H. B. 2287
(By Delegates Linch, Collins, Caputo,
Fleischauer, Hatfield, Sparks and Kuhn)
[Introduced January 19, 1999; referred to the
Committee on Finance then the Judiciary.]
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 employment 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 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 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; 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, fair share fee
payments and protections for fee payors; 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
follows:
ARTICLE 9. WEST VIRGINIA PUBLIC 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 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 Employment Relations Act."
§29-9-3. Definitions.
The following words when used in this article have the
meaning ascribed to them unless the context clearly indicates a
different meaning:
(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" 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
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 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 employee" means any person, other
than elected officials, employed by a public employer.
(h) "Employee organization" means an organization of
employees 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.
(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 employees and public employers at which either
party determines that no further progress toward resolving
differences and concluding a collective bargaining agreement can
be made.
(k) "Managerial employee" means an employee who, as a
primary function, formulates policy on behalf of the public
employer or who responsibly directs the implementation of policy.
Any person who fills a statutorily created position within or
related to a public employer as a commissioner, deputy
commissioner, assistant commissioner, director, chancellor,
chief, executive director, superintendent, deputy superintendent,
manager, city manager, or county manager shall be considered a
management employee.
(l) "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 employer
and the exclusive representative regarding wages, hours and other
terms and conditions of employment.
(m) "Professional employee" means an employee whose work is predominantly intellectual and varied in character and whose work
involves the consistent exercise of discretion and judgment in
its performance and requires knowledge of an advanced nature in
a field of learning customarily requiring specialized study at
an institution of higher education or its equivalent. The work
of a professional employee is of such character that the output
or result accomplished cannot be standardized in relation to a
given period of time.
(n) "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.
(o) "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 or discipline other employees or to
recommend such actions effectively but 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, employees who
participate in peer review or occasional employee evaluation
programs.
§29-9-4. West Virginia public employment relations board
created.
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
of members.
The board shall consist of three members, one of whom shall
be representative of public employers, one 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 members shall be appointed to terms
of four years.
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.
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 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, two thousand. 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 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
elective officers.
§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 two thousand, 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, 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. 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, 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 two thousand, and annually
thereafter, the board shall elect a chairperson and other
officers from its membership as the board may deem 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 following year.
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.
§20-9-9. 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 section one, article three, 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 such personnel or contract with such
third parties as it deems necessary to assist it in carrying out
its functions.
(e) The board has the power to enforce provisions of this
article through the imposition of appropriate administrative
remedies.
(f) Any party aggrieved by any decision or order of the
board, may, within ten days from the date of such 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 employees shall 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 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 costs such as collective bargaining
and contract administration as provided in section twenty-two of
this article.
(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
bargaining representative.
§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 exclusive
recognition has previously been granted or where prior to the
first day of January, two thousand, a signed agreement is in effect the board may not alter the terms of the agreement nor the
appropriate unit previously agreed to.
The employer must continue to recognize and bargain with the
exclusive representative of such bargaining units that existed
prior to the first day of January, two thousand, and the
exclusive representative of such bargaining units and employees
in such bargaining units are accorded the full rights under this
article.
(b) Employee 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 or for other proper reason.
§29-9-12. 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 over fragmentation;
(3) The efficiency of operations of the public employer;
(4) The history of collective bargaining;
(5) The desires of employees; and
(6) With respect to education employees, the requirements of
section ten, article III and section one, article XII of the
state constitution: Provided, That nothing herein shall prohibit
the board from recognizing multiunit bargaining: Provided,
however, That nothing herein shall prohibit coalition bargaining
under which a coalition of public 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 vote for inclusion in the combined unit.
(c) The board shall not permit supervisory employees to be
included with any other public employees, but shall permit them
to form their own separate homogenous units: Provided, That in
units of police and firefighters all employees below the rank of
chief shall be eligible for inclusion in the unit.
(d) The board shall not permit confidential employees or
managerial employees to be included in any bargaining unit.
(e) The appropriate units for employees of constitutionally recognized elected officials at the state level, shall be
separate and distinct from any other 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 shall 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 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,
regulations 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 employees
in the appropriate bargaining unit no later than ten days after
the board and the public 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 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 runoff election shall be conducted within
thirty days after the result of the election is certified by the
board. The ballot for the runoff election shall include a
provision for the selection between only the two choices or
parties receiving the highest number of ballots cast in the
previous election;
(8) The board shall direct an election 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 such 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. Such 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
representation election. 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 shall have the final
determination on any controversy concerning the eligibility of an
employee vote;
(9) The board shall certify the results of an election
within five working days after the final tally of votes if the
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 runoff
election has been conducted in the twelve-month period
immediately preceding the proposed representation election.
(d) No election shall be directed by the board in any
bargaining unit where there is in force a valid collective
bargaining agreement. The board however, may process an election
petition filed between ninety and one hundred twenty 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 such 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 employees in an
appropriate unit in accordance with the procedures herein is the
exclusive representative for the employees of such unit.
(g) 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. Duty to bargain; scope of bargaining.
A public 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 shall include 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. Collective bargaining shall take place between public
employees and recognized employee organizations and shall result
in execution of a written contact 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 faith.
(b) Public employers shall not be required to bargain over
matters of inherent managerial policy, which shall include the
following:
(1) The establishment of the functions and programs of the
public employer;
(2) Standards for services provided by the public employer;
(3) Organizational structure of the public employer;
(4) The ability to recruit, hire and retain employees,
direct the work of employees and discipline and discharge
employees for just cause; and
(5) The preparation and administration of the public
employer's budget: Provided, That the impact of the exercise of
these management rights on public employees shall be 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 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
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 the preceding section, either
party may, by written notification 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 name of potential arbitrators shall be
submitted by the board from a list provided by the American
arbitration association or the federal mediation and conciliation
service.
(c) 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
(d) 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. 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 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 hearing, investigations or inquiries.
(e) In reaching a decision regarding resolution of the
impasses issues, the arbitrator shall take into consideration the
following factors:
(1) 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 and
private employment;
(2) The ability of the public 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 cost-of-living.
(f) 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 items mutually agreed upon.
(g) The expenses of arbitration shall be borne equally by
each party.
(h) The public employer and labor organization 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: Provided, That the submission of agreed cost items
to the state Legislature or other legislative body is within the
time limits provided for in sections fifteen, sixteen and
seventeen of this article.
§29-9-17. Written agreements; appropriations.
(a) Any collective bargaining agreement between the employer
and the exclusive representative shall be reduced to writing and
shall be 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 shall be effective.
(b) All cost items in a collective bargaining agreement
shall be subject to the approval 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. 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 the appropriate legislative body
may act upon the operating budget of the employer: Provided,
That in negotiations between employees of the state and a state
employer, the parties will begin collective bargaining no later
than one hundred thirty days prior to the beginning of the state
legislative session and shall make every effort to complete
negotiations, including impasse procedures, ten days prior to the
beginning of the state legislative session.
If the state Legislature or other legislative body, rejects
any of the cost items submitted to them, all cost items submitted
shall be returned, within five days of rejection, to the parties
for further negotiations. The parties shall then resubmit the
renegotiated cost items to the state Legislature, or other
legislative body for approval. The employer shall fully support
the passage of any negotiated cost items by every reasonable
means before the state Legislature or other legislative body.
All cost items submitted to the state Legislature, or other
legislative body, under this section shall become effective, and
shall be considered approved, unless rejected by formal action of
the body, within twenty-one days of submission. If the appropriate legislative body is not in session at the time a
negotiated agreement has been reached by both parties, or a final
and binding arbitration decision has been rendered in accordance
with section sixteen of this article, the cost items shall be
submitted to the state Legislature or other appropriate
legislative body within fourteen days after it next convenes.
Nothing in this section shall be construed to permit a
public employer to reject cost items in an agreement that has
been approved by the state Legislature or other legislative body.
The public employer and the exclusive representative shall
execute a separate agreement including all no-cost items to which
the parties have agreed which shall be effective immediately.
(c) An agreement between a public employer and an exclusive
representative entered into pursuant to this article, governs the
wages, hours and terms and conditions of public employment
covered by the agreement. If there is a conflict between the
collective bargaining agreement and any rules implemented by a
public employer or its representative, the terms of the agreement
shall prevail.
(d) 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 arbitration
panel.
§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 public employer may institute an action in the
circuit court of the jurisdiction where the strike occurs or in
the supreme court of appeals for the appropriate equitable
relief.
Upon a finding of contempt, the labor organization
conducting the strike shall be fined an amount reasonable and
necessary to end the strike.
§29-9-20. Prohibited practices.
(a) It shall be a prohibited practice for a public 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
organization;
(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
article;
(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
article; or
(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
of grievances.
(b) It shall be prohibited practice for a public employee
organization or its designated agent to:
(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 fifteen and sixteen
of this article; or
(3) Refuse or fail to comply with any provisions of this
article.
§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 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 agents 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;
(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
authorized to:
(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;
and
(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, which the board shall order be
posted at prominent work place locations, an order to cease and
desist from the prohibited practice;
(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
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. 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 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) 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
representatives. 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
exclusive representative.
(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
copying. However, meetings of the public 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.
§29-9-25. List of employee organizations and exclusive
representatives.
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
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) In case of conflict between the provisions of this
article and any other law, executive order or administrative
regulation, this article shall prevail and control. All existing
rules adopted by the employer which are not contrary to this
article, shall remain applicable. Except as otherwise expressly
provided herein, nothing contained in this article shall 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 for 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 provisions shall, insofar as the fund is
jeopardized, be deemed to be inoperative.
§29-9-28. Liberal construction.
This article shall be construed liberally for the
accomplishment of the purpose of promoting orderly and
constructive relationships between all public employees and their
employers and for the promotion of the rights of public employees
to organize and otherwise engage in activities for their mutual
aid and protection.
NOTE: The purpose of this bill is to provide for the public
employment relations act, designed to require public employers to
recognize and engage in collective bargaining with labor unions
representing public employees.
This article is new; therefore, strike-throughs and
underscoring have been omitted.