H. B. 3010
(By Delegates Caputo, Rodighiero, Argento,
Eldridge, Ellis, Yost and Hutchins)
[Introduced January 9, 2008; 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."
§29-9-3. Definitions.
The following words when used in this article have the meaning
ascribed to them unless the context clearly indicates a different
meaning:
(a) "Appropriate bargaining unit" means the unit of employees
determined to be appropriate for the purpose of collective
bargaining pursuant to section twelve of this article.
(b) "Arbitration" means the procedure by which an impartial
third party holds a hearing, takes testimony and renders a decision
which is binding upon the parties for the purpose of resolving a
dispute between public 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.
No person shall at the same time serve as a member of the
board and be a holder of any public office or public employment
under the federal government or under the government of this state
or any of its political subdivisions, or an appointee or employee
of the board. Not more than two members of the board shall be
members of the same political party.
§29-9-6. Original term of members; vacancies; eligibility for
reappointment; oath of office; removal from office.
The Governor shall appoint the three members of the board as
soon after the effective date of this article as is practicable.
The original terms of office of members begin on the first day of
July, two thousand seven.
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. No member of the board
appointed by the Governor may be removed from office by the
Governor except for official misconduct, incompetence, neglect of
duty or gross immorality and only in the manner prescribed by law
for the removal of state elective officers.
§29-9-7. Meetings; quorum; per diem and expenses of members.
The board shall hold at least six meetings in every fiscal
year beginning the first day of July and ending the following
thirtieth day of June. One meeting, known as the annual meeting,
shall be held in July, or as soon thereafter as practicable, in the
year two thousand eight 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, shall have the same
powers and duties as the regular member and shall meet the same
requirements for selection.
The members of the board shall be paid two hundred dollars per
diem for actual time spent in the performance of duties under this
article, and shall be reimbursed for actual and necessary expenses
incident to the performance of their duties. The foregoing per
diem and reimbursement for actual and necessary expenses shall be
paid from appropriations made by the Legislature to the board.
§29-9-8. Organization of board; staff; offices.
At its first annual meeting in July, or as soon thereafter as
practicable, in the year two thousand eight 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 the first day of July, following the annual meeting and ending
on the thirtieth day of June the following year.
The board shall employ an executive officer and 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 shall have the right to organize,
form, join or assist in employee organizations and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid and protection and to bargain collectively through
representatives of their own free choice without interference,
restraint or coercion. Employees also have the right to refrain
from these activities, except to the extent that 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) Nothing in this article shall prevent an employee from
presenting a grievance to the employer and having the grievance
heard and settled without the intervention of an employee
organization: Provided, That the exclusive bargaining
representative is afforded the opportunity to be present and to
present its views on the matter: Provided, however, That any
settlement made shall not be inconsistent with the terms of the
agreement in effect between the employer and the exclusive
bargaining representative.
§29-9-11. Representatives and elections.
(a) When a majority of the public 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 the first day of January,
two thousand eight, 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 the first day of January, two thousand eight,
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 shall be construed to limit an
exclusive representative's right to exercise its discretion to
refuse to process grievances of employees that are not meritorious
or for other proper reason.
§29-9-12. Unit determination.
(a) Upon the receipt of a petition for representation filed
pursuant to section thirteen, 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 shall prohibit
coalition bargaining under which a coalition of public school
employers or a coalition of employee organizations engage in
collective bargaining.
(b) The board shall not decide that any unit is appropriate if
the unit includes both professional and nonprofessional employees,
unless members of a majority of each group of employees votes for
inclusion in the combined unit.
(c) The board shall 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 shall 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 and 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 shall
prohibit the board, in its discretion, from extending the time for
holding an election for up to sixty days, where the purpose for
such extension is to permit resolution by the board of an unfair
labor practice charge filed by one of the parties to a
representational proceeding against the other based upon conduct
which may have a tendency to interfere with a fair and free
election, where the party filing the charge has not filed a request
to proceed with the election. Such 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 shall
have 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) No election shall be conducted if an election or run-off
election has been conducted in the twelve-month period immediately
preceding the proposed representation election.
(d) No election shall be directed by the board in any
bargaining unit where there is in force a valid collective
bargaining agreement. The board, however, may process an election
petition filed between 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 shall not affect the
expiration date of the original agreement.
(e) Nothing in this section prohibits the waiving of a hearing
by stipulation of the parties for the purpose of a consent election
or an election in a bargaining unit agreed upon by the parties so
long as 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 have
the authority and the duty to bargain collectively as set forth in
this section.
(a) The duty to bargain shall include an obligation to
negotiate over any matter with respect to wages, hours and terms
and conditions of employment and other issues agreed to by the
parties. Collective bargaining shall take place between public
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 shall not be required to bargain
over matters of inherent managerial policy, which shall include the
following:
(1) The establishment of the functions and programs of the
public 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 shall 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 shall be 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 shall be 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 shall be final upon the parties and
shall be enforceable in circuit court by any of them. In addition,
the board may petition the circuit court in the county in which the
principal offices of the board are located to enforce its orders
and to grant other appropriate relief including, but not limited
to, injunctive and other equitable relief.
§29-9-22. Payroll deductions.
(a) 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 shall 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 shall 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. In case of
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.
§29-9-28. Severability.
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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.