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any provisions of the last best offers are agreed upon by the entire commission those specific provisions shall be withdrawn and not subject to the arbitration process and shall be considered resolved.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.