H. B. 2902
(By Delegates Caputo, Manchin, Marshall,
Hubbard, Martin, R. Thompson and Tucker)
[Introduced March 19, 2001; referred to the
Committee on Finance.]
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
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 these 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 two. 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 two, 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 two, 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 any
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 personnel or contract with third
parties as it considers 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 the 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 the 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 such costs
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 two, 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 the bargaining units that existed prior
to the first day of January, two thousand two, and the exclusive
representative of such bargaining units and employees in the
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 may 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. 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. 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 the 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 the 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 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 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 considered 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. Any 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
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 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 considered 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.