[HISTORY: Adopted by the Mayor and Council of the City of
Española as indicated in article histories. Amendments noted
where applicable.]
[Adopted 4-18-1995 by Ord. No. 539 (Ch. 74, Art. III, of
the Code of Ordinances)]
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning.
A group of employees designated by the Board for the purpose
of collective bargaining. Appropriate units shall be formed by occupational
group, such as blue collar (unskilled, semiskilled, and skilled),
white collar (clerical, secretarial, administrative employees), paraprofessional,
technical, professional, corrections, police, and fire.
The City Labor Management Relations Board.
The designation by the Board of a labor organization as the
exclusive representative for all employees in an appropriate bargaining
unit.
The act of negotiating between the employer and an exclusive
representative for the purpose of entering into a written agreement
regarding wages, hours and other terms and conditions of employment.
A person who assists and acts in a confidential capacity
with respect to a person who formulates, determines and effectuates
management policies.
A regular nonprobationary employee of the City.
The City.
A labor organization that, as a result of certification by
the Board, represents all employees in an appropriate bargaining unit
for the purposes of collective bargaining.
The procedure following mediation whereby the parties involved
in an impasse submit their differences to a third party for an advisory
recommendation.
The City Council.
Failure of the employer and an exclusive representative,
after good-faith bargaining, to reach agreement in the course of negotiating
a collective bargaining agreement.
Any 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.
An act by the employer to prevent its employees from going
to work for the purpose of resisting demands of the employees'
exclusive representative or for the purpose of gaining a concession
from the exclusive representative.
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.
Assistance by an impartial third party to resolve an impasse
in contract negotiation between the employer and an exclusive representative
through interpretation, suggestion and advice.
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.
An employee's refusal, in concerted action with other
employees, to report for duty or his willful absence or withholding
of service 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 working conditions, compensation,
rights, privileges or obligations of employment.
An employee who devotes a substantial amount 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. This definition does not include
individuals who perform merely routine, incidental, or clerical duties
or who occasionally assume supervisory or directory roles or whose
duties are substantially similar to those of their subordinates and
does not include lead employees or employees who participate in peer
review or occasional evaluation of employees.
The purpose of this article is to guarantee employees the right
to organize and bargain collectively with their employer, to protect
the rights of the employer and to promote harmonious and cooperative
relationships between the employer and the employees; and to acknowledge
the rights of the citizens to the orderly and uninterrupted delivery
of services.
In the event of conflict with other City ordinances, the provisions
of this article shall supersede other previously enacted ordinances.
Employees, other than management, supervisors, and confidential
employees, may form, join or assist any labor organization for the
purpose of collective bargaining through representatives chosen by
the employees without interference, restraint or coercion. Employees
also have the right to refuse to form, join or assist any labor organization.
Unless limited by the provisions of a collective bargaining
agreement or by other statutory provision, the employer's rights
shall include, but are not limited to, the following:
A.
Direct and supervise all operations, functions and the work of the
employees;
B.
Hire, lay off, promote, demote, assign, reassign, transfer, discipline,
discharge or terminate employees;
C.
Determine what, by whom and when services will be rendered to the
citizens;
D.
Determine staffing requirements, create, abolish positions or eliminate
or reorganize work units;
E.
Determine the need for and the qualifications of new employees, and
determine the qualifications for and qualifications of employees considered
for transfer and promotion;
F.
Take actions as necessary to carry out the mission of the employer
in emergencies; and
G.
The employer retains all rights not specifically limited by a collective
bargaining agreement or other statutory provision.
A.
Creation;
terms.
(1)
The Labor Management Relations Board is hereby created. The Board
shall be composed of three members appointed by the City Council.
One member shall be appointed on the recommendation of individuals
representing labor, one member shall be appointed on the recommendation
of the City Manager, and one member shall be appointed on the recommendation
of the first two appointees.
(2)
Board members shall serve for a period of one year, with terms commencing
in the month of September except in the initial appointment which
will be a shorter term effective the same day as the ordinance from
which this section is derived. 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. A Board member may
serve an unlimited number of terms.
(3)
During the term of appointment, no Board member shall 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.
(4)
Each Board member shall be paid per diem and mileage in accordance
with the provisions of the Per Diem and Mileage Act (NMSA 1978 § 10-8-1
et seq.).
B.
Powers and
duties.
(1)
The Board shall promulgate rules and regulations necessary to accomplish
and perform its functions and duties as established in this article,
including the establishment of procedures for:
(3)
The Board 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 may prescribe the form of the
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.
(4)
The Board shall decide all issues by majority vote and shall issue its decisions in the form of written orders and opinions. The decisions of the Board on interpretation and applications of this article and collective bargaining agreements are final and binding on the parties, subject to the appeal process provided in § 86-18. This section does not apply to negotiation impasses.
(5)
The Board has the power to enforce provisions of this article, which
includes the labor management agreements between parties covered by
this article, through the imposition of appropriate administrative
remedies.
(6)
The Board shall have no power to promulgate policy other than for
its own operation.
(7)
No rule or regulation promulgated by the Board shall require, directly
or indirectly, as a condition of continuous employment, any employee
covered by this article to pay money to any labor organization that
is certified as an exclusive representative. This issue shall be left
to voluntary bargaining by the parties.
A.
Purposes of hearings. The Board may hold hearings for the purposes
of:
B.
Procedural regulations. The Board shall adopt regulations setting
forth procedures to be followed during hearings of the Board. Such
regulations shall meet minimal due process requirements of the State
and Federal Constitutions.
C.
Prohibited labor practices charges; filing; fee. Prohibited labor
practices charges that are filed within 60 days of the commission,
omission or discovery of the action that generated the charges shall
be heard by the Board. Charges filed beyond the sixty-day limit shall
not be heard by the Board and are not considered timely. Such charges
must identify the specific violation and relief requested. Proceedings
against the party alleged to have committed a prohibited practice
shall be commenced by service upon it and the Board of a written notice,
together with a copy of the charges and relief requested. A filing
fee of $100 shall be paid by any party filing a prohibited labor practice
complaint with the Board. The filing fee may be waived by the Board
for any party which can establish the inability to pay.
D.
Filing of adopted rules. All adopted rules and regulations shall
be filed in accordance with applicable laws.
E.
Recordkeeping. A verbatim record made by electronic or other suitable
means shall be made of every rule-making and adjudicatory hearing.
The record shall not be transcribed unless required for judicial review
or unless ordered by the Board. Payment for the transcription shall
be made by the party requesting the transcript.
F.
Costs of producing witnesses. Each party to a prohibited labor practice
shall bear the cost of producing its own witnesses for hearings under
this article.
G.
Public hearing and comment on proposed regulations. No regulation
proposed to be adopted by the Board that affects any person or governmental
entity outside of the Board and its staff shall be adopted, amended
or repealed without public hearing and comment on the proposed action
before the Board. The public hearing shall be held after notice of
the subject matter of the regulation, 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 in which copies of
the proposed regulation, proposed amendment or repeal of an existing
regulation may be obtained. All meetings shall be held in the City.
Notice shall be published once at least 30 days prior to the hearing
date in a newspaper of general circulation in the City, and notice
shall be mailed at least 30 days prior to the hearing date to all
persons who have made a written request for advance notice of hearings.
A.
Factors for determining. The Board shall, upon receipt of a petition
for a representation election filed by a labor organization, designate
the appropriate bargaining unit. Appropriate bargaining units shall
be established on the basis of occupational groups with a clear and
identifiable community of interest in employment terms, employment
conditions and related personnel matters among the employees involved.
Occupational groups shall generally be identified as blue collar,
white collar, paraprofessional, technical, professional, corrections,
police and fire. Bargaining units shall not be determined by craft
or trade designations. The parties, by mutual agreement and approval
of the Board, 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 with the employer and the assurance to employees
of the fullest freedom in exercising the rights guaranteed by the
Public Employee Bargaining Act (NMSA 1978 § 10-7D-1 et seq.).[1]
[1]
Editor's Note: NMSA 1978 §§ 10-7D-1 through
10-7D-26 were repealed by L. 1992, Ch. 9, § 30, effective
7-1-1999. See now NMSA 1978 § 10-7E-1 et seq.
B.
Hearing on composition upon disagreement. If the labor organization
and the employer cannot agree on the appropriate bargaining unit within
30 days, the Board shall hold a hearing concerning the composition
of the bargaining unit. Any agreement as to the appropriate bargaining
unit between the employer and the labor organization shall be subject
to the approval of the Board.
C.
Excluded employees. The Board shall not include in any appropriate
bargaining unit probationary, supervisory, managerial or confidential
employees.
A.
Whenever, in accordance with regulations prescribed by the Board,
a petition is filed by a labor organization containing the signatures
of at least 30% of the employees in an appropriate bargaining unit,
the Board shall conduct a secret ballot representation election.
B.
Once a labor organization has filed a petition with the Board calling
for a representation election, other labor organizations may seek
to be placed on the ballot. Any organization may file a petition containing
the signatures of not less than 10% of the employees in the appropriate
bargaining unit no later than 10 days after the Board has posted a
written notice that a petition containing the signatures of not less
than 30% of the employees has been filed by a labor organization.
C.
All representation elections, except runoff elections, shall include
the option for no representation.
D.
In the event of an election with two or more organizations on the
ballot where none of the choices received a majority of the votes
cast, a runoff election shall be held within 15 days. The choices
on the runoff election shall consist of the two choices which received
the greatest number of votes in the original election.
E.
Where a majority of the votes cast are in favor of representation
by a labor organization and at least 60% of the members in the bargaining
unit have cast a vote, the Board shall certify the labor organization
as the exclusive representative for all employees in that appropriate
bargaining unit. No labor organization shall be certified as an exclusive
representative unless at least 60% of the members of the bargaining
unit vote in the election.
F.
No election shall be conducted if an election has been conducted in the twelve-month period immediately preceding the proposed representation election. No election shall be held during the term of an existing collective bargaining agreement, except as provided in § 86-11B.
G.
Election disputes shall be resolved by the Board.
A.
A labor organization that has been certified by the Board as representing
the employees in the appropriate bargaining unit shall be the exclusive
representative of all employees in the appropriate bargaining unit.
The exclusive representative shall act for all employees in the bargaining
unit and negotiate a collective bargaining agreement covering all
employees in the bargaining unit. The exclusive representative shall
represent the interests of all employees in the bargaining unit without
discrimination or regard to membership or nonmembership in the labor
organization.
B.
This section does not prevent an employee, acting individually, from
presenting a grievance without the intervention of 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 and make its views known. 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.
A.
Any member of a labor organization or the labor organization itself
may initiate decertification of a labor organization as the exclusive
representative if 30% of the employees in the appropriate bargaining
unit make a written request to the Board for a decertification election.
Decertification elections shall be held in a manner prescribed by
the Board.
B.
When there is a collective bargaining agreement in effect, a request
for a decertification election shall be made to the Board no earlier
than 90 days and no later than 60 days before the expiration of the
collective bargaining agreement; provided, however, that a request
for a decertification 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 30% of the 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 shall not accept a request
for a decertification election earlier than 12 months subsequent to
a labor organization's certification as the exclusive representative.
A.
Except for a retirement program provided under the Public Employees
Retirement Act (NMSA 1978 § 10-11-1 et seq.), the parties
shall bargain in good faith on wages, hours and other terms and conditions
of employment and other issues agreed to by the parties.
B.
Bargaining in good faith shall not require either party to agree
to a proposal or to make a concession.
C.
The obligation to bargain collectively imposed by this article shall
not be construed as authorizing employers and exclusive representatives
to enter into any agreement that is in conflict with state statutes
or federal statutes. In the event of conflict between the provision
of any federal or state statutes and any agreement entered into by
the employer and the exclusive representative, the former shall prevail.
D.
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 levied by the exclusive
representative. During the time that a Board certification is in effect
for a particular exclusive representative, the employer shall not
deduct dues for any other labor organization from members of the same
bargaining unit.
E.
Any agreement provision by the employer and an exclusive representative
that requires the expenditure of funds shall be contingent upon the
specific appropriation of funds by the governing body and the availability
of funds to fund the agreed-upon provision.
F.
Any agreement by an employer and an exclusive representative shall
contain a grievance procedure culminating with final and binding arbitration.
Final and binding arbitration applies only to grievances and does
not apply to negotiation impasses.
A.
Closed meetings. The following meetings shall be closed:
(1)
Meetings for the discussion of collective bargaining strategy between
the employer and the employer's negotiating team;
(2)
Collective bargaining sessions; and
(3)
Consultations and impasse resolution procedures at which the employer
and the exclusive representative of the appropriate bargaining unit
are present.
B.
Impasse procedure. The following impasse procedure shall be followed
by the employer and exclusive representative:
(1)
Either party may declare an impasse if no agreement has been reached
by the contract expiration date or within 120 days of the first negotiating
session on the negotiation of the first agreement. Once an impasse
exists, a mediator from the Federal Mediation and Conciliation Service
will be assigned by the Board.
(2)
If the impasse continues after a sixty-day mediation period, either
party may request from the Board that a fact-finder be assigned to
the negotiations. A fact-finder will be selected by the parties from
a list of individuals requested from the Federal Mediation and Conciliation
Service.
(3)
The fact-finder shall conduct hearings with the parties. The fact-finder
shall complete all work and submit a recommendation to the parties
and the Board within 45 calendar days of initial appointment. If the
parties have not reached agreement within 10 days after receipt of
the fact-finder's report, the Board shall publish the report.
(4)
The cost for the mediator or the fact-finder shall be borne equally
by the parties to the impasse.
No employer or his representative shall:
A.
Discriminate against an 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 any employee in the exercise of
any right guaranteed under this article;
C.
Dominate or interfere in the formation, existence or administration
of any labor organization;
D.
Discriminate in regard to hiring or any term or condition of employment
in order to encourage or discourage membership in a labor organization;
E.
Discharge or otherwise discriminate against an employee because he
has signed or filed an affidavit, petition, grievance or complaint
or given any information or testimony under the provisions of this
article or because an 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 any provisions of this article or Board
regulation; or
H.
Refuse or fail to comply with any collective bargaining agreement.
An employee, labor organization or its representative shall
not:
A.
Discriminate against an employee with regard to labor organization
membership because of race, color, religion, creed, age, disability,
sex or national origin.
B.
Solicit membership for an employee or labor organization during the
employee's duty hours. This does not include the break or lunch
period.
C.
Use City time, property or equipment for union business other than
as provided in a collective bargaining agreement between the parties.
D.
Interfere with, restrain or coerce any employee in the exercise of
any right guaranteed by the provisions of this article.
E.
Restrain or coerce any elected official for the purpose of gaining
a concession.
F.
Refuse to bargain collectively in good faith with the employer.
G.
Refuse or fail to comply with any collective bargaining agreement
with the employer.
H.
Refuse or fail to comply with any provision of this article.
I.
Picket homes or private businesses of Board members, elected officials
or employees of the City.
J.
Interfere with or coerce the employer in the selection of its agent
for bargaining.
A.
No employee or labor organization shall engage in a strike. No labor
organization shall cause, instigate, encourage or support a strike.
The employer shall not cause, instigate or engage in an employee lockout.
B.
Should the employer allege that a strike has occurred by the bargaining
unit employees, the Labor Management Relations Board shall meet in
emergency session, within 48 hours of the filing of the charge by
the employer, and determine whether a strike has indeed occurred.
C.
Any labor organization that causes, instigates, encourages or supports
a public employee strike, walkout, or slow-down may be decertified
as the exclusive representative for that appropriate bargaining unit
by the Board and shall be barred from serving as the exclusive representative
for any bargaining unit of the City employees for a period of not
more than one year.
All collective bargaining agreements and other agreements between
employers and exclusive representatives are valid and enforceable
according to their terms when entered into in accordance with the
provisions of this article.
A.
The Board may request the District Court to enforce any order issued
pursuant to this article, including those for appropriate temporary
relief and restraining orders. The Court shall consider the request
for enforcement on the record made before the Board. The Court shall
uphold the action of the Board and take appropriate action to enforce
it unless the Court concludes that the order is:
B.
Any person or party, including any labor organization, affected by
a final regulation, order or decision of the Board may appeal to the
District Court for further relief. All such appeals shall be based
upon the record made at the Board hearing. All such appeals to the
District Court shall be taken within 30 days of the date of the final
regulation, order or decision of the Board. Actions taken by the Board
shall be affirmed unless the Court concludes that the action is:
[Adopted 7-11-2000 by Ord. No. 2000-06]
