New Mexico Register / Volume XXXI, Issue 12 / June 23, 2020
This is an amendment to 11.21.1
NMAC, Sections 7, 10 & 11, effective 7/1/2020.
11.21.1.7 DEFINITIONS:
A. Statutory definition: The terms
defined in Section 10-7E-4 NMSA 1978, shall have the meanings set forth
therein.
B. Additional definitions: The
following terms shall have the meanings set forth below.
(1) “Act”
means the New Mexico Public Employee Bargaining Act, Sections 10-7E-1 through
10-7E-26 NMSA 1978 including any amendments to that statute.
(2) “Amendment
of certification” means a procedure whereby an incumbent labor organization
certified by the board to represent a unit of public employees or a public
employer may petition the board to amend the certification to reflect a change
such as a change in the name or the affiliation of the labor organization or a
change in the name of the employer.
(3) “Certification
of incumbent bargaining status” shall mean a procedure whereby a labor
organization recognized by a public employer as the exclusive representative of
an appropriate bargaining unit on June 30, 1999 petitions the board for a
declaration of bargaining status under Subsection B of Section 10-7E-24 NMSA
1978. or after a local board
certifying the representative ceases to exist by operation of Section 10-7E-10
NMSA 1978 (2020).
(4) “Challenged
ballot” means the ballot of a voter in a representation election whose
eligibility to vote is questioned either by a party to the representation case
or by the director.
(5) “Complainant”
means an individual, labor organization, or public employer that has filed a
prohibited practices complaint.
[(6) “Confidential employee” means a person who devotes a
majority of his time to assisting and acting in a confidential capacity with
respect to a person who formulates, determines and effectuates management
policies.]
[(7)] (6) "Delivering a copy"
as it pertains to service or filing of pleadings or other documents means: (1)
handing it to the board, to its agent(s), to opposing counsel or unrepresented
parties; (2) sending a copy by facsimile or electronic submission in accordance
with 11.21.1.10 NMAC or 11.21.1.24 NMAC; (3) leaving it at the board’s,
opposing attorney's or party's office with a clerk or other person in charge
thereof; or (4) if the attorney's or party's office is closed or the person to
be served has no office, leaving it at the unrepresented person's dwelling
house or usual place of abode with some person of suitable age and discretion
then residing therein.
[(8)] (7) “Director” means the
Director of the Public Employee Labor Relations Board.
[(9)] (8) “Document” means any writing,
photograph, film, blueprint, microfiche, audio or video tape, data stored in
electronic memory, or data stored and reproducible in visible or audible form
by any other means.
[(10)] (9) “Electronic submission” means the
filing of a pleading or other document with the board using the electronic
system established by the PELRB, service by the parties, or email
communications.
[(11)] (10) “On a form prescribed by the Director”
as used in these rules pertaining to the filing of documents with the board,
shall include the electronic data submitted by use of any interactive form
posted for that purpose on the board’s website.
[(12)] (11) “Probationary employee” for state
employees shall have the meaning set forth in the State Personnel Act and
accompanying regulations; for other public employees, other than public school
employees, it shall have the meaning set forth in any applicable ordinance,
charter or resolution, or, in the absence of such a definition, in a collective
bargaining agreement; provided, however, that for determining rights under the
PEBA non-state employees a public employee may not be considered to be a
probationary employee for more than one year after the date [he or she is
hired] of hire by a public employer. If otherwise undefined, the term shall
refer to an employee who has held [his or her] that position, or
a related position, for less than six months.
[(13)] (12) “Prohibited practice” means a violation
of Section 10-7E-19, 10-7E- 20 NMSA 1978 or Subsection A of Section 10-7E-21
NMSA 1978.
[(14) “Public employer”
means the state or a political sub-division thereof, including a municipality
that has adopted a home rule charter, and does not include a government of an
Indian nation, tribe or pueblo, provided that state educational institutions as
provided in Article 12, Section 11 of the constitution of New Mexico shall be
considered public employers other than state for collective bargaining purposes
only.
(15) “Public
employee” means a regular non-probationary employee of a public employer;
provided that, in the public schools, “public employee” shall also include a
regular probationary employee.]
[(16)] (13) “Representation case” or “representation proceeding” means any
matter in which a petition has been filed with the director requesting a
certification or decertification election, or an amendment of certification, or
unit clarification.
[(17)] (14) “Respondent” means a party against whom
a prohibited practices complaint has been filed.
[(18)] (15) “Rules” means the rules and regulations
of the board (these rules), including any amendments to them.
[(19)] (16) “Unit
accretion” means the inclusion in an existing bargaining unit of employees
who do not belong to any existing bargaining unit, who share a community of
interest with the employees in the existing unit, and whose inclusion will not
render the existing unit inappropriate.
[(20)] (17) “Unit
clarification” means a proceeding in which a party to an existing lawful
collective bargaining relationship petitions the board to change the scope or
description of an existing bargaining unit; a change in union affiliation; to
consolidate existing bargaining units represented by the same labor
organization; or to realign existing bargaining units of employees represented
by the same exclusive representative into horizontal units, where the board
finds the unit as clarified to be an appropriate bargaining unit and no
question concerning, representation arises.
[(21)] (18) “Unit inclusions or exclusions” means the status of
an individual, occupational group, or group of public employees in clear and
identifiable communities of interest in employment terms and conditions and
related personnel matters, as being within or outside of an appropriate
bargaining unit based on factors such as supervisory, confidential or
managerial status, the absence thereof, job context, principles of efficient
administration of government, the history of collective bargaining, and the
assurance to public employees of the fullest freedom in exercising the rights
guaranteed by the Public Employee Bargaining Act.
[11.21.1.7
NMAC - N, 3/15/2004; A, 2/28/2005; A, 10/16/2018; A, 7/1/2020]
11.21.1.10 FILING WITH THE DIRECTOR OR THE BOARD:
To file a document with the director or the board, the document may be either
hand-delivered to the board’s office in Albuquerque during its regular business
hours, or sent to that office by United States mail, postage prepaid, or by the
New Mexico state government interagency mail or by sending a copy by facsimile
or electronic submission. The director will be responsible for recording the
filing of documents to be filed with the board, as well as documents to be
filed with the director.
A. Time of filing:
A document will be deemed filed when it is received by the director. For hand
delivered
or mailed documents the date and time stamp affixed by the receiving board
agent will be determinative. For faxed or electronically transmitted documents
the time and date affixed on the cover page or the document itself by the
board’s facsimile machine or receiving computer will be determinative.
B. Additional time
after service by mail: Whenever a party has the right or is required to do some
act
or
take some proceedings within a prescribed period after the service of a notice
or other paper upon the party and the notice or paper is served upon the party
by mail, three days shall be added to the prescribed period. Intermediate
Saturdays, Sundays, and legal holidays are included in counting these added
three days. If the third day is a Saturday, Sunday, or legal holiday, the last
day to act is the next day that is not a Saturday, Sunday, or legal holiday.
C. Signatures: [Party’s]
Parties or their representatives filing electronically thereby certify
that required signatures or approvals have been obtained before filing the
document. The full, printed name of each person signing a paper document shall
appear in the electronic version of the document. All electronically filed
documents shall be deemed to contain the filer’s signature. The signature in
the electronic document may represent the original signature in the following
ways:
(1) by scanning or other electronic
reproduction of the signature; or
(2) by typing in the signature line the
notation “/s/” followed by the name of the person who signed the original
document.
D. Demand for
original: A party shall have the right to inspect and copy any pleading or
paper that
has
been filed or served by facsimile or electronic submission if the pleading or
paper has a statement signed under oath or affirmation or penalty of perjury.
[11.21.1.10
NMAC - N, 3/15/2004; A, 10/16/2018; A, 7/1/2020]
11.21.1.11 REPRESENTATION OF A PARTY:
A party may [represent his, her, or itself], be self-represented
or be represented by counsel or other representative. Any representative of a
party shall file with the board a signed notice of appearance, stating the name
of the party; the title and official number (if available) of the case in which
the representative is representing the party, and the name, address and
telephone number of the representative. The filing of a pleading containing the
above information is sufficient to fulfill this requirement.
[11.21.1.11
NMAC - N, 3/15/2004; A, 2/11/2020; A, 7/1/2020]