H. B. 2675
(By Delegates Caputo and Rodighiero)
[Introduced January 20, 2011; referred to the
Committee on Education.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §29-9-1, §29-9-2, §29-9-3, §29-9-4, §29-9-5, §29-9-6, §29-9-7, §29-9-8, §29-9-9, §29-9-10, §29-9-11, §29-9-12, §29-9-13, §29-9-14, §29-9-15, §29-9-16, §29-9-17, §29-9-18, §29-9-19, §29-9-20, §29-9-21, §29-9-22, §29-9-23, §29-9-24, §29-9-25, §29-9-26, §29-9-27 and §29-9-28, all relating to the public school employment relations act; stating legislative policy and purpose; defining certain terms; establishing a West Virginia public school 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 school employees; establishing criteria for determining the appropriateness of an employee 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 school 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 the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §29-9-1, §29-9-2, §29-9-3, §29-9-4, §29-9-5, §29-9-6, §29-9-7, §29-9-8, §29-9-9, §29-9-10, §29-9-11, §29-9-12, §29-9-13, §29-9-14, §29-9-15, §29-9-16, §29-9-17, §29-9-18, §29-9-19, §29-9-20, §29-9-21, §29-9-22, §29-9-23, §29-9-24, §29-9-25, §29-9-26, §29-9-27 and §29-9-28, all to read as follows:
ARTICLE 9. WEST VIRGINIA PUBLIC SCHOOL 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 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.
§29-9-2. Short title.
This article shall be known and may be cited as the "Public School Employment Relations Act."
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 shall be considered to be a confidential employee.
(g) "Employee" or "public school employee" means any person, other than elected officials, employed by a public school employer. (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, multicounty vocational centers, public institutions of higher education and the state Board of Education.
(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 such actions effectively but does not include individuals who perform merely routine, incidental or clerical duties or who occasionally assume supervisory or directory roles or whose duties are substantially similar to those of their subordinates and does not include lead employees, mentor teacher, or employees who participate in peer review or occasional employee evaluation programs.
§29-9-4. West Virginia Public School Employment Relations Board created.
There is hereby created a state agency to be known as the West Virginia Public School 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 school employers, one of whom shall be representative of public school employees and one of whom shall be 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 shall be 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 such persons in selecting the members of the board who are representative of public school employers and public school employees.
A person may not 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 may 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 July 1, 2011.
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 shall be 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 four of the state Constitution. A member of the board appointed by the Governor may not 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 July 1 and ending the following June 30. One meeting, known as the annual meeting, shall be held in July, or as soon thereafter as practicable, in the year 2011 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 school employers, and a member representative of the public school 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, has 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 $200 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 2011 and annually thereafter, the board shall elect a chairperson and other officers from its membership as the board may deem necessary. The chairperson and officers shall serve for a one-year term commencing on July 1, following the annual meeting and ending on June 30 the following year.
The board shall employ an executive officer and such professional, administrative, clerical and other employees, including, but not limited to, mediators and hearing officers, as may be necessary to assist the board in the performance of its duties and responsibilities. The board shall prescribe the duties and fix the compensation and emoluments of board employees in accordance with law and practice. Employees of the board shall serve under the direction and control of the board or its designated representatives. The board shall provide suitable offices or the executive officer and his or her staff in or near the state Capitol Complex in Charleston, West Virginia.
§29-9-9. 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.
(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 deems necessary to assist it in carrying out its functions.
(e) The board has the power to enforce provisions of this article through the imposition of appropriate administrative remedies.
(f) Any party aggrieved by any decision or order of the board, may, within ten days from the date of such decision or order apply for judicial review in the circuit court in the county in which the board maintains its principal office.
§29-9-10. Employee rights.
(a) Public school employees may 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 may refrain from these activities, except to the extent that such rights may be effected 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 such costs as collective bargaining and contract administration as provided in section twenty-two.(b) This article may not 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 may 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 school 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 January 1, 2012, a signed agreement is in effect, the board may not alter the terms of the agreement nor the appropriate unit previously agreed to. The employer must continue to recognize and bargain with the exclusive representative of such bargaining units that existed prior to January 1, 2012, and the exclusive representative of such bargaining units and employees in such bargaining units are accorded the full rights under this article.
(b) Employee organizations recognized by a public 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 herein may 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, the board shall determine the appropriate bargaining unit for collective bargaining. In determining the appropriate bargaining unit, the board shall consider the:
(1) Community of interest in the proposed bargaining unit, including employee skills, functions, common supervision, wages, hours and other working conditions;
(2) Effect of over-fragmentation;
(3) Efficiency of operations of the public school employer;
(4) History of collective bargaining;
(5) Desires of employees; and
(6) Requirements of article three, section ten and article twelve, section one of the state Constitution: Provided, That nothing herein shall prohibit the board from recognizing multiunit bargaining: Provided, however, That nothing herein may prohibit 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 members of a majority 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.
§29-9-13. Representation election; procedures.
(a) Whenever an employee or group of employees or any individual or employee organization acting on behalf of an employee or group of employees files a petition with the board containing the signatures of thirty percent of the employees in a unit to be represented for collective bargaining by a designated representative, the board shall either order an election to be held by secret ballot and certify the results, or it may at its discretion, investigate, including holding a hearing, to determine the validity of the matters contained in the petition before determining whether or not an order should be issued: Provided, That the board shall determine the validity of the employee signatures and once determined valid, the determination shall not be challenged by the employer. Employee signatures shall remain confidential at all times.
(b) Representation elections shall be supervised by the board and shall be conducted by secret ballot at times and places selected by the board, subject to the following:
(1) Within seven days after the board issues its order determining the appropriate bargaining unit and directing that an election be conducted, the public school employer shall submit to the employee organization or organizations whose name shall appear on the election ballot, the complete names and addresses of those employees who are determined by the board to be eligible to participate in the election;
(2) The election shall be conducted on or near the place of employment at a time convenient to all employees;
(3) The board shall give no less than ten days’ notice of the time and place of the election;
(4) The board shall establish rules concerning the conduct of representation elections, including, but not limited to, regulations which would guarantee the secrecy of the ballot;
(5) Once an employee organization has filed a valid petition with the board calling for a representation election, other labor organizations may seek to be placed on the ballot. Such an employee organization shall file a petition containing the signatures of not less than ten percent of the public 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 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, 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 may 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. The 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 reasonably 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) An election may not be conducted if an election or run-off election has been conducted in the twelve-month period immediately preceding the proposed representation election.
(d) An election may not 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 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) This section does not prohibit the waiving of a hearing by stipulation of the parties for the purpose of a consent election or an election in a bargaining unit agreed upon by the parties so long as such stipulations or agreed bargaining unit is approved by the board.
(f) A labor organization designated by the board as the representative of the majority of public school employees in an appropriate unit in accordance with the procedures herein is the exclusive representative for the employees of such 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.
§29-9-14. Duty to bargain; scope of bargaining.
A public school employer and the exclusive representative may 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 in corporating 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 may 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 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.
§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 certification 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 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 shall not amend the offer of either party on any issue. During the binding arbitration process the parties may continue to engage in negotiations.
(d) The arbitrator shall, within ten days of appointment, meet with the parties or their representatives, either jointly or separately, and shall investigate and hold hearings, and take other appropriate steps in accordance with procedures prescribed by the board. The arbitrator shall have the power to issue subpoenas requiring the attendance and testimony of the parties, their representatives and other relevant witnesses and the production of any evidence deemed appropriate by the arbitrator in conducting hearings, 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 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 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 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. Such agreed upon impasse procedures may be utilized by the parties.
§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) An agreement between a public school employer and an exclusive representative entered into pursuant to this article, governs the wages, hours and 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.
§29-9-18. Strikes prohibited.
Strikes by public school employees are prohibited at any time.
§29-9-19. 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.
§29-9-20. 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 is a 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.
§29-9-21. 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 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 deemed fair and equitable in accordance with the provisions of this article.
(d) Where the board finds that the person or entity charged in the complaint has not engaged or is not engaging in a prohibited practice the board shall issue an order dismissing the complaint and may award representation costs to the prevailing party if it is concluded that the complaint was made frivolously or in bad faith. The decision of the board is final upon the parties and 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) Payroll deduction of dues and fair share fees shall be 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 such 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.
§29-9-23. 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 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.
§29-9-24. 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 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 school employer and the exclusive representative. Copies of the list shall be made available to interested parties upon request.
§29-9-25. 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 and regulations adopted by the employer which are not contrary to this article, shall remain applicable. Nothing contained in this article or in any agreement reached pursuant to this article shall deny or otherwise abridge any rights, privileges or benefits granted by law to public school employees. If there is a conflict between the provisions of any agreement and the provisions of chapters eighteen-a and eighteen-b of the Code of West Virginia, the provision of the code shall prevail. The issues provided in chapters eighteen-a and eighteen-b 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 herein, nothing in this article shall be construed to annually modify 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.
§29-9-26. 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 deemed to be inoperative.
§29-9-27. 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.
The provisions of this article are hereby declared to be severable. Should any of the provisions of sections one through twenty-nine of this article be declared unconstitutional or in conflict with some other provision of law, the remaining provisions of this article shall continue to be the law of the state in regard to public school employment relations.
NOTE: The purpose of this bill is to create an orderly process for collective bargaining between school employers and public school employees.
This article is new; therefore, it has been completely underscored.