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37 N.M. L. Rev. 357 (2007)
Correcting the Imbalance: The New Mexico Public Employee Bargaining Act and the Statutory Rights Provided to Public Employees

handle is hein.journals/nmlr37 and id is 365 raw text is: CORRECTING THE IMBALANCE: THE NEW MEXICO
PUBLIC EMPLOYEE BARGAINING ACT AND THE
STATUTORY RIGHTS PROVIDED TO PUBLIC
EMPLOYEES
S. BARRY PAISNER* & MICHELLE R. HAUBERT-BARELA**
I. INTRODUCTION
With the rise of industrialization in the nineteenth century, private and public
employee organizations in the United States began to take hold.' These organiza-
tional efforts, which utilized the collective strength of employees to improve wages
and working conditions, were met with active resistance by employers.2 Private
employee unions began to gain acceptance in the 1930s, but unionization by public
employees was still confronted with resistance. In 1935, private employees gained
statutorily protected rights with the passage of the National Labor Relations Act
(NLRA).3 Public employees, however, did not receive the same protection as private
employees. Public employees were specifically excepted from the NLRA4 and were
prohibited from striking and almost all collective bargaining until the 1950s.5 It was
not until the 1960s that statutory protections for public employees began to emerge.6
In 1959, Wisconsin became the first state to pass a statute protecting the rights of
public employees to engage in collective bargaining.7 Almost twenty years later, the
federal government enacted the Civil Service Reform Act (CSRA), which provided
collective bargaining rights to federal employees.8 It was not until 1992 that the
State of New Mexico provided similar statutory protections to its public employees9
* Partner, Hinkle, Hensley, Shanor & Martin, L.L.P.
** Assistant Staff Attorney, New Mexico Court of Appeals Preheating Division. Formerly an Associate
with Hinkle, Hensley, Shanor & Martin, L.L.P. We would like to extend our thanks to Kelcey C. Nichols and
Michael C. Williams, Associates, Hinkle, Hensley, Shanor & Martin, L.L.P., for their research and assistance.
Several of the sources cited in this article have been catalogued in our institutional repository. The abstract for this
article as well as any sources we have digitized can be found at https://repository.unm.eduldspace/handlel1928/
3548.
1. See generally Leroy D. Clark, Movements in Crisis: Employee-Owned Businesses-A Strategy for
Coalition Between Unions and Civil Rights Organizations, 46 How. L.J. 49, 52 (2002).
2. Id. Employers often blacklisted employees that expressed an interest in unionization and required them
to agree not to join labor unions. Id. at 52-53.
3. Id. at 53; see also JOSEPH E. SLATER, PUBLIC WORKERS: GOVERNMENT EMPLOYEE UNIONS, THE LAW,
AND THE STATE, 1900-1962, at 71-73 (2004).
4. 29 U.S.C. § 152(2) (2000).
5. SLATER, supra note 3, at 6.
6. Id. at 71 ([W]hile labor in the private sector won formal institutional protections through the NLRA
of 1935, analogous statutes for government workers did not even begin to emerge until around the 1960s.).
7. Id. at 158; see also Op. N.M. Att'y Gen. No. 87-41 (Aug. 10, 1987). Colorado's Industrial Relations Act
of 1915 provided a qualified right to strike for both private and public employees but did not provide for a right to
engage in collective bargaining. See Martin v. Montezuma-Cortez Sch. Dist. RE-l, 841 P.2d 237, 241-47 (Colo.
1992) (en banc).
8. 5 U.S.C. §§ 7101-7135 (2000).
9. Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020,   3, 962 P.2d 1236, 1239.
But see Local 2238 of the Am. Fed'n of State, County & Mun. Employees v. Stratton, 108 N.M. 163, 165,769 P.2d
76, 78 (1989) (finding that government entities had the implied power to enter into collective bargaining agreements
with state employees, unless such bargaining is inconsistent with an existing statutory or state, county or municipal
merit system or with one which will come into existence (emphasis omitted)).

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