H. B. 2236
(By Delegate Caputo)
[Introduced February 12, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business the Judiciary.]
A BILL to amend and reenact §21-1A-4 of the Code of West Virginia,
1931, as amended, relating to making the use of permanent
replacements for striking workers an unfair labor practice by
employers who have employee stock ownership plans.
Be it enacted by the Legislature of West Virginia:
That §21-1A-4 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1A. LABOR-MANAGEMENT RELATIONS ACT FOR THE PRIVATE
SECTOR.
§21-1A-4. Unfair labor practices.
(a) It
shall be is an unfair labor practice for an employer:
(1) To interfere with, restrain or coerce employees in the
exercise of the rights guaranteed in section three of this article;
(2) To
dominate or interfere with the formation or
administration of any labor organization or contribute financial or other support to it.
Provided, That However, an employer
shall may
not be prohibited from permitting employees to confer with him
or
her during working hours without loss of time or pay;
(3) By discrimination in regard to hire or tenure of
employment or any
term or condition of employment, to encourage or
discourage membership in any labor organization.
Provided,
However, nothing contained in this article, or in any other statute
of this state, shall preclude an employer from making an agreement
with a labor organization (not established, maintained or assisted
by any action defined in this section as an unfair labor practice)
to require as a condition of employment membership therein on or
after the thirtieth day following the beginning of such employment
or the effective date of such agreement, whichever is the later:
(i) If
such the labor organization is the representative of the
employees as provided in section five of this article, in the
appropriate collective-bargaining unit covered by such agreement
when made; and (ii) unless following an election held as provided
in subsection (d), section five of this article, within one year
preceding the effective date of
such this agreement, the board
shall have certified that at least a majority of the employees
eligible to vote in
such the election have voted to rescind the
authority of
such the labor organization to make such an agreement.
Provided, further However, no employer shall justify any
discrimination against an employee for nonmembership in a labor organization: (A) If he
or she has reasonable grounds for
believing that
such membership was not available to the employee on
the same terms and conditions generally applicable to other
members; or (B) if he
or she has reasonable grounds for believing
that membership was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership;
(4) To discharge or otherwise discriminate against an employee
because he
or she has filed charges or given testimony under this
article;
and
(5) To refuse to bargain collectively with the representatives
of his
or her employees, subject to
the provisions of subsection
(a), section five of this article;
and
(6) In instances where striking workers have established
employee stock ownership plans, to employ permanent replacements
for striking workers.
(b) It
shall be is an unfair labor practice for a labor
organization or its agents:
(1) To restrain or coerce: (A) Employees in the exercise of
the rights guaranteed in section three of this article.
Provided,
That However, this subdivision
shall may not impair the right of a
labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein; or (B) an employer in the selection of his
or her representatives for the purposes of
collective bargaining or the adjustment of grievances;
(2) To cause or attempt to cause an employer to discriminate
against an employee in violation of subdivision (3), subsection (a)
of this section or to discriminate against an employee with respect
to whom membership in such organization has been denied or
terminated on some ground other than his
or her failure to tender
the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership;
(3) To refuse to bargain collectively with an employer,
provided it is the representative of his
or her employees subject
to
the provisions of subsection (a), section five of this article;
(4) (i) To engage in or induce or encourage any individual
employed by any person to engage in, a strike or a refusal in the
course of employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials or
commodities or to perform any services; or (ii) to threaten,
coerce, or restrain any person, where in either case an object
thereof is:
(A) Forcing or requiring any employer or self-employed person
to join any labor or employer organization or to enter into any
agreement
which is prohibited by subsection (e) of this section;
(B) Forcing or requiring any person to cease using, selling,
handling, transporting or otherwise dealing in the products of any other producer, processor or manufacturer, or to cease doing
business with any other person, or forcing or requiring any other
employer to recognize or bargain with a labor organization as the
representative of his
or her employees unless
such the labor
organization has been certified as the representative of such
employees under the provisions of section five of this article.
Provided, That However, nothing contained in this clause (B) shall
be construed to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
(C) Forcing or requiring any employer to recognize or bargain
with a particular labor organization as the representative of his
or her employees if another labor organization has been certified
as the representative of such employees under
the provisions of
section five of this article;
(D) Forcing or requiring any employer to assign particular
work to employees in a particular labor organization or in a
particular trade, craft or class rather than to employees in
another labor organization or in another trade, craft or class,
unless
such the employer is failing to conform to an order of
certification of the board determining the bargaining
representative for employees performing
such the work.
Provided,
That However, nothing contained in
this subsection (b) shall be
construed to make unlawful a refusal by any person to enter upon
the premises of any employer (other than his own employer), if the employees of
such the employer are engaged in a strike ratified or
approved by a representative of
such the employees whom
such the
employer is required by law to recognize;
(5) To require of employees covered by an agreement authorized
under subdivision (3), subsection (a) of this section, the payment,
as a condition precedent to becoming a member of such organization,
of a fee in an amount
which the board finds excessive or
discriminatory under all the circumstances. In making
such a this
finding, the board shall consider, among other relevant factors,
the
practices and customs of labor organizations in the particular
industry, and the wages currently paid to the employees affected;
(6) To cause or attempt to cause an employer to pay or deliver
or agree to pay or deliver any money or other thing of value, in
the nature of an exaction, for services which are not performed or
not to be performed; and
(7) To picket or cause to be picketed, or threaten to picket
or cause to be picketed, any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his
or her employees,
or forcing or requiring the employees of an employer to accept or
select
such a labor organization as their collective bargaining
representative, unless
such the labor organization is currently
certified as the representative of
such the employees:
(A) Where the employer has lawfully recognized in accordance with this article any other labor organization and a question
concerning representation may not appropriately be raised under
subsection (c), section five of this article;
(B) Where within the preceding twelve months a valid election
under subsection (c), section five of this article has been
conducted; or
(C) Where
such picketing has been conducted without a petition
under subsection (c), section five of this article being filed
within a reasonable period of time not to exceed fifteen days from
the commencement of
such the picketing.
Provided, That When
such
a petition has been filed the board shall forthwith, without regard
to the provisions of said subsection (c), section five or the
absence of a showing of a substantial interest on the part of the
labor organization, direct an election in such unit as the board
finds to be appropriate and shall certify the results thereof.
Nothing in this subdivision (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
subsection (b).
(c) The expressing of any views, argument or opinion, or the
dissemination thereof, whether in written, printed, graphic or
visual form,
shall may not constitute or be evidence of an unfair
labor practice, or be prohibited under this article, if
such the
expression contains no threat of reprisal or force or promise of
benefit.
(d) For the purposes of this section, to bargain collectively
is the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours and other terms
and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written
contract incorporating any agreement reached if requested by either
party, but
such this obligation does not compel either party to
agree to a proposal or require the making
of a concession.
Provided, That Also, where there is in effect a
collective-bargaining contract covering employees, the duty to
bargain collectively shall also mean
that no party to
such the
contract shall terminate or modify
such the contract, unless the
party desiring
such the termination or modification:
(1) Gives a written notice to the other party of the proposed
termination or modification sixty days prior to the expiration date
thereof, or in the event
such the contract contains no expiration
date, sixty days prior to the time it is proposed to make
such the
termination or modification;
(2) Offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract containing the
proposed modifications;
(3) Notifies the Commissioner of Labor of the existence of a
dispute;
(4) Continues in full force and effect, without resorting to
strike or lockout, all the terms
and conditions of the existing
contract for a period of sixty days after
such the notice is given
or until the expiration date of
such the contract, whichever occurs
later. The duties imposed upon employers, employees, and labor
organizations by subdivisions (2), (3) and (4) of this subsection
(d) shall become inapplicable upon an intervening certification of
the board, under which the labor organization or individual, which
is a party to the contract, has been superseded as or ceased to be
the representative of the employees subject to
the provisions of
subsection (a), section five of this article, and the duties so
imposed
shall may not be construed as requiring either party to
discuss or agree to any modification of the terms and conditions
contained in a contract for a fixed period, if
such
the modification is to become effective before
such the terms and
conditions can be reopened under
the provisions of the contract.
Any employee who engages in a strike within the sixty-day period
specified in this subsection shall lose his
or her status as an
employee of the employer engaged in the particular labor dispute,
for the purposes of sections three, four and five of this article,
but
such the loss of status for
such the employee shall terminate
if, and when, he
or she is reemployed by
such the employer.
(e) It
shall be is an unfair labor practice for any labor
organization and any employer to enter into any contract or agreement, express or implied, whereby
such the employer ceases or
refrains or agrees to cease or refrain from handling, using,
selling, transporting, or otherwise dealing in any of the products
of any other employer, or to cease doing business with any other
person and any such contract or agreement entered into
heretofore
or hereafter shall be to such extent unenforceable and void.
NOTE: The purpose of this bill is to make the use of permanent
replacements for striking workers an unfair labor practice by
employers who have employee stock ownership plans.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.