[HISTORY: Adopted by the Board of County Commissioners of
Otero County 12-14-2004 by Ord. No. 04-05. Amendments noted where
applicable.]
STATE LAW REFERENCES
Public Employee Bargaining Act — See NMSA § 10-7E-1
et seq.
Per Diem and Mileage Act — See NMSA 1978, § 10-8-1
et seq.
Public Employees Retirement Act — See NMSA 1978,
10-11-1 et seq.
Uniform Arbitration Act — See NMSA 1978, § 44-7A-1
et seq.
This chapter may be cited as the "Otero County Labor Management
Relations Ordinance."
The purpose of this chapter is to guarantee employees the right
to organize and bargain collectively with their employer; to protect
the rights of the employer and the employees; to promote harmonious
and cooperative relationships between the employer and the employees;
and to acknowledge the obligation of the employer and the employees
to provide orderly and uninterrupted services to the citizens.
A.
In the event of conflict with other Otero County ordinances, the
provisions of this chapter shall supersede other previously enacted
ordinances.
B.
Otero County sanctioned rules and regulations, administrative directives,
departmental rules and regulations, and work place practices shall
control unless there is a conflict with a collective bargaining agreement.
Where a conflict exists, the collective bargaining agreement shall
control.
As used in this chapter, the following terms shall have the
meanings indicated:
A group of employees designated by the Board for the purpose
of collective bargaining.
The Otero County 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 devotes a majority of his/her time to assisting
and acting in a confidential capacity with respect to a person who
formulates, determines, and effectuates management policies.
A one-time crisis that was unforeseen and unavoidable.
A regular, nonprobationary employee of the Otero County.
The Otero County.
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 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.
The Otero County Board of County Commissioners.
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 decisionmaking 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 majority 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 occasionally participate
in peer review or evaluation of employees.
Employees, other than management, supervisory, confidential,
and probationary employees, may form, join, or assist any labor organization
for the purpose of collective bargaining through a representative
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.
To direct the work of, hire, promote, assign, transfer, demote, suspend,
discharge, or terminate public employees;
B.
To determine qualifications for employment and the nature and content
of personnel examinations;
C.
To take actions as may be necessary to carry out the mission of the
employer in emergencies; and
A.
The Labor Management Relations Board is hereby created. The Board
shall be composed of three members appointed by the County Chairperson
of the Commission with the approval of the Board of County Commissioners.
One member shall be appointed on the recommendation of individuals
representing labor, one member shall be appointed on the recommendation
of the County Administrator, and one member shall be appointed on
the recommendation of the first two appointees.
B.
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 this chapter. 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.
C.
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, an organization representing public employees or a public
employer.
A.
The Board shall promulgate rules and regulations necessary to accomplish
and perform its functions and duties as established in this chapter,
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, hearing, and determination of complaints of prohibited
practices. This does not apply to negotiation impasses or grievances
subject to the required negotiated grievance process.
C.
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 relevant
to the 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. Subject
to the approval of funds, the Board may contract with a third party
to assist it in carrying out its functions.
D.
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 chapter are final and binding on the parties subject to the appeal process provided in § 45-20. The Board's hearing authority does not apply to negotiation impasses or issues dealing with the collective bargaining agreement where a grievance procedure has been negotiated for that purpose by the parties as required by law.
E.
The Board has the power to enforce provisions of this chapter and
the Board's Labor Management Relations Rules and Regulations
through the imposition of appropriate administrative remedies.
F.
The Board shall have no power to promulgate policy other than for
its own operation.
G.
No rule or regulation promulgated by the Board shall require, directly
or indirectly, as a condition of continuous employment, any employee
covered by this chapter to pay money to any labor organization that
is certified as an exclusive representative. This issue of fair share
shall be a permissive as opposed to a mandatory subject of bargaining
between the employer and the exclusive representative.
B.
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 constitution.
C.
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.
D.
All adopted rules and regulations shall be filed in accordance with
applicable laws.
E.
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. The party requesting the transcript shall pay for the
transcription, in the case of judicial review the payment shall be
made by the party filing the appeal.
F.
Each party to a prohibited labor practice shall bear the cost of
producing its own witnesses and paying its representative for hearings
under this chapter.
G.
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 at a County facility. Notice shall be published once
at least 30 days prior to the hearing date in a newspaper of general
circulation in the Otero County, 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.
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 or 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, secretarial clerical,
technical, para-professional, professional, corrections, firefighters,
and police officers. Department, craft, or trade designations other
than as specified above shall not determine bargaining units. The
parties, by mutual agreement and approval of the Board, may further
consolidate occupational groups. The 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 employees of their rights guaranteed by this
chapter.
B.
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 is
subject to the approval of the Board.
C.
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 post a notice to affected employees regarding the
filed petition and proceed with the process for conducting a secret
ballot representation election.
B.
Once a labor organization has filed a petition with the Board requesting
a representation election, other labor organizations may seek to be
placed on the ballot. Any labor organization may file a competing
petition containing the signatures of not less than 30% of the employees
in the appropriate bargaining unit no later than 10 calendar days
after the Board has posted a written notice that a petition for a
representation election has been filed by a labor organization.
C.
All representation elections shall include the option for no representation,
except in a runoff election where the choice of no representation
was not one of the two choices that received the highest votes.
D.
In the event of an election with two or more labor organizations
on the ballot and none of the choices on the ballot received a majority
of the votes cast, then a runoff election shall be held within 15
calendar 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.
A valid election requires that at least 40% of the eligible employees
in an appropriate bargaining unit cast a vote. In an election with
only one labor organization, and the majority of the votes cast are
in favor of representation, the Board shall certify that labor organization
as the exclusive representative for all the employees in the bargaining
unit.
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 § 45-13B of this chapter, or after the expiration of the third year of a collective bargaining agreement with a term of more than three years.
G.
Election disputes shall be resolved by the Board.
H.
As an alternative to the provisions of Subsection A of this section, the 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 local Board shall not certify an appropriate bargaining unit if the employer objects to the certification without an election.
A labor organization that has been certified by the Board as
the exclusive representative for employees in an appropriate bargaining
unit shall represent all employees in the 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.
The existence of an exclusive bargaining representative shall not
prevent employees from taking their grievances through the grievance
process or filing prohibited practices with the Board. Any settlement
of a grievance or relief given on a prohibited practice brought by
an individual shall not be inconsistent with or in violation of the
collective bargaining agreement in effect between the employer and
the exclusive representative or inconsistent with or in violation
of a memorandum of understanding between the employer and the exclusive
representative applicable to the day-to-day administration of the
collective bargaining agreement. The exclusive representative shall
be afforded the opportunity to be present at such hearings and make
its views known.
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.
A decertification election shall be valid only if at least 40% 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 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 retirement programs provided under the Public Employees
Retirement Act,[1] the parties shall bargain in good faith on all wages,
hours, and other terms and conditions of employment and other issues
agreed to by the parties. The parties shall enter into a written agreement
covering employment relations regarding the issues agreed to in collective
bargaining.
[1]
Editor's Note: See NMSA 1978, 10–11-1 et seq.
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 chapter 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 or impasse resolution 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. An arbitrator's
decision shall not require the reappropriation of funds.
F.
The parties have a requirement that a grievance procedure culminating
with final and binding arbitration be negotiated. This applies only
to grievances and the interpretation and application of the agreement
between the parties and does not apply to negotiation impasses. The
parties shall share the cost of any proceedings conducted pursuant
to this subsection equally. Each party is responsible for paying any
cost related to its witnesses and representation.
A.
The following meetings shall be closed:
(1)
Meetings for the discussion of collective bargaining strategy between
the governing body and the employer's negotiating team preliminary
to negotiations sessions;
(2)
Collective bargaining sessions; and
(3)
Consultations and impasse resolution procedures at which the employer
and/or the exclusive representative of the appropriate bargaining
unit are present.
B.
The following negotiation procedures shall apply to the employer
and exclusive representatives:
(1)
The negotiations for the first contract shall be opened upon written
notice by either party to the other requesting that negotiating sessions
be scheduled. Subsequent requests for negotiations shall be post marked
no earlier than 120 days nor later than 60 days prior to the contract
ending date or as negotiated by the parties. The parties may open
negotiations at any time by mutual agreement.
(2)
All negotiations will be conducted in closed sessions. Negotiations
will be held at a facility and at a time mutually agreed upon by the
parties.
(3)
Recesses and study sessions may be called by either team. Prior to
the conclusion of any negotiating sessions, the reconvening time will
be agreed upon. Caucuses may be taken as needed.
(4)
Tentative agreements reached during negotiations will be reduced
to writing, dated, and initialed by each team spokesperson. Such tentative
agreements are conditional and may be withdrawn should later discussion
change either party's understanding of the language as it related
to another part of the agreement.
(5)
Agreement on contract negotiations is accomplished when the union
president and the County Administrator sign the agreement. Provisions
in multiyear agreements providing for economic increases for subsequent
years shall be contingent upon the governing body appropriating the
funds necessary to fund the increase for the subsequent year(s). Should
the governing body not appropriate sufficient funds to fund the agreed
upon increase, either party may reopen negotiations.
C.
The following impasse procedure shall be followed by the employer
and exclusive representative:
(1)
If an impasse occurs, either party shall request mediation assistance.
If the parties cannot agree on a mediator, either party may request
the assistance of the federal mediation and conciliation service;
(2)
If the impasse continues after 30 calendar days, either party may
request an unrestricted list of seven arbitrators from the federal
mediation and conciliation service. The parties shall choose one arbitrator
by alternately striking names from such list. Which party strikes
the first name shall be determined by coin toss. The arbitrator shall
render a final, binding, written decision resolving unresolved issues
no later than 30 calendar 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. However, an impasse resolution decision of an arbitrator
or an 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. An arbitrator's decision shall not require the employer
to reappropriate funds. The parties shall share all of the arbitrator's
costs incurred pursuant to this subsection equally. Each party shall
be responsible for paying any costs related to its witnesses and representation. The decision
shall be subject to judicial review pursuant to the standards set
forth in the Uniform Arbitration Act.[1]
[1]
Editor's Note: See NMSA 1978, § 44-7A-1 et seq.
(3)
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 employer to increase any employees' levels,
steps, or grades of compensation contained in the existing contract.
A.
A public employer or its representative shall not:
(1)
Discriminate against an employee with regard to terms and conditions
of employment because of the employee's membership in a labor
organization;
(2)
Interfere with, restrain, or coerce any employee in the exercise
of any right guaranteed under this chapter;
(3)
Dominate or interfere in the formation, existence, or administration
of any labor organization;
(4)
Discriminate in regard to hiring or any term or condition of employment
in order to encourage or discourage membership in a labor organization;
(5)
Discharge or otherwise discriminate against an employee because the
employee has signed or filed an affidavit, petition, grievance, or
complaint or given any information or testimony under the provisions
of this chapter or because an employee is forming, joining, or choosing
to be represented by a labor organization;
(6)
Refuse to bargain collectively in good faith with the exclusive representative;
(7)
Refuse or fail to comply with any provisions of this chapter, Board
regulations, or the Public Employee Bargaining Act; or
(8)
Refuse or fail to comply with any collective bargaining agreement.
This issue is subject to the required grievance procedure negotiated
by the parties.
B.
During the negotiation and the impasse procedure, County Commissioners
and management employees are prohibited from negotiating issues which
are the subject of negotiations and from making any offers, commitment,
or promise whatsoever to employees or the exclusive representative,
other than through the appointed County negotiating team. It is the
intent of this language that the integrity of the negotiating process
be maintained. All negotiations and concessions shall occur only between
the respective appointed negotiating teams.
A.
An employee, a labor organization, or its representative shall not:
(1)
Discriminate against an employee with regard to labor organization
membership because of race, color, religion, creed, age, disability,
sex, or national origin;
(2)
Solicit membership for an employee or labor organization during the
employee's duty hours. This does not include the work breaks
or lunch periods;
(3)
Restrain or coerce any employee in the exercise of any right guaranteed
by the provisions of this chapter;
(4)
Refuse to bargain collectively in good faith with the employer;
(5)
Refuse or fail to comply with any collective bargaining agreement
with the employer. This issue is subject to the required negotiated
grievance procedure negotiated by the parties;
(6)
Refuse or fail to comply with any provision of this chapter;
(7)
Picket homes or private businesses of employees, appointed individuals,
or elected officials of Otero County;
(8)
Restrain or coerce the employer in the selection of its agent for
bargaining.
B.
During the negotiation and the impasse procedure the employees, the
exclusive representative or any of its employees are prohibited from
negotiating issues which are the subject of negotiations with anyone
other than the appointed County negotiating team. It is the intent
of this language that the integrity of the negotiating process be
maintained. All negotiations and concessions shall occur only between
the respective appointed negotiating teams.
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.
The 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, upon a clear and convincing showing of proof at a hearing
that a labor organization directly caused or instigated an employee
strike, may impose appropriate penalties on that labor organization,
up to and including decertification of the labor organization with
respect to any of its bargaining units which struck as a result of
such causation or instigation. A "strike" means 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.
All collective bargaining agreements and other agreements between
the employer and exclusive representative are valid and enforceable
according to their terms when entered into in accordance with the
provisions of this chapter.
A.
The Board may request the District Court to enforce any order issued
pursuant to this chapter, 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 calendar 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:
