Senate Bill No. 83
(By Senators Claypole and Humphreys)
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[Introduced February 19, 1993; referred to the Committee
on the Judiciary.]
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A BILL to amend chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article fifteen-a,
relating to meeting and conference rights for members of
police or fire departments employed by political
subdivisions; providing for the right of these members to
self-organization; designation of an exclusive
representative agent; duty to meet and confer with
employees; deduction of employee organization dues and
assessments; compulsory arbitration of disputes; prohibited
acts; hearing before civil service commission; judicial
review; certain powers and duties of the civil service
commission; and injunctions.
Be it enacted by the Legislature of West Virginia:
That chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article fifteen-a, toread as follows:
ARTICLE 15A. MEETING AND CONFERENCE RIGHTS FOR MEMBERS OF POLICE
OR FIRE DEPARTMENTS.
§8-15A-1. Definitions.
As used in this article:
"Commission" means the policemen's or firemen's civil
service commission provided in article fourteen or fifteen of
this chapter.
"Employee organization" means any association, organization,
federation or council composed of police officers or firefighters
having as one of its purposes the representation of its members
in negotiations with a political subdivision.
"Firefighter" means any person, other than a fire chief,
employed as a fireman on a full-time basis by a political
subdivision if the person is covered by the civil service
provisions of article fifteen of this chapter.
"Policeman" means any person, other than a police chief,
employed as a police officer on a full-time basis by a political
subdivision if the person is covered by the civil service
provisions of article fourteen of this chapter.
"Political subdivision" means, and is limited to, any
municipality within the state.
"Strike" means the failure to report for duty as a result of
concerted action with an employee organization, the willful
absence from one's position, the stoppage of work or the
abstinence, in whole or in part, from the full, faithful andproper performance of the duties of employment or any manner of
interference with the operation of any police or fire department
of a political subdivision for the purpose of inducing,
influencing or coercing a change in the conditions or
compensation or the rights, privileges or obligation of
employment.
§8-15A-2. Right to self-organization and exclusive
representation; dues.
(a) Firefighters and policemen have, and are protected in
the exercise of, the right of self-organization to form and join
any employee organization, to meet and confer with their
employers through representatives of their own choosing on
questions of wages, hours and other conditions of employment,
except to strike, for the purpose of contracting for rights, free
from actual interference, restraint or coercion:
Provided, That
an employee organization duly designated to represent the
firefighters or policemen employed by a political subdivision
shall be the exclusive contracting agent for all firefighters or
policemen so employed. The organization shall act, negotiate
agreements and contract for rights for all firefighters or
policemen and shall be responsible for representing the interest
of all firefighters or policemen.
(b) An employee organization claiming to represent a
majority of the firefighters or policemen of a political
subdivision shall be recognized as the exclusive contracting
agent by the political subdivision upon the presentation of apetition or other document wherein a majority of the firefighters
or policemen employed by the political subdivision designates the
employee organization as their exclusive contracting agent. In
the event that a political subdivision has a good faith doubt as
to the majority status of the employee organization it shall,
within thirty days of the receipt of the petition or document,
request its civil service commission to conduct a secret ballot
election within thirty days of the receipt of the request. The
commission shall certify the results of the election within three
days after the election. Following recognition or certification
and, upon the written authorization of any firefighter or
policeman, the political subdivision shall deduct from the
payroll of the firefighter or policeman the monthly amount of
dues or assessments of the employee organization as certified by
the secretary of the employee organization and shall deliver the
same to the employee organization's treasurer no later than the
last day of the month following the deduction.
§8-15A-3. Board of arbitration; duty to meet and confer with
employees and arbitrate; procedures.
(a) The political subdivision and the employee organization
recognized or certified as the exclusive contracting agent shall
contract for all employees' rights. Representatives of the
political subdivision and the employee organization shall meet at
reasonable times, including meetings appropriately related to the
budget making process, and shall confer in good faith with
respect to wages, hours and other conditions of employment, orthe negotiation of an agreement or any questions arising
thereunder, and shall execute a written contract incorporating
any agreement reached, and neither party may be compelled to
agree to a proposal or make a concession.
(b) If, after a reasonable period of negotiations concerning
wages, hours and other conditions of employment, a dispute exists
between the political subdivision and the employee organization,
or if no agreement has been reached on wages, hours and other
conditions of employment sixty days prior to the final date for
the setting of the budget of the political subdivision, either
party or the parties jointly may request arbitration of the issue
or issues in dispute by a board of arbitration. The board of
arbitration shall be composed of three persons, one appointed by
the political subdivision, one appointed by the employee
organization and a third member to be agreed upon by the parties.
The members of the board representing the political subdivision
and the employee organization shall be named within five days
from the date of the request for the appointment of the board.
If, after a period of five days from the date of the appointment
of the two arbitrators appointed by the political subdivision and
the employee organization, the third arbitrator has not been
mutually agreed upon, then either arbitrator may request the
federal mediation and conciliation service to furnish a list of
five members from its list of arbitrators. Within five days
after the receipt of the list, the representative of the
political subdivision and the employee organization shall eachstrike two names from the list. The individual whose name
remains on the list shall be the third arbitrator. The third
arbitrator shall act as chairman of the board of arbitration.
(c) The chairman of the board of arbitration shall establish
reasonable dates and places of hearing. Any hearings involved
shall be conducted in accordance with the rules established for
arbitration by the American arbitration association. The rules
of evidence promulgated by the supreme court of appeals shall not
apply. The chairman may issue subpoenas and administer oaths.
Upon completion of the hearings and within fifteen days, the
board of arbitration shall make findings of fact and render a
decision. The decision shall be final and binding upon both
parties, except as provided in subsection (d) of this section.
The compensation, if any, for the appointed arbitrator will be
paid by the political subdivision. The compensation and expenses
of the third arbitrator, as well as all stenographic and other
expenses incurred by the arbitration board in connection with
arbitration proceedings, shall be paid equally by the parties.
(d) Prior to invoking the arbitration procedure provided for
in this article, the political subdivision and the employee
organization shall submit to each other a final settlement offer
on all unresolved issues. The arbitration panel provided herein
shall be limited, after hearing, to resolving the dispute by
adopting, on an issue by issue basis, the final offer of either
the political subdivision or the employee organization. In
making its decision, the panel shall consider the following:
(1) Prior agreements, if any, between the political
subdivision and the employee organization;
(2) Comparison of the issues submitted to final offer
settlement relative to the employees in the contracting unit
involved with those issues related to other public and private
employees doing comparable work, giving consideration to factors
peculiar to the area and classification involved;
(3) The interests and welfare of the public, the ability of
the public employer to finance and administer the issues
proposed, and the effect of the adjustments on the normal
standard of public service;
(4) The lawful authority of the public employer;
(5) Any stipulations of the political subdivision and the
employee organization;
(6) Any other factors, not confined to those listed in this
section, which are normally or traditionally taken into
consideration in the determination of issues submitted to final
offer settlement through voluntary conference, mediation, fact-
finding, or other impasse resolution procedures in public service
or in private employment.
(e) Any arbitration decision as well as any written
agreement between a political subdivision and an employee
organization determining the terms and conditions of employment
of firefighters and policemen shall contain the following notice:
It is agreed by the parties that any provision contained herein
requiring legislative action to permit its implementation byamendment of law or by providing the additional funds therefor,
shall not become effective until the appropriate legislative body
has given approval.
§8-15A-4. Prohibited acts; hearings.
(a) Political subdivisions are prohibited from:
(1) Interfering with, restraining or coercing firefighters
or policemen in the exercise of their rights guaranteed by this
article;
(2) Dominating or interfering with the formation or
administration of any employee organization;
(3) Discharging or otherwise discriminating against a
firefighter or policeman because he has signed or filed any
petition, affidavit or complaint or given information or
testimony pursuant to this article;
(4) Refusing to meet and confer in good faith with any
employee organization which has been recognized or certified as
the exclusive contracting agent of the firefighters or policemen;
(5) Refusing to discuss grievances with the agent of the
policemen or firefighters; or
(6) Refusing to abide by a valid arbitration decision.
(b) Employee organizations are prohibited from:
(1) Restraining or coercing a firefighter or policeman in
the exercise of his rights guaranteed under this article;
(2) Causing or attempting to cause a political subdivision
to discriminate against a firefighter or policeman in violation
of subsection (a) of this section;
(3) Refusing to meet and confer in good faith with a
political subdivision;
(4) Striking against or withholding their members' services
from a political subdivision:
Provided, That firefighters or
policemen who are absent from work without permission shall be
presumed to have engaged in a strike unless evidence of illness
or other good cause is presented by each firefighter or policeman
for each absence; or
(5) Refusing to abide by a valid arbitration decision. Any
firefighter or policeman who engages in a concerted strike
against a political subdivision or withholds services from a
political subdivision shall be suspended from duty for a period
not to exceed six months without pay, and the employee
organization to which any striking firefighter or policeman
belongs shall lose its right for six months to have the monthly
amount of dues withheld for all of its members' pay by the
employer. The treasurer or chief financial officer of the
political subdivision may not issue any warrant or check to any
suspended firefighter or policeman for the payment of wages which
might otherwise be payable during that period, nor may the
treasurer or chief financial officer issue any warrant or check
for the monthly amount of dues of members of the employee
organization to that organization as required by subsection (b),
section two of this article. Any private citizen of a political
subdivision against which a prohibited act has been committed may
seek a writ of prohibition or any other remedy which isauthorized by law to enforce compliance with this subdivision by
any treasurer or chief financial officer.
(c) Any firefighter or policeman, employee organization or
political subdivision which has reasonable cause to believe that
a violation of this section has occurred may file a complaint
with the commission and serve a copy on each person, employee
organization or political subdivision involved.
The commission may make and enter an order dismissing the
complaint or may conduct an investigation or hold a hearing
thereon. The firefighter or policeman, employee organization or
political subdivision so complained of shall have the right to
file an answer to the complaint, or any amended complaints,
within twenty days after the service of the complaint. If a
hearing is ordered, the commission shall set the time and place
for the hearing, which time and place may be changed by the
commission at the request of one of the parties for good cause
shown.
The firefighter or policeman, employee organization or
political subdivision may appear in person or otherwise defend
against the complaint. In the discretion of the commission any
other person may be allowed to intervene in the proceedings.
The commission is not bound by the rules of evidence
promulgated by the supreme court of appeals and the commissioner
shall have the power of subpoena and to administer oaths. A
transcript of the testimony taken at any hearing before the
commission shall be filed in the office of the commission, and beopened for inspection by either of the parties or their
authorized representatives. The commission shall bear the cost
of producing the transcript.
(d) If, upon all the testimony and evidence, the commission
determines that a prohibited practice has been committed, it
shall state its findings of fact in writing and shall issue and
cause to be served on the party committing the prohibited
practice an order requiring the employee organization or the
political subdivision to cease and desist from the prohibited
practice. The commission may take any further affirmative action
as will comply with the provisions of this section, including,
but not limited to, the withdrawal of certification of an
employee organization established by or assisted in its
establishment by any prohibited practice.
If, upon all the testimony and evidence, the commission
determines that a prohibited practice has not been or is not
being committed, it shall state its findings of fact and
conclusions of law and shall issue an order dismissing the
complaint.
(e) In the event that a firefighter or policeman, employee
organization or political subdivision refuses to comply with an
order from the commission and fails to appeal the order as
hereinafter provided, the commission shall request the attorney
general of West Virginia to seek injunctive relief in the circuit
court of the county wherein the prohibited act was or is being
committed.
§8-15A-5. Judicial review.
Any party adversely affected by an order of the commission
is entitled to judicial review as provided in article five,
chapter twenty-nine-a of this code.
§8-15A-6. Right of appeal.
Any party adversely affected by the final judgment of the
circuit court under this article may seek review thereof by
appeal to the supreme court of appeals of this state.
Jurisdiction is hereby conferred upon the court to hear the
appeals upon application made in the manner and within the time
provided by law for civil appeals generally.
§8-15A-7. Duties and powers of commission.
The commission is entitled to judicial review in the circuit
court where the political subdivision is located. The appeal
must be filed within ninety days from the date of the entry by
the commission of its final order. Upon an appeal being taken
and docketed with the clerk of the circuit court, the circuit
court shall proceed to hear the appeal upon the original record
made before the commission. Any party adversely affected by a
decision and final order of the circuit court has the right to
petition the supreme court of appeals for a review of the
decision of the circuit court, as in other civil cases.
NOTE: The purpose of this bill is to provide for meetings
and conference rights for members of municipal police and fire
departments. The bill also creates duties for the policemen and
firefighters civil service commission.
This article is new; therefore, strike-throughs and
underscoring have been omitted.