H. B. 2725
(By Delegates Sparks and Hines)
[Introduced February 10, 1999; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend chapter eighteen-a of code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight, relating to
the public school employment relations act; stating
legislative policy and purpose; defining certain terms;
establishing a West Virginia public employment relations
board, the terms of its members and the qualifications of
its 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 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 an employee unit for purposes of
collective bargaining; establishing procedures for
representation elections and representatives for the purpose
of collective bargaining; 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 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.
Be it enacted by the Legislature of West Virginia:
That chapter eighteen-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eight, to read
as follows:
ARTICLE 8. WEST VIRGINIA PUBLIC SCHOOL EMPLOYMENT RELATIONS
ACT.
§18A-8-1. Legislative purpose.
The Legislature 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.
§18A-8-2. Short title.
This article may be cited as the "Public School Employment
Relations Act."
§18A-8-3. 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 school employees and public
school 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 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
bargaining.
(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 is a confidential
employee.
(g) "Employee" or "public school employee" means any person,
other than elected officials, employed by a public school
employer as defined in this section.
(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 multicounty vocational centers, the state board of
education and the governing boards of public higher education
institutions.
(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 these 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, mentor teacher,
or employees who participate in peer review or occasional
employee evaluation programs.
§18A-8-4. West Virginia public school employment relations board
created.
There is created the West Virginia public school employment
relations board.
§18A-8-5. Composition of board; terms of members; qualifications
of members.
The board shall consist of three members: A representative
of public school employers; a representative of public school
employees; and 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 are 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 employees.
No person may at the same time serve as a member of the
board and as 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 as an appointee or
employee of the board. Not more than two members of the board
may be members of the same political party.
§18A-8-6. 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-nine.
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 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.
§18A-8-7. 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, one
thousand nine hundred ninety-nine 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, upon
its own resolution or at the call of the chairperson of the board
may meet at other times.
The three members of the board constitute a quorum. A
majority vote of the members 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 a per diem sum
commensurate with that paid to legislators for attending interim
meetings 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.
§18A-8-8. Organization of board; staff; offices.
At its first annual meeting in July, or as soon thereafter
as practicable, one thousand nine hundred ninety-nine 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
following year.
The board shall employ an executive officer and 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.
§18A-8-9. Powers and duties of the board.
(a) The board may propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code as may be necessary to carry out the
provisions of this article.
(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 evidence, including books, records, correspondence
or documents relating to any matter at issue. 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
its functions.
(e) The board may enforce provisions of this article through
the imposition of appropriate administrative remedies.
(f) Any party aggrieved by a decision or order of the board
may apply, within ten days from the date of the decision or
order, for judicial review in the circuit court in the county in
which the board maintains its principal office.
§18A-8-10. 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
the right may be affected 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 costs as provided in section
twenty-two of this article.
(b) Nothing in this article prevents 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 is not inconsistent with the terms of the
agreement in effect between the employer and the exclusive
bargaining representative.
§18A-8-11. 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.
(b) Employee organizations recognized by a public school
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 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 reasons.
§18A-8-12. 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 overfragmentation;
(3) The efficiency of operations of the public school
employer;
(4) The history of collective bargaining;
(5) The desires of employees; and
(6) The requirements of section ten, article III, and
section one, article XII of the state constitution: Provided,
That nothing in this article prohibits the board from
recognizing multiunit bargaining: Provided, however, That
nothing in this article prohibits coalition bargaining under which a coalition of public school employers or a coalition of
employee organizations engage in collective bargaining.
(b) The board may not decide that any unit is appropriate
if the unit includes both professional and nonprofessional
employees, unless a majority of members of each group of
employees votes for inclusion in the combined unit.
(c) The board may 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 may not permit confidential employees or
managerial employees to be included in any bargaining unit.
§18A-8-13. 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
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 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 criteria:
(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 appears 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. The 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 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
prohibits the board 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. 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;
(9) Mail ballots are not favored, except the board may
permit mail ballots when employees would otherwise not 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;
(10) 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 may be conducted if an election or run-off
election has been conducted in the twelve-month period
immediately preceding the proposed representation election.
(d) No election may be directed by the board in any
bargaining unit where there is in force a valid collective
bargaining agreement. The board may process an election petition
filed between 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 may 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 the 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
article is the exclusive representative for the employees of the
unit.
(g) A public school 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.
§18A-8-14. 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. Collective bargaining shall take place between public
school employers and recognized employee organizations and shall
result in execution of a written contract incorporating any
agreement reached on wages, hours, working conditions and other
terms and conditions of employment 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 school employers are not required to bargain over
matters of inherent managerial policy, which includes the
following:
(1) The establishment of the functions and programs of the
public school employer;
(2) Standards for services provided by the public school
employer;
(3) Organizational structure of the public school employer;
(4) The preparation and administration of the public school
employer's budget: Provided, That the impact of the exercise of
these management rights on public school employees shall be a proper subject of collective bargaining.
§18A-8-15. Impasses; mediation.
If the parties reach an impasse over the wages, hours,
working conditions or other terms and conditions of employment,
either party shall notify promptly the board in writing of the
impasse. The board shall assist in the resolution of this
impasse by selecting an impartial person experienced in labor
relation 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.
§18A-8-16. 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 submit by written certification to the other party and
to the board, the remaining impasse issues to binding interest
arbitration.
(b) Unless the parties have agreed mutually 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 strike alternately 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
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
may 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 meet, within ten days of
appointment, 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 considered appropriate by the arbitrator in
conducting hearings, investigations or inquiries.
(e) In reaching a decision regarding resolution of the
impasse 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
employment;
(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 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 school employer and labor organization may
negotiate and reach an agreement on impasse procedures other than
the procedures provided in this section, except that the final
stage of any impasse procedure agreed to by the parties must
include the binding interest arbitration provided in this
section. Agreed upon impasse procedures may be utilized by the
parties.
§18A-8-17. 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 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) An agreement between a public school employer and an exclusive representative entered into pursuant to this article,
governs the wages, hours, terms and conditions of public school
employment covered by the agreement. If there is a conflict
between the collective bargaining agreement and any rules or
regulations implemented by a public school employer or its
representative, the terms of the agreement shall 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 may not automatically stay the order of the arbitration
panel.
§18A-8-18. Strikes prohibited.
Strikes by public school employees are prohibited.
§18A-8-19. Remedies for prohibited strikes.
If a strike of public school employees occurs which would be
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.
§18A-8-20. 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
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 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
article.
§18A-8-21. 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;
(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 workplace 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
considered 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 is final upon the parties and is
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.
§18A-8-22. Payroll deductions.
(a) Payroll deduction of dues and fair share fees is 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, 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 fee for
nonmembers. Membership in the employee organization may 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 may not be charged for any political or ideological
activities of an employee organization.
§18A-8-23. 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 controlled by the
provisions of the Open Governmental Meetings Act, 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.
§18A-8-24. 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 indicate clearly 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.
§18A-8-25. 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, or agreements reached pursuant to the article, remain
applicable. Nothing contained in this article or in any
agreement reached pursuant to this article denies or otherwise
abridges 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 the code of West Virginia, the provision of the
code shall prevail. The issues provided in chapter eighteen-a of
the code of West Virginia may be the subject of bargaining only
to the extent that the rights, benefits or protections granted to
employees therein may be enhanced by agreement of the parties.
(b) Except as otherwise expressly provided in this article,
nothing in this article may be construed to modify annually 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.
§18A-8-26. Article inoperative; when.
If any provision of this article prevents the receipt by the
state or any county of any federal grant-in-aid or other federal
allotment of money, the provision shall, insofar as the fund is
jeopardized, be determined to be inoperative.
§18A-8-27. 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.
NOTE: The purpose of this bill is to establish a procedure
for collective bargaining by public school employees. The bill
also creates a public school employment relations board and sets
forth criteria for collective bargaining, dispute mediation and
arbitration and grievance procedures.
This article is new; therefore, strike-throughs and
underscoring have been omitted.