Section 50-4-33 - Family child care provider collective bargaining; representation. - New Mexico Statutes

50-4-33. Family child care provider collective bargaining; representation.

A.     The purpose of this section is to authorize family child care providers to organize and to use collective bargaining on all matters specified in this section.  It is the intent of the legislature that the state action exemption to the application of federal and state antitrust laws be fully available to the extent that the activities of the family child care providers and their representatives are authorized under this section.

B.     Family child care providers shall have the right to form, join or assist a labor organization for the purpose of collective bargaining through representatives chosen by family child care providers without interference, restraint or coercion and shall have the right to refuse any such activities. 

C.     The exclusive representative may be selected by mail ballot election conducted by a reputable organization with experience in conducting representation elections.  In order for an election to occur, a representative or representative organization shall have collected signed cards from at least thirty percent of affected family child care providers indicating their desire for representation.  The organization conducting the election shall establish procedures to ensure the secrecy of any ballot cast in any election held pursuant to this section.  Costs of the election shall be borne by the labor organization seeking exclusive representative status.  The providers in the unit shall be offered the opportunity to choose between the following:

(1)     representation by the provider organization; or

(2)     no representation.

D.     Within ten days of receiving authorization cards requesting a mail-in ballot election, the children, youth and families department or another appropriate state agency shall submit a list verifying all eligible family child care providers in the state to the organization making the request.

E.     A labor organization that has been certified through the process as representing the family child care providers shall be the exclusive representative for all family child care providers for the purposes of negotiating a collective bargaining agreement with the children, youth and families department. 

F.     The children, youth and families department shall meet with the family child care providers and their exclusive representative with the purpose of entering into a written agreement that shall be binding upon both the state and the exclusive representative.  The written agreement shall include a binding arbitration procedure, a grievance process, the creation of a labor-management committee that will meet regularly to discuss concerns and issues as they arise and mechanisms for dues collection.

G.     Topics of negotiations shall include terms and conditions under which family child care providers provide child care in their homes and in the homes of parents, including reimbursement rates and payment procedures for publicly funded care, health and safety conditions, the monitoring and evaluating of family child care homes, licensing and other fees, quality rating standards, training and certification requirements and any other matters that would improve recruitment and retention of qualified family child care providers and the quality of the programs they provide.  The labor organization and the state agency shall work together to explore systems for family child care providers to have access to affordable, comprehensive health insurance coverage.

H.     An agreement provision by the state and the exclusive representative that requires the expenditure of funds shall be contingent upon the specific appropriation of funds by the legislature and the availability of funds.

I.     In order to ensure that the children, youth and families department's mandate for quality measures continues for all licensed providers of child care services, the department shall ensure the adequate allocation of appropriated funds to those providing the highest-quality care, including licensed centers and licensed family child care providers. 

J.     Should the parties be unable to reach an agreement, the parties shall follow the impasse resolution procedure as outlined in the Public Employee Bargaining Act [10-7E-1 NMSA 1978].

K.     The children, youth and families department shall not: 

(1)     discriminate or knowingly allow any other organizations with which the children, youth and families department contracts to administer services related to child care to discriminate against a family child care provider with regard to the terms and conditions of its relationship with the provider because of the provider's membership in a labor organization; 

(2)     take negative action against a family child care provider or knowingly allow any other organizations with which the children, youth and families department contracts to administer services related to child care to take negative action because the provider has signed or filed an affidavit, petition, grievance or complaint or given information or testimony or because the provider is forming, joining or choosing to be represented by a labor organization;

(3)     refuse to bargain collectively in good faith with the labor organization; or

(4)     refuse to comply with a collective bargaining agreement reached with the labor organization pursuant to this section.

L.     The labor organization shall not: 

(1)     discriminate against a family child care provider with regard to labor organization membership because of race, color, religion, creed, age, sex or national origin; 

(2)     refuse to bargain collectively in good faith with the children, youth and families department; or

(3)     refuse to comply with a collective bargaining agreement reached with the children, youth and families department pursuant to this section.

M.     If either party believes a provision of this section has been violated, the parties shall follow the public employee labor relations board's rules of prohibited practice proceedings.

N.     By entering into an agreement, the children, youth and families department and the exclusive representative do not intend to interfere with parental rights to select or deselect family child care providers to provide care for children.

O.     In enacting bargaining rights for family child care providers, the state intends to provide state action immunity under federal and state antitrust laws for the activities of family child care providers and their exclusive bargaining representative to the extent such activities are authorized by this section.

P.     A family child care provider or an employee of a family child care provider is not a public employee for purposes of the Tort Claims Act [41-4-1 NMSA 1978].

Q.     As used in this section: 

(1)     "exclusive representative" means a labor organization that, as a result of certification, has the right to represent family child care providers in an appropriate bargaining unit for the purposes of collective bargaining;

(2)     "family child care provider" means a person who provides care services and supervision for children in the provider's own home under regulations established by the children, youth and families department and who is: 

(a)     licensed by the state and is a vendor in the state and federal child care assistance program; or 

(b)     registered with the state to participate in the child and adult care food program and is a vendor in the state and federal child care assistance program; and

(3)     "labor organization" means a family child care provider organization whose purposes include the representation of family child care providers in collective bargaining and in otherwise meeting, consulting and conferring with the children, youth and families department on matters pertaining to family child care provider relations.

R.     If any part or application of this section is held invalid, the remainder or its application to other situations or persons shall not be affected.