H. B. 2361


(By Delegate Moore)
[Introduced February 3, 1995; referred to the
Committee on the Judiciary then Finance.]




A BILL to amend chapter twenty-nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article nine, relating to the public employee relations act; stating legislative policy and purpose; defining certain terms; establishing a West Virginia public employment relations board; providing for the composition of the board, the terms of its members, and the qualifications of 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 employment of staff and the location of offices; granting authority to the board to promulgate rules; defining employee rights; providing for the election of exclusive representatives by public employees; establishing criteria for determining the appropriateness of an employer 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; requiring every agreement to contain a grievance procedure; limiting the duration of agreements to three years; providing for mediation and arbitration to resolve impasses in bargaining; prohibiting strikes by public employees; providing remedies for prohibited strikes; defining prohibited practices; establishing a method of payroll deductions; 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 chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article nine, to read as follows:
ARTICLE 9. WEST VIRGINIA PUBLIC EMPLOYMENT RELATIONS BOARD.

§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 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 employees the right to associate with others in organizing and choosing representatives for the purpose of collective bargaining; (2) requiring public employers to recognize, negotiate and bargain with employee organizations representing public 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 employer, the public employee and the citizens of this state.
§29-9-2. Short title.

This article shall be known and may be cited as the "Public Employee 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 employees and public employers including:
(1) "Grievance arbitration" which means arbitration of disputes arising over the interpretation or application of a collective bargaining agreement; and
(2) "Interest arbitration" which 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 employment relations board created pursuant to section four of this article.
(d) "Certification" means official recognition by the public 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 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 compelled to agree to a proposal put forth by the other party.
(f) "Employee" or "public employee" means any person, other than elected officials, employed by a public employer.
(g) "Employee organization" means an employee participating organization which exists for the purpose of representing public employees in dealing with public employers concerning grievances, labor disputes, wages, hours and other terms and conditions of employment of public employees.
(h) "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.
(i) "Fair share payment" means the assessment levied upon employees in an appropriate bargaining unit who are not members of the employee organization to help defray the cost of representational services rendered by the exclusive representative on their behalf.
(j) "Impasse" means the point in the process of negotiations between public employees and public 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 in the form of interpretation, suggestion or advice by an impartial third party in reconciling an impasse between the public employer and the exclusive representative regarding wages, hours and other terms and conditions of employment.
(l) "Professional employee" includes an employee engaged in work in any of the following categories: (1) Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work; (2) of a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (3) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized educational instruction and study at an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes.
(m) "Public employer" means the state of West Virginia, its institutions, agencies and governmental subdivisions; the university of West Virginia board of trustees and the board of directors of the state college system; county boards of education; public and quasi-public corporations; town, city, county, city-and-county and municipal corporations; and authorities, boards or commissions or combinations thereof whether or not incorporated or chartered.
(n) "Supervisory employee" means any individual whose principal activity includes and who spends a preponderance of his or her workday exercising nonroutine and nonclerical authority and who uses independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or an individual who has the responsibility to assign work, direct other employees, adjust employee grievances or an individual who recommends any of these employee actions.
§29-9-4. West Virginia public employment relations board

created.

There is hereby created a state agency to be known as the West Virginia public employment relations board.
§29-9-5. Composition of board; terms of members; qualifications

of members.

The board shall consist of five members, two of whom shall be representative of public employers, two of whom shall be representative of public employees and one of whom shall be representative of the public. All members shall be citizens of the state, appointed by the governor, by and with the advice and consent of the Senate. The representatives of the public employers and the representatives of the public employees shall be appointed for terms of four years, and the representative of the public shall be appointed for a term of four years, except that one of the original terms of an employer representative shall be for a term of three years, one of the original terms of a public employee shall be for a term of two years and one of the original terms of either the employer or employee representative shall be for a term of one year.
Public employers and employee organizations representing public 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 employers and public employees.
Except for the members who are representative of public employers, and the public employees, no person shall be eligible for appointment to membership on the board who is the 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 three 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 five 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, one thousand nine hundred ninety-five.
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 IV 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 one thousand nine hundred ninety-five and in June of each subsequent year. Annual meetings, as well as the five additional required meetings in each fiscal year, shall be held on dates and at places as the board may prescribe: Provided, That the annual meeting shall be held in June. 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.
Of the five appointed members, three members of the board, consisting of the chairperson, a member representative of the public employers, and a member representative of the public employees, shall constitute a quorum. A majority vote of the quorum is necessary to pass upon matters before the board. A vacancy in the board does not impair the authority of the remaining members to exercise all the powers of the board. The governor shall appoint an acting member of the board during the 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 one 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 one thousand nine hundred ninety-five, and annually thereafter, the board shall elect a chairperson and other officers from its membership as the board may deem necessary or desirable. 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 chairperson of the board shall not be eligible to succeed himself or herself as chairperson.
The board shall employ an executive officer and other 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 be represented in any judicial proceedings pursuant to this article by the attorney general of the state of West Virginia or his or her designee. The board shall prescribe the duties and fix the compensation and emoluments of all employees. Employees of the board shall serve under the direction and control of the board or its designated representatives. The board shall provide suitable offices for the executive officer and his or her staff in or near the state capitol complex in Charleston, West Virginia.
§29-9-9. Rules.

The board has authority from time to time to make, amend and rescind rules as may be necessary to carry out the provisions of this article. Any rules shall be filed in the office of the secretary of state within thirty days of adoption by the board. The provisions of section one, article three, chapter twenty-nine-a of this code apply to the board.
§29-9-10. Employee rights.

(a) It is lawful for public employees 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. Employees also have the right to refrain from these activities, except as may be required pursuant to the provisions of this article or pursuant to any maintenance of membership provision or fair share payment in a collective bargaining agreement.
(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 any agreement in effect between the employer and the exclusive bargaining representative.
§29-9-11. Representatives and elections.

(a) When a majority of the public 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 official recognition has previously been granted and where prior to the first day of January, one thousand nine hundred ninety-five, a signed agreement is in effect, the board may not alter the terms of the agreement nor the appropriate unit previously agreed to.
(b) Labor organizations recognized by a public 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 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.
§29-9-12. Unit determination.

The board shall determine the appropriateness of a bargaining unit which shall consist of the employees of the public employer unit, division or subdivision thereof: Provided, That nothing shall prohibit the board from recognizing a statewide unit of public employees as the appropriate bargaining unit or prohibit multiunit bargaining between the public employee or employers and the exclusive representative or representatives of public employees. In determining the appropriateness of a unit, the board shall:
(a) Take into consideration, but not be limited to, the following: (1) Any identifiable community of interest of the public employee, including employee skills and functions; (2) the difficulties of administering this act resulting from overfragmentization of the employees; (3) any historical pattern of recognition; (4) common supervision, wages, hours and other working conditions of the employees involved; (5) the desires of the employees; (6) with respect to education employees, the requirements of section ten, article III and section one, article XII of the state Constitution;
(b) 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 unit; and
(c) Not permit supervisory employees to be included with any other public employees, but shall permit them to form their own separate homogeneous units. In determining supervisory status, the board may take into consideration the extent to which supervisory and nonsupervisory functions are performed, except that in units of police and firefighters all employees below the rank of chief shall be eligible for inclusion in the unit.
In cases involving an historical pattern of recognition, and in cases where the employer has previously recognized a union as the representative for a specified existing unit, the board shall find the employees in the unit then represented by the union to be the appropriate unit.
§29-9-13. Representation election; procedures.

(a) When an employee or group of employees or any individual or labor organization acting on behalf of an employee or group of employees files a petition with the board alleging that thirty percent of the employees in a unit wish to be represented for collective bargaining by a designated representative and the public employer of that unit refuses to voluntarily recognize their representative as the exclusive 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 or conduct hearings to determine the validity of the matters contained in the petition before determining whether or not an order should be issued.
(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 employer shall submit to the labor 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 any election including, but not limited to, regulations which would guarantee the secrecy of the ballot;
(5) The ballot shall contain the names of any organization presenting cards signed by at least ten percent of the employees in the appropriate unit indicating their wish to be represented for the purpose of collective bargaining by the organization and the ballot shall also contain a provision allowing an employee to mark "no representation";
(6) A representative may not be certified unless 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 a selection between only the two choices or parties receiving the highest number of ballots cast in the previous election.
(8) Mail ballots shall not be permitted by the board except, for reasonable cause, the board may allow a specific individual who would otherwise be unable to cast a ballot to use a mail ballot. The board shall have the final determination on any controversy concerning the eligibility of an employee to vote;
(9) (A) The board shall certify the results of an election within five working days after the final tally of votes if:
(i) The organization received a majority of the valid ballots cast in an election conducted pursuant to subsection (c) of this section; or
(ii) The board determines, without an election through an authorization card count, that the organization represents an uncoerced majority of the employees in the unit and either the majority status was achieved without the prohibited practice of public employer assistance as defined in section twenty of this article or the majority status would have been achieved and the organization would have represented the uncoerced majority if the public employer had not engaged in prohibited practices as set out in section twenty of this article.
(B) An election shall not be conducted in any appropriate bargaining unit within which in the preceding twelve-month period an election shall have been held. An election shall not be conducted during the term of any lawful collective bargaining agreement between a public employer and an employee representative. For the purpose of this section, extensions of agreements shall not affect the expiration date of the original agreement.
(C) Petitions for elections may be filed with the board not sooner than ninety days nor later than sixty days before the expiration date of any collective bargaining agreement and anytime after the expiration date of the agreement until a new written agreement is in effect. For the purposes of this section, extensions of agreements shall not affect the expiration date of the original agreement.
(D) A public 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. Scope of bargaining.

Collective bargaining shall take place between public employers and recognized employee organizations and shall result in execution of a written contract incorporating any agreement reached on wages, hours, working conditions and other terms and conditions of employment.
§29-9-15. Written agreements; appropriations; grievance

procedure required.

(a) Any collective bargaining agreement between the employer and the exclusive representative shall be reduced to writing, shall be subject to ratification by both parties and shall be executed by both parties when ratified.
(b) All cost items shall be subject to appropriations by the appropriate legislative or governing bodies. The employer shall submit to the appropriate legislative or governing body within ten days of the date on which an agreement is ratified, all cost items contained in the agreement: Provided, That if any cost items require appropriations by the state Legislature while it is not in session, the cost items shall be submitted to the governor for inclusion in the next operating budget within ten days after the date on which the agreement is ratified. If the state Legislature or other legislative or governing body, rejects any of the cost items submitted to them, all items submitted shall be returned to the parties for further negotiations: Provided, however, That nothing in this section shall be construed to allow a public employer to reject cost items in an agreement that it has ratified. The public employer and the exclusive representative may execute a separate agreement including all noncost items agreed upon which may be made effective immediately.
(c) Because effective and orderly operation of government is essential to the public, it is declared to be in the public interest that in the course of collective bargaining, the public employer and the exclusive representative shall make every reasonable effort to conclude negotiations, and include provisions for an effective date, a reopening date and an expiration date, at a time to coincide, as nearly as possible, with the period during which appropriate legislative or governing bodies may act upon the operating budget of the employers.
(d) All existing rules or regulations adopted by the employer, including civil service and other personnel regulations, which are not contrary to this article, shall remain applicable. The duty to bargain collectively shall include an obligation to negotiate over any matter with respect to wages, hours and other conditions of employment, not specifically provided for in any other law or not specifically in violation of the provisions of any law. If any other law pertains, in part, to a matter affecting the wages, hours and other conditions of employment, the other law shall not be construed as limiting the duty to bargain collectively and to enter into collective bargaining agreements containing clauses which either supplement, implement or relate to the effect of provisions in other laws. If there is a conflict between the collective bargaining agreement and any rules or regulations, the terms of the agreement shall prevail.
(e) Every collective bargaining agreement shall contain a grievance procedure culminating in final and binding arbitration by a neutral third party and shall be valid and enforceable when entered into in accordance with the provisions of this article.
(f) A collective bargaining agreement shall not be in force and effect for a period of more than three years.
§29-9-16. Impasses; mediation.

Either a public employer or the exclusive representative of the public employee may declare that an impasse has been reached between the parties in bargaining over the wages, hours, working conditions or other terms and conditions of employment. Upon declaration of impasse by the employer or the representative, a mediator shall be selected by the board. The mediator shall meet immediately with parties or their representatives, either jointly or separately, and shall take other steps as may be deemed appropriate in order to persuade 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.
§29-9-17. Impasses; arbitration.

(a) If the mediator is unable to effect settlement of the controversy within thirty days of the beginning of mediation in accordance with the provisions of the preceding section, either party may, by written notification to the other or to the board, submit the remaining differences to interest arbitration. 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 (b) 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. 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 arbiter remains. The name of potential arbitrators shall be submitted by the board from lists provided by the American arbitration association or the federal mediation and conciliation service.
(b) The arbitrator shall, within ten days of appointment, meet with the parties or their representatives, either jointly or separately, and shall make inquiries and investigations, hold hearings, and take other steps as may be deemed appropriate 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.
(c) In reaching a decision regarding resolution of outstanding disputes, the arbitrator shall take into consideration, in addition to any other relevant factors, the following:
(1) Comparison of the wages, hours and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours and conditions of employment of employees performing similar services or requiring similar skills under similar working conditions and with other employees generally in public and private employment in comparable communities;
(2) Comparison of peculiarities in regard to other trades or professions, including specifically: (A) Hazards of employment; (B) physical qualifications; (C) educational qualifications; (D) mental qualifications; and (E) job training and skills;
(3) The terms of collective agreements negotiated between the parties in the past, or of other previously existing arrangements providing for compensation and fringe benefits, including, but not limited to, provisions for salary, insurance and retirement benefits, medical and hospitalization benefits, paid time off and job security; and
(4) The ability of the public employer to pay for the items to be included in the contract.
(d) 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 issues which had been unresolved as well as those items mutually agreed upon.
(e) The expenses of arbitration shall be borne by the board.
§29-9-18. Strikes prohibited.

Strikes by public employees are prohibited at any time.
§29-9-19. Remedies for prohibited strikes.

If a strike of public employees occurs which would be prohibited under the provisions of section eighteen of this article, the public employer may institute an action in the circuit court of the jurisdiction where the strike occurs for appropriate equitable relief. If the strike involves state employees, the chief legal officer of the public employer or the attorney general where required by law may institute an action in the circuit court of the jurisdiction where the strike occurs or in the supreme court of appeals for appropriate equitable relief.
§29-9-20. Prohibited practices.

(a) It shall be a prohibited practice for a public employer or its designated representative to willfully:
(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 condition 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 chapter, 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 sixteen and seventeen of this article;
(7) Refuse or fail to comply with any provision of this article;
(8) Violate the terms of the collective bargaining agreement; 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 employee organization or its designated agent to willfully:
(1) Refuse to bargain collectively in good faith with the public 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 sixteen and seventeen of this article;
(3) Refuse or fail to comply with any provisions of this article; or
(4) Violate the terms of the collective bargaining agreement.
§29-9-21. Prohibited practices; hearings and remedies.

(a) A public employer, public 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. 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 fact or law exists, the board may either grant the relief or dismiss the complaint;
(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 an order to cease and desist from the prohibited practice;
(3) Award representative costs, as determined by the board, to the prevailing party; and
(4) Take 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.
(e) 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 of the county in which the prohibited practice occurred to enforce its orders and to grant it other relief including, but not limited to, an injunction.
§29-9-22. Payroll deductions.

(a) The employer, upon receiving from the exclusive representative a written statement which certifies the amount of initiation fees and monthly dues uniformly applied to all members of the exclusive representative, shall deduct the fees and monthly dues from the wages due to the employees from the employer. The deductions 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 payment for nonmembers. Membership in the exclusive representative is not required of any bargaining unit employee.
(b) Deductions, authorized by members of the exclusive representative, or fair share payment required to be deducted from the wages of nonmembers, shall be made at times mutually agreed upon by the employer and the exclusive representative in amounts prorated in equal installments. The amounts so deducted shall be forwarded by the employer to the exclusive representative. Nothing in the foregoing shall be construed to prevent the parties from agreeing to allow for lump sum payment of dues or agreeing to another arrangement.
(c) The wage deduction permitted by this section shall be paid to the employee organization chosen as the exclusive representative of an appropriate bargaining unit. Payments terminate when an employee organization ceases to function as the exclusive representative of the appropriate bargaining unit.
(d) In addition to any deduction made and forwarded to the exclusive representative under subsections (a) and (b) of this section, the employer shall, upon written authorization by an employee, deduct from the payroll of the amount of group insurance premiums, and other charges for employee organization benefits and plans administered by the exclusive representative and shall remit the amount designated by the employee to the exclusive representative.
(e) The employer shall continue all payroll assignments authorized by an employee prior to the effective date of this article and all assignments authorized under subsection (d) of this section until the employee notifies the employer to discontinue his or her assignments or until the employee organization ceases to be the exclusive representative of the appropriate bargaining unit.
§29-9-23. Financial reports to employees.

Every employee organization shall keep an adequate record of its financial transactions and shall make available annually to the employees who are members of the organization, within sixty days after the end of its fiscal year, a detailed written financial report in the form of a balance sheet and an operating statement, certified as to accuracy by a certified public accountant. In the event of failure of compliance with this section, any employee within the organization may petition the public employment relations board for an order compelling compliance. The board may enforce its order by instituting suit in the circuit court having jurisdiction in this matter.
§29-9-24. Public records and proceedings.

The complaints, orders and testimony relating to a proceeding instituted by the public employment relations board are public records and shall be made available for inspection or copying.
§29-9-25. 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 out 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 affiliations, 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, and the effective date of their certification, and the effective date and expiration date of any agreement reached between the public employer and the exclusive representative. Copies of the list shall be made available to interested parties upon request.
§29-9-26. Article takes precedence; when.

(a) This article and any collective bargaining agreement between a public employer and an employee organization executed pursuant to this article, shall preempt all contrary local ordinances, executive orders, rules or regulations adopted by the state, a county, or any department or agency thereof, including the civil service commission. Except as otherwise expressly provided herein, nothing contained in this article shall be construed to deny or otherwise abridge any rights, privileges or benefits granted by law to employees.
(b) Except as otherwise expressly provided herein, nothing in this article shall be construed to annul, modify or preclude the renewal or continuation of any lawful agreement entered into prior to the effective date of this article between a public employee and an employee organization covering wages, hours, terms and conditions of employment.
§29-9-27. 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.



NOTE: This bill provides the following:

(1) A Public Employment Relations Board is created to facilitate collective bargaining between public employees and public employers. A five-member board is appointed by the Governor and compensated on a per diem basis. The board has the power to employ professional staff including an executive officer, mediators and hearing examiners.

(2) All public employees, with the exception of elected public officials, are permitted to organize and bargain collectively through exclusive representatives elected by appropriate units of public employees.

(3) Provisions are included for negotiations, mediation and final and binding arbitration.

(4) Public employees are prohibited from striking.

(5) Cost items negotiated by public employers and their employees may not be implemented until they have been approved by the appropriate legislative or governing body.

(6) A public employee is not required to become a member of an employee organization. However, payroll deductions from all employees within the unit represented by the exclusive representative for dues and fair share representation are to be paid to the exclusive representative. The exclusive representative of the employees would be required to bargain collectively and to process grievances for all employees regardless of membership status.

This article is new; therefore, strike-throughs and underscoring have been omitted.