H. B. 2361
(By Delegate Moore)
[Introduced February 3, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article nine, relating to
the public employee relations act; stating legislative
policy and purpose; defining certain terms; establishing a
West Virginia public employment relations board; providing
for the composition of the board, the terms of its members,
and the qualifications of members; providing for the terms
of the original appointees and the method of filling
vacancies; limiting eligibility of board members for
reappointment, requiring an oath of office and establishing a method of removal of board members; establishing
procedural rules for meetings and requiring a quorum;
providing for the payment of per diem and expenses for
attendance by board members; providing for the organization
of the board, the employment of staff and the location of
offices; granting authority to the board to promulgate
rules; defining employee rights; providing for the election
of exclusive representatives by public employees;
establishing criteria for determining the appropriateness of
an employer unit for purposes of collective bargaining;
establishing procedures for representation elections and
decertification of certified representatives; establishing
the scope of bargaining subjects as to which agreement may
be reached; providing for written agreements; providing that
all written agreements involving costs are subject to
appropriations by the appropriate legislative or governing
body; requiring every agreement to contain a grievance
procedure; limiting the duration of agreements to three
years; providing for mediation and arbitration to resolve
impasses in bargaining; prohibiting strikes by public employees; providing remedies for prohibited strikes;
defining prohibited practices; establishing a method of
payroll deductions; requiring financial reports, public
records and lists of employee organizations and exclusive
representatives; and setting forth when the article shall
take precedence and when it shall be inoperative.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article nine, to read as
ARTICLE 9. WEST VIRGINIA PUBLIC EMPLOYMENT RELATIONS BOARD.
§29-9-1. Legislative purpose.
The Legislature of the state of West Virginia declares that
it is the public policy of this state and the purpose of the
Legislature in the enactment of this article to promote orderly
and constructive employment relations between public employers
and their employees; to increase the efficiency of state and
local government throughout the state; and to ensure the health
and safety of the citizens of this state. The Legislature has
determined that these policies and purposes may best be accomplished by: (1) Granting to public employees the right to
associate with others in organizing and choosing representatives
for the purpose of collective bargaining; (2) requiring public
employers to recognize, negotiate and bargain with employee
organizations representing public employees and to enter into
written agreements evidencing the result of bargaining; and (3)
encouraging labor peace through the establishment of standards
and procedures which protect the rights of the public employer,
the public employee and the citizens of this state.
§29-9-2. Short title.
This article shall be known and may be cited as the "Public
Employee Relations Act."
The following words when used in this article have the
meaning ascribed to them unless the context clearly indicates a
(a) "Appropriate bargaining unit" means the unit of
employees determined to be appropriate for the purpose of
collective bargaining pursuant to section twelve of this article.
(b) "Arbitration" means the procedure by which an impartial third party holds a hearing, takes testimony and renders a
decision which is binding upon the parties for the purpose of
resolving a dispute between public employees and public employers
(1) "Grievance arbitration" which means arbitration of
disputes arising over the interpretation or application of a
collective bargaining agreement; and
(2) "Interest arbitration" which means arbitration of
disputes arising during the course of contract negotiations
resulting in incorporation of the arbitrator's decision into the
collective bargaining agreement.
(c) "Board" means the public employment relations board
created pursuant to section four of this article.
(d) "Certification" means official recognition by the public
employment relations board that the employee organization is the
exclusive representative for all the employees in an appropriate
bargaining unit for the purpose of collective bargaining.
(e) "Collective bargaining" means the performance of the
mutual obligations of the public employer and the exclusive
representative to meet at reasonable times and places, to confer and negotiate in good faith with the intent of reaching
agreement, and to execute a written agreement with respect to
wages, hours, and other terms and conditions of employment:
Provided, That neither party shall be required to make a
concession or compelled to agree to a proposal put forth by the
(f) "Employee" or "public employee" means any person, other
than elected officials, employed by a public employer.
(g) "Employee organization" means an employee participating
organization which exists for the purpose of representing public
employees in dealing with public employers concerning grievances,
labor disputes, wages, hours and other terms and conditions of
employment of public employees.
(h) "Exclusive representative" means the employee
organization which has the right as certified by the board to be
the collective bargaining agent of all employees in an
appropriate bargaining unit.
(i) "Fair share payment" means the assessment levied upon
employees in an appropriate bargaining unit who are not members
of the employee organization to help defray the cost of representational services rendered by the exclusive
representative on their behalf.
(j) "Impasse" means the point in the process of negotiations
between public employees and public employers at which either
party determines that no further progress toward resolving
differences and concluding a collective bargaining agreement can
(k) "Mediation" means assistance in the form of
interpretation, suggestion or advice by an impartial third party
in reconciling an impasse between the public employer and the
exclusive representative regarding wages, hours and other terms
and conditions of employment.
(l) "Professional employee" includes an employee engaged in
work in any of the following categories: (1) Predominantly
intellectual and varied in character as opposed to routine
mental, manual, mechanical or physical work; (2) of a character
that the output produced or the result accomplished cannot be
standardized in relation to a given period of time; (3) requiring
knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized educational instruction and study at an institution of higher
learning or a hospital, as distinguished from a general academic
education or from an apprenticeship or from training in the
performance of routine mental, manual or physical processes.
(m) "Public employer" means the state of West Virginia, its
institutions, agencies and governmental subdivisions; the
university of West Virginia board of trustees and the board of
directors of the state college system; county boards of
education; public and quasi-public corporations; town, city,
county, city-and-county and municipal corporations; and
authorities, boards or commissions or combinations thereof
whether or not incorporated or chartered.
(n) "Supervisory employee" means any individual whose
principal activity includes and who spends a preponderance of his
or her workday exercising nonroutine and nonclerical authority
and who uses independent judgment to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees or an individual who has the responsibility to
assign work, direct other employees, adjust employee grievances
or an individual who recommends any of these employee actions.
§29-9-4. West Virginia public employment relations board
There is hereby created a state agency to be known as the
West Virginia public employment relations board.
§29-9-5. Composition of board; terms of members; qualifications
The board shall consist of five members, two of whom shall
be representative of public employers, two of whom shall be
representative of public employees and one of whom shall be
representative of the public. All members shall be citizens of
the state, appointed by the governor, by and with the advice and
consent of the Senate. The representatives of the public
employers and the representatives of the public employees shall
be appointed for terms of four years, and the representative of
the public shall be appointed for a term of four years, except
that one of the original terms of an employer representative
shall be for a term of three years, one of the original terms of
a public employee shall be for a term of two years and one of the
original terms of either the employer or employee representative
shall be for a term of one year.
Public employers and employee organizations representing public employees may submit to the governor the names of persons
who represent their interests as prospective members of the board
and the governor shall first consider such persons in selecting
the members of the board who are representative of public
employers and public employees.
Except for the members who are representative of public
employers, and the public employees, no person shall be eligible
for appointment to membership on the board who is the holder of
any public office or public employment under the federal
government or under the government of this state or any of its
political subdivisions, or an appointee or employee of the board.
Not more than three members of the board shall be members of the
same political party.
§29-9-6. Original term of members; vacancies; eligibility for
reappointment; oath of office; removal from office.
The governor shall appoint the five members of the board as
soon after the effective date of this article as is practicable.
The original terms of office of members begin on the first day of
July, one thousand nine hundred ninety-five.
The governor shall appoint a member by and with the advice and consent of the Senate to fill any vacancy among the members
of the board. The member appointed to fill the vacancy shall
serve for the unexpired term of the vacating member.
All members of the board appointed by the governor shall be
eligible for reappointment. The governor shall consult with
constituent groups of employees and employers at the expiration
of the term of a representative on the board recommended by the
group for appointment. A person who has served as a member
during all or any part of the two consecutive terms shall be
ineligible to serve as a member for a period of three years
immediately following the second of the two consecutive terms.
Before exercising any authority or performing any duties as
a member of the board, each member shall qualify by taking and
subscribing to the oath of office prescribed by section five,
article IV of the state Constitution.
No member of the board appointed by the governor may be
removed from office by the governor except for official
misconduct, incompetence, neglect of duty or gross immorality and
only in the manner prescribed by law for the removal of state
§29-9-7. Meetings; quorum; per diem and expenses of members.
The board shall hold at least six meetings in every fiscal
year beginning the first day of July and ending the following
thirtieth day of June. One meeting, known as the annual meeting,
shall be held in July, or as soon thereafter as practicable, in
the year one thousand nine hundred ninety-five and in June of
each subsequent year. Annual meetings, as well as the five
additional required meetings in each fiscal year, shall be held
on dates and at places as the board may prescribe: Provided,
That the annual meeting shall be held in June. In addition to
the statutorily required meetings, the board may, upon its own
resolution or at the call of the chairperson of the board meet at
Of the five appointed members, three members of the board,
consisting of the chairperson, a member representative of the
public employers, and a member representative of the public
employees, shall constitute a quorum. A majority vote of the
quorum is necessary to pass upon matters before the board. A
vacancy in the board does not impair the authority of the
remaining members to exercise all the powers of the board. The governor shall appoint an acting member of the board during the
temporary absence from the state or during the illness of any
regular member. An acting member, during his or her term of
service, shall have the same powers and duties as the regular
member and shall meet the same requirements for selection.
The members of the board shall be paid one hundred dollars
per diem for actual time spent in the performance of duties under
this article, and shall be reimbursed for actual and necessary
expenses incident to the performance of their duties. The
foregoing per diem and reimbursement for actual and necessary
expenses shall be paid from appropriations made by the
Legislature to the board.
§29-9-8. Organization of board; staff; offices.
At its first annual meeting in July, or as soon thereafter
as practicable, in the year one thousand nine hundred
ninety-five, and annually thereafter, the board shall elect a
chairperson and other officers from its membership as the board
may deem necessary or desirable. The chairperson and officers
shall serve for a one-year term commencing on the first day of
July, following the annual meeting and ending on the thirtieth day of June the following year. The chairperson of the board
shall not be eligible to succeed himself or herself as
The board shall employ an executive officer and other
professional, administrative, clerical and other employees,
including, but not limited to, mediators and hearing officers, as
may be necessary to assist the board in the performance of its
duties and responsibilities. The board shall be represented in
any judicial proceedings pursuant to this article by the attorney
general of the state of West Virginia or his or her designee. The
board shall prescribe the duties and fix the compensation and
emoluments of all employees. Employees of the board shall serve
under the direction and control of the board or its designated
representatives. The board shall provide suitable offices for
the executive officer and his or her staff in or near the state
capitol complex in Charleston, West Virginia.
The board has authority from time to time to make, amend and
rescind rules as may be necessary to carry out the provisions of
this article. Any rules shall be filed in the office of the secretary of state within thirty days of adoption by the board.
The provisions of section one, article three, chapter
twenty-nine-a of this code apply to the board.
§29-9-10. Employee rights.
(a) It is lawful for public employees to organize, form,
join or assist in employee organizations and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid and protection and to bargain collectively
through representatives of their own free choice. Employees also
have the right to refrain from these activities, except as may be
required pursuant to the provisions of this article or pursuant
to any maintenance of membership provision or fair share payment
in a collective bargaining agreement.
(b) Nothing in this article shall prevent an employee from
presenting a grievance to the employer and having the grievance
heard and settled without the intervention of an employee
organization: Provided, That the exclusive bargaining
representative is afforded the opportunity to be present and to
present its views on the matter: Provided, however, That any
settlement made shall not be inconsistent with the terms of any agreement in effect between the employer and the exclusive
§29-9-11. Representatives and elections.
(a) When a majority of the public employees in an
appropriate bargaining unit select a representative for the
purpose of bargaining collectively, the representative shall be
the exclusive representative of all the employees in the unit for
the purpose of collective bargaining. Where official recognition
has previously been granted and where prior to the first day of
January, one thousand nine hundred ninety-five, a signed
agreement is in effect, the board may not alter the terms of the
agreement nor the appropriate unit previously agreed to.
(b) Labor organizations recognized by a public employer as
the exclusive representative or so designated in accordance with
the provisions of this article are responsible for representing
the interests of all public employees in the bargaining unit.
Nothing herein shall be construed to limit an exclusive
representative's right to exercise its discretion to refuse to
process grievances of employees that are not meritorious.
§29-9-12. Unit determination.
The board shall determine the appropriateness of a
bargaining unit which shall consist of the employees of the
public employer unit, division or subdivision thereof: Provided,
That nothing shall prohibit the board from recognizing a
statewide unit of public employees as the appropriate bargaining
unit or prohibit multiunit bargaining between the public employee
or employers and the exclusive representative or representatives
of public employees. In determining the appropriateness of a
unit, the board shall:
(a) Take into consideration, but not be limited to, the
following: (1) Any identifiable community of interest of the
public employee, including employee skills and functions; (2) the
difficulties of administering this act resulting from
overfragmentization of the employees; (3) any historical pattern
of recognition; (4) common supervision, wages, hours and other
working conditions of the employees involved; (5) the desires of
the employees; (6) with respect to education employees, the
requirements of section ten, article III and section one, article
XII of the state Constitution;
(b) Not decide that any unit is appropriate if the unit includes both professional and nonprofessional employees, unless
members of a majority of each group of employees votes for
inclusion in the unit; and
(c) Not permit supervisory employees to be included with any
other public employees, but shall permit them to form their own
separate homogeneous units. In determining supervisory status,
the board may take into consideration the extent to which
supervisory and nonsupervisory functions are performed, except
that in units of police and firefighters all employees below the
rank of chief shall be eligible for inclusion in the unit.
In cases involving an historical pattern of recognition, and
in cases where the employer has previously recognized a union as
the representative for a specified existing unit, the board shall
find the employees in the unit then represented by the union to
be the appropriate unit.
§29-9-13. Representation election; procedures.
(a) When an employee or group of employees or any individual
or labor organization acting on behalf of an employee or group of
employees files a petition with the board alleging that thirty
percent of the employees in a unit wish to be represented for collective bargaining by a designated representative and the
public employer of that unit refuses to voluntarily recognize
their representative as the exclusive representative, the board
shall either order an election to be held by secret ballot and
certify the results or it may, at its discretion, investigate or
conduct hearings to determine the validity of the matters
contained in the petition before determining whether or not an
order should be issued.
(b) Representation elections shall be supervised by the
board and shall be conducted by secret ballot at times and places
selected by the board, subject to the following:
(1) Within seven days after the board issues its order
determining the appropriate bargaining unit and directing that an
election be conducted, the public employer shall submit to the
labor organization or organizations whose name shall appear on
the election ballot, the complete names and addresses of those
employees who are determined by the board to be eligible to
participate in the election;
(2) The election shall be conducted on or near the place of
employment at a time convenient to all employees;
(3) The board shall give no less than ten days' notice of
the time and place of the election;
(4) The board shall establish rules concerning the conduct
of any election including, but not limited to, regulations which
would guarantee the secrecy of the ballot;
(5) The ballot shall contain the names of any organization
presenting cards signed by at least ten percent of the employees
in the appropriate unit indicating their wish to be represented
for the purpose of collective bargaining by the organization and
the ballot shall also contain a provision allowing an employee to
mark "no representation";
(6) A representative may not be certified unless it receives
a majority of the valid ballots cast;
(7) In an election where none of the choices on the ballot
receive a majority, a run-off election shall be conducted within
thirty days after the result of the election is certified by the
board. The ballot for the run-off election shall include a
provision for a selection between only the two choices or parties
receiving the highest number of ballots cast in the previous
(8) Mail ballots shall not be permitted by the board except,
for reasonable cause, the board may allow a specific individual
who would otherwise be unable to cast a ballot to use a mail
ballot. The board shall have the final determination on any
controversy concerning the eligibility of an employee to vote;
(9) (A) The board shall certify the results of an election
within five working days after the final tally of votes if:
(i) The organization received a majority of the valid
ballots cast in an election conducted pursuant to subsection (c)
of this section; or
(ii) The board determines, without an election through an
authorization card count, that the organization represents an
uncoerced majority of the employees in the unit and either the
majority status was achieved without the prohibited practice of
public employer assistance as defined in section twenty of this
article or the majority status would have been achieved and the
organization would have represented the uncoerced majority if the
public employer had not engaged in prohibited practices as set
out in section twenty of this article.
(B) An election shall not be conducted in any appropriate bargaining unit within which in the preceding twelve-month period
an election shall have been held. An election shall not be
conducted during the term of any lawful collective bargaining
agreement between a public employer and an employee
representative. For the purpose of this section, extensions of
agreements shall not affect the expiration date of the original
(C) Petitions for elections may be filed with the board not
sooner than ninety days nor later than sixty days before the
expiration date of any collective bargaining agreement and
anytime after the expiration date of the agreement until a new
written agreement is in effect. For the purposes of this
section, extensions of agreements shall not affect the expiration
date of the original agreement.
(D) A public employee or a group of employees may file a
petition for decertification of a certified representative if the
decertification petition bears the signature of at least thirty
percent of the employees in the bargaining unit.
§29-9-14. Scope of bargaining.
Collective bargaining shall take place between public employers and recognized employee organizations and shall result
in execution of a written contract incorporating any agreement
reached on wages, hours, working conditions and other terms and
conditions of employment.
§29-9-15. Written agreements; appropriations; grievance
(a) Any collective bargaining agreement between the employer
and the exclusive representative shall be reduced to writing,
shall be subject to ratification by both parties and shall be
executed by both parties when ratified.
(b) All cost items shall be subject to appropriations by the
appropriate legislative or governing bodies. The employer shall
submit to the appropriate legislative or governing body within
ten days of the date on which an agreement is ratified, all cost
items contained in the agreement: Provided, That if any cost
items require appropriations by the state Legislature while it is
not in session, the cost items shall be submitted to the governor
for inclusion in the next operating budget within ten days after
the date on which the agreement is ratified. If the state
Legislature or other legislative or governing body, rejects any of the cost items submitted to them, all items submitted shall be
returned to the parties for further negotiations: Provided,
however, That nothing in this section shall be construed to allow
a public employer to reject cost items in an agreement that it
has ratified. The public employer and the exclusive
representative may execute a separate agreement including all
noncost items agreed upon which may be made effective
(c) Because effective and orderly operation of government is
essential to the public, it is declared to be in the public
interest that in the course of collective bargaining, the public
employer and the exclusive representative shall make every
reasonable effort to conclude negotiations, and include
provisions for an effective date, a reopening date and an
expiration date, at a time to coincide, as nearly as possible,
with the period during which appropriate legislative or governing
bodies may act upon the operating budget of the employers.
(d) All existing rules or regulations adopted by the
employer, including civil service and other personnel
regulations, which are not contrary to this article, shall remain applicable. The duty to bargain collectively shall include an
obligation to negotiate over any matter with respect to wages,
hours and other conditions of employment, not specifically
provided for in any other law or not specifically in violation of
the provisions of any law. If any other law pertains, in part,
to a matter affecting the wages, hours and other conditions of
employment, the other law shall not be construed as limiting the
duty to bargain collectively and to enter into collective
bargaining agreements containing clauses which either supplement,
implement or relate to the effect of provisions in other laws.
If there is a conflict between the collective bargaining
agreement and any rules or regulations, the terms of the
agreement shall prevail.
(e) Every collective bargaining agreement shall contain a
grievance procedure culminating in final and binding arbitration
by a neutral third party and shall be valid and enforceable when
entered into in accordance with the provisions of this article.
(f) A collective bargaining agreement shall not be in force
and effect for a period of more than three years.
§29-9-16. Impasses; mediation.
Either a public employer or the exclusive representative of
the public employee may declare that an impasse has been reached
between the parties in bargaining over the wages, hours, working
conditions or other terms and conditions of employment. Upon
declaration of impasse by the employer or the representative, a
mediator shall be selected by the board. The mediator shall meet
immediately with parties or their representatives, either jointly
or separately, and shall take other steps as may be deemed
appropriate in order to persuade the parties to reach a mutually
acceptable agreement. The mediator shall have the power to
control the agenda and issue subpoenas requiring the attendance
of parties. All expenses of mediation shall be borne by the
§29-9-17. Impasses; arbitration.
(a) If the mediator is unable to effect settlement of the
controversy within thirty days of the beginning of mediation in
accordance with the provisions of the preceding section, either
party may, by written notification to the other or to the board,
submit the remaining differences to interest arbitration. Each
party shall submit a final offer on each separate item remaining at impasse to the arbitrator and the other party. The
arbitrator, following the procedures prescribed in subsection (b)
of this section, shall determine that either the final offer of
the employer or the final offer of the employee representative on
each separate issue shall be incorporated into the final
collective bargaining agreement: Provided, That the arbitrator
shall not amend the offer of either party on any issue. Unless
the parties have mutually agreed to retain the mediator as
arbitrator, or have agreed upon another individual, the board
shall submit five names of potential arbitrators to the parties.
Each party shall alternately strike a name until one arbiter
remains. The name of potential arbitrators shall be submitted by
the board from lists provided by the American arbitration
association or the federal mediation and conciliation service.
(b) The arbitrator shall, within ten days of appointment,
meet with the parties or their representatives, either jointly or
separately, and shall make inquiries and investigations, hold
hearings, and take other steps as may be deemed appropriate in
accordance with procedures prescribed by the board. The
arbitrator shall have the power to issue subpoenas requiring the attendance and testimony of the parties, their representatives
and other relevant witnesses and the production of any evidence
deemed appropriate by the arbitrator in conducting hearings,
investigations or inquiries.
(c) In reaching a decision regarding resolution of
outstanding disputes, the arbitrator shall take into
consideration, in addition to any other relevant factors, the
(1) Comparison of the wages, hours and conditions of
employment of the employees involved in the arbitration
proceeding with the wages, hours and conditions of employment of
employees performing similar services or requiring similar skills
under similar working conditions and with other employees
generally in public and private employment in comparable
(2) Comparison of peculiarities in regard to other trades or
professions, including specifically: (A) Hazards of employment;
(B) physical qualifications; (C) educational qualifications; (D)
mental qualifications; and (E) job training and skills;
(3) The terms of collective agreements negotiated between the parties in the past, or of other previously existing
arrangements providing for compensation and fringe benefits,
including, but not limited to, provisions for salary, insurance
and retirement benefits, medical and hospitalization benefits,
paid time off and job security; and
(4) The ability of the public employer to pay for the items
to be included in the contract.
(d) Not later than thirty days following appointment, the
arbitrator shall transmit a decision to the board and to the
parties. The parties shall execute an agreement embodying the
decision of the arbitrator as to all issues which had been
unresolved as well as those items mutually agreed upon.
(e) The expenses of arbitration shall be borne by the board.
§29-9-18. Strikes prohibited.
Strikes by public employees are prohibited at any time.
§29-9-19. Remedies for prohibited strikes.
If a strike of public employees occurs which would be
prohibited under the provisions of section eighteen of this
article, the public employer may institute an action in the
circuit court of the jurisdiction where the strike occurs for appropriate equitable relief. If the strike involves state
employees, the chief legal officer of the public employer or the
attorney general where required by law may institute an action in
the circuit court of the jurisdiction where the strike occurs or
in the supreme court of appeals for appropriate equitable relief.
§29-9-20. Prohibited practices.
(a) It shall be a prohibited practice for a public employer
or its designated representative to willfully:
(1) Interfere, restrain or coerce any employee in the
exercise of any right guaranteed under this article;
(2) Dominate, interfere or assist in the formation,
existence or administration of any employee organization, or to
give monetary or other support to the organization;
(3) Discriminate in regard to hiring, tenure, term or
condition of employment to encourage membership in any employee
(4) Discharge or otherwise discriminate against an employee
because he or she has signed or filed an affidavit, petition or
complaint or given any information or testimony under this
chapter, or because he or she has formed, joined or chosen to be represented by any employee organization, or because of
participation in a safety or health walkout;
(5) Refuse to bargain collectively in good faith with the
exclusive representative as required in section fourteen of this
(6) Refuse to participate in good faith in the mediation and
arbitration procedures set forth in sections sixteen and
seventeen of this article;
(7) Refuse or fail to comply with any provision of this
(8) Violate the terms of the collective bargaining
(9) Refuse to supply to any interested party budgetary
information regarding the receipts and disbursements of any
public body or refuse to supply any other information necessary
to the preparation and conduct of negotiations or the processing
(b) It shall be prohibited practice for a public employee
organization or its designated agent to willfully:
(1) Refuse to bargain collectively in good faith with the public employer if it is an exclusive representative, as required
in section fourteen of this article;
(2) Refuse to participate in good faith in the mediation and
arbitration procedures set forth in sections sixteen and
seventeen of this article;
(3) Refuse or fail to comply with any provisions of this
(4) Violate the terms of the collective bargaining
§29-9-21. Prohibited practices; hearings and remedies.
(a) A public employer, public employee or exclusive
representative may file a written complaint with the board. The
complaint shall state that a prohibited practice as defined in
section twenty of this article has been committed and that relief
from the prohibited practice is requested. Upon receipt of a
written complaint the board or its agent shall:
(1) Cause to be served, upon the person or entity alleged to
have committed the prohibited practice, a copy of the complaint;
(2) Investigate the complaint to determine if a hearing on
the prohibited practice allegation is warranted. If the investigation reveals that no issue of fact or law exists, the
board may either grant the relief or dismiss the complaint;
(3) If the investigation reveals that an issue of fact or
law exists, a board hearing on the matter shall be held within
twenty days after a notice of the complaint has been received by
the charged party.
(b) In conducting the hearing, the board or its agent, is
(1) Subpoena witnesses and documents in accordance with
section one, article five, chapter twenty-nine-a of this code;
(2) Administer oaths and affirmations;
(3) Hold conferences for the settlement or simplification of
the issues by consent of the parties;
(4) Regulate the course of the hearing;
(5) Exclude immaterial, irrelevant or repetitious evidence;
(6) Sequester witnesses.
(c) Where the board finds that any person or entity charged
in the complaint has engaged in or is engaging in prohibited
practices charged in the complaint, the board shall:
(1) State its findings and conclusions in writing;
(2) Issue and cause to be served on the person or entity
engaged in prohibited practices an order to cease and desist from
the prohibited practice;
(3) Award representative costs, as determined by the board,
to the prevailing party; and
(4) Take affirmative action, including but not limited to,
the reinstatement of employees with pay, as is deemed fair and
equitable in accordance with the provisions of this article.
(d) Where the board finds that the person or entity charged
in the complaint has not engaged or is not engaging in a
prohibited practice the board shall issue an order dismissing the
complaint and may award representation costs to the prevailing
party if it is concluded that the complaint was made frivolously
or in bad faith.
(e) The decision of the board shall be final upon the
parties and shall be enforceable in circuit court by any of them.
In addition, the board may petition the circuit court of the
county in which the prohibited practice occurred to enforce its
orders and to grant it other relief including, but not limited to, an injunction.
§29-9-22. Payroll deductions.
(a) The employer, upon receiving from the exclusive
representative a written statement which certifies the amount of
initiation fees and monthly dues uniformly applied to all members
of the exclusive representative, shall deduct the fees and
monthly dues from the wages due to the employees from the
employer. The deductions shall apply to all employees of the
bargaining unit, whether as dues for members of the applicable
exclusive bargaining representative or as a fair share payment
for nonmembers. Membership in the exclusive representative is
not required of any bargaining unit employee.
(b) Deductions, authorized by members of the exclusive
representative, or fair share payment required to be deducted
from the wages of nonmembers, shall be made at times mutually
agreed upon by the employer and the exclusive representative in
amounts prorated in equal installments. The amounts so deducted
shall be forwarded by the employer to the exclusive
representative. Nothing in the foregoing shall be construed to
prevent the parties from agreeing to allow for lump sum payment of dues or agreeing to another arrangement.
(c) The wage deduction permitted by this section shall be
paid to the employee organization chosen as the exclusive
representative of an appropriate bargaining unit. Payments
terminate when an employee organization ceases to function as the
exclusive representative of the appropriate bargaining unit.
(d) In addition to any deduction made and forwarded to the
exclusive representative under subsections (a) and (b) of this
section, the employer shall, upon written authorization by an
employee, deduct from the payroll of the amount of group
insurance premiums, and other charges for employee organization
benefits and plans administered by the exclusive representative
and shall remit the amount designated by the employee to the
(e) The employer shall continue all payroll assignments
authorized by an employee prior to the effective date of this
article and all assignments authorized under subsection (d) of
this section until the employee notifies the employer to
discontinue his or her assignments or until the employee
organization ceases to be the exclusive representative of the appropriate bargaining unit.
§29-9-23. Financial reports to employees.
Every employee organization shall keep an adequate record of
its financial transactions and shall make available annually to
the employees who are members of the organization, within sixty
days after the end of its fiscal year, a detailed written
financial report in the form of a balance sheet and an operating
statement, certified as to accuracy by a certified public
accountant. In the event of failure of compliance with this
section, any employee within the organization may petition the
public employment relations board for an order compelling
compliance. The board may enforce its order by instituting suit
in the circuit court having jurisdiction in this matter.
§29-9-24. Public records and proceedings.
The complaints, orders and testimony relating to a
proceeding instituted by the public employment relations board
are public records and shall be made available for inspection or
§29-9-25. List of employee organizations and exclusive
The public employment relations board shall maintain a list of employee organizations. To be recognized and included in the
list, an organization must file a written statement with the
board setting out its name, the name and address of its secretary
or other officer to whom notices may be sent, the date of its
organization and its affiliations, if any, with other
organizations. No other qualifications for inclusion on the list
may be required, but every employee organization shall notify the
board promptly of any change of name or of the name and address
of its affiliates.
The list shall clearly indicate which organizations are
exclusive representatives of appropriate bargaining units, and
the effective date of their certification, and the effective date
and expiration date of any agreement reached between the public
employer and the exclusive representative. Copies of the list
shall be made available to interested parties upon request.
§29-9-26. Article takes precedence; when.
(a) This article and any collective bargaining agreement
between a public employer and an employee organization executed
pursuant to this article, shall preempt all contrary local
ordinances, executive orders, rules or regulations adopted by the state, a county, or any department or agency thereof, including
the civil service commission. Except as otherwise expressly
provided herein, nothing contained in this article shall be
construed to deny or otherwise abridge any rights, privileges or
benefits granted by law to employees.
(b) Except as otherwise expressly provided herein, nothing
in this article shall be construed to annul, modify or preclude
the renewal or continuation of any lawful agreement entered into
prior to the effective date of this article between a public
employee and an employee organization covering wages, hours,
terms and conditions of employment.
§29-9-27. Article inoperative; when.
If any provision of this article prevents the receipt by the
state or any county of any federal grant-in-aid or other federal
allotment of money, the provision shall, insofar as the fund is
jeopardized, be deemed to be inoperative.
NOTE: This bill provides the following:
(1) A Public Employment Relations Board is created to
facilitate collective bargaining between public employees and
public employers. A five-member board is appointed by the Governor and compensated on a per diem basis. The board has the
power to employ professional staff including an executive
officer, mediators and hearing examiners.
(2) All public employees, with the exception of elected
public officials, are permitted to organize and bargain
collectively through exclusive representatives elected by
appropriate units of public employees.
(3) Provisions are included for negotiations, mediation and
final and binding arbitration.
(4) Public employees are prohibited from striking.
(5) Cost items negotiated by public employers and their
employees may not be implemented until they have been approved by
the appropriate legislative or governing body.
(6) A public employee is not required to become a member of
an employee organization. However, payroll deductions from all
employees within the unit represented by the exclusive
representative for dues and fair share representation are to be
paid to the exclusive representative. The exclusive
representative of the employees would be required to bargain
collectively and to process grievances for all employees
regardless of membership status.
This article is new; therefore, strike-throughs and
underscoring have been omitted.