2019 New Mexico Statutes
Chapter 10 - Public Officers and Employees
Article 7E - Public Employee Bargaining
Section 10-7E-26 - Existing ordinances providing for public employee bargaining.
A. A public employer other than the state that prior to October 1, 1991 adopted by ordinance, resolution or charter amendment a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives may continue to operate under those provisions and procedures. Any substantial change after January 1, 2003 to any ordinance, resolution or charter amendment shall subject the public employer to full compliance with the provisions of Subsection B of Section 26 [10-7E-26 NMSA 1978] of the Public Employee Bargaining Act.
B. A public employer other than the state that subsequent to October 1, 1991 adopts by ordinance, resolution or charter amendment a system of provisions and procedures permitting employees to form, join or assist a labor organization for the purpose of bargaining collectively through exclusive representatives freely chosen by its employees may operate under those provisions and procedures rather than those set forth in the Public Employee Bargaining Act; provided that the employer shall comply with the provisions of Sections 8 through 12 and Subsection D of Section 17 [10-7E-17 NMSA 1978] of that act and provided the following provisions and procedures are included in each ordinance, resolution or charter amendment:
(1) the right of public employees to form, join or assist employee organizations for the purpose of achieving collective bargaining;
(2) procedures for the identification of appropriate bargaining units, certification elections and decertification elections equivalent to those set forth in the Public Employee Bargaining Act;
(3) the right of a labor organization to be certified as an exclusive representative;
(4) the right of an exclusive representative to negotiate all wages, hours and other terms and conditions of employment for public employees in the appropriate bargaining unit;
(5) the obligation to incorporate agreements reached by the public employer and the exclusive representative into a collective bargaining agreement;
(6) a requirement that grievance procedures culminating with binding arbitration be negotiated;
(7) a requirement that payroll deductions for the exclusive representative's membership dues be negotiated if requested by the exclusive representative;
(8) impasse resolution procedures equivalent to those set forth in Section 18 [10-7E-18 NMSA 1978] of the Public Employee Bargaining Act; and
(9) prohibited practices for the public employer, public employees and labor organizations that promote the principles established in Sections 19 through 21 [10-7E-19 to 10-7E-21 NMSA 1978] of the Public Employee Bargaining Act.
History: Laws 2003, ch. 4, § 26 and by Laws 2003, ch. 5, § 26.
ANNOTATIONSCompiler's notes. — Laws 2003, ch. 4, § 26 and Laws 2003, ch. 5, § 26 enacted identical new sections of law, effective July 1, 2003. Both were compiled as 10-7E-26 NMSA 1978.
Severability. — Laws 2003, ch. 5, § 27 provided that if any part or application of the Public Employee Bargaining Act is held invalid, the remainder or its application to other situations or persons shall not be affected.
Appointment of interim board member by municipality did not violate the grandfather clause requirement. — Where a municipal ordinance required the president of the city council to appoint an interim member of the municipal labor-management relations board when the board met during the absence of a regular board member; the ordinance had been grandfathered under the Public Employee Bargaining Act; the president was an elected city councilor who was elected as president by city council members; and the president did not perform any executive functions, the president did not serve in either a "management" or a "labor" capacity and the procedure by which the president appointed an interim board member during the absence of a regular board member did not violate the act's grandfather clause requirement that a local ordinance create a system of collective bargaining. City of Albuquerque v. Montoya, 2012-NMSC-007, 274 P.3d 108, rev'g 2010-NMCA-100, 148 N.M. 930, 242 P.3d 497.
Appointment of interim board member by municipality. — The grandfather clause does not apply to the provision of a municipal labor-management relations ordinance which provides that if one of the appointed local board members is absent, the president of the city council shall appoint an interim board member from the public at large with due regard to the representative character of the local board because the ordinance did not permit employees to bargain collectively. City of Albuquerque v. Montoya, 2010-NMCA-100, 148 N.M. 930, 242 P.3d 497, cert. granted, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146, rev'd, 2012-NMSC-007, 274 P.3d 108.
Exclusion from collective bargaining based on job title. — The grandfather clause does not apply to the provision of a city labor relations ordinance that defines a "supervisor" by reference to a job title and not by reference to the responsibilities of the employee's position, and that precludes any employee with the title of supervisor from participating in a bargaining unit because the ordinance provision violates the requirement of the grandfather clause that public employers must adopt a system that provides collective bargaining to all public employees except employees who are expressly excluded from the Public Employee Bargaining Act based on job responsibilities, not titles. City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, 141 N.M. 686, 160 P.3d 595.
Impasse procedures. — The grandfather clause applies to the provision of a city labor relations ordinance that requires mediation and then an advisory arbitration opinion to the city council in the event of an impasse in labor-management negotiations, because although the Public Employee Bargaining Act provides for final, binding arbitration for a continuing impasse, the act does not require any specific impasse provision or binding procedure. City of Deming v. Deming Firefighters Local 4521, 2007-NMCA-069, 141 N.M. 686, 160 P.3d 595.
Failure to require binding impasse arbitration. — Where the municipality and labor unions reached an impasse in negotiations to replace existing collective bargaining agreements; the municipal labor management ordinance, which was adopted in 1977, contained an impasse provision that called for mediation at the request of a party, and if mediation failed, binding arbitration only upon the voluntary agreement of the parties, the Public Employees Bargaining Act did not require that the ordinance contain binding arbitration proceedings in order to receive grandfather status and the failure of the municipal ordinance to provide for binding-impasse arbitration did not preclude the ordinance from grandfather status under the act. AFSCME Council 18 v. City of Albuquerque, 2013-NMCA-012, 293 P.3d 943, cert. granted, 2013-NMCERT-001.
Collective bargaining procedures were exempt from the evergreen provision. — Where the municipality's labor-management relations ordinance, which was adopted in 1974, included impasse resolution procedures through mediation and arbitration, but did not require that expired collective bargaining agreements remain in effect until successor agreements were reached; when the collective bargaining agreements between the municipality and the unions expired and the parties were unable to agree upon successor agreements, the municipality refused to honor a provision of the expired agreements that required the municipality to compensate union members for union business conducted during municipality work time; and the unions argued that the municipality was required to comply with the evergreen provision of Subsection D of Section 10-7E-18 NMSA 1978 regardless of the grandfather status of the municipality's ordinance, the municipality's collective bargaining procedures were exempt, under Subsection A of Section 10-7E-26 NMSA 1978, from compliance with the evergreen provision. AFSCME Council 18 v. City of Albuquerque, 2013-NMCA-063, 304 P.3d 443, cert. quashed, 2013-NMCERT-009.
Public employees labor relations board jurisdiction. — The public employee labor relations board (PELRB) has the power to enforce the provisions of the Public Employee Bargaining Act (PEBA); the PELRB does not have jurisdiction to hear complaints involving grandfathered public employers or the power to enforce the provisions of a municipal labor-management relations ordinance that is grandfathered under the PEBA. City of Albuquerque v. AFSCME, 2015-NMCA-023.
Where labor union brought prohibited practice complaints before the public employee labor relations board (PELRB) against a municipality, whose labor-management relations ordinance had grandfather status under the Public Employee Bargaining Act, because the municipality's labor management relations board was not functioning to resolve employee complaints due to a vacant board position, the district court did not err in dismissing the union's prohibited practice complaints because the PELRB was without jurisdiction to hear complaints involving grandfathered public employers, and did not err in finding that the PELRB did not act in accordance with law in remanding the complaints to the municipality's labor-management relations board when the complaints did not originate there. City of Albuquerque v. AFSCME, 2015-NMCA-023.
Under the Declaratory Judgment Act, an actual controversy must exist to confer jurisdiction on the district courts. — Under the Declaratory Judgment Act, 44-6-1 through 44-6-15 NMSA 1978, courts in New Mexico have jurisdiction to adjudicate and declare rights and legal relations only in cases of actual controversy. An actual controversy is not present unless the issue raised by the litigant is ripe for judicial determination and the litigant has standing. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682.
Where union sought to file a prohibited practice claim with the public employees labor relations board rather than with the county labor board, as designated by the labor-management relations ordinances, claiming that filing with the county labor board would deprive the union and its members of due process because the county labor board's decisions are subject to a biased review by the county commission, the union did not establish the existence of an actual controversy, because the fact that the due process injury would materialize only if the county labor board found a prohibited practice, giving the county commission the right to review, the union failed to satisfy the justiciability requirements of ripeness and the injury-in-fact component of standing, and therefore the district court lacked jurisdiction to decide the merits of the action. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2016-NMSC-017, vacating 2015-NMCA-070, 352 P.3d 682.
Procedural due process in labor dispute resolution proceedings. — Procedural due process requires a fair and impartial hearing before a trier of fact who is disinterested and free from any form of bias or predisposition regarding the outcome of the case. The inquiry is not whether the tribunal is actually biased or prejudiced, but whether, in the natural course of events, there is an indication of a possible temptation to an average person sitting as a judge to try the case with bias for or against any issue presented. There is a presumption that administrative adjudicators perform their duties with honesty and integrity. The burden of overcoming the presumption of impartiality rests on the party making the assertion of bias. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2015-NMCA-070, cert. granted, 2015-NMCERT-006.
County's dispute resolution procedures do not violate due process rights. — Where plaintiffs, the exclusive bargaining representatives for unionized public employees of Bernalillo county, claimed that the county's dispute resolution procedures violated the employees' procedural due process rights to a fair and impartial tribunal because the county commission has a vested interest in the adjudication of disputes and is inclined to favor management personnel over employees based on the facts that the county commission appoints the county manager and the county commission is not bound by the recommendations of the labor board in reviewing prohibited practice complaints, the court of appeals held that the county's dispute resolution procedures do not violate plaintiffs' due process rights to a fair and impartial tribunal because plaintiffs failed to present any evidence that the county's oversight over the county manager indicated an interest sufficient to presume that the county commission is biased in favor of management personnel. AFSCME v. Board of Cnty. Comm'rs of Bernalillo Cnty., 2015-NMCA-070, cert. granted, 2015-NMCERT-006.
