature finds that individual freedom of choice in employment-related matters should be guarded and maintained and that employees should have the right to use a secret-ballot election when selecting an exclusive bargaining representative. A secret-ballot election upholds the sanctity of a worker's free choice and protects employees from coercion, intimidation, threats, misinformation or interference from outside influences. A labor organization should not be able to pressure an employer to recognize the labor organization as an exclusive bargaining representative based solely on a stated showing of interest by employees without a secret-ballot election and an employer should not bargain away its employees' rights to secret-ballot elections for labor representation purposes.
Section 3. DEFINITIONS.--As used in the Employee Secret Ballot Protection Act:
A. "agency" means a governmental subdivision, district, public or quasi-public corporation, public agency or public service corporation and town, city, county or municipal corporation, whether incorporated or not and whether chartered or not, of New Mexico;
B. "employee" means an individual employed by an employer;
C. "employer" means any agency, group or association of employers that is an employer within the meaning of any law of New Mexico or of the United States, but "employer" does not include the United States or any corporation wholly owned by the United States;
D. "exclusive bargaining representative" means any labor organization that has been selected or designated as the representative of the employees in an appropriate collective bargaining unit to represent the employees in their employment relations with employers;
E. "labor organization" means an employee representation committee, organization or union in which employees participate and that exists for the purpose, in whole or in part, of dealing with an employer concerning employee wages, rates of pay, hours of work, other forms of compensation, grievances, labor disputes or other conditions of employment; and
F. "secret ballot" means the expression by ballot or voting machine, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.
Section 4. EMPLOYEE RIGHT TO SECRET BALLOT.--
A. All employees have the right to a secret-ballot election process when seeking to select an exclusive bargaining representative.
B. An election that does not comply with the provisions of the Employee Secret Ballot Protection Act is void.
C. A labor organization shall not authorize a strike, picketing, boycott or other action for the sole purpose of inducing or attempting to induce an employer to enter into an agreement prohibited under the Employee Secret Ballot Protection Act.
D. A labor organization shall be recognized as the exclusive bargaining representative only after a majority of voting employees in the collective bargaining unit have indicated their affirmative approval of that recognition through the use of secret ballots in an election.
Section 5. DENIAL OF SECRET-BALLOT ELECTIONS DEEMED AN UNFAIR LABOR PRACTICE.--
A. It shall be an unfair labor practice by the employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it or to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret-ballot election conducted in accordance with applicable state law.
B. It shall be an unfair labor practice by the labor organization to cause or attempt to cause an employer to recognize or bargain collectively with a representative of a labor organization that has not been selected by a majority of such employees in a secret-ballot election conducted in accordance with applicable state law.
Section 6. COERCION AND INTIMIDATION PROHIBITED.--It is unlawful for any person, labor organization or officer, agent or member of a labor organization to compel or attempt to compel an employee to join, affiliate with or financially support a labor organization, or to refrain from doing so, by any threatened or actual intimidation of the employee or prospective employee, or the employee's or prospective employee's parents, spouse, children, grandchildren or any other persons residing in the employee's or prospective employee's home, or by any damage or threatened damage to an employee's or prospective employee's property. It is also unlawful to cause or attempt to cause an employee to be denied employment or be discharged from employment because of support or nonsupport of a labor organization by inducing or attempting to induce any other person to refuse to work with such employees.
Section 7. PENALTIES.--A person who directly or indirectly violates any provision of the Employee Secret Ballot Protection Act is guilty of a misdemeanor and upon conviction, shall be subject to a fine not to exceed five thousand dollars ($5,000) or imprisonment for a period of not more than one year, or both.
Section 8. CIVIL REMEDIES.--
A. An employee harmed as a result of any violation or threatened violation of the provisions of the Employee Secret Ballot Protection Act is entitled to relief, including injunctive relief, in the district court and may recover damages, including costs and reasonable attorney fees, resulting from the violation or threatened violation. Remedies shall be independent of and in addition to the penalties and remedies prescribed in other provisions of the Employee Secret Ballot Protection Act.
B. Legal action against a labor organization shall be brought in the district court where the alleged violation occurred or where the labor organization maintains its principal office.
Section 9. DUTY TO INVESTIGATE.--It shall be the duty of the attorney general to investigate complaints of violations or threatened violations of the Employee Secret Ballot Protection Act, to prosecute all persons violating any provisions of that act and to take all action necessary to ensure the effective enforcement of that act.
Section 10. PROSPECTIVE APPLICATION.--The Employee Secret Ballot Protection Act does not apply to collective bargaining relationships in which a labor organization was lawfully recognized as an exclusive bargaining representative before the effective date of that act.
Section 11. FEDERAL PREEMPTION.--The Employee Secret Ballot Protection Act applies to:
A. employers that are state agencies; and
B. all other employers that are not subject to the federal National Labor Relations Act or any other applicable federal labor laws. To the extent that federal law governs employment matters, the Employee Secret Ballot Protection Act is invalid.
Section 12. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2009.