H. B. 2845
(By Delegates Louisos and Martin)
[Introduced March 2, 2005; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §8-12A-1, §8-12A-2,
§8-12A-3, §8-12A-4, §8-12A-5, §8-12A-6, 8-12A-7, §8-12A-8,
§8-12A-9, §8-12A-10, §8-12A-11, §8-12A-12, §8-12A-13,
§8-12A-14, §8-12A-15, §8-12A-16, §8-12A-17, §8-12A-18,
§8-12A-19, §8-12A-20, §8-12A-21 and §8-12A-22, all relating to
establishing the West Virginia Municipal Employees Collective
Bargaining Act; providing short title; stating purposes;
declaring certain public policy; providing definitions;
providing exclusions; establishing duties of the Public
Employees Relations Board; establishing certain municipal
employer rights under certain circumstances; establishing
employee rights to collective bargaining; requiring meetings
between municipal employers and employee organizations;
specifying scope of such meetings; excluding retirement
programs from scope of negotiations; providing for
negotiations inconsistent with certain laws; requiring grievance resolution procedure in collective bargaining
agreement; providing for final and binding arbitration
pertaining to certain personnel matters; permitting certain
provisions relating to fees and dues; prohibiting deductions
of dues under certain circumstances; defining parameter of
obligations to negotiate; restricting negotiation; prohibiting
certain practices; providing for proceedings upon certain
violations; providing for appellate process; construing
provisions of article to prior collective bargaining
agreements; providing process for determination of an
appropriate bargaining unit; providing exception; restricting
bargaining units; providing process for certification and
decertification of exclusive bargaining representatives;
providing for competing request for certain recognition and
certification; providing for an election; providing process
for secret ballot representation election; limiting period for
petitions certifying or decertifying exclusive bargaining
representative under certain circumstances; providing
treatment of certain employee organization; allowing certain
grievance process; providing condition; designating
representatives; providing for collective bargaining
commencement process; providing exemption from the West
Virginia Open Meeting Act; providing negotiation and impasse
procedures; providing for submission of request for funds and
certain approval to the appropriate governing body; providing
for reopening of negotiations; providing for treatment of certain provisions; providing for certain judicial review;
prohibiting strikes; providing for injunctive relief; making
certain actions unlawful; providing for bargaining and
agreement after a violation; providing for legal process;
providing liability exemption; providing procedures for
certain notice; providing for treatment of conflicting laws,
executive orders and rules; providing for codification; and
providing an effective date.
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 §8-12A-1, §8-12A-2,
§8-12A-3, §8-12A-4, §8-12A-5, §8-12A-6, 8-12A-7, §8-12A-8,
§8-12A-9, §8-12A-10, §8-12A-11, §8-12A-12, §8-12A-13, §8-12A-14,
§8-12A-15, §8-12A-16, §8-12A-17, §8-12A-18, §8-12A-19, §8-12A-20,
§8-12A-21 and §8-12A-22, all to read as follows:
ARTICLE 12A. WEST VIRGINIA MUNICIPAL EMPLOYEES COLLECTIVE
BARGAINING ACT.
§8-12A-1. Short title.
This article shall be known and may be cited as the "West
Virginia Municipal Employee Collective Bargaining Act."
§8-12A-2. Declaration of public policy.
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 municipal 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:
(a) Granting to municipal employees the right to associate
with others in organizing and choosing representatives for the
purpose of collective bargaining;
(b) Requiring municipal employers to recognize, negotiate and
bargain with employee organizations representing municipal
employees and to enter into written agreements evidencing the
result of bargaining; and
(c) Encouraging labor peace through the establishment of
standards and procedures which protect the rights of the municipal
employer, the municipal employee and the citizens of this state.
§8-12A-3. Definitions.
As used in this article:
(a)"Arbitration" means the procedure whereby the parties
involved in an impasse or grievance dispute submit their
differences to a third party for a final and binding decision or as
otherwise provided in this article;
(b) "Board" means the Public Employees Relations Board (PERB)
established pursuant to section five of this article;
(c) "Collective bargaining," "bargain collectively" or
"negotiate" means to perform the mutual obligations of the
municipal employer, by its representatives, and the representatives
of its employees to negotiate in good faith at reasonable times and places with respect to wages, hours and other terms and conditions
of employment and the continuation, modification or deletion of an
existing provision of a collective bargaining agreement, with the
intention of reaching an agreement, or to resolve questions arising
under the agreement. This includes executing a written contract by
incorporating the terms of any agreement reached. The obligation
to bargain collectively does not mean that either party is
compelled to agree to a proposal, nor does it require the making of
a concession;
(d) "Confidential employee" means any municipal employee who
acts in a confidential capacity to an individual who formulates or
effectuates management policies in the field of labor management
relations;
(e) "Employee organization" means an organization in which
municipal employees participate and which exists for the purpose,
in whole or in part, of dealing with municipal employers concerning
grievances, labor disputes, wages, hours and other terms and
conditions of employment;
(f) "Exclusive bargaining representative" means an employee
organization certified as the exclusive bargaining representative
by the Board pursuant to the provisions of this article or
recognized as the exclusive bargaining representative by the
municipal employer;
(g) "Governing body" means the governing body of a
municipality;
(h) "Impasse" means the failure of a municipal employer and the exclusive bargaining representative to reach agreement in the
course of negotiations;
(i) "Management official" means an individual employed by a
municipal employer in a position the duties and responsibilities of
which require or authorize the individual to formulate, determine,
or substantially influence the policies of the municipal employer;
(j) "Mediation" means assistance by an impartial third party
to reconcile an impasse between the municipal employer and the
exclusive bargaining representative regarding wages, hours, and
other terms and conditions of employment through interpretation,
suggestion, and advice;
(k) "Municipal employee" means any individual employed by a
municipal employer, except individuals exempted under the
provisions of section four of this article;
(l) "Municipal employer" means municipalities in this state,
as defined with a population greater than thirty-five thousand
persons.
(m) "Strike" means, in concerted action with others, an
employee's refusal to report to duty, or willful absence from his
or her position, or stoppage of work, or abstinence, in whole or in
part, from the full, faithful and proper performance of the duties
of employment, for the purpose of inducing, influencing, or
coercing a change in the conditions, compensation, rights,
privileges or obligations of employment; and
(n) "Supervisor" means an employee who devotes a majority 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 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, employee involvement programs or occasional employee
evaluation programs.
§8-12A-4. Exempt employees.
The following public employees shall he excluded from the
provisions of this article:
(a) Elected officials and persons appointed to fill vacancies
in elected offices, and members of any board or commission;
(b) Representatives of a municipal employer, including the
administrative officer, director, or chief executive officer of a
municipal employer, or major division thereof, as well as his or
her deputy, first assistant, and any nonbargaining unit supervisory
employees:
Provided, That nothing herein shall be construed to
prohibit a municipal employer from bargaining with, and entering
into a contract with, a labor organization certified to represent
a separate unit comprised solely of supervisors;
(c) Confidential employees;
(d) Temporary employees employed for a period of four months
or less in any twelve-month period;
(e) Patients and inmates employed, sentenced or committed to any state or local institution; and
(f) Firefighters and police officers.
§8-12A-5. Public Employees Relations Board.
The Public Employees Relations Board is hereby established to
consist of five members, each of whom shall have been a resident of
this state for at least five consecutive years prior to his or her
appointment. No more than three of the Board members may at any
one time belong to the same political party. The Board shall be
appointed by the Governor, by and with the advice and consent of
the Senate. Appointments following the effective date of this
section shall be made in such a manner that each congressional
district is represented and so that no more than two members of the
board reside in any one congressional district. Each member of the
Board shall have a degree in government, political science, law or
personnel management or like experience and academic training and
shall be otherwise competent to perform the duties of his or her
office. The members shall be appointed for overlapping terms of
six years. Any member qualified under this section is eligible for
reappointment. The members of the Board shall devote their full
time and attention to their board duties. Any single member of the
Board is empowered to hold any hearing provided in this article,
where a transcript of the hearing, including exhibits and
documentary evidence, and the recommendation of the member holding
the hearing is submitted to the Board for decision.
§8-12A-6. Power and duties of Public Employees Relations Board.
The Public Employees Relations Board (PERB)shall:
(a) Administer the provisions of this article;
(b) Maintain, after consulting with exclusive bargaining
representatives and municipal employers, a list of qualified
persons representative of the public to be available to serve as
mediators, and arbitrators and establish their compensation rates;
(c) Hold hearings and administer oaths, examine witnesses and
documents, take testimony and receive evidence, issue subpoenas to
compel the attendance of witnesses and the production of records,
and delegate such power to a member of the Board, or persons
appointed or employed by the Board, including hearing officers for
the performances of its functions. In cases of refusal to obey a
subpoena issued by the Board, the circuit court of the circuit
where the person refusing to obey the subpoena may be found, on
application by the Board, may issue an order requiring the person
to appear before the board and to testify and produce evidence
ordered relating to the matter under investigation, and any failure
to obey such order shall be punished by the court as a contempt
thereof; and
(d) Adopt rules as it may deem necessary to carry out the
purposes of this article.
§8-12A-7. Municipal employer rights.
Unless limited by the provisions of a collective bargaining
agreement or by other statutory provisions, a municipal employer
may:
(a) Direct the work of, hire, promote, assign, transfer,
demote, suspend, discharge or terminate municipal employees;
(b) Determine qualifications for employment and the nature
and content of personnel examinations; and
(c) Take actions as may be necessary to carry out the mission
of the municipal employer in emergencies.
§8-12A-8. Municipal employee rights.
Municipal employees may:
(a) Organize, or form, join or assist any employee
organization;
(b) Negotiate collectively through representatives of their
own choosing; and
(c) Engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection insofar as
any of the activity is not prohibited by this article or any other
law of this state.
§8-12A-9. Development of collective bargaining agreement.
(a) The municipal employer and an employee organization which
is the exclusive bargaining representative shall meet at reasonable
times, including meetings reasonably in advance of the
municipality's budget-making process, to negotiate in good faith
with respect to wages, hours and other terms and conditions of
employment exclusive of retirement programs established. The
municipal employer shall negotiate only with the exclusive
bargaining representative on matters contained in this article.
The obligation to negotiate in good faith does not compel either
party to agree to a proposal or make a concession. Neither the
municipal employer nor the exclusive bargaining representative shall be required to negotiate over any matter that is inconsistent
with state law and the parties may negotiate and reach agreement
with regard to the matter only if it is understood that the
agreement with respect to the matter cannot become effective unless
the applicable law is amended by the Legislature.
(b) The collective bargaining agreement negotiated between the
employer and the exclusive bargaining representative shall contain
a grievance resolution procedure which shall apply to all employees
in the bargaining unit and shall provide for final and binding
arbitration of grievances pertaining to employment terms and
conditions and related personnel matters including questions of
arbitration and appeal of disciplinary and other employment
actions.
(c) The collective bargaining agreement negotiated between the
employer and the exclusive bargaining representative shall also
include a provision for the checkoff of initiation fees and dues to
the labor organization. During the time that a board certification
is in effect for a particular appropriate bargaining unit, the
employer shall not deduct dues for any other labor organization.
§8-12A-10. Prohibited practices.
(a) It is a prohibited practice for any municipal employer or
exclusive bargaining representative to refuse to negotiate in good
faith with respect to the scope of negotiations as defined in
section nine of this article;
(b) It is a prohibited practice for a municipal employer, its
designated representatives, or its supervisors to:
(1) Interfere with, restrain or coerce municipal employees in
the exercise of rights granted by this article;
(2) Dominate or interfere in the administration of any
employee organization;
(3) Encourage or discourage membership in any employee
organization, committee or association or take a position for or
encourage or discourage exclusive representation of employees;
(4) Discharge or discriminate against any employee because he
or she has 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 exclusive
bargaining representative;
(5) Refuse to negotiate collectively with representatives of
any employee organization which is an exclusive bargaining
representative as required in this article;
(6) Deny the rights accompanying certification or exclusive
recognition granted in this article;
(7) Refuse to participate in good faith in any agreed upon
impasse procedures or those set forth in this article; and
(8) Refuse to reduce a collective bargaining agreement to
writing and sign such agreement.
(c) It is a prohibited practice for an employee organization
or its agents willfully to:
(1) Interfere with, restrain or coerce any municipal employee
with respect to any of the rights under this article or in order to
prevent or discourage his or her exercise of any such right;
(2) To cause or attempt to cause a municipal employer to
discriminate against any employee in the exercise by the employee
of any right under this article;
(3) Refuse to bargain collectively with the municipal employer
as required in this article;
(4) Refuse to participate in good faith in any agreed upon
impasse procedures or those set forth in this article; and
(5) Violate the impasse provisions of this article, which
hereby are made applicable to municipal employers, municipal
employees and exclusive representatives.
§8-12A-11. Violations and enforcement procedures.
(a) Proceedings against a party alleging a violation of
section ten of this article may be commenced by filing a charge
with the Public Employees Relations Board within six months of the
alleged violation, or knowledge thereof, causing a copy of the
charge to be served upon the accused party in the manner of an
original notice as provided in section twenty-one of this article.
The accused party shall have ten days within which to file a
written answer to the charge. The Board may conduct a preliminary
investigation of the alleged violation, and if the Board determines
that the charge has no legal or factual basis, it may dismiss the
charge. If it does not dismiss the charge, the Board shall
promptly thereafter set a time and place for a hearing in the
county where the alleged violation occurred or in the county where
the Board maintains its principal office. The parties shall be
permitted to be represented by counsel or other designated representative, summon witnesses, and request the Board to subpoena
witnesses on the requester's behalf. Compliance with the technical
rules of pleading and evidence are not required.
(b) The Board may designate a hearing officer to conduct the
hearing. The hearing officer shall have such powers as may be
exercised by the Board for conducting the hearing and shall follow
the procedures adopted by the Board for conducting the hearing.
The decision of the hearing officer may be appealed to the Board
and the Board may hear the case de novo or upon the record as
submitted before the hearing officer.
(c) The Board shall provide for an official written transcript
to report the proceedings and the Board shall affix the reasonable
amount of compensation for the service, which amount shall be taxed
as other costs.
(d) The Board shall file its findings of fact and conclusions
of law. If the Board finds that the party accused has committed a
prohibited practice, the Board may issue an order directing the
party to cease and desist engaging in the prohibited practice and
may order other affirmative relief as is necessary to remedy the
prohibited practice. The Board may petition the circuit court for
enforcement of its orders.
(e) Any party aggrieved by any decision or order of the Board
may, within ten days from the date the decision or order is filed,
appeal to the circuit court to obtain judicial review of an order
of the Board entered under this article in the circuit court of the
circuit in which the Board maintains its principal office, the circuit in which the municipal employer maintains its principal
office, or the circuit in which the charge arose. The Board and
all parties of record in the proceedings before the Board shall be
named as parties to the appeal. In any judicial review proceeding,
the employee organization may sue or be sued as an entity and on
behalf of the employees whom it represents. The service of legal
process, summons or subpoena upon an officer or agent of the
employee organization in his or her capacity as an officer or agent
constitutes service upon the employee organization.
(f) Within thirty days after a notice of appeal is filed with
the Board, it shall make, certify and file in the office of the
circuit court clerk to which the appeal is taken, a full and
complete transcript of all documents in the case, including any
depositions and a transcript or certificate of the evidence
together with the notice of appeal.
(g) The transcript as certified and filed by the Board shall
be the record on which the appeal shall be heard, and no additional
evidence shall be heard. In the absence of fraud, the findings of
fact made by the Board shall be conclusive if supported by
substantial evidence on the record considered as a whole.
(h) Any order or decision of the Board may be modified,
reversed, or set aside on one or more of the following grounds and
on no other:
(1) If the Board acts without or in excess of its power;
(2) If the order was procured by fraud or is contrary to law;
(3) If the facts found by the Board do not support the order; or
(4) If the order is not supported by substantial evidence on
the record considered as a whole.
(i) When the court, on appeal, reverses or sets aside an order
or decision of the Board, it may remand the case to the Board for
further proceedings in harmony with the holdings of the court, or
it may enter the proper judgment, as the case may be. The judgment
or decree shall have the same force and effect as if action had
been originally brought and tried in such court. The assessment of
costs in appeals shall be at the discretion of the court.
§8-12A-12. Determination of an appropriate bargaining unit.
(a) Nothing in this article shall be construed to annul or
modify any collective bargaining agreement entered into between an
employer and exclusive representative prior to the effective date
of this article or impair a recognition of an exclusive bargaining
representative in existence prior to the effective date of this
article.
(b) The Board determination of an appropriate bargaining unit
shall be made upon a petition being filed by an employee
organization.
(c) Within thirty days of receipt of a petition the Public
Employees Relations Board shall conduct a public hearing, receive
written or oral testimony, and promptly thereafter file an order
defining the appropriate bargaining unit. In defining the unit,
the Board shall take into consideration, along with other relevant
factors: The desires of the employees; the community of interest including the existence of clearly identifiable crafts among
employees; wages, hours and other working conditions of the
municipal employees; the effect of over-fragmentation; the
administrative structure of the municipal employer; the
recommendation of the parties; and the history of collective
bargaining. The Board determination of an appropriate unit shall
not be subject to judicial review.
§8-12A-13. Board certification of exclusive bargaining
representative
.
(a) Board certification of an employee organization as the
exclusive bargaining representative of a bargaining unit shall be
upon a petition filed with the Public Employees Relations Board by
a municipal employee or an employee organization and an election
pursuant to section fourteen of this article or upon
administratively acceptable evidence that a majority of bargaining
unit employees have authorized an employee organization to
represent them for the purposes of collective bargaining.
(b) A petition of an employee organization for a
representation election shall be accompanied by written evidence
that thirty percent of the municipal employees have authorized it
to represent them for the purposes of collective bargaining. A
petition by an employee organization for certification without an
election shall be accompanied by written evidence alleging that a
majority of the municipal employees have authorized it to represent
them for the purposes of collective bargaining. Upon validating
the evidence that a majority of the municipal employees in a bargaining unit have authorized it to represent them for the
purposes of collective bargaining, the Board shall certify the
employee organization as the exclusive representative of the
bargaining unit unless another employee organization submits
written evidence within fifteen days of the initial petition that
thirty percent of such municipal employees have authorized it to
represent them for the purposes of collective bargaining. In the
event of a competing request for recognition and certification, the
Board shall conduct an election in accordance with section fourteen
of this article.
(c) For the purpose of decertification, the petition of a
municipal employee or employee organization shall allege that an
employee organization which has been certified or recognized as the
exclusive bargaining representative of an appropriate unit does not
represent a majority of the municipal employees and that the
petitioners do not want to be represented by an employee
organization or seek certification of a different employee
organization. The petition shall be accompanied by written
evidence that fifty percent of the employees do not want to be
represented by the exclusive representative employee organization
or seek certification of a different employee organization. Upon
validation of the fifty percent showing of interest, the Board
shall conduct a secret ballot election in accordance with section
fourteen of this article.
(d) The Board shall investigate the allegations of any
petition and shall give reasonable notice of the receipt of the petition to all municipal employees, employee organizations and
municipal employers named or described in such petitions or
interested in the representation question. When necessary, the
Board shall call an election under section fourteen of this article
within thirty days of receipt of a petition unless it finds that
less than thirty percent of the municipal employees in the unit
appropriate for collective bargaining support the petition for
certification, or it finds that less than fifty percent of
employees in the unit appropriate for collective bargaining support
the petition for decertification, or the appropriate bargaining
unit has not been determined pursuant to section twelve of this
article.
(e) The hearing and appeal procedures shall be the same as
provided in section eleven of this article.
§8-12A-14. Secret ballot representation election.
(a) Whenever a petition for an election is filed by an
employee or employee organization containing the signatures of at
least thirty percent of the municipal employees in an appropriate
bargaining unit, or containing the signatures of at least fifty
percent of the municipal employees in an appropriate unit in the
case of decertification, the Public Employees Relations Board shall
conduct a secret ballot representation election to determine
whether the municipal employees in the appropriate bargaining unit
wish to be represented by an exclusive bargaining representative.
The ballot shall contain the names of the petitioning employee
organization, any employee organization submitting, within fifteen days of the initial petition, a petition containing signatures of
at least thirty percent of the municipal employees within the
appropriate bargaining unit, and any incumbent labor organization.
The ballot shall also contain a choice of no representation.
(b) If none of the choices on the ballot receives the vote of
a majority of the municipal employees voting, the Board shall,
within thirty days, conduct a run-off election among the two
choices receiving the greatest number of votes.
(c) Upon written objections filed by any party to the
election within ten days after notice of the results of the
election, if the Board finds that misconduct or other circumstances
prevented the municipal employees eligible to vote from freely
expressing their preferences, the Board may invalidate the election
and hold a second or subsequent election for the municipal
employees.
(d) Upon completion of a valid election in which the majority
choice of the bargaining unit employees voting is determined, the
Board shall certify the results of the election within fifteen days
of the notice of results of the election if no timely written
objections are filed or within five days of validating the election
upon a finding that filed objections did not prevent the employees
eligible to vote from freely expressing their preferences, and
shall give reasonable notice to all employee organizations listed
on the ballot, the municipal employers and the municipal employees
in the appropriate bargaining unit. An employee organization which
is the majority choice of the bargaining unit employees voting in a valid election under this section shall be certified by the Board
as the exclusive bargaining representative for the bargaining unit
employees.
(e) A petition for decertification or certification of an
exclusive bargaining representative shall not be considered by the
Board for a period of one year from the date of the certification
or noncertification of an exclusive bargaining representative or
during the duration of a collective bargaining agreement unless the
petition for decertification is filed not more than ninety days
prior to the expiration of the collective bargaining agreement.
§8-12A-15. Certified organization and bargaining representative.
(a) The employee organization certified as the bargaining
representative or recognized by the municipal employer on the first
day of January, two thousand six, shall be the exclusive
representative of all municipal employees in the bargaining unit
and shall represent all municipal employees fairly, except that any
individual employee or a group of employees shall have the right at
any time to present grievances to their municipal employer and to
have such grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is not
inconsistent with the terms of a collective bargaining contract or
agreement then in effect and the exclusive bargaining
representative has been given the opportunity to be present during
the grievance process and at such adjustment.
(b) The employee organization which is an exclusive bargaining
representative and the municipal employer may designate any individual or individuals as its representatives to engage in
collective bargaining negotiations. Upon demand of either party,
collective bargaining between the employer and an exclusive
bargaining representative must begin within sixty days of the date
of certification of the representative by the Public Employees
Relations Board, or in the case of an existing exclusive bargaining
representative, within sixty days of the receipt by a party of a
demand issued by the other party or in accordance with procedures
established in any applicable collective bargaining agreement.
(c) Negotiating sessions, including strategy meetings of
municipal employers or exclusive bargaining representatives,
mediation and the deliberative process of arbitrators shall be
exempt from the West Virginia Open Meeting Act.
§8-12A-16. Negotiations; arbitration.
(a) A request for negotiations shall be filed in writing by an
exclusive representative of employees of a municipal employer other
than the state in a timely fashion reasonably in advance of that
employer's budget-making process.
(b) A municipal employer and the exclusive representative may
enter into a written agreement setting forth an impasse resolution
procedure. The procedure shall culminate with binding arbitration.
(c) If the municipal employer and the exclusive representative
have not agreed to an impasse resolution procedure, negotiation
impasses shall be subject to:
(1) At the initiative of either party, the Federal Mediation
and Conciliation Service may be requested to appoint an impartial mediator; or
(2) At the request of either party, all impasses not resolved
through mediation shall jointly be submitted to final and binding
arbitration. The parties shall jointly select an arbitrator or,
if they are unable to agree on an arbitrator, they shall request a
list of seven arbitrators from the Public Employees Relations
Board. Each party in turn shall strike a name from the list until
only one name remains. Negotiations may continue throughout the
impasse procedures.
(d) In making any decision under the impasse procedures
authorized by this section, the arbitrator shall give weight to the
following factors:
(1) The lawful authority of the municipal employer;
(2) Stipulations of the parties;
(3) The interests and welfare of the public;
(4) The financial ability of the employer to meet the costs of
any items to be included in the contract;
(5) Comparison of wages, hours and terms and conditions of
employment of the employees involved in the arbitration proceedings
with the wages, hours and terms and conditions of employment of
other persons performing similar services in the public and private
sectors;
(6) The average consumer prices for goods and services,
commonly known as the cost of living;
(7) The overall compensation presently received by the
employees involved in the arbitration including, but not limited to, wages, health and life insurance, vacations, holidays and
similar benefits;
(8) Changes in any of the foregoing circumstances during the
pendency of the arbitration proceedings; and
(9) Other factors which are normally or traditionally taken
into consideration in the determination of wages, hours and terms
and conditions of employment through voluntary collective
bargaining, mediation, fact finding, arbitration or otherwise
between the parties, in the public service or in private
employment.
(e) The expenses of the arbitrator shall be borne equally by
the parties.
§8-12A-17. Request for funds.
(a) After a negotiated agreement has been agreed to by both
parties, or a final and binding arbitration decision has been
rendered in accordance with section sixteen of this article, the
municipal employer shall submit a request for funds necessary to
implement the agreement and for approval of any other matter
requiring the approval of the appropriate governing body within
fourteen days after the date on which the parties finalize the
agreement, or the date on which the arbitration decision is issued,
unless otherwise specified in this section. If the appropriate
governing body is not in session at the time, then the submission
shall be within fourteen days after it next convenes.
(b) If the governing body rejects the submission of the
municipal employer, either party may reopen negotiations.
(c) The parties shall specify that those provisions of the
agreement not requiring action by a governing body shall be
effective and operative in accordance with the terms of the
agreement.
§8-12A-18. Municipal employer rights.
The district court for the district in which a dispute arose
or in which a majority of the affected employees reside may review
an award of the arbitrator or an award of an arbitrator in a
grievance arbitration, when 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 arbitrator.
§8-12A-19. Strike prohibited.
(a) It is unlawful for municipal employees to strike. If a
strike occurs, the municipal employer may initiate in the circuit
court in the circuit where the strike occurs, an action for
injunctive relief.
(b) It shall be unlawful for any municipal employer to
authorize, consent to or condone any strikes; or to pay or agree to
pay a municipal employee for any day in which the employee
participates in a strike; or to pay or agree to pay any increase in
compensation or benefits to any municipal employee in response to
or as a result of any strike or any article which violates this
article. It shall be unlawful for any official, director, or representative of any municipal employer to authorize, ratify, or
participate in any violation of this section. Nothing in this
section shall prevent new or renewed bargaining and agreement
within the scope of negotiations as defined by this article, at any
time after a violation of this section has ceased.
§8-12A-20. Jurisdiction of circuit courts.
Any employee organization and municipal employer may sue or be
sued as an entity under the provisions of this article. Service
upon the municipal employer or upon the exclusive bargaining
representative shall be made pursuant to the West Virginia Rules of
Civil Procedure for Circuit Courts. For purposes of actions and
proceedings by or against exclusive bargaining representatives
under this article, a circuit court shall have jurisdiction of an
exclusive bargaining representative in the circuit in which the
organization maintains its principal office, or in any district in
which its duly authorized officers or agents are engaged in
representing or acting for employee members. Nothing in this
article shall be construed to make any individual or his or her
assets liable for any judgment against a municipal employer or an
exclusive bargaining representative.
§8-12A-21. Notice.
Any notice required under the provisions of this article shall
be in writing, and served in a manner specified by the Public
Employees Relations Board.
§8-12A-22. Precedence of article.
Any conflict between the provisions of this article and any other law, executive order or administrative rule, the provisions
of this article shall prevail and control.
NOTE: The purpose of this bill is to establish the West
Virginia Municipal Employees Collective Bargaining Act.
This article is new; therefore, strike-throughs and
underscoring have been omitted.
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