Senate Bill No. 535
(By Senators Grubb, Macnaughtan and Wagner)
[Introduced February 20, 1995; referred to the Committee
on Education; and then to the Committee on 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 school employment relations act; stating
legislative policy and purpose; designating a short title;
defining certain terms; creating a West Virginia public
school employment relations board; providing for the
composition of the board, the terms of its members and the
qualifications of the 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 powers and
duties of the board, the employment of staff and the location of offices; granting authority to the board to
promulgate rules; defining employee and employer rights;
providing for the election of exclusive representatives by
public school employees; establishing criteria for
determining the appropriateness of a bargaining unit for
purposes of collective bargaining; establishing procedures
for representation elections and decertification of
certified representatives; establishing duty to bargain and
the scope of bargaining subjects as to which agreement may
be reached; providing for written agreements; providing for
mediation and arbitration to resolve impasses in bargaining;
prohibiting strikes by public school employees; providing
remedies for prohibited strikes; defining prohibited
practices and providing remedies for violations;
establishing a method of payroll deductions, fair share fee
payments and protections for fee payors; providing for
public and closed meetings; requiring public records and
lists of employee organizations and exclusive
representatives; and setting forth when the article takes
precedence and when it is 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 SCHOOL EMPLOYMENT RELATIONS ACT.
§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 school
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 school employees
the right to associate with others in organizing and choosing
representatives for the purpose of collective bargaining; (2)
requiring public school employers to recognize, negotiate and
bargain with employee organizations representing public school
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 school employer, the public school employee
and the citizens of this state.
§29-9-2. Short title.
This article shall be known and may be cited as the "Public
School Employment 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 school employees and public
(1) "Grievance arbitration" means arbitration of disputes
arising over the interpretation or application of a collective
bargaining agreement; and
(2) "Interest arbitration" means arbitration of disputes
arising during the course of contract negotiations resulting in
incorporation of the arbitrator's decision into the collective
(c) "Board" means the public school employment relations
board created pursuant to section four of this article;
(d) "Certification" means official recognition by the public
school 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
(e) "Collective bargaining" means the performance of the
mutual obligations of the public school 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 be compelled to agree to a proposal put forth by
the other party;
(f) "Confidential employee" means an employee, who in the
regular course of his or her duties, assists and acts in a
confidential capacity to persons who formulate, determine and
effectuate management policies with regard to labor relations.
The personal secretary to a managerial employee shall be
considered to be a confidential employee;
(g) "Employee" or "public school employee" means any person,
other than elected officials, employed by a public school
(h) "Employee organization" means an organization of
employees which exists for the purpose of representing public
school employees in dealing with public school employers
concerning grievances, labor disputes, wages, hours and other
terms and conditions of employment of public school employees;
(i) "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;
(j) "Impasse" means the point in the process of negotiations
between public school employees and public school employers at
which either party determines that no further progress toward resolving differences and concluding a collective bargaining
agreement can be made;
(k) "Mediation" means assistance by an impartial third party
to resolve an impasse in the form of interpretation, suggestion
or advice in reconciling an impasse between the public school
employer and the exclusive representative regarding wages, hours
and other terms and conditions of employment;
(l) "Public school employer" means county boards of
education, and multi-county vocational centers and the state
board of education; and
(m) "Supervisory employee" means an employee who devotes a
substantial amount of work time to supervisory duties, who
customarily and regularly directs the work of two or more other
employees and who has the authority in the interest of the
employer to hire, promote, discipline, or evaluate other
employees or to recommend such actions effectively. It does not
include individuals who perform merely routine, incidental or
clerical duties or who occasionally assume supervisory or
directory roles or whose duties are substantially similar to
those of their subordinates and does not include lead employees,
mentor teacher, or employees who participate in peer review or
occasional employee evaluation programs.
§29-9-4. West Virginia public school employment relations board
There is hereby created a state agency to be known as the West
Virginia Public School Employment Relations Board.
§29-9-5. Composition of board; terms of members; qualifications
The board shall consist of three members, one of whom shall be
a representative of public school employers, one of whom shall be
a representative of public school employees and one of whom shall
be a representative of the general public. All members shall be
citizens of the state, appointed by the governor, by and with the
advice and consent of the Senate. The members shall be appointed
to terms of four years.
Public school employers and employee organizations
representing public school 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 those
persons in selecting the members of the board who are
representative of public school employers and public school
No person shall at the same time serve as a member of the
board and be a 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 be an appointee or
employee of the board. Not more than two 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 three 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 are
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 is
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 four 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. The five additional required meetings in
each fiscal year, shall be held on dates and at places as the
board may prescribe. 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 other times.
The three members of the board constitute a quorum. A
majority vote of the quorum is necessary to pass upon matters
before the board. The governor shall appoint an acting member of
the board during a temporary absence from the state or during the
illness of any regular member. An acting member, during his or
her term of service, has the same powers and duties as the
regular member and shall meet the same requirements for
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 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 consider
necessary. 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
The board shall employ an executive officer and such
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 prescribe the
duties and fix the compensation and emoluments of board employees
in accordance with law and practice. 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.
§29-9-9. Powers and duties of the board.
(a) 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 article three-b, chapter twenty-nine-a of this
code apply to the board.
(b) The Board shall hold hearings and make inquiries necessary
to carry out its functions and duties and may conduct studies on
problems pertaining to employee-employer relations, including methods by which labor management cooperation may be improved.
The board shall request from public employers and labor
organizations the information and data necessary to carry out its
functions and duties.
(c) The board may issue subpoenas requiring, upon reasonable
notice, the attendance and testimony of witnesses and the
production of any evidence, including books, records,
correspondence or documents relating to any matter at issue. The
board may prescribe the form of the subpoena, but it shall adhere
insofar as practicable to the form used in civil actions in the
circuit court. The board may administer oaths and affirmations,
examine witnesses and receive evidence.
(d) The board may hire personnel or contract with third
parties as it considers necessary to assist it in carrying out
(e) The board has the power to enforce provisions of this
article through the imposition of appropriate administrative
(f) Any party aggrieved by any decision or order of the board,
may, within ten days from the date of the decision or order apply
for judicial review in the circuit court in the county in which
the board maintains its principal office.
§29-9-10. Employee rights.
(a) Public school employees have the right 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 without
interference, restraint or coercion. Employees also have the
right to refrain from these activities, except to the extent that
such rights may be effected by agreements between the public
school employer and a labor organization which is the exclusive
bargaining representative requiring, as a condition of
employment, the payment of a service fee in lieu of, and in an
amount not greater than, dues which are payable by members of the
labor organization, to cover such costs as collective bargaining
and contract administration as provided in section twenty-two of
(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 the
agreement in effect between the employer and the exclusive
§29-9-11. Representatives and elections.
(a) When a majority of the public school employees in an
appropriate bargaining unit select a representative for the
purpose of bargaining collectively, the representative is the
exclusive representative of all the employees in the unit for the purpose of collective bargaining. Where exclusive recognition
has previously been granted or 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 bargaining unit previously agreed
to. The employer must continue to recognize and bargain with the
exclusive representative of the bargaining units that existed
prior to the first day of January, one thousand nine hundred
ninety-five, and the exclusive representative of the bargaining
units and employees in the bargaining units are accorded the full
rights under this article.
(b) Employee organizations recognized by a public school
employer as the exclusive representative or designated as the
exclusive representative in accordance with the provisions of
this article are responsible for representing the interests of
all public school employees in the bargaining unit. Nothing in
this article 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 or for
other proper reason.
§29-9-12. Appropriate bargaining unit determination.
(a) Upon the receipt of a petition for representation filed
pursuant to section thirteen of this article, the board shall
determine the appropriate bargaining unit for collective
bargaining. In determining the appropriate bargaining unit, the
board shall consider:
(1) The community of interest in the proposed bargaining unit,
including employee skills, functions, common supervision, wages,
hours and other working conditions;
(2) The effect of overfragmentation;
(3) The efficiency of operations of the public school
(4) The history of collective bargaining;
(5) The desires of employees; and
(6) The requirements of section ten, article three, and
section one, article twelve of the state Constitution: Provided,
That nothing in this section prohibits the board from recognizing
multiunit bargaining: Provided however, That nothing in this
section prohibits coalition bargaining under which a coalition of
public school employers or a coalition of employee organizations
engage in collective bargaining.
(b) The board shall 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 combined unit.
(c) The board shall not permit supervisory employees to be
included with any other public school employees, but shall permit
them to form their own separate homogeneous units.
(d) The board shall not permit confidential employees or
managerial employees to be included in any bargaining unit.
§29-9-13. Representation election; procedures.
(a) Whenever an employee or group of employees or any individual or employee organization acting on behalf of an
employee or group of employees files a petition with the board
containing the signatures of thirty percent of the employees in
a unit to be represented for collective bargaining by a
designated 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, including holding a
hearing, to determine the validity of the matters contained in
the petition before determining whether or not an order should be
issued: Provided, That the board shall determine the validity of
the employee signatures and once determined valid, the
determination may not be challenged by the employer. Employee
signatures shall remain confidential at all times.
(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 school employer shall submit to
the employee 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
representation elections, including, but not limited to, rules
which would guarantee the secrecy of the ballot;
(5) Once an employee organization has filed a valid petition
with the board calling for a representation election, other labor
organizations may seek to be placed on the ballot. Such an
employee organization shall file a petition containing the
signatures of not less than ten percent of the public school
employees in the appropriate bargaining unit no later than ten
days after the board and the public school employer post a
written notice that the petition containing not less than thirty
percent of the employees has been filed. The ballot shall
contain the names of any employee organization submitting a
petition or cards containing signatures of at least ten percent
of the public school employees in the appropriate unit. The
ballot shall also contain a provision allowing an employee to
mark "no representation";
(6) An employee organization shall be certified if 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 the selection between the two employee
organizations receiving the highest number of ballots cast in the previous election;
(8) The board shall direct an election be held not later than
one hundred twenty days after the date the petition was filed:
Provided, That the board may extend the time for holding an
election by an additional sixty days if, upon motion by a party
to the representation proceeding, or upon the board's own motion,
the board finds good cause has been shown for extending the
election date: Provided, however, That nothing in this section
shall prohibit the board, in its discretion, from extending the
time for holding an election for up to sixty days, where the
purpose for the extension is to permit resolution by the board of
an unfair labor practice charge filed by one of the parties to a
representational proceeding against the other based upon conduct
which may have a tendency to interfere with a fair and free
election, where the party filing the charge has not filed a
request to proceed with the election. The unfair labor practice
charges shall be addressed by the board in an expedited manner.
It is the purpose of this section to ensure a prompt and fair
(9) Mail ballots are not favored, except, the board may permit
mail ballots when employees would otherwise not reasonably be
able to cast a ballot or for other reasonable cause. The board
has the final determination on any controversy concerning the
eligibility of an employee vote; and
(10) The board shall certify the results of an election within
five working days after the final tally of votes if an employee organization received a majority of the valid ballots cast in an
election conducted pursuant to this section.
(c) No election shall be conducted if an election or run-off
election has been conducted in the twelve-month period
immediately preceding the proposed representation election.
(d) The board shall not direct that an election be held in any
bargaining unit where there is in force a valid collective
bargaining agreement. The board, however, may process an
election petition filed within one hundred twenty and ninety days
prior to the expiration of the date of an agreement. For the
purposes of this section, extensions of agreements shall not
affect the expiration date of the original agreement.
(e) Nothing in this section prohibits the waiving of a hearing
by stipulation of the parties for the purpose of a consent
election or an election in a bargaining unit agreed upon by the
parties so long as the stipulations or agreed bargaining unit is
approved by the board.
(f) A labor organization designated by the board as the
representative of the majority of public school employees in an
appropriate unit in accordance with the procedures in this
section is the exclusive representative for the employees of that
(g) A public school employee or a group of employees may file
a petition for decertification of a certified exclusive
representative if the decertification petition bears the
signature of at least thirty percent of the employees in the bargaining unit.
§29-9-14. Duty to bargain; scope of bargaining.
A public school employer and the exclusive representative have
the authority and the duty to bargain collectively as set forth
in this section.
(a) The duty to bargain includes an obligation to negotiate
over any matter with respect to wages, hours and terms and
conditions of employment and other issues agreed to by the
parties. Public school employers and recognized employee
organizations shall bargain collectively and shall execute a
written contract incorporating any agreement reached on wages,
hours, working conditions and other terms and conditions of
employment and other matters agreed to by the parties. Under the
duty to bargain collectively the employer and the exclusive
representative shall meet at reasonable times, including meeting
in advance of the budget-making process and to negotiate in good
(b) Public school employers are not required to bargain over
matters of inherent managerial policy, which include the
(1) The establishment of the functions and programs of the
public school employer;
(2) Standards for services provided by the public school
(3) The organizational structure of the public school
(4) The preparation and administration of the public school
employer's budget: Provided, That the impact of the exercise of
the management rights in this subsection on public school
employees is a proper subject of collective bargaining.
§29-9-15. Impasses; mediation.
If the parties reach an impasse over the wages, hours, working
conditions or other terms and conditions of employment, either
party shall promptly notify the board in writing of the impasse.
The board shall assist in the resolution of this impasse by
promptly selecting an impartial person experienced in labor
relations disputes to serve as a mediator. The mediator shall
meet immediately with parties or their representatives, either
jointly or separately, and shall take other appropriate steps in
order to encourage the parties to reach a mutually acceptable
agreement. The mediator has the power to control the agenda and
issue subpoenas requiring the attendance of parties. All
expenses of mediation shall be borne by the board.
§29-9-16. Impasses; arbitration.
(a) If the mediator is unable to effect settlement of the
impasse within twenty days from the first day of mediation in
accordance with the provisions of section fifteen of this
article, either party may, by written certification to the other
party and to the board, submit the remaining impasse issues to
binding interest arbitration.
(b) 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
arbitrator remains. The names of potential arbitrators shall be
submitted by the board from lists provided by the American
arbitration association or the federal mediation and conciliation
(c) Each party shall submit a final offer on each separate
issue remaining at impasse to the arbitrator and the other party.
The arbitrator, following the procedures prescribed in subsection
(d) of this section, shall determine that either the final offer
of the employer or the final offer of the exclusive
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
During the binding arbitration process the parties may
continue to engage in negotiations.
(d) The arbitrator shall, within ten days of appointment, meet
with the parties or their representatives, either jointly or
separately, and shall investigate and hold hearings, and take
other appropriate steps in accordance with procedures prescribed
by the board.
The arbitrator has 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
consider appropriate by the arbitrator in conducting hearings, investigations or inquiries.
(c) In reaching a decision regarding resolution of the
impasses issues, the arbitrator shall take into consideration the
(1) A comparison of the wages, hours and terms and conditions
of employment of the employees involved in the arbitration
proceeding with the wages, hours and terms and conditions of
employment of employees performing similar services in public
(2) The ability of the public school employer to pay for the
items to be included in the contract;
(3) The interests and welfare of the public;
(4) A review and analysis of the specific nature and type of
the employment of the employees involved in the arbitration
proceeding including such factors as the hazards of employment;
physical qualifications; educational qualifications; and job
training and skills;
(5) The terms of collective bargaining agreements negotiated
between the parties in the past, or of other previously existing
arrangements or practices providing for compensation and fringe
benefits and other matters, including, but not limited to,
provisions for salary, insurance and retirement benefits, medical
and hospitalization benefits, paid time off and job security; and
(6) The average consumer prices for goods and services,
commonly known as the cost of living.
(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 impasse issues, as well as
those issues mutually agreed upon.
(e) The expenses of arbitration shall be borne equally by each
(f) The public school employer and exclusive representative
may negotiate and reach an agreement on impasse procedures other
than the procedures provided for in this section, except that the
final stage of any impasse procedure agreed to by the parties
must include the binding interest arbitration provided for in
this section. Such agreed upon impasse procedures may be
utilized by the parties.
§29-9-17. Written agreements.
(a) Any collective bargaining agreement between the employer
and the exclusive representative shall be reduced to writing and
is subject to appropriate ratification or other necessary
approval by both parties. Upon ratification or other necessary
approval, the agreement shall be fully executed by the parties
and is effective.
(b) An agreement between a public school employer and an
exclusive representative entered into pursuant to this article,
governs the wages, hours and terms and conditions of public
school employment covered by the agreement. If there is a
conflict between the collective bargaining agreement and any
rules implemented by a public school employer or its representative, the terms of the agreement prevail.
(c) The circuit court for the county in which the principal
offices of the board are located may review an award of the
interest arbitrator or an award of an arbitrator in a grievance
arbitration, but only for reasons that the arbitrator was without
or exceeded his or her jurisdiction; the order is not supported
by competent, material and substantial evidence on the whole
record; or the order was procured by fraud, collusion or other
similar and unlawful means. The pendency of a proceeding for
review shall not automatically stay the order of the arbitrator.
§29-9-18. Strikes prohibited.
Strikes by public school employees are prohibited at any time.
§29-9-19. Remedies for prohibited strikes.
If a strike of public school employees occurs which is
prohibited under the provisions of section eighteen of this
article, the public school employer may institute an action in
the circuit court of the jurisdiction where the strike occurs for
appropriate equitable relief.
§29-9-20. Prohibited practices.
(a) It is a prohibited practice for a public school employer
or its designated representative to:
(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
conditions 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
article, 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 fifteen and sixteen
of this article;
(7) Unilaterally change wages, hours or other terms and
conditions of employment;
(8) Refuse or fail to comply with any provision of this
(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 is a prohibited practice for a public school employee
organization or its designated agent to:
(1) Refuse to bargain collectively in good faith with the
public school 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 fifteen and sixteen
of this article; or
(3) Refuse or fail to comply with any provisions of this
§29-9-21. Prohibited practices; hearings and remedies.
(a) A public school employer, public school employee, or
exclusive representative may file a written complaint with the
board. The complaint shall state that a prohibited practice as
defined in section nineteen or twenty of this article has been
committed and that relief from the prohibited practice is
requested. The complaint shall be filed within six months of the
alleged prohibited practice. 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 law or fact exists, the
board may either grant the relief or dismiss the complaint:
Provided, That a party shall be provided the opportunity to
voluntarily withdraw a complaint prior to a dismissal; and
(3) If the investigation reveals that an issue of fact or law exists, the board hold a hearing on the matter within twenty days
after a notice of the complaint has been received by the charged
(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 a written order;
(2) Issue and cause the boards order to be served on the
person or entity engaged in prohibited practices. The board
shall require that an order to cease and desist from the
prohibited practice be posted at prominent workplace locations;
(3) Award back pay with reasonable interest;
(4) Award representation costs, as determined by the board, to
the prevailing party if it is concluded that any defense was made
frivolously or in bad faith; and
(5) Take all necessary affirmative action, including,but not
limited to, the reinstatement of employees with pay, as is
determined 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 a written 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.
The decision of the board is final upon the parties and is
enforceable in circuit court by any of the parties. In addition,
the board may petition the circuit court in the county in which
the principal offices of the board are located to enforce its
orders and to grant other appropriate relief including, but not
limited to, injunctive and other equitable relief.
§29-9-22. Payroll deductions.
(a) Payroll deduction of dues and fair share fees shall be a
mandatory subject of bargaining. The employer, upon receiving
from the exclusive representative a written statement which
certifies the amount of initiation fees and monthly dues and in
accord with the negotiated agreement, shall deduct the fees and
monthly dues from the wages due to the employees from the
employer. The deductions, which shall be made in accordance with
the applicable law, apply to all employees of the bargaining
unit, whether as dues for members of the applicable exclusive bargaining representative or as a fair share fee for nonmembers.
Membership in the employee organization shall not be required as
a condition of employment.
(b) A collective bargaining agreement may contain a provision
that requires as a condition of employment, that the employees in
the bargaining unit who are not members of the labor organization
pay to the labor organization a fair share fee: Provided, That
the exclusive representative shall, as a condition of receiving
the fair share fee, establish and implement, if due, a rebate
procedure for nonmembers, issue a sufficient fair share fee
notice to nonmembers, establish a challenge procedure for
objecting nonmembers which includes a prompt resolution by a
neutral third party and otherwise conform to existing law.
Nonmembers shall not be charged for any political or ideological
activities of an employee organization.
§29-9-23. Public records and proceedings.
The complaints, orders and testimony relating to a proceeding
instituted by the public school employment relations board are
public records and shall be made available for inspection or
copying. However, meetings of the public school employer and
employee organization held for the purpose of engaging in
collective bargaining are not open to the public and the parties
by mutual agreement may declare the meetings closed to all
individuals, except the representatives of the parties or other
individuals specifically approved by the parties.
§29-9-24. 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 forth 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 affiliation, 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, the
effective date of their certification, and the effective date and
expiration date of any agreement reached between a public school
employer and the exclusive representative. Copies of the list
shall be made available to interested parties upon request.
§29-9-25. When article takes precedence.
(a) In case of conflict between the provisions of this article
and any other law, executive order or administrative rule, this
article prevails and controls. All existing rules adopted by the
employer which are not contrary to this article, remain
applicable. Nothing contained in this article or in any
agreement reached pursuant to this article shall deny or
otherwise abridge any rights, privileges or benefits granted by
law to public school employees. In case of a conflict between the provisions of any agreement and the provisions of chapter
eighteen-a of this code, the provision of the code prevail. The
issues provided for in chapter eighteen-a of this code may be the
subject of bargaining only to the extent that the rights,
benefits or protections granted to employees in that chapter may
be enhanced by agreement of the parties.
(b) Except as otherwise expressly provided in this article,
nothing in this article shall be construed to annually modify or
preclude the renewal or continuation of any lawful agreement
entered into prior to the effective date of this article between
a public school employer and an employee organization covering
wages, hours, terms and conditions of employment.
§29-9-26. When article inoperative.
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 funding
is jeopardized, be considered to be inoperative.
§29-9-27. Liberal construction.
This article shall be construed liberally and for the
accomplishment of the purpose of promoting orderly and
constructive relationships between all public school employees
and their employers and for the promotion of the rights of public
school employees to organize and otherwise engage in activities
for their mutual aid and protection.
The provisions of this article are hereby declared to be severable. Should any of the provisions of this article be
declared unconstitutional or in conflict with some other
provision of law, the remaining provisions of this article shall
continue to be the law of the state in regard to public school
NOTE: The purpose of this bill is to establish the Public
School Employment Relations Act which provides for collective
bargaining for public school employees. It creates a West
Virginia Public School Employment Relations Board consisting of
a representative of employers, a representative of employees and
a representative of the general public.
The board, upon receipt of a petition for representation is to
determine the appropriate bargaining unit for collective
bargaining. Election procedures are specified. Collective
bargaining and a written contract on terms of employment between
the employers and employee organization are mandated. Impasses
in bargaining are to be resolved through mediation and
arbitration strikes are specially prohibited.
This article is new; therefore, strike-throughs and
underscoring have been omitted.