Introduced Version
House Bill 2001 History
| Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 2001
(By Delegate Caputo)
[Introduced February 13, 2013; referred to the
Committee on Political Subdivisions then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §8-15B-1, §8-15B-2,
§8-15B-3, §8-15B-4 and §8-15B-5, all relating to meeting and
conference rights for members of fire departments employed by
political subdivisions; providing for the right of
self-organization; allowing designation of an exclusive
representative agent; imposing a duty to meet and confer with
employees; allowing deduction of employee organization dues
and assessments; providing for compulsory arbitration of
disputes; listing prohibited acts; allowing hearing before
Civil Service Commission; providing judicial review;
specifying powers and duties of the Civil Service Commission;
and allowing injunctive relief.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §8-15B-1, §8-15B-2,
§8-15B-3, §8-15B-4 and §8-15B-5, all to read as follows:
ARTICLE 15B. MEETING AND CONFERENCE RIGHTS FOR MEMBERS OF FIRE
DEPARTMENTS.
§8-15B-1. Definitions.
_____As used in this article:
_____"Commission" means the firemen's Civil Service Commission
provided in article fourteen or fifteen of this chapter.
_____"Employee organization" means any association, organization,
federation or council composed of firefighters having as one of its
purposes the representation of its members in negotiations with a
political subdivision.
_____"Firefighter" means any person, other than a fire chief,
employed as a fireman on a full-time basis by a political
subdivision if the person is covered by the civil service
provisions of article fifteen of this chapter.
_____"Political subdivision" means, and is limited to, any
municipality within the state.
_____"Strike" means the failure to report for duty as a result of
concerted action with an employee organization, the willful absence
from one's position, the stoppage of work or the abstinence, in
whole or in part, from the full, faithful and proper performance of
the duties of employment or any manner of interference with the
operation of any fire department of a political subdivision for the purpose of inducing, influencing or coercing a change in the
conditions or compensation or the rights, privileges or obligations
of employment.
§8-15B-2. Right to self-organization and exclusive representation;
dues.
_____(a) Firefighters have, and are protected in the exercise of,
the right of self-organization to form and join any employee
organization, to meet and confer with their employers through
representatives of their own choosing on questions of wages, hours
and other conditions of employment, except to strike, for the
purpose of contracting for rights, free from actual interference,
restraint or coercion. An employee organization duly designated to
represent the firefighters employed by a political subdivision
shall be the exclusive contracting agent for all firefighters so
employed. The organization shall act, negotiate agreements and
contract for rights for all firefighters and is responsible for
representing the interests of all firefighters.
_____(b) An employee organization claiming to represent a majority
of the firefighters of a political subdivision shall be recognized
as the exclusive contracting agent by the political subdivision
upon the presentation of a petition or other document in which a
majority of the firefighters employed by the political subdivision
designates the employee organization as their exclusive contracting
agent. If a political subdivision has a good faith doubt as to the majority status of the employee organization it shall, within
thirty days of the receipt of the petition or document, request its
Civil Service Commission to conduct a secret ballot election within
thirty days of the receipt of the request. The commission shall
certify the results of the election within three days after the
election. Following recognition or certification, and upon the
written authorization of any firefighter, the political subdivision
shall deduct from the payroll of the firefighter the monthly amount
of dues or assessments of the employee organization as certified by
the secretary of the employee organization and shall deliver the
same to the employee organization's treasurer no later than the
last day of the month following the deduction.
§8-15B-3. Board of arbitration; duty to meet and confer with
employees and arbitrate; procedures.
__(a) The political subdivision and the employee organization
recognized or certified as the exclusive contracting agent shall
contract for all employees' rights. Representatives of the
political subdivision and the employee organization shall meet at
reasonable times, including meetings appropriately related to the
budget making process, and shall confer in good faith with respect
to wages, hours and other conditions of employment, or the
negotiation of an agreement or any questions arising thereunder,
and shall execute a written contract incorporating any agreement
reached. Neither party may be compelled to agree to a proposal or make a concession.
__(b) If, after a reasonable period of negotiations concerning
wages, hours and other conditions of employment, a dispute exists
between the political subdivision and the employee organization, or
if no agreement has been reached on wages, hours and other
conditions of employment sixty days prior to the final date for the
setting of the budget of the political subdivision, either party or
the parties jointly may request arbitration of the issue or issues
in dispute by a board of arbitration. The board of arbitration
shall be composed of three persons, one appointed by the political
subdivision, one appointed by the employee organization and a third
member to be agreed upon by the parties. The members of the board
representing the political subdivision and the employee
organization shall be named within five days from the date of the
request for the appointment of the board. If, after a period of
five days from the date of the appointment of the two arbitrators
appointed by the political subdivision and the employee
organization, the third arbitrator has not been mutually agreed
upon, then either arbitrator may request the federal mediation and
conciliation service to furnish a list of five members from its
list of arbitrators. Within five days after the receipt of the
list, the representative of the political subdivision and the
employee organization shall each strike two names from the list.
The individual whose name remains on the list is the third arbitrator. The third arbitrator is the chair of the board of
arbitration.
__(c) The chair of the board of arbitration shall establish
reasonable dates and places of hearing. Any hearings involved
shall be conducted in accordance with the rules established for
arbitration by the American Arbitration Association. The rules of
evidence promulgated by the Supreme Court of Appeals do not apply.
The chair may issue subpoenas and administer oaths. Upon
completion of the hearings and within fifteen days, the board of
arbitration shall make findings of fact and render a decision. The
decision is final and binding upon both parties, except as provided
in subsection (d) of this section. The compensation, if any, for
the appointed arbitrators will be paid by the political
subdivision. The compensation and expenses of the third
arbitrator, as well as all stenographic and other expenses incurred
by the arbitration board in connection with arbitration
proceedings, shall be paid equally by the parties.
__(d) Prior to invoking the arbitration procedure provided in
this article, the political subdivision and the employee
organization shall submit to each other a final settlement offer on
all unresolved issues. The arbitration panel is limited, after
hearing, to resolving the dispute by adopting, on an issue-by-issue
basis, the final offer of either the political subdivision or the
employee organization. In making its decision, the panel shall consider the following:
__(1) Prior agreements, if any, between the political
subdivision and the employee organization;
__(2) Comparison of the issues submitted to final offer
settlement relative to the employees in the contracting unit
involved with those issues related to other public and private
employees doing comparable work, giving consideration to factors
peculiar to the area and classification involved;
__(3) The interests and welfare of the public, the ability of
the public employer to finance and administer the issues proposed
and the effect of the adjustments on the normal standard of public
service;
__(4) The lawful authority of the public employer;
__(5) Any stipulations of the political subdivision and the
employee organization;
__(6) Any other factors, not confined to those listed in this
section, which are normally or traditionally taken into
consideration in the determination of issues submitted to final
offer settlement through voluntary conference, mediation,
fact-finding or other impasse resolution procedures in public
service or in private employment.
__(e) Any arbitration decision as well as any written agreement
between a political subdivision and an employee organization
determining the terms and conditions of employment of firefighters shall contain the following notice:
__"It is agreed by the parties that any provision contained
herein requiring legislative action to permit its implementation by
amendment of law or by providing the additional funds therefor,
will not become effective until the appropriate legislative body
has given approval."
§8-15B-4. Prohibited acts; hearings.
__(a) Political subdivisions are prohibited from:
__(1) Interfering with, restraining or coercing firefighters in
the exercise of their rights guaranteed by this article;
__(2) Dominating or interfering with the formation or
administration of any employee organization;
__(3) Discharging or otherwise discriminating against a
firefighter because he or she has signed or filed any petition,
affidavit or complaint or given information or testimony pursuant
to this article;
__(4) Refusing to meet and confer in good faith with any
employee organization which has been recognized or certified as the
exclusive contracting agent of the firefighters;
__(5) Refusing to discuss grievances with the agent of the
firefighters; or
__(6) Refusing to abide by a valid arbitration decision.
__(b) Employee organizations are prohibited from:
__(1) Restraining or coercing a firefighter in the exercise of his or her rights guaranteed under this article;
__(2) Causing or attempting to cause a political subdivision to
discriminate against a firefighter in violation of subsection (a)
of this section;
__(3) Refusing to meet and confer in good faith with a political
subdivision;
__(4) Striking against or withholding their members' services
from a political subdivision. Firefighters who are absent from
work without permission are presumed to have engaged in a strike
unless evidence of illness or other good cause is presented by each
firefighter for each absence; or
__(5) Refusing to abide by a valid arbitration decision.
__(c) Any firefighter who engages in a concerted strike against
a political subdivision or withholds services from a political
subdivision shall be suspended from duty for a period not to exceed
six months without pay and the employee organization to which any
striking firefighter belongs shall lose its right for six months to
have the monthly amount of dues withheld for all of its members'
pay by the employer. The treasurer or chief financial officer of
the political subdivision may not issue any warrant or check to any
suspended firefighter for the payment of wages which might
otherwise be payable during that period nor may the treasurer or
chief financial officer issue any warrant or check for the monthly
amount of dues of members of the employee organization to that organization as required by subsection (b), section two of this
article.
__(d) Any private citizen of a political subdivision against
which a prohibited act has been committed may seek a writ of
mandamus or any other remedy which is authorized by law to enforce
compliance with this subdivision by any treasurer or chief
financial officer.
__(e) (1) Any firefighter, employee organization or political
subdivision which has reasonable cause to believe that a violation
of this section has occurred may file a complaint with the
commission and serve a copy on each person, employee organization
or political subdivision involved.
__(2) The commission may make and enter an order dismissing the
complaint or may conduct an investigation or hold a hearing on the
complaint. The firefighter, employee organization or political
subdivision complained of has the right to file an answer to the
complaint or any amended complaints within twenty days after the
service of the complaint. If a hearing is ordered, the commission
shall set the time and place for the hearing, which time and place
may be changed by the commission at the request of one of the
parties for good cause shown.
__(3) The firefighter, employee organization or political
subdivision may appear in person or otherwise defend against the
complaint. In the discretion of the commission any other person may be allowed to intervene in the proceedings.
__(4) The commission is not bound by the rules of evidence
promulgated by the Supreme Court of Appeals and the commissioner
has the power of subpoena and to administer oaths. A transcript of
the testimony taken at any hearing before the commission shall be
filed in the office of the commission and be opened for inspection
by either of the parties or their authorized representatives. The
commission shall bear the cost of producing the transcript.
__(f) (1) If, upon all the testimony and evidence, the
commission determines that a prohibited practice has been
committed, it shall state its findings of fact in writing and shall
issue and cause to be served on the party committing the prohibited
practice an order requiring the employee organization or the
political subdivision to cease and desist from the prohibited
practice. The commission may take any further affirmative action
as will comply with the provisions of this section including, but
not limited to, the withdrawal of certification of an employee
organization established by or assisted in its establishment by any
prohibited practice.
__(2) If, upon all the testimony and evidence, the commission
determines that a prohibited practice has not been or is not being
committed, it shall state its findings of fact and conclusions of
law and shall issue an order dismissing the complaint.
__(g) If a firefighter, employee organization or political subdivision refuses to comply with an order from the commission and
fails to appeal the order as hereinafter provided, the commission
shall request the Attorney General of West Virginia to seek
injunctive relief in the circuit court of the county where the
prohibited act was or is being committed.
§8-15B-5. Judicial review.
__(a) Except as otherwise provided in subsection (b) of this
section, any party adversely affected by an order of the commission
is entitled to appeal a decision of the commission to circuit court
as provided in article five, chapter twenty-nine-a of this code.
__(b) An action appealing a decision of the commission may only
be initiated in the circuit court where the political subdivision
is located. The appeal must be filed within ninety days from the
date of the entry by the commission of its final order. Upon an
appeal being taken and docketed with the clerk of the circuit
court, the circuit court shall proceed to hear the appeal upon the
original record made before the commission. Any party adversely
affected by a decision and final order of the circuit court has the
right to petition the Supreme Court of Appeals for a review of the
decision of the circuit court, as in other civil cases.
NOTE: The purpose of this bill is to provide meetings and
conference rights for members of municipal fire departments. The
bill also creates duties for the firefighters' Civil Service
Commissions.
This article is new; therefore, it has been completely
underscored.