State Bar of New Mexico

National Labor Relations Board - Board Decisions

Mar 24, 2006

346 N.L.R.B. 674 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 64
674
State Bar of New Mexico and Communications
Workers of America Local 7011, AFL–CIO, Pe-
titioner. Case 28–RC–6077
March 24, 2006
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
The issue in this case of first impression is whether the
State Bar of New Mexico is exempt from the Board’s
jurisdiction as a political subdivision under Section 2(2)
of the Act. Pursuant to NLRB v. Natural Gas Utility Dis-
trict of Hawkins County, 402 U.S. 600, 604–605 (1971)
(Hawkins County or Hawkins), an entity is exempt from
the Board’s jurisdiction as a political subdivision if it is
either: (1) created directly by the State so as to constitute
a department or an administrative arm of the govern-
ment,1 or (2) administered by individuals who are re-
sponsible to public officials or to the general electorate.2
As explained below, we find, contrary to the Regional
Director and our dissenting colleague, that the State Bar
of New Mexico is exempt as a political subdivision be-
cause it was directly created by the State as an adminis-
trative arm of the judicial branch of government. Thus,
the Employer is exempt from the Board’s jurisdiction.
On June 28, 2002, the Regional Director for Region
28 issued a Decision and Direction of Election (pertinent
portions are attached as an appendix) in which he found
that the Employer is not a political subdivision within the
meaning of Section 2(2) of the Act and is subject to the
jurisdiction of the Board. The Regional Director there-
fore directed an election in the petitioned-for unit of all
full-time and regular part-time administrative assistants,
desktop publishers, printers, assistants for publica-
tions/editors, marketing managers, referral assistants,
secretary/receptionists, systems clerks, mail clerks,
graphic artists, and Web Masters, employed at the Em-
ployer’s Albuquerque, New Mexico facility.3
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s de-
cision. The Employer contends that it is not subject to
the jurisdiction of the Board because it is exempt under
Section 2(2) of the Act as a political subdivision under
both prongs of the test set forth in Hawkins County, su-

1 See, e.g., Hinds County Human Resource Agency, 331 NLRB 1404
(2000).
2 See Concordia Electric Cooperative, 315 NLRB 752 (1994).
3 Contrary to the Petitioner, the Employer sought to exclude the Web
Master as a managerial employee. The Regional Director found that
the Web Master is not a managerial employee. The Employer did not
request review of this finding.
pra. The Petitioner filed a brief in opposition. On Sep-
tember 10, 2003, the Board granted the Employer’s re-
quest for review.
Having carefully considered the entire record, includ-
ing the Employer’s brief on review, we reverse the Re-
gional Director and find that the Employer is exempt
from Board jurisdiction as a political subdivision under
Section 2(2) of the Act.
I. FACTS
The State Bar was initially created by statute in 1925
to operate as an agency of the New Mexico Supreme
Court. In 1978, the New Mexico legislature revoked that
statute. Simultaneously, the New Mexico Supreme
Court (the Court), enacted Rule 24-101 of the Rules
Governing the New Mexico Bar, “creating and continu-
ing” the State Bar, pursuant to its powers under the New
Mexico Constitution, in order “to aid the courts in im-
proving the administration of justice.” See Rule 24-101.
The rule mandated that all persons licensed in New Mex-
ico to engage in the practice of law be members of the
State Bar in accordance with the rules of the Court.4
Pursuant to Rule 24-101A, the State Bar “may incorpo-
rate, sue and be sued, may enter into contracts and ac-
quire, hold, encumber, dispose of and deal in and with
personal and real property, and promote and further the
aims as set forth herein and hereafter in these rules.”
The State Bar, pursuant to the rule, was thereafter in-
corporated in 1978 under New Mexico law as a nonprofit
corporation. The New Mexico Supreme Court estab-
lished a governing board known as the Board of Bar
Commissioners, comprised of 21 bar commissioners who
are elected in districts by attorney-members of the State
Bar.5 Rule 24-101-C. The Court also established the
districts and number of bar commissioners to be elected
from each district. Rule 24-101-D. Vacancies on the
board are filled by appointment of the Board, and ap-
pointed commissioners serve until the next election.
Rule 24-101-F. The Board of Bar Commissioners may
select and employ an executive director, who, among
other things, serves as the chief operating officer of the
State Bar and is charged with the supervision of the Em-
ployer’s employees.
The State Bar receives the bulk of its operating reve-
nues from the mandatory dues of its members. The

4 Because membership in the State Bar is a condition for the practice
of law in the State, the New Mexico State Bar is an “integrated” bar, as
opposed to a “voluntary” bar association, in which membership is at the
discretion of attorneys. The two types of bar associations raise differ-
ent sets of issues under Federal law. Thus, all cases cited herein deal-
ing with State bar associations will deal with integrated bars.
5 The chair of the Young Lawyers Division and the elected delegate
of the Senior Lawyers Division also serve on the commission.
STATE BAR OF NEW MEXICO 675
Court exercises control over the mandatory dues paid by
bar members by approving the fees and dues structure.
No dues increase can be made without such approval.6
The Court has retained final review authority over the
financial operations of the State Bar by requiring that the
Employer submit its budget for Court approval. The
State Bar is also required to have an annual audit and
provide a copy of the audit to the Court. Members of the
Board of Bar Commissioners receive no pay from the
State of New Mexico, and their only compensation is for
travel-related expenditures, which are reimbursed di-
rectly by the Employer. Rule 24-102.
At the time of the New Mexico Supreme Court’s en-
actment of Rule 24-101, et seq., the State adopted an
“exclusion” statute, which provides as follows: the
Board of Bar Commissioners of the State Bar and the
State Board of Bar Examiners are “bodies of the judicial
department and are not a state agency nor their employ-
ees public employees for purposes of workmen’s com-
pensation coverage, public employment retirement pro-
grams or social security coverage.” New Mexico Stat-
utes Annotated (N.M.S.A.) 1978, 36-2-9.1 (1979). The
Employer has the authority to set the terms and condi-
tions of employment for the petitioned-for unit without
any apparent oversight or approval by the Court or any
State entity.
II. THE REGIONAL DIRECTOR’S DECISION AND
CONTENTIONS OF THE PARTIES
As noted above, the Regional Director found that the
Employer is not exempt from Board jurisdiction under
the first prong of Hawkins County because the Employer
was not created directly by the State of New Mexico so
as to constitute a department or administrative arm of the
government. The Regional Director reasoned that the
Employer is a nonprofit corporation created to enhance
the legal profession and provide services to the attorneys
of New Mexico. Its bylaws and operating policies were
neither created nor implemented by the New Mexico
Supreme Court, but by the Board of Bar Commissioners,
the members of which are elected by the attorney-
members. In addition, the Regional Director interpreted
N.M.S.A. 36-2-9.1 as excluding the Employer’s employ-
ees from consideration as State employees, noting that
they appear to have none of the employment terms and
conditions enjoyed by their State employee counterparts.
The Regional Director further noted that the Employer’s
funding is derived strictly from private sources, with no
State moneys funding its operations. Further, the Re-

6 For instance, when the State Bar proposed the building of a State
Bar Center in 1989, the State Bar had to obtain authorization from the
Court for a dues increase to fund the project.
gional Director noted that the Employer is required to
pay property taxes on the State Bar Center Project.
The Employer contends that it is not subject to the
Board’s jurisdiction. First, the Employer maintains that
based on the face of the enabling documents, the State
Bar meets the first prong of the Hawkins County test.7 In
the Employer’s view, when the New Mexico Supreme
Court created the State Bar under Rule 24-101, the State
Bar retained the same fundamental purposes it had under
the 1925 statute. Further, the Employer asserts that al-
though the Court chose to delegate extensive authority to
the State Bar’s governing body (the Board of Bar Com-
missioners), the Court itself has retained final review
authority over the financial operations of the State Bar by
requiring that the governing body submit annually its
financial records for review and audit by the New Mex-
ico Supreme Court. In addition, the Employer contends
that the State Bar’s existence, purposes, and functions
depend entirely on Rule 24-101, et seq., and that the
Court retains the power to amend these rules and has
done so in the past. Finally, the Employer contends that
as an integrated State bar, it is an arm of the State under
the 11th Amendment of the Constitution.8
The Petitioner contends that the Employer was not
created by the State to constitute a department or arm of
the government; that in repealing the original legislation
creating the State Bar, the State legislature created a pri-
vate corporation separate from the State government.
The Petitioner argues further that the Supreme Court’s
control of the Employer’s finances consists simply of a
cursory review of its budget; that the Employer receives
no funds from the State government and must pay taxes
on some of its operations. In addition, the Petitioner con-
tends that the Employer’s employees work under terms
and conditions of employment governed by the Em-
ployer, not the State; that they are not subject to civil
service regulation and cannot transfer to State positions.

7 The Employer contends that the State Bar also meets the second
prong of the Hawkins County test because the State Bar is administered
by individuals who are accountable to justices who are public officials
elected to hold seats on the New Mexico Supreme Court. The Regional
Director rejected this argument. We find it unnecessary to reach this
issue and thus do not address this argument.
8 To lend further support to its argument, the Employer points out
that the New Mexico Risk Management Division’s Legal Bureau
(RMD) represented the State Bar in the matter of Ronald A. Bell v. the
Legal Advertising Committee, in 1996. The RMD is a New Mexico
State agency whose mission is to protect the State’s assets against
property, liability, and workers’ compensation losses, and this agency
does not, and cannot, provide legal services to any entity other than a
State agency or a State university. The lawsuit was brought against the
Legal Advertising Committee of the Disciplinary Board by an attorney-
member of the Bar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD676
Thus, the Petitioner requests that the Board affirm the
Regional Director’s Decision.
We have carefully considered the parties’ arguments,
and we find, for the reasons stated below, that the Em-
ployer is exempt from the Board’s jurisdiction under the
first prong of the Hawkins County test.
III. DISCUSSION
A. Application of the First Prong of Hawkins
County to the State Bar
Under the first prong of the Hawkins County test, in
order to be exempt from the Act as a political subdivi-
sion, the entity must be “created directly by the state so
as to constitute departments or administrative arms of
the government.” 402 U.S. at 604. (Emphasis added.)
In this case, we find that the State Bar was created di-
rectly by the New Mexico Supreme Court as an adminis-
trative arm of the judicial branch of government, and,
thus, is an exempt political subdivision under Section
2(2) of the Act. In addition, we find that the degree of
control exercised over the purposes and structure of the
State Bar further supports our finding that the State Bar
is an administrative arm of the New Mexico Supreme
Court.
1. The State Bar was created directly by the State
of New Mexico
As stated above, the operative events in the creation
and development of the State Bar, as it is constituted
today, were: (a) its creation in 1925 by the State legisla-
ture to operate as an agency of the New Mexico Supreme
Court; (b) the 1978 repeal of that statute; (c) the 1925
statute’s replacement by the 1978 statute defining the
Board of Bar Commissioners and the State Board of Bar
Examiners as “bodies of the judicial department,” and (d)
the New Mexico Supreme Court’s simultaneous imple-
mentation of Rule 24-101, which stated that “[a]cting
with powers vested in it by the Constitution of this state
. . . [t]he Supreme Court of New Mexico does hereby
create and continue an organization known as the State
Bar of New Mexico, all persons now or hereafter li-
censed in this state to engage in the practice of law shall
be members of the State Bar of New Mexico in accor-
dance with the rules of this court.”
It is evident from the face of the 1925 legislation that
the State Bar was originally created by the State of New
Mexico to operate as an agency of the State government,
and, thus, that the Employer would have been exempt
from Board jurisdiction under the first prong of the Haw-
kins County test if the issue had arisen prior to 1978. To
determine its status now, we must consider whether the
1978 legislative changes, taken together with the prom-
ulgation of Rule 24-101, et seq., altered the nature or the
functions of the State Bar so as to remove the exemption.
Contrary to our dissenting colleague, we find that they
have not so changed. The Employer, as currently consti-
tuted, remains a direct creation of State government—
“create[d] and continue[d] by the New Mexico Supreme
Court”—and continues to perform the same functions for
the New Mexico judiciary as it did prior to 1978, namely,
assisting in the regulation of the legal profession. It is
well settled that the order of a State Supreme Court pro-
viding for a State bar association has the authority of a
“statute.” Lathrop v. Donahue, 367 U.S. 820, 824 (1961)
(Federal statute authorizing appeal to Federal court of
suit challenging validity of State statute covers Supreme
Court orders establishing integrated bar, as an “act legis-
lative in character to which the state gives its sanction”).
(Citations omitted.) Thus, as in Hawkins County, it is
plain on the face of the enabling state documents that the
State Bar is a political subdivision.
Our dissenting colleague argues that the State Bar is
not a creation of the State government because it was
“created and continued” pursuant to an action by New
Mexico’s judicial branch, and questions Lathrop’s appli-
cability to a case analyzing the jurisdictional reach of the
Act. We disagree. Lathrop addresses a core issue pre-
sented by this case—the status of an act by a State judi-
ciary establishing an entity to regulate activity within the
State, and, thus, its analysis is entirely pertinent. In this
regard, nothing in Hawkins County limits the scope of
the Act’s exemption of the first branch of political subdi-
visions—entities that are “created directly by the State,
so as to constitute departments or administrative arms of
the government”9—to employers created pursuant to
enactment of State legislatures. Thus, the question of the
status of an employer created by an act of the judiciary
remains open under Hawkins, and Lathrop effectively
answers that question. In holding that the State Supreme
Court’s order establishing the integrated bar in Wiscon-
sin was a “statute” for purposes of Supreme Court re-
view, the Lathrop Court found that the “legislative char-
acter of challenged state action, rather than the nature of
the agency of the State performing the act, is decisive
. . . . It is not necessary that the state legislature itself
should have taken the action drawn in question. In con-
struing [a] similar jurisdictional provision . . . we said:
‘any enactment, from whatever source originating, to
which a State gives the force of law is a statute of the
State.’” 367 U.S. at 824. (Emphasis added and citations
omitted.) Thus, the Lathrop Court found that States can
act “legislatively” through other branches of government,
and that the key attribute of such legislative action is that

9 Hawkins County, supra, 402 U.S. at 604.
STATE BAR OF NEW MEXICO 677
it has the force of law, and the Lathrop Court further
found that a State Supreme Court’s establishment of an
integrated State bar has the force of law. It is undeniable
that New Mexico’s establishment of an integrated State
bar also has the force of law. Thus, we find no cogniza-
ble distinction, under Hawkins County, between the State
Supreme Court’s enactment of a rule creating the bar and
the State legislature’s enactment of a statute creating it.
2. The State Bar was created to assist the judicial
branch of the State of New Mexico in regulating
the legal profession
The State of New Mexico requires that, in order to
maintain State licensure, attorneys must be members of
the State Bar and must pay its established annual dues.
Under Rule 24-101, the New Mexico Supreme Court
retains overall authority to regulate the practice of law in
New Mexico and to continue and control the character
and activities of the State Bar, acting “within the powers
vested in it by the constitution of this state and its inher-
ent power over members of the legal profession as offi-
cers of the court.” Rule 24-101 explicitly sets forth the
purposes of the State Bar, which include aiding the
courts in improving the administration of justice, improv-
ing relations between the legal profession and the public,
encouraging and assisting in the delivery of legal ser-
vices, providing a forum for the discussion of the prac-
tice of law and law reform, and participating in State
lawmaking processes.
3. The State Bar fulfills regulatory functions on
behalf of the New Mexico Supreme Court
The State Bar oversees and administers committees
and boards of the State Bar to ensure compliance with
and enforcement of the Court’s rules. These bodies in-
clude the Legal Advertising Committee of the Discipli-
nary Board, the Board of Bar Examiners, the Legal Spe-
cialization Board, and the Minimum Continuing Educa-
tion Board. The State Bar has the authority to bring suit
on behalf of the public for the unlicensed practice of law.
State Bar v. Guardian Abstract & Title Co., 575 P.2d 943
(N.M. 1978).
The State Bar monitors and enforces New Mexico’s
requirement that licensed attorneys pay State licensing
fees. If a member fails to pay the mandatory dues, the
State Bar certifies the name of the member to the Court,
which suspends the member from practice. If the Court
suspends a member, he must petition the Board of Bar
Commissioners for reinstatement, after paying all fees
and penalties. The State Bar has the authority to waive
the license fee in case of hardship. If the State Bar re-
fuses to do so, the member has the right to petition the
Court for reversal of the decision.
4. The New Mexico Supreme Court controls the
governing structure of the State Bar
Under Rule 24-101, et seq., the Court:
• established the governing board of the State
Bar, (the Board of Bar Commissioners);
• specified the composition of the Board;
• established the districts from which the Bar
Commissioners are elected, the procedures
for nomination and election of commission-
ers, the commissioners’ terms of office, and
the procedures for filling vacancies on the
Board;
• provided for the manner in which the Bar
Commissioners are elected, their terms of of-
fice, the manner for filling vacancies and
submitting nominations. Rule 24-101(D)-(I);
• retained the sole power to alter these central
aspects of the State Bar’s governing structure.
5. The New Mexico Supreme Court exercises
substantial control over the State Bar’s priorities
and operations
Although the Board of Bar Commissioners is permit-
ted to write and adopt bylaws applicable to the Em-
ployer, its discretion is limited by the Court’s require-
ment that the bylaws conform with the rules establishing
the State Bar. Rule 24-101 C provides that “any such
bylaws inconsistent with these Rules shall be invalid.”
The Court has retained jurisdiction to review all bylaws
for compliance with this requirement. In addition, the
record evidence shows that the Court has mandated the
following activities of the State Bar:
• The Employer is required to publish a weekly
periodical, the “Bar Bulletin,” which notifies
the membership of case holdings in the New
Mexico courts, minutes of pertinent meetings
(including the bar commissioners’ meetings),
and other items of interest to the membership.
• The State Bar’s Executive Director has
worked with the Court to create an annual
continuing legal education (CLE) requirement
and a mandatory professionalism program for
New Mexico attorneys. Court approval of the
program depended on the effectuation of the
Court’s directives as to the details of the pro-
gram.
• The Executive Director also worked with the
Court on the creation of a Commission for
Professionalism, which was ultimately cre-
ated by an order of the Court and issued by
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD678
publication in the Bar Bulletin. The Court
specified the direction of the initiative and the
composition of the Commission.
• In setting up the Bar’s Technology Commit-
tee, the Court chose the members and dictated
the committee’s functions and findings.
Moreover, the Court rejected, over the vote of
the Board of Bar Commissioners and Bar
members, the recommendations of the Bar’s
multi-jurisdictional task force.
• The Court directed the manner in which the
Consumer Attorney Assistance Program
should implement its program.
• Rule 24-103, as well as N.M.S.A. 36-2-26,
mandates that the State Bar hold an annual
meeting; the Court’s approval is required to
hold the meeting out of state.
6. Through its authority to review and its power
of final approval, the New Mexico Supreme
Court exercises significant control over the
Employer’s budget
The Court requires the State Bar to undergo an annual
audit and provide a copy to the Court. The Court has the
right of review over the State Bar’s chief source of oper-
ating funds, the dues of its members. The Court ap-
proves the fees and dues structure, and no dues increase
can be made without such approval. The Court’s ap-
proval was required to raise the fees charged new admit-
tees to the Bar.
The Court requires the State Bar to maintain a client
protection fund to reimburse citizens who have claims
against attorney members. The Bar Commissioners
sought the Court’s approval to eliminate the fund and
direct the money to other programs. The Court rejected
the proposal. The Employer submitted a second pro-
posal, incorporating the Court’s advice, which was ap-
proved.
In 1989, the State Bar proposed the building of a State
Bar Center. Authorization from the Court was required
both for the project and for a dues increase to fund the
project.
B. Consistency of the State Bar’s Exemption with
Other Cases Interpreting Hawkins County
In determining whether an employer is exempt from
Board jurisdiction under Hawkins County, the Board has
analyzed the establishment and operations of numerous
entities that perform services for State governments and
their branches to determine if they are exempt under the
first prong of the Hawkins County test. The Board found
that the following types of employers, among others, are
not exempt:
• an employer incorporated as a private busi-
ness entity to perform health-care services for
a state, Methodist Hospital of Kentucky, 318
NLRB 1107 (1994), enfd. in relevant part sub
nom. Pikesville United Methodist Hospital of
Kentucky v. United Steelworkers of America,
109 F.3d 1146 (6th Cir.), cert. denied 522
U.S. 994 (1997);
• an entity organized as a private corporation to
review grants to a public university system,
Research Foundation of the City University of
New York, 337 NLRB 965 (2002);
• an entity that contracted with a state to per-
form services for citizens with special needs,
Jefferson County Community Center, 259
NLRB 186 (1981), enfd. 732 F.2d 122 (10th
Cir. 1984).
Each of these employers failed the first prong of the
Hawkins County test because no special act of the State
was required to bring the relevant entity into existence.
On this key point, these employers stand in contrast to
the Employer here.
The State Bar exists pursuant to State action and owes
its entire existence to the will of the State of New Mex-
ico. The Employer here, shares this key characteristic of
political subdivision status with the agencies in cases
such as Hinds County Human Resource Agency, 331
NLRB 1404 (2000); Madison County Mental Health
Center, 253 NLRB 258, 259 (1980); and Association for
the Developmentally Disabled, 231 NLRB 784, 786
(1977), in which agencies were created pursuant to State
statute to discharge a State function, e.g., promoting eco-
nomic development or caring for mentally disabled citi-
zens. The Employer here, both before and after the 1978
legislative changes, exists to fulfill a State purpose:
“[t]he regulation of the activities of the bar is at the core
of the state’s power to protect the public.” Bates v. State
Bar of Arizona, 433 U.S. 350, 360 (1977).
We further disagree with the Regional Director’s em-
phasis on N.M.S.A. 36-2-9.1 in finding that the Em-
ployer is not a political subdivision. As set forth above,
this statute declares that the commissioners of the State
Bar and the State Board of Bar Examiners “are bodies of
the judicial department,” and “their employees [are not]
public employees for purposes of workmen’s compensa-
tion coverage, public employment retirement programs
or social security coverage.” As an initial matter, the
statute on its face is narrowly drawn. It evinces no legis-
lative intent to define comprehensively, even under State
STATE BAR OF NEW MEXICO 679
law, the status of the employees in the petitioned-for
unit. Moreover, the statute specifies that the State Bar is
a body of the judicial department, which weighs against a
finding that it is a private employer. Further, the Su-
preme Court held in Hawkins County itself that Federal,
not State, law controls the determination of whether an
entity is a “political subdivision” exempt from Board
jurisdiction. 402 U.S. at 603–604.10
Thus, our dissenting colleague’s and the Regional Di-
rector’s emphasis on the lack of involvement of the New
Mexico Supreme Court in setting the conditions of em-
ployment in the petitioned-for unit is also misplaced, in
light of the clear evidence that the State Bar was created
directly by the State and functions primarily to adminis-
ter the State’s rules governing the practice of law. See,
e.g., City Public Service Board of San Antonio, 197
NLRB 312 (1972) (the employer satisfied the criteria
established by the Board for determining political subdi-
vision status, notwithstanding the employer’s autonomy
in day-to-day operations and in labor relations). The key
question in determining the status of an entity as a politi-
cal subdivision is the body of Federal labor law interpret-
ing the Act.
This case is distinguishable from St. Paul Ramsey
Medical Center, 291 NLRB 755 ((1988), an advisory
opinion on which our dissenting colleague relies. In that
case, the relevant statutory provisions indicated that the
State did not intend Ramsey Health Care (RHC) and its
subsidiary to be departments or administrative arms of
the government. Further, the RHC had substantial pow-
ers independent of the government. Thus, the RHC had
the statutory authority and “all necessary power,” with-
out evidence of further review by or accountability to the
State, to, inter alia, prepare its own budget, acquire real
and personal property, incorporate other nonprofit or for-
profit corporations, merge or consolidate with other for-
eign or domestic health care corporations, borrow funds,
or take any other action relative to the delivery of health
care services that could be taken by a private nonprofit
corporation. Id. at 755.
The instant case differs in both respects. The relevant
statute in the instant case explicitly states that the State
Bar is an arm of the judicial branch of government. Fur-
ther, the evidence shows that the New Mexico Supreme
Court has retained final review authority over the finan-
cial operations of the State Bar by requiring that the Em-

10 Thus, we recognize that the State of New Mexico has legislated
that the employees of the Employer are employees of “the judicial
department” of government, rather than employees of the executive or
legislative branches. But this State declaration does not contradict the
undeniable fact that the judicial department is, in the words of Hawkins
County, a “department [] . . . of the government.” 402 U.S. at 604.
ployer submit its budget for Court approval, exercising
control over the Bar’s fees and dues structure, and re-
ceiving a copy of the Bar’s required annual audit. Unlike
in St. Paul, supra, the Court oversees and administers the
committees and boards of the State Bar to ensure com-
pliance with and enforcement of the Court’s rules, con-
trols the governing structure of the State Bar, and exer-
cises substantial control over the Bar’s priorities and op-
erations. Indeed, the State Bar’s bylaws must conform to
the rules established by the State Bar.11
C. Consistency of State Bar’s Exemption with
Treatment of Integrated Bars in Other Areas
of Federal Jurisprudence
Our finding that the State Bar is a political subdivision
under the first prong of the Hawkins County test is sup-
ported by decisions of the United States courts of appeals
finding that other integrated State bar associations are
immune from suit as State agents under the Eleventh
Amendment of the Constitution, which provides for sov-
ereign immunity for the States.12 “The Eleventh
Amendment bars suit against an entity in addition to the
state itself, when the defendant is an “arm” or “alter ego”
of the state.” Thiel v. State Bar of Wisconsin, 94 F.3d
399, 400 (7th Cir. 1996). Every circuit court that has
addressed the issue of an integrated State bar associa-
tion’s sovereign immunity has found the State bar to be
immune from suit in Federal court under the 11th
Amendment as an arm of the State.13 See also Washing-

11 Truman Medical Center, 239 NLRB 1067 (1978), enfd. 641 F.2d
570 (8th Cir. 1981); and California Inspection Rating Bureau, 215
NLRB 780 (1974), relied on by our dissenting colleague, are also dis-
tinguishable from the instant case. In Truman Medical Center, the
employer succeeded the State health department as the operator of a
hospital under a contract for services, and, thus, is clearly distinguish-
able from the Employer here; in California Rating Bureau, the em-
ployer provided special rating services to insurance companies and
reported its findings to the insurance commissioner, but the State’s
insurance statute provided for competing organizations performing the
same services. Further, as in St. Paul’s, supra, the employers in these
cases were subject to less State control than that exerted in the instant
case.
12 Courts have noted that the Act’s political subdivision exemption
“has its ultimate basis in the Tenth Amendment considerations of state
sovereignty and the 11th Amendment grant of judicial immunity to the
states.” Crestline Memorial Hosp. Assn. v. NLRB, 668 F.2d 243, 245
fn. 1 (6th Cir. 1982).
13 Lewis v. Louisiana State Bar Assn., 792 F.2d 493 (5th Cir. 1986);
Bishop v. State Bar of Texas, 791 F.2d 435 (5th Cir. 1986), Kremp v.
Dobbs, 775 F.2d 1319, 1321 fn. 1 (5th Cir. 1985); Neilson v. State of
Michigan, mem. 181 F.3d 102 (6th Cir. 1999); Thiel, supra, 94 F.3d at
402–403; Gilchrist v. Arizona Supreme Court, mem. 10 Fed. Appx. 468
(9th Cir. 2001), cert. denied 534 U.S. 996 (2001); Broening Oberg
Woods Wilson & Cass v. State Bar of Nevada, mem. 172 F.3d 875 (9th
Cir. 1999); Lupert v. California State Bar, 761 F.2d 1325 (9th Cir.
1985), cert. denied 474 U.S. 916 (1985); Ginter v. State Bar of Nevada,
625 F.2d 829, 830 (9th Cir. 1980); Doyle v. Oklahoma State Bar Assn.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD680
ton Legal Foundation v. Texas Equal Access to Justice
Foundation, 94 F.3d 996, 1005 (5th Cir. 1996) (11th
Amendment immunity extends to the Texas Equal Ac-
cess to Justice Foundation because the Texas Supreme
Court created it pursuant to its rule-making authority).14
Thiel, supra, is particularly instructive. In Thiel, as
here, the rules of the State Supreme Court were enforced
by and through the State bar. Attorneys sued the Wis-
consin State Bar, alleging that the rule permitting the Bar
to use compulsory dues to fund certain purposes was
unconstitutional. The court found that the Wisconsin
State Bar was “vested with sufficient state characteristics
to qualify for sovereign immunity,” and, thus, is immune
from suit under the 11th Amendment. 94 F.3d at 401
(quoting Crossetto v. State Bar of Wisconsin, 12 F.3d
1396, 1402 (7th Cir. 1993)). The court relied on two
factors: the extensive control that the Wisconsin Su-
preme Court exercised over the Bar, and the Bar’s
agency relationship with the Wisconsin Supreme Court
in promulgating the challenged rule. Id. at 402–403.
The examples of the Wisconsin court’s control over
the Bar cited by the court in Thiel closely parallel the
controls that the New Mexico Supreme Court exercises
over the State Bar in this case: the Wisconsin Supreme
Court created the Bar; retained control over Bar dues and
the Bar’s budget “in a variety of ways”; established the
manner in which the Bar conducts its daily business, the
Bar’s governing bodies, offices, powers, functions, and
duties; and retained authority of review over amend-
ments of the Bar’s bylaws. Id. at 402.
In finding that the Wisconsin Supreme Court exercised
“sufficient control over the Bar [to find] Eleventh
Amendment immunity,” however, the court recognized
that the Supreme Court did not “micromanage every as-

787 F.Supp. 189 (W.D. Okla. 1992), affd. 998 F.2d 1559 (10th Cir.
1993); Kaimowitz v. Florida Bar, 996 F.2d 1151 (11th Cir. 1996).
14 Our dissenting colleague summarily dismisses this precedent as
“having no bearing here.” We respectfully disagree. This case presents
an issue of first impression in a difficult area of the law. Thiel, supra,
and other 11th Amendment cases cited here have examined integrated
State bars to determine the degree to which the States have endowed
the bars with “state characteristics.” In Thiel, as discussed above, the
court, in large part, assessed the extent of the State Supreme Court’s
control over the functions of the State bar and whether the bar had
acted as an agent of the State in propounding the rule at issue. This
inquiry closely parallels the settled approach of the Board and courts in
determining whether an employer is a political subdivision. In Haw-
kins County, supra, the Court found that the inquiry into the status of an
employer as a possible political subdivision involves examining the
“‘actual operations and characteristics’” of the employer. 402 U.S. at
604, quoting NLRB v. Hearst Publications, 322 U.S. 111, 123 (1944).
State control over the employer and the employer’s role in effectuating
State purposes are intrinsic to these “operations and characteristics,”
and the courts’ careful examination of these factors, albeit in the con-
text of an 11th Amendment inquiry, serves to guide our own inquiry.
pect of the Bar.” Id. Citing powers identical to those
delegated to the Employer here, the court noted that the
Wisconsin Bar may sue and be sued, enter into contracts,
hold property, and handle its own personnel matters. Id.
The court concluded that these factors did not negate the
fact that the “Wisconsin Supreme Court has sufficient
control over the Bar to weigh in favor of invoking Elev-
enth Amendment immunity.” Id.15
Conclusion
In sum, we find that, based on the plain language of
the statutes and rules of the State of New Mexico, the
State Bar was created by the New Mexico Supreme
Court pursuant to its rulemaking authority, and serves as
an administrative arm of the Court. The State Bar assists
the judicial branch in regulating the legal profession.
The language of Rule 24-101 specifically created and
continued the State Bar, which had initially been created
by statute to operate as an agency of the Court, and this
rule has been and may be amended by the Court. The
New Mexico legislature simultaneously adopted a statute
specifically defining the Board of Bar Commissioners
and the State Board of Bar Examiners as “bodies of the
judiciary department.” Finally, the New Mexico Su-
preme Court exercises substantial control over the State
Bar. Accordingly, the State Bar is a political subdivision
exempt from the Board’s jurisdiction, and the petition
should be dismissed.
ORDER
The Regional Director’s Decision and Direction of
Election asserting jurisdiction over the Employer is re-
versed, and the petition is dismissed.
MEMBER WALSH, dissenting.
The majority finds that the State Bar of New Mexico is
exempt from the Board’s jurisdiction as a “political sub-
division,” even though it was established as a nonprofit
corporation, is administered by private citizens, and is
governed by documents that specifically say that it is not
a State agency and its employees are not public employ-
ees. The majority comes to this conclusion primarily
because the State Bar was established under the authority
of a rule promulgated by the New Mexico Supreme
Court, and it performs functions which aid the Supreme
Court in the administration of the judicial system of the

15 The Regional Director found that the State Bar’s sovereign immu-
nity argument contradicts the rule’s provision that the Employer may
“sue and be sued.” In Thiel, the court explicitly rejected this position.
The court explained that “in order to waive Eleventh Amendment im-
munity, a state statute or constitutional provision must do so in explicit
language . . . it must specify the State’s intention to subject itself to suit
in federal court.” 94 F.3d at 403 (quoting Atascadero State Hospital,
473 U.S. 234, 241 (1985)) (emphasis in original).
STATE BAR OF NEW MEXICO 681
State of New Mexico. The majority cites no authority
that mandates this result; rather, the majority relies pri-
marily on cases that hold that other State bar associations
are immune from suit in Federal court under the 11th
Amendment to the U.S. Constitution.
At best, this is a close case involving a private, non-
profit enterprise, with some functions that are public in
nature. In these circumstances, and in the absence of any
clear authority establishing that the State Bar is a politi-
cal subdivision, as that term is used in Section 2(2) of the
Act, the Board should assert jurisdiction. If we refuse to
do so in a close case because of an expansive reading of
a jurisdictional exemption, we abdicate our responsibility
to assure employees the fullest freedom to exercise the
rights guaranteed by the Act. As the Board has recently
recognized, the “exemptions provided in Section 2(2) are
to be narrowly construed.” San Manuel Indian Bingo &
Casino, 341 NLRB 1055, 1058 (2004).
I.
The applicable test is whether the State Bar of New
Mexico (State Bar) was created directly by the State so
as to constitute a department or administrative arm of the
government. NLRB v. Natural Gas Utility District of
Hawkins County, 402 U.S. 600, 604 (1971).1 The origi-
nal State Bar was, in fact, created by the State of New
Mexico to serve as an arm of the New Mexico Supreme
Court.
However, the State statute that created the State Bar
was repealed in 1978. The reconstituted State Bar, in
contrast, was not created by the authority of a State stat-
ute. Instead, it was created under the authority of a rule
promulgated by the New Mexico Supreme Court, and it
was incorporated as a nonprofit corporation.2 The rule
provided that the State Bar would be administered by a

1 An entity can also be a political subdivision if it is “administered
by individuals who are responsible to public officials or the general
electorate.” Id. at 604–605. The majority does not reach this “second
prong” of the Hawkins County analysis; for reasons explained below, I
would find that the State Bar does not meet this test either.
2 The majority asserts that the State Bar remains a direct creation of
the State government because the New Mexico Supreme Court’s 1978
rule is tantamount to a State statute. It relies on Lathrop v. Donahue,
367 U.S. 820, 824 (1961), rehearing denied 368 U.S. 871 (1961). In
Lathrop, the Court found that an order of the Wisconsin Supreme Court
that integrated the Wisconsin Bar was cognizable under 28 U.S.C. §
1257(2), which provides for appeal to the Supreme Court where the
validity of a “statute” is thrown into question. This case, however, does
not involve the narrow issue of whether a rule enacted by the New
Mexico Supreme Court qualifies as a “statute” for purposes of Supreme
Court jurisdiction. And in any event, even if the New Mexico Supreme
Court’s rule were to be considered a “statute,” the rule itself does not
create the New Mexico State Bar, and there is nothing in the rule which
states that the State Bar is created as a State agency. The rule simply
authorizes the creation of the State Bar, and in fact it was created as a
private, nonprofit corporation.
Board of Bar Commissioners, who are not appointed by
the Court, but rather are elected by fellow members of
the State Bar.
A New Mexico State statute expressly provides that
the Board of Bar Commissioners and the State Board of
Bar Examiners are “bodies of the judicial department and
are not a state agency nor their employees public em-
ployees for purposes of workmen’s compensation cover-
age, public employment retirement programs or social
security coverage.” New Mexico Statutes Annotated
1978, 36-2-9.1 (emphasis added). Accordingly, the
members of the Board of Bar Commissioners receive no
pay from the State, and their only compensation is for
travel-related expenditures, which come out of private
funds and are paid directly to them by the State Bar.
The State Bar’s employees receive none of the special
benefits granted to State employees. They do not receive
their paychecks from the State, are not subject to State
civil service rules, and they are not allowed to transfer to
other State positions. They work under the supervision
of an executive director, who is also not a State em-
ployee. The State Bar hires and trains its own employ-
ees, and all of their terms and conditions of employment
are governed by an extensive employee handbook which
the State Bar itself developed and implemented with no
oversight or approval by the Supreme Court or any other
public entity. The State Bar provides its own benefit
package to its employees and pays all of their wages and
benefits from private, not public, funds.
As the majority acknowledges, in determining whether
an entity is an exempt political subdivision under the first
prong of the Hawkins County test, we look first at the
governing documents to determine the intent of the ena-
bling or governing body. See Hinds County Human Re-
source Agency, 331 NLRB 1404, 1404 (2000); St. Paul
Ramsey Medical Center, 291 NLRB 755, 757 (1988).
There is nothing in the Supreme Court’s 1978 rule au-
thorizing the establishment of the State Bar, or in the
statutes relating to the Board of Bar Examiners, which
expressly states any intent to establish the State Bar as a
State Agency. In fact, New Mexico Statutes, Chapter 36-
2-9.1, expressly states that the Board of Bar Commis-
sioners and the State Board of Bar Examiners of the State
bar are not state agencies, nor are their employees to be
considered public employees.3 This is in marked contrast

3 Thus, the majority’s assertion that the State of New Mexico has
legislated pursuant to New Mexico Statutes, Chapter 32-29-1 that the
employees of the State Bar are employees of the “judicial department”
is unfounded. The statutory language describes the Board of Bar
Commissioners as a “bod[y] of the judicial department,” but it does not
describe the State Bar’s employees as employees of the “judicial de-
partment.” Indeed, the State Bar, established as a nonprofit corporation
and administered by private citizens, hires and sets terms and condi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD682
to the 1925 statute that originally created the State Bar to
operate as an agency of the Supreme Court of New Mex-
ico, but was repealed in 1978.
The Supreme Court’s 1978 rule allows the State Bar to
incorporate, sue and be sued, enter into contracts, and
own and dispose of real property. Pursuant to the rule,
the State Bar was incorporated as a nonprofit organiza-
tion. To administer the State Bar, the Board of Bar
Commissioners employs an executive director, who is
not a State employee. The State Bar’s funding is strictly
from private sources, with no State moneys funding its
operations. The State Bar is authorized by its bylaws to
engage in extensive lobbying activities. Although the
New Mexico Supreme Court must approve the State
Bar’s budget, it generally does so without comment. The
only exception was one occasion when the Supreme
Court remanded the proposed budget to the State Bar for
an amendment.
Not only are the State Bar’s employees not considered
public employees for most purposes, but neither the Su-
preme Court nor any other State entity has any authority
to interfere in the State Bar’s personnel or labor relations
decisions. The State Bar’s employees have no recourse
to any governmental body with respect to grievances,
discipline, or any employee concerns. Their employee
handbook repeatedly emphasizes that the sole authority
over all terms and conditions of employment lies with
the State Bar, its management, and its executive director.
The State Bar pays its own employees from its own
budget, and provides its own benefit package.
II.
The majority minimizes the State Bar’s control over its
own employees. Instead, it emphasizes the State Bar’s
quasi-public functions: assisting the Supreme Court in
regulating and promoting the legal profession. Under
significant Board precedent, however, nonprofit organi-
zations that perform quasi-public functions are not in fact
political subdivisions exempt from the Board’s jurisdic-
tion.
In St. Paul Ramsey Medical Center, supra, 291 NLRB
755, the employer was originally set up by statute as an
exempt political subdivision. The statute was subse-
quently repealed, and a new statute was passed which
created a nonprofit public corporation known as Ramsey
Health Care, Inc. (RHC). RHC’s statutory purpose was
to engage in the provision and delivery of health care and
related services. Id. at 755. The new statute directed
RHC to create a hospital subsidiary corporation respon-

tions of employment for its own employees without oversight by the
judiciary. These employees do not receive special benefits granted to
State employees, and are not otherwise treated as public employees.
sible for governing and operating the medical center.
The statute expressly provided that RHC would have
powers that were withheld from the former commission
such as the power to prepare an annual budget, to borrow
funds, and to purchase real property. It further provided
that the hospital subsidiary corporation, like the State Bar
in this case, would be separately organized and incorpo-
rated rather than directly created by the State. The Board
found it significant that the act provided that the employ-
ees of both RHC and the hospital subsidiary corporation
were excluded from coverage under the State public em-
ployment labor relations act and the State public em-
ployee retirement act, indicating an intent to privatize the
day-to-day operations of the Medical Center.
Like the State Bar in this case, the employer medical
center in St. Paul Ramsey Medical Center, as managed
and operated by RHC and the hospital subsidiary corpo-
ration, had some of the attributes of a public entity. The
Board nevertheless found that the State did not intend for
either RHC or the hospital subsidiary corporation to be
created as departments or administrative arms of the
government. Id. at 757–758. Similarly, in this case, the
balance of the relevant factors indicates that the State did
not intend for the State Bar to be created or to operate as
an administrative arm of government.4
Thus, there is clear Board authority finding that quasi-
public, nonprofit organizations like the State Bar—which
may be subject to some control of a State entity, and
which have some semipublic functions in aid of State
government, but which retain control over their day-to-
day operations and personnel and labor relations poli-
cies—are not public entities exempt from the Board’s
jurisdiction. In contrast to this clearly analogous prece-
dent, the decisions that the majority relies on are distin-
guishable from this case. Hinds County Human Re-
source Agency, supra, 331 NLRB 1404; Association for
the Developmentally Disabled, 231 NLRB 784 (1977);
and Madison County Mental Health Center, 253 NLRB
258 (1980).
In Hinds County, a human resource agency was cre-
ated pursuant to an enabling statute that specifically
granted county boards the power to establish and operate

4 See also Truman Medical Center, 239 NLRB 1067 (1978), enfd.
641 F.2d 570 (8th Cir. 1981) (medical center, organized under State
not-for-profit statutes and requiring no special legislative action or
action by public officials, was no longer created directly by the State so
as to constitute a department or arm of the government); California
Inspections Rating Bureau, 215 NLRB 780 (1974) (nonprofit organiza-
tion performing workers’ compensation insurance rating function and
created by virtue of State statutes found not to be political subdivision;
not defined as State agency, had own labor relations policies, and oper-
ated like privately organized private utility within confines of license
and State regulations).
STATE BAR OF NEW MEXICO 683
human service agencies and intended that such agencies
operate under local government control. Id. at 1404. The
employer received virtually all of its funds from State
and Federal Government sources, the amount and use of
those funds was specified and controlled by governmen-
tal contracts and grants, and the employees had the op-
tion of participating in the State retirement system. In
addition, the Hinds County board of supervisors ap-
proved each of the employer’s new board members. Id.
at 1405. By contrast, in this case there is no legislative
mandate that the State Bar operate under local govern-
ment control, the Bar does not receive State funds, the
employees do not participate in the State retirement sys-
tem, and neither the Court or any State entity approves
the State Bar’s board members.
In Association for the Developmentally Disabled, su-
pra, the Board found the employer (ADD) to be exempt
from its jurisdiction as an agency of Franklin County.
ADD was created directly by the Franklin County Mental
Health and Retardation Board, which was part of the
government of Franklin County, to fulfill Franklin
County’s statutory obligation to provide mental health
services. 231 NLRB at 784. Unlike the State Bar’s,
ADD’s income was derived from mostly Federal, State,
and county sources; several of its facilities were either
owned by or were paid for in whole or in part by the
State of Ohio or by Franklin County, and all of its non-
expendable property was titled in the county board. Id.
at 786. Further, in contrast to this case, the county board
performed most of ADD’s accounting, paid the salaries
of ADD employees, purchased all items over $50 for
ADD, and required ADD to adhere to its policy and pro-
cedure manual and to Ohio’s position classification
booklet. Also unlike here, the staffers hired by the
county board to set up and run ADD retained their status
as public employees when they went to work for ADD,
and were included in the Ohio retirement fund for public
employees. Id. at 784.
In Madison County, supra, although the hospital was
separately incorporated, 80 percent of its funding was
from a government source, and the county board retained
significant control over the hospital’s day-to-day opera-
tions, including its labor relations policies. 253 NLRB at
259. In this case, by contrast, the State Bar receives none
of its funding from public sources, and its executive di-
rector is responsible for its day-to-day operations and its
labor relations policies.
The majority also relies on Federal court decisions
holding that certain State bar associations are immune
from suit under the 11th Amendment to the Constitution.
Several are distinguishable on their facts, as the pertinent
State bar associations have attributes of a government
entity that are not present here. See, e.g., Kaimowitz v.
Florida Bar, 996 F.2d 1151 (8th Cir. 1993) (rules of
Florida Supreme Court specifically stated that the State
Bar of Florida was an official arm of the Court); Lewis v.
Louisiana State Bar Association, 792 F.2d 493 (5th Cir.
1986) (State bar expressly set up as an agent of State
Supreme Court, and Committee of Bar Commissioners
were appointed by the Court).
To the extent, however, that the cited cases involve
State bar associations that are similar in structure and
function to the State Bar in this case, they are not dispo-
sitive of the issue under our statute. For example, in
Thiel v. State Bar of Wisconsin, 94 F.3d 399 (7th Cir.
1996), the issue was whether the State bar was immune
from suit under the 11th Amendment by private attorneys
who were challenging how the bar used their mandatory
membership dues.
Decisions involving the 11th Amendment have no
bearing here. The question in such cases is whether pri-
vate persons may sue state entities in Federal court. The
11th Amendment, of course, has no application to the
exercise of Federal statutory authority by the Federal
Government. See, e.g., Employees of the Department of
Public Health & Welfare v. Department of Public Health
& Welfare, Missouri, 411 U.S. 279, 286 (1973) (discuss-
ing authority of secretary of labor under Fair Labor Stan-
dards Act). Here, in contrast, the issue is whether a spe-
cific exemption from the coverage of a Federal statute,
which is to be construed narrowly, bars the enforcement
authority of the Federal agency charged with administer-
ing the statute.
In my view, the balance of the relevant factors weighs
in favor of asserting jurisdiction in this case. And this
view is consistent with Board precedent holding that
similar quasi-public entities are subject to our jurisdic-
tion.
III.
The majority does not reach the issue of whether the
State Bar is exempt from Board jurisdiction under the
second prong of the Hawkins County test. Under the
second prong, an organization is exempt as a political
subdivision if it is administered by individuals who are
responsible to public officials or to the general electorate.
NLRB v. Natural Gas Utility District of Hawkins County,
supra, 402 U.S. at 604–605. The Regional Director cor-
rectly decided that the State Bar does not qualify as a
political subdivision under this test either.
There is no evidence that the Board of Bar Commis-
sioners, which administers the State Bar, is elected by or
otherwise answerable to the “general electorate,” and the
State Bar does not contend otherwise. The State Bar
argues, however, that the Bar Commissioners are respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD684
sible to the State Supreme Court, who are themselves
elected public officials.
In determining whether an entity is administered by
individuals responsible to public officials, the Board
looks to whether or not those individuals are appointed
by and subject to removal by public officials. See Re-
gional Medical Center at Memphis, 343 NLRB 346, 369
(2004); Research Foundation of the City University of
New York, 337 NLRB 965, 969 (2002). In this case, the
New Mexico Supreme Court has no authority to appoint
or remove the Board of Bar Commissioners. The Com-
missioners are elected in districts by attorney-members
of the State Bar. They elect their own officers. They
select the executive director of the State Bar and have the
sole authority to remove the executive director from his
position. They serve for 3-year terms, and there is no
evidence that the New Mexico Supreme Court has any
authority to remove them.
The Board of Bar Commissioners may be accountable
to the elected Supreme Court justices in some ways. The
Court provides direction to certain of the State Bar’s pro-
jects and must approve its budget. The Court made the
rules that govern the State Bar, including establishing the
districts in which the Commissioners are elected and the
number of commissioners to be elected in each district,
and the Court retains the authority to amend those rules.
The Bar Commissioners themselves, however, and the
executive director, retain almost complete control over
the day-to-day operations of the State Bar, and none of
those officials are either chosen by or subject to removal
by the Supreme Court. Accordingly, the State Bar is not
“administered” by anyone who is responsible to public
officials.5
IV.
In finding the State Bar of New Mexico to be exempt
from the coverage of the Act, the majority focuses on its
quasi-public functions and certain indirect indices of
control which the New Mexico Supreme Court exercises
over it. I would focus, as other Board decisions have, on
the State Bar’s day-to-day operations and the personnel
and labor relations issues that directly affect its employ-
ees. The New Mexico Supreme Court has little or no

5 See St. Paul Ramsey Medical Center, supra, 291 NLRB at 758
(medical center was not administered by individuals who were respon-
sible to public officials, where there was no requirement that board of
directors of the RHC and the hospital subsidiary corporation either be
themselves public officials or be appointed by public officials, there
was no provision in the statute providing for their removal by public
officials, and the statute granted the board of directors of RHC and the
hospital subsidiary corporation virtually complete autonomy with re-
spect to the management and day-to-day operation of the Medical Cen-
ter).
control over these matters; they are instead controlled by
private actors who are acting within the structure of a
private nonprofit organization. When viewed in this
light, it seems clear that the State Bar does not qualify as
a political subdivision under Section 2(2) of the Act.
Accordingly, in agreement with the Regional Director, I
would find that the Board has jurisdiction over the State
Bar’s employees, and I would process this petition.
APPENDIX
DECISION AND DIRECTION OF ELECTION
Communications Workers of America, Local 7011, AFL–
CIO (the Union) filed a petition under Section 9(c) of the Na-
tional Labor Relations Act (the Act), seeking to represent cer-
tain employees employed by the State Bar of New Mexico
(Employer or State Bar) at its 5121 Masthead Street NE, Albu-
querque, New Mexico facility. The Employer contends that it
is not subject to the jurisdiction of the National Labor Relations
Board because it is an entity that falls within the exemption of
Section 2(2) of the Act for “any State or political subdivision
thereof.” Contrary to the Employer, the Petitioner contends
that the Employer is not a “political subdivision” of the State of
New Mexico and is subject to the jurisdiction of the Board.
The Employer also contends that the Web Master, which the
Petitioner seeks to represent, should be excluded from the unit,
because the Web Master is a managerial employee. Based on
the reasons set forth below, I find that the record demonstrates
that the Employer is not a “political subdivision” within the
meaning of the Act’s 2(2) exemption and is subject to the juris-
diction of the Board. I further find that the Employer’s Web
Master is not a managerial employee, and I will include her in
the appropriate unit. I find an appropriate unit to consist of
administrative assistants, desktop publishers, printers, assistants
for publications/editors, marketing managers, referral assis-
tants, secretaries/receptionists, systems clerks, mail clerks,
graphic artists, and Web Masters, but excluding all other em-
ployees, staff attorneys, managers, confidential employees,
guards, and supervisors as defined in the Act.
. . . .
Based on factors relating to the Employer’s creation and op-
erations, its labor relations, and the application of legal prece-
dent to these factors, I find that the Employer is not a political
subdivision of a state as defined in Section 2(2) of the Act.
The Nature of the Employer’s Creation
The Employer was initially created by statute in 1925 to op-
erate as an agency of the New Mexico Supreme Court.3 This
statute was revoked in 1978 by the legislature of New Mexico.
Simultaneously with this revocation, the New Mexico Supreme
Court created and continued the State Bar of New Mexico un-
der Rule 24-101 of the rules governing the New Mexico Bar.
Pursuant to this rule, the Employer was incorporated under the
State of New Mexico in 1978, as a nonprofit corporation. As
such and pursuant to this Rule, the Employer is able to sue and
be sued, enter into contracts, and own and dispose of real prop-

3 Sec. 18-1-2, NM Statutes, 1925.
STATE BAR OF NEW MEXICO 685
erty.4 Thus, the apparent sovereign immunity held by the pre-
vious agency was eliminated.
Rule 24-101 specifies the purposes for the creation of the
Employer. Those purposes are listed as follows:
• To aid the courts in improving the administration
of justice.
• To promote the interests of the legal profession in
the State of New Mexico.
• To promote and support the needs of all members.
• To be cognizant of the needs of individual and mi-
nority members of the profession, including the
full and equal participation of minorities and
women in the state bar and the profession at large.
• To improve the relations between the legal profes-
sion and the public.
• To encourage and assist in the delivery of legal
services to all in need of such services.
• To foster and maintain high ideals of integrity,
learning, competence and public service.
• To provide a forum for the discussion of subjects
pertaining to the practice of law and law reform.
• To promote and provide continuing legal education
in technical fields of substantive law and practice.
• To participate in the legislative, executive and ju-
dicial processes by informing its membership
about issues affecting the legal system and relating
to the purpose of the state bar, and upon approval
by the board of Bar Commissioners, to take such
further action as may be necessary to present the
views of the bar commission to the appropriate
court, executive office or legislative body for con-
sideration.
In addition to these missions, Rule 24-101B provides for
several divisions of the Employer including the Young Lawyers
Division, Senior Lawyers Division, and a Legal Assistants
Division.
At the time of the New Mexico Supreme Court’s enactment
of the above Rule, the State of New Mexico adopted the fol-
lowing statute regulating attorneys. This statute specifically
defines employees of the State Bar as non-public employees for
purposes of various employee benefit programs:
The board of bar commissioners of the state bar and the state
board of bar examiners are bodies of the judicial department
and are not a state agency nor their employees public employ-
ees for purposes of workmen’s compensation coverage, pub-
lic employment retirement programs or social security cover-
age. New Mexico Statutes Annotated 1978, § 36-2-9.1
As a consequence of this statute, the members of the Board
of Bar Commissioners receive no pay from the State of New
Mexico, and their only compensation is for travel-related ex-
penditures, which is paid to them directly by the Employer. A
further consequence of the statute is that employees of the Em-
ployer are treated in a manner comparable to other private sec-

4 Rule 24-101A, rules governing the New Mexico Bar.
tor employees and enjoy none of the special benefits accorded
to public sector employees.
The Nature of the Employer’s Operations and Structure
The core composition of the Employer consists of the Board
of Bar Commissioners, the executive director, and the officers.
The Board of Bar Commissioners is the governing board of the
Employer, comprised of 21 bar commissioners who are elected
in districts by attorney-members of the State Bar. The New
Mexico general electorate is not eligible to participate in this, or
any other, election with respect to the Bar Commissioners. The
New Mexico Supreme Court established the districts and num-
ber of bar commissioners to be elected from each district but
has no authority to appoint bar commissioners. In addition to
the bar commissioners elected by attorneys of the State of New
Mexico, the Board of Bar Commissioners’ membership in-
cludes a chair of the Young Lawyers Division and the elected
delegate of the Senior Lawyers Division, chosen by attorney-
members of those divisions. The bar commissioners also elect
a president, a president-elect, a vice president, and a secretary-
treasurer, all of whom are members of the Board of Bar Com-
missioners and serve in their office for a term of 1 year. There
is no evidence in the record providing for the removal of bar
commissioners by either the New Mexico Supreme Court or by
the general membership of the State Bar.
The Board of Bar Commissioners wrote and adopted the by-
laws of the State Bar (bylaws) for the Employer, not the State
Legislature or the New Mexico Supreme Court. The bylaws
provide that bar commissioners serve for 3 years and are sub-
ject to termination by the Board of Bar Commissioners if ab-
sent from three consecutive bar commission meetings or absent
for a total of four bar commission meetings in any term year. A
removed bar commissioner may appeal the removal to the
Board of Bar Commissioners by making a written request for a
hearing. The ultimate determination of the Board of Bar Com-
missioners is final.
Similarly, the final determination on the selection of the ex-
ecutive director is made by the Board of Bar Commissioners.
The executive director (director) serves as the chief operating
officer of the State Bar and is charged with the supervision of
the Employer’s employees. The Board of Bar Commissioners
determines the director’s compensation and has the authority to
remove the director from office with or without cause. Like the
petitioned-for employees supervised by the director, the direc-
tor is not a state employee. The day-to-day operation of the
State Bar is charged to the director, who implements the Bar’s
plans, programs, and policies, including the collection of funds
to operate the State Bar.5
The executive director is charged with submitting an annual
budget to the Board of Bar Commissioners. An independent
auditor reviews the budget and verifies the appropriateness of
the expenses. The budget is published in the Employer’s Bar
Bulletin with a detailed explanation of the right of each attor-

5 “All moneys collected by the Executive Director of the Employer
are deposited in an account designated as the State Bar of New Mexico
general fund and shall be disbursed by order of the Board of Bar Com-
missioners in carrying out the functions, duties and powers vested in
said board.” (Rule 24-102.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD686
ney-member to challenge whether any particular expense ap-
propriately regulates the legal profession or enhances the qual-
ity of legal service to the people of the State of New Mexico.
(§ 7.2) An extensive and detailed procedure is set forth in the
bylaws explaining the appeal process any attorney-member of
the State Bar can utilize to challenge any aspect of the budget.
If a challenge is received, the Board of Bar Commissioners has
the option of removing the challenged item from its budget,
giving the challenger a pro-rata partial refund of his or her
dues, or submitting the challenge to the New Mexico Supreme
Court or its designee for an impartial decision. The final step
of the budget procedure is approval of the budget by the New
Mexico Supreme Court. On one occasion the Court remanded
the budget for an amendment. Generally, budgets appear to
have been approved by the Court without remand.
The New Mexico Supreme Court issued an order approving
the State Bar Center Project on February 9, 1989. That order
authorized the purchase of land, the construction of the build-
ing, the power of the Employer to raise funds from the mem-
bers as well as from private sources, and a $25 dues increase to
assist in funding the purchase of the property. The Employer
purchased the land and the Bar Center, which it holds as ten-
ants-in-common with Special Projects, Inc.6 The Employer has
a mortgage debt with a 15-year mortgage loan. The Employer
pays property taxes on the Bar Center.
Although required to pay property taxes, the Employer is ex-
empt from Federal income taxes as a Section 501(c) organiza-
tion and not as a political subdivision. 26 U.S.C. § 115. There
is no evidence that the Employer is exempt from other Federal,
State, and local taxes.
In addition to providing for the holding of property and the
paying of taxes, the bylaws permit the Employer to engage in
extensive lobbying activities through the designation by the
Board of Bar Commissioners of a legislative counsel, who reg-
isters as a lobbyist in accordance with the statutes and rules of
the appropriate legislative body. Lobbying activities may also
be conducted in whole or in part through a committee of the
Employer.
The bulk of funding for the Employer’s activities is derived
from the revenue received by the Employer in annual license
fees. The Employer is responsible for collecting annual license
fees from its members, the amount of those fees being deter-
mined by the Board of Bar Commissioners. If a member fails
to pay his or her fees, the Board of Bar Commissioners, through
the executive director, certifies to the New Mexico Supreme
Court the name of the member who failed to pay license fees.
The New Mexico Supreme Court issues a citation to the mem-
ber and orders the attorney-member to show cause to the New
Mexico Supreme Court why that member should not be sus-
pended from the right to practice law in the courts of New
Mexico. If the New Mexico Supreme Court suspends a mem-

6 Special Projects, Inc., which was incorporated in 1991, is a New
Mexico corporation that provides high quality, affordable professional
training and education programs and services primarily to the New
Mexico legal community. Additionally, Special Projects sponsors,
promotes, and assists social welfare projects and programs for the bene-
fit and well being of persons in the State of New Mexico, including
projects and programs for the public.
ber of the State Bar, that member must petition the Board of
Bar Commissioners for reinstatement after paying all fees and
penalties.
The Board of Bar Commissioners may waive a member’s li-
cense fee in the case of extreme hardship. If the Board of Bar
Commissioners refuses to modify the fee, the member may
petition the New Mexico Supreme Court for a reversal of the
Board of Bar Commissioners’ decision. Any attorney-member
in good standing of the Employer may file a petition with the
New Mexico Supreme Court for voluntary withdrawal as a
member of the State Bar. The New Mexico Supreme Court
may then terminate that member from membership with the
Employer. The attorney may thereafter be reinstated upon the
payment of the appropriate fees to the Employer.
The revenue from fees is supplemented by revenue from
other sources. The State Bar budget for 2002 was approxi-
mately $2,203,900 with $934,100 of that amount expected to be
supported by nonlicense-fee revenue. The nonfee revenue,
about 42 percent of the total revenue, is derived from adver-
tisements in the Bar Bulletin and room rentals at the Bar Cen-
ter. The remaining 58 percent of the Employer’s revenue
comes from fees assessments to members. The Employer is
required to pay taxes to the State on fees it receives from adver-
tising and room rentals.
The Employer is party to a nonrevenue producing adminis-
trative contract with the New Mexico Supreme Court, which
calls for the Employer to oversee certain committees and
boards to ensure the rules of the New Mexico Supreme Court
are enforced. Those committees and boards include the Legal
Advertising Committee of the Disciplinary Board, the Board of
Bar Examiners, Legal Specialization Board, and the Minimum
Continuing Education Board. The Employer oversees the per-
sonnel for these four programs as well as performs their book-
keeping and other administrative services.
The Board of Bar Examiners is a distinct legal entity of the
New Mexico Supreme Court that has been given the responsi-
bility to grade the bar examinations. Although not specifically
addressed in the record evidence, the Board of Bar Examiners
appears to have their offices located in the Bar Center. There is
no evidence that any of their employees are in the petitioned-
for unit. A list of names of persons who have passed the bar
examination is submitted by the Board of Bar Examiners to the
Employer. The Employer, from that point on, is responsible for
collecting dues from those attorney-members who must pay
annual dues in order to maintain their license to practice law in
the State of New Mexico.
Within the Disciplinary Board is the Legal Advertising
Committee, which apparently is charged by the New Mexico
Supreme Court with performing the first level of review of
advertisements disseminated by New Mexico attorneys. A
lawsuit was brought in 1995 against this committee by an attor-
ney-member of the Bar. Defending this committee in litigation
was an attorney from the Risk Management Division of the
State of New Mexico General Services Department. There is
no evidence in the record as to the reason behind the Risk Man-
agement attorney’s defense of this committee or the compensa-
tion, if any, that was provided to the State of New Mexico for
this defense.
STATE BAR OF NEW MEXICO 687
Although some evidence was presented regarding the opera-
tions of the Board of Bar Examiners and the Disciplinary
Board, there is no evidence in the record as to the operations of
the Legal Specialization Board or the Minimum Continuing
Education Board.
The Employer publishes a periodical entitled Bar Bulletin
that notifies the membership of case holdings in New Mexico
courts, minutes of various meetings including the bar commis-
sioners’ meetings, committees of the Employer, and other items
of interest to the membership. There is no statutory require-
ment that requires that minutes from the Board of Bar Commis-
sioners’ meetings be published for public review. The Em-
ployer has its own editor and print shop where the Bar Bulletin
is printed and disseminated to the attorney-membership. The
Clerk of the New Mexico Supreme Court notifies the Employer
of its State Supreme Court case holdings and provides copies of
them to the Employer for publication in the Bar Bulletin. Al-
though the Employer works with the New Mexico Compilation
Commission in receiving court decisions and opinions for pub-
lication, only this Commission, a state agency, is mandated by
statute to publish court opinions.
The Employer’s Labor Relations
As noted, the State of New Mexico has specifically pro-
vided7 that the Employer’s employees are not public employees
for purposes of participating in worker’s compensation, public
retirement programs, or social security coverage. Employees
do not receive their paychecks from state entities, are not sub-
ject to state civil service rules, and are not allowed to transfer to
another state position. Employees are hired directly by the
Employer, trained by the Employer, and subject to the Em-
ployer’s personnel policies.
The Employer’s management implemented an extensive em-
ployee handbook (handbook) without any apparent oversight or
approval of the New Mexico Supreme Court or any other pub-
lic entity with respect to the terms and conditions set forth in
the Handbook. The handbook is prefaced with the bolded nota-
tion:
This Handbook can be modified at any time, without notice
and without a written revision of the Handbook. The Hand-
book is not a contract with employees and contains guidelines
only regarding policies and procedures.
The 62-page handbook, adopted by the Employer’s manage-
ment on October 1, 2000, covers 58 topics which encompass
virtually every aspect of the terms and conditions of employ-
ment of the Employer including, among other things, atten-
dance, chain of command, disciplinary procedures, dress code,
drug and alcohol policies, a grievance procedure, various leave
provisions, and performance appraisals.
The handbook opens with an “overview” which states that
prior to 1978 the State Bar was an agency of the New Mexico
Supreme Court but is now incorporated. It defines the Em-
ployer’s purpose as:

7 New Mexico Statute 36-2-9.1.
to aid the courts in administering justice and preserving the
rule of law, and to foster a high standard of integrity and com-
petence within the legal profession.
The purpose of the handbook is defined as providing the em-
ployees with general information, subject to change by the
Employer at any time:
The handbook is merely a guide and is not a contract with
employees. (Emphasis in original.) . . . the State Bar of New
Mexico reserves the right to deviate from the guidelines and
practices outlined in this handbook, if in management’s
judgment, such deviation is warranted based on facts of a par-
ticular situation…the practices and guidelines described in
this handbook may be changed, and the State Bar reserves the
right to do so at our sole discretion. Revisions may include
changing, rescinding, or adding to any procedure, benefit, or
practice described in this handbook. Revisions may be made
without prior notice to employees.
Changes in procedures, benefits or practices will not
change the mutual “at-will” relationship between the State
Bar of New Mexico and the employee.
This handbook can be modified at any time, without
notice and without written revision of the handbook.
This handbook is intended solely for use by the State
Bar of New Mexico and its employees . . .
The Handbook is online and available on the State Bar
of New Mexico G: Drive NT server . . . The handbook is
also available from the Human Resources Department or
from each employee’s supervisor.
It is evident from the above introductory language that the
handbook was created by the management of the Employer and
the management may modify the terms and conditions of em-
ployment of its employees at any time. Moreover, the Em-
ployer’s management is empowered to implement changes
without any oversight or approval mandated from other authori-
ties.
Provisions in the Handbook provide insight into the relation-
ship between the Employer and its employees. Under “Com-
plaint Resolution (Grievances)” no recourse is provided to any
sort of governmental body. Rather, the final decision with
respect to all employee grievances rests with the executive
director. Similarly, under “Disciplinary/Corrective Action,” the
Employer states:
noncompliance or failure to correct performance deficiencies
may result in further corrective or disciplinary sanctions, up to
and including termination . . . .
. . . . Satisfactory completion or compliance of the discipli-
nary/corrective period does not in any way alter the “at will”
employment relationship[].
Under “Separation of Employment,” the Employer delineates
that it is has the power to “terminate employment relationships
at any time, with or without cause or reason, with or without
prior notice.” No portion of the Employer’s comprehensive
Handbook provides for any recourse by employees to any gov-
ernmental body with respect to grievances, discipline, or any
employee concerns. The handbook emphasizes repeatedly that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD688
the sole authority over virtually all terms and conditions of
employment of the employees is the Employer, its manage-
ment, and the executive director.
For purposes of administering Equal Employment Opportu-
nity laws, the Handbook assigns authority to the “(1) Equal
Employment Opportunity Officer, who is the executive direc-
tor, (2) the Manager of Human Resources, and (3) the Man-
agement staff of the State Bar of New Mexico.” There is no
mention of recourse to any state agency or state personnel
board. The “Chain of Command” portion of the handbook
terminates with the Board of Bar Commissioners designated as
the ultimate authority.
Under Family Medical Leave Act (FMLA) leave, the hand-
book notes that the FMLA statute applies only to employers
that employ 50 or more employees who live within a 75-mile
radius. Based on this requirement, the Employer is not required
to comply with the FMLA at this time.
The Employer provides its own benefits package which in-
cludes vacation, sick leave, a private 401(k) fund, dental and
vision care, a cafeteria health plan, short and long-term disabil-
ity, and an employee assistance program. Employees do not
participate in any public employee pension or benefit plans.
Employee salaries are paid from the Employer’s budget. The
State has no control over the employees, nor do the employees
consider themselves state employees. It appears that the New
Mexico Supreme Court has no authority to interfere in any way
with the hiring, promoting, training, discharging, or the per-
formance of any of the employees working for the Employer.
There is no state employer-supervisor in the chain of command
of the employees, and they are clearly disciplined by supervi-
sors employed by the Employer.
No party maintains that the elected attorney-member bar
commissioners are employees of the Employer and the bylaws
provide for bar commissioners to receive only reimbursement
for expenses they incur in the performance of their duties.
Applicable National Labor Relations Board and Court Law
In order to determine whether entities are political subdivi-
sions exempt from the Act, the entity must either be (1) created
directly by the State so as to constitute departments or adminis-
trative arms of the Government, or (2) administered by indi-
viduals who are responsible to public officials or to the general
electorate. NLRB v. Natural Gas Utility District of Hawkins
County, 402 U.S. 600, 91 S.Ct. 1746 (1971).
The legislative history of the Act indicates that “Congress
enacted the Section 2(2) exemption to except from Board cog-
nizance the labor relations of federal, state, and municipal gov-
ernments, since governmental employees did not usually enjoy
the right to strike.” Id. at 604. Courts have further suggested
that the political subdivision exemption “has its ultimate basis
in the Tenth Amendment considerations of state sovereignty
and the Eleventh Amendment grant of judicial immunity to the
states.” Crestline Memorial Hosp. Assn. v. NLRB, 668 F.2d
243, 245 fn. 1 (6th Cir. 1982). The Supreme Court has stated
that state law is not controlling on the question of whether an
entity is a political subdivision and that it is the “actual opera-
tions and characteristics” of the entity that the National Labor
Relations Board must examine in determining whether the en-
tity is exempt from the Act’s coverage. Hawkins County at
603–604.
In applying such an examination, the Board, in St. Paul
Ramsey Medical Center, 291 NLRB 755 (1988), found that the
employer was not a political subdivision after a new state act
created the employer. In St. Paul, the Board found that al-
though the medical center was once an exempt political entity,
the balance of the relevant statutory provisions of the new state
act creating a nonprofit public corporation indicated that the
state no longer intended the medical center and the hospital
subsidiary corporation to be established as departments or ad-
ministrative arms of the government. See also California In-
spection Rating Bureau, 215 NLRB 780 (1974), where an or-
ganization was created by virtue of state statutes but was found
not to be a political subdivision.
In contrast is Hinds County Human Resource Agency, 331
NLRB 1404 (2000), where the enabling statute specifically
indicates that it is the legislature’s express intention that the
relevant human resource agencies operate under local govern-
mental control. Further contrast is found in Camden-Clark
Memorial Hospital, 221 NLRB 945 (1975), where the hospital
was not separately incorporated or otherwise organized so as to
have a separate legal identity apart from the city.
The second standard enumerated in Hawkins County requires
“an entity . . . [to] demonstrate that its policy-making officials
have direct personal accountability to public officials or to the
general public.” NLRB V. Princeton Memorial Hospital, 939
F.2d 174, 178 (4th Cir. 1991). In determining whether the em-
ploying entity is administered by individuals responsible to
public officials for purposes of the political subdivision exemp-
tion, courts and the Board reversed prior holdings8 and ruled
that the Board will find that “individuals are responsible to the
general electorate under Hawkins County only if the relevant
electorate is the same as that for general political elections.”
Enrichment Services Program Inc., 325 NLRB 818, 819
(1998). In Concordia Electric Cooperative, 315 NLRB 752,
754 (1994), enfd. 95 F.3d 46 (5th Cir. 1996), the Board found
that they would find an entity “responsible to the general elec-
torate” only if the composition of the group of electors eligible
to vote for the entity’s governing body is sufficiently compara-
ble to the electorate for general political elections. Thus, the
entity in question must be subject to the same type and degree
of popular political control as found in a general political elec-
tion. Id. at 755.
Applying these principles to the facts of this case, I find that
the Employer was not created by the State of New Mexico so as
to constitute a department or administrative arm of the govern-
ment. The Employer is a nonprofit corporation created to en-
hance the legal profession and provide services to the attorneys
of New Mexico. Its bylaws and operating policies were not
created nor implemented by the New Mexico Supreme Court,
but by the elected attorney-members of the Board of Bar Com-
missioners. Its employees are not considered public employees
by statute and appear to have none of the terms and conditions
of state employees; its funding is strictly from private sources

8 Woodbury County Community Action Agency, 299 NLRB 554
(1990); and Economic Security Corp., 299 NLRB 562 (1990).
STATE BAR OF NEW MEXICO 689
with no state monies funding its operations; and it may engage
in lobbying activities. The State of New Mexico would not tax
itself and the Employer, in this regard, is required to pay prop-
erty tax on the Bar Center. The Employer fails the first stan-
dard of Hawkins County for political subdivision.
In applying the second standard of Hawkins County, a close
examination of the Employer’s governing board’s creation,
operations and election is necessary. The governing board of
the Employer is the Board of Bar Commissioners, licensed
attorneys elected by their fellow licensed attorneys to serve as
commissioners for the State Bar. Bar commissioners are nei-
ther appointed by the state nor subject to removal by public
officials. The only evidence of a cause for removal of bar
commissioners is an automatic termination for missing three
consecutive meetings or missing four within a year, a cause
established by the Employer itself. This termination may be
appealed to the Board of Bar Commissioners. The New Mex-
ico Supreme Court, thus, has no defined responsibility in the
appointment or removal of bar commissioners. The New Mex-
ico Supreme Court’s sole role in the process is the establish-
ment of the districts from which the bar commissioners are
elected and the number of bar commissioners from those dis-
tricts. The Executive Director and officers of the Employer are
selected by the Board of Bar Commissioners. The Board of
Bar Commissioners also has the sole authority to remove the
executive director from that position. The positions of the offi-
cials of the Employer who are charged with supervising and
implementing the labor relations of employees were not created
by the enabling statute but by the Employer’s bylaws.
The evidence establishes that the bar commissioners are not
elected by the general electorate for general political elections.
The “group of electors” are attorney-members licensed to prac-
tice law in the State of New Mexico. This is an esoteric and
restricted membership and is incomparable to the electorate for
general political elections in New Mexico. The group of elec-
tors for the Board of Bar Commissioners is comprised of mem-
bers of a profession that requires specialized education, a
strenuous bar examination, and payment of dues and fees, all
prerequisites for eligibility to vote for the governing board of
the Employer that the general electorate cannot meet.
There is no requirement in the Rules of the New Mexico Su-
preme Court that require the Board of Bar Commissioners
meetings to be open to the public or that minutes of their meet-
ings be published. For this and all of the above reasons, the
Employer fails the second standard of the Hawkins County test.
The Employer fails to establish that it satisfies either stan-
dard of Hawkins County. The Employer was neither created by
the state so as to be a governmental entity or an administrative
arm of the state nor are the bar commissioners directly account-
able to public officials or the general public. The Employer has
argued that other state bars have successfully argued that they
are immune from suit by virtue of the Eleventh Amendment of
the United States Constitution.9 This position is in direct con-
tradiction to the Employer’s own rules10 which appear to reject
sovereign immunity and specify that the Employer may “sue
and be sued.”11 The United States Supreme Court in Keller v.
State Bar of California, 496 U.S. 1 (1990), allowed the state bar
to be sued, finding that the “. . . very specialized characteristics
of the State Bar of California. . . . served to distinguish it from
the role of the typical government official or agency. The State
Bar of California was created, not to participate in the general
government of the State, but to provide specialized professional
advice to those with the ultimate responsibility of governing the
legal profession.” The Court found that the State Bar was more
analogous to a labor union than to a governmental agency. Id.
at 2232.
Accordingly, I find that the Employer is not a political sub-
division under Section 2(2) of the Act. The Employer is en-
gaged in commerce within the meaning of the Act, and, there-
fore, the Board’s asserting jurisdiction in this matter will ac-
complish the purposes of the Act.
. . . .
In sum, I find that the following employees of the Employer
constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:
INCLUDED: All full-time and regular part-time administra-
tive assistants, desktop publishers, printers, assistants for pub-
lications/editors, marketing managers, referral assistants, sec-
retaries/receptionists, systems clerks, mail clerks, graphic art-
ists, and Web Masters, employed by the Employer at its 5121
Masthead Street NE, Albuquerque, New Mexico facility.
EXCLUDED: All other employees, staff attorneys, managers,
confidential employees, guards and supervisors as defined in
the Act.
There are approximately 38 employees in the unit found appro-
priate.
. . . .

9 Thiel v. State Bar of Wisconsin, 94 F. 3d 399 (7th Cir. 1996), where
the state bar members sued the State Bar of Wisconsin to prohibit the
bar from funding certain activities with compelled dues. Kaimowitz v.
Florida Bar, 996 F. 2d 1151 (11th Cir. 1996), which involved a state
bar member who filed a civil rights suit against a state bar but where,
unlike the New Mexico Rules, the Rules of the Florida Supreme Court
specifically state that the State Bar of Florida is an arm of the Supreme
Court.
10 Rule 24-101A, Rules Governing the New Mexico Bar.
11 Rule 24-101A, Rules Governing the New Mexico Bar.