ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2357
(By Mr. Speaker, Mr. Kiss, and Delegates Staton
and Faircloth)
(Originating in the Committee on the Judiciary)
[February 26, 1999]
A BILL to amend and reenact section three hundred nine, article
two-a, chapter twenty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to the
establishment of a board of arbitration to address matters in
controversy in relation to the operation of diesel equipment
in underground coal mines.
Be it enacted by the Legislature of West Virginia:
That sections three hundred nine, article two-a, chapter
twenty-two-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read as
follows:
§22A-2A-309. Failure to promulgate initial rules; arbitration.
(a)If Because the commission fails failed to finally adopt its
initial rules before the first day of April, one thousand nine
hundred ninety-eight and the members who represent the viewpoint or interests of coal operators and the members who represent the
viewpoint or interests of working miners shall each prepare
prepared a final draft of proposed initial rules, which drafts will
be considered the "last best offer" by each group of members, and
the matters in controversy which the commission is were unable to
resolve shall be submitted to arbitration as soon as is practicable
by the first day of February, two thousand, with a final decision
rendered by the thirtieth day of June, two thousand.
Notwithstanding the provisions of subsection (a) of section three
hundred eight of this article, the commission shall be authorized
to promulgate initial rules until the thirtieth day of June, two
thousand. The "last best offers" that have been previously
submitted on the twelfth day of June, one thousand nine hundred
ninety-eight by each group as a matter of record before the
commission shall remain unchanged: Provided, That if by an
unanimous vote by the entire commission, any provisions of the last
best offers are agreed upon by the entire commission those specific
provisions shall be withdrawn and not subject to the arbitration
process and shall be considered resolved. Those provisions agreed
upon shall be implemented in accordance with section three hundred
ten, article two-a, chapter twenty two-a of the code when the
arbitrators decision becomes final.
(b) The board of appeals established and continued pursuant to
the provisions of article five of this chapter shall begin the selection of arbitrators by contacting the alternative dispute
resolution department of the federal mediation and conciliation
service to obtain a roster of the names of twenty-five persons who
are willing to serve as neutral members of a special subcommittee
of the board of appeals that will function as a board of
arbitration. The board of appeals shall request that the federal
mediation and conciliation service, in compiling the roster,
consider experience, and training in the arbitration process,
affiliations, actual or potential conflicts of interest and other
matters when selecting persons who may serve as neutral and
independent arbitrators. The members who represent the viewpoint
or interests of coal operators and the members who represent the
viewpoint or interests of working miners shall each strike five
names from the roster. From the roster remaining list of fifteen
persons so compiled, the board of appeals shall draw five names by
lot. The persons drawn shall comprise the board of arbitration,
and they are empowered to resolve all outstanding issues that
prevent final adoption of initial rules by the diesel equipment
commission.
(c) In the event that an arbitrator shall die, or refuse to
act or become incapable of acting as an arbitrator before the
matters pending before the board of arbitration are concluded, then
the remaining arbitrators shall appoint another person from the
roster of available persons to be an arbitrator in place of the arbitrator who no longer continues to act.
(d) Each arbitrator shall be compensated at a per diem rate of
two hundred twenty-five dollars per day for each day or portion
thereof engaged in the discharge of official duties. the
arbitrators customary per diem rate per day for each day or portion
thereof engaged in the discharge of official duties. each Each
member of the commission shall be paid the same expense
reimbursement as is paid to members of the Legislature for their
interim duties as recommended by the citizens legislative
compensation commission and authorized by law. No reimbursement
for expenses shall be made except upon an itemized account,
properly certified by the arbitrators. All reimbursement for
expenses shall be paid out of the state treasury upon a requisition
on the state auditor.
(e) On or before the fifth first day of January February, one
thousand nine hundred ninety-nine two thousand, the board of
arbitrators shall resolve issues presented by the proposed drafts
drawn up by the members of the commission. Only matters in
controversy may be addressed by the board of arbitration.
Arbitration is conditioned by limiting the range of outcomes to a
choice between the positions submitted by each opposing group
within the commission as their "last best offer." As to each issue
raised by the proposed drafts, the board of arbitration shall adopt
a position advanced by one of the member groups and shall have no authority to compromise the positions or substitute an alternative
position. In making its decisions, the board of arbitrators shall
consider the highest achievable measures of protection for miners'
health and safety through available technology, engineering
controls and performance requirements, and shall further consider
the cost, availability, adaptability and suitability of any
available technology, engineering controls and performance
requirements as they relate to the use of diesel equipment in
underground coal mines. When the board of arbitration reaches
agreement on a proposed rule, at the conclusion of its work the
board of arbitration shall transmit a report containing the
proposed rule to the commission, the president of the Senate and
the speaker of the House of Delegates. The board of arbitration
may include in its report any other information, recommendations,
or materials that the board of arbitration considers appropriate,
including suggested legislation. Any arbitrator may include as an
addendum to the report any additional information, recommendations,
or materials.
(f) The board of coal mine health and safety shall provide
appropriate administrative support to the board of arbitration,
including technical assistance.
(g) Within twenty-eight days following the resolution of all
issues by the board of arbitration, the commission shall adopt the
initial rules, fully incorporating the decision of the board of arbitration. The commission shall file a notice of the final
adoption in the state register and with the legislative rule-making
review committee. The initial rules are thereby promulgated and
have the effect of law without further action by the commission or
the Legislature. The initial rules shall be published in the code
of state rules and continue in effect until modified or superseded
in accordance with the provisions of this article, or by act of the
Legislature.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.