H. B. 2335


(By Delegates Caputo, C. White,

Varner and Butcher)


[Introduced February 20, 2001 ; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact section four, article one-a, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to making the use of permanent replacements for striking workers an unfair labor practice by employers who have employee stock ownership plans.

Be it enacted by the Legislature of West Virginia:

That section four, article one-a, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 1A. LABOR-MANAGEMENT RELATIONS ACT FOR THE PRIVATE SECTOR.
§21-1A-4. Unfair labor practices.

(a) It shall be an unfair labor practice for an employer:
(1) To interfere with, restrain or coerce employees in the exercise of the rights guaranteed in section three of this article;
(2) To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That an employer shall not be prohibited from permitting employees to confer with him or her during working hours without loss of time or pay;
(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment, to encourage or discourage membership in any labor organization: Provided, however, That nothing contained in this article, or in any other statute of this state, shall preclude an employer from making an agreement with a labor organization (not established, maintained or assisted by any action defined in this section as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later: (i) If such the labor organization is the representative of the employees as provided in section five of this article, in the appropriate collective-bargaining unit covered by such agreement when made; and (ii) unless following an election held as provided in subsection (d), section five of this article, within one year preceding the effective date of such agreement, the board shall have certified that at least a majority of the employees eligible to vote in such the election have voted to rescind the authority of such the labor organization to make such an agreement: Provided, further however, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization: (A) If he or she has reasonable grounds for believing that such the membership was not available to the employee on the same terms and conditions generally applicable to other members; or (B) if he or she has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
(4) To discharge or otherwise discriminate against an employee because he or she has filed charges or given testimony under this article; and
(5) To refuse to bargain collectively with the representatives of his or her employees, subject to the provisions of subsection (a), section five of this article; and
(6) In instances where striking workers have established employee stock ownership plans, to employ permanent replacements for striking workers.
(b) It shall be an unfair labor practice for a labor organization or its agents:
(1) To restrain or coerce: (A) Employees in the exercise of the rights guaranteed in section three of this article: Provided, That this subdivision shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his or her representatives for the purposes of collective bargaining or the adjustment of grievances;
(2) To cause or attempt to cause an employer to discriminate against an employee in violation of subdivision (3), subsection (a) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his or her failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
(3) To refuse to bargain collectively with an employer, provided it is the representative of his or her employees subject to the provisions of subsection (a), section five of this article;
(4) (i) To engage in or induce or encourage any individual employed by any person to engage in, a strike or a refusal in the course of employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person, where in either case an object thereof is:
(A) Forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section;
(B) Forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his or her employees unless such the labor organization has been certified as the representative of such the employees under the provisions of section five of this article: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;
(C) Forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his or her employees if another labor organization has been certified as the representative of such the employees under the provisions of section five of this article;
(D) Forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class rather than to employees in another labor organization or in another trade, craft or class, unless such the employer is failing to conform to an order of certification of the board determining the bargaining representative for employees performing such work: Provided, That nothing contained in this subsection (b) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his or her own employer), if the employees of such the employer are engaged in a strike ratified or approved by a representative of such the employees whom such the employer is required by law to recognize;
(5) To require of employees covered by an agreement authorized under subdivision (3), subsection (a) of this section, the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the board finds excessive or discriminatory under all the circumstances. In making such a finding, the board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected;
(6) To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed; and
(7) To picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his or her employees, or forcing or requiring the employees of an employer to accept or select such the labor organization as their collective bargaining representative, unless such the labor organization is currently certified as the representative of such the employees:
(A) Where the employer has lawfully recognized in accordance with this article any other labor organization and a question concerning representation may not appropriately be raised under subsection (c), section five of this article;
(B) Where within the preceding twelve months a valid election under subsection (c), section five of this article has been conducted; or
(C) Where such picketing has been conducted without a petition under subsection (c), section five of this article being filed within a reasonable period of time not to exceed fifteen days from the commencement of such picketing: Provided, That when such a petition has been filed the board shall forthwith, without regard to the provisions of said subsection (c), section five or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the board finds to be appropriate and shall certify the results thereof. Nothing in this subdivision (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this subsection (b).
(c) The expressing of any views, argument or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice, or be prohibited under this article, if such the expression contains no threat of reprisal or force or promise of benefit.
(d) For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such the obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees, the duty to bargain collectively shall also mean that no party to such the contract shall terminate or modify such the contract, unless the party desiring such termination or modification:
(1) Gives a written notice to the other party of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such the contract contains no expiration date, sixty days prior to the time it is proposed to make such the termination or modification;
(2) Offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;
(3) Notifies the commissioner of labor of the existence of a dispute;
(4) Continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such the notice is given or until the expiration date of such the contract, whichever occurs later. The duties imposed upon employers, employees, and labor organizations by subdivisions (2), (3) and (4) of this subsection (d) shall become inapplicable upon an intervening certification of the board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of subsection (a), section five of this article, and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such the modification is to become effective before such the terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his or her status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections three, four and five of this article, but such the loss of status for such the employee shall terminate if and when he or she is reemployed by such the employer.
(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such the employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person and any such contract or agreement entered into heretofore or hereafter shall be to such the extent unenforceable and void.


NOTE: The purpose of this bill is to make the use of permanent replacements for striking workers an unfair labor practice by employers who have employee stock ownership plans.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.