H. B. 2260
(By Delegates Fleischauer, Butcher,
Caputo and Tucker)
[Introduced January 15, 2003; referred to the
Committee on Education then Finance.]
A BILL to amend chapter eighteen-a of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article eight, 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
Be it enacted by the Legislature of West Virginia:
That chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article eight, to read as
ARTICLE 8. WEST VIRGINIA PUBLIC SCHOOL EMPLOYMENT RELATIONS
§18A-8-1. Legislative purpose.
The Legislature 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.
§18A-8-2. Short title.
This article may be cited as the "Public School Employment
The following words when used in this article have the meaning
ascribed to them unless the context clearly indicates a different
(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
(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
(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
(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
as defined in this section.
(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
(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
and multicounty vocational centers, the state board of education
and the governing boards of public higher education institutions.
(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 these 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
§18A-8-4. West Virginia public school employment relations board
There is created the West Virginia public school employment
§18A-8-5. Composition of board; terms of members; qualifications
The board shall consist of three members: A representative of
public school employers; a representative of public school
employees; and a 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 are
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 those
persons in selecting the members of the board who are representative of public school employers and public school
No person shall at the same time serve as a member of the
board and as 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 as an appointee or
employee of the board. Not more than two members of the board
shall be members of the same political party.
§18A-8-6. 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 three.
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
§18A-8-7. 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, two
thousand three 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, upon its own resolution
or at the call of the chairperson of the board may meet at other
The three members of the board 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 a per diem sum
commensurate with that paid to legislators for attending interim
meetings 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.
§18A-8-8. Organization of board; staff; offices.
At its first annual meeting in July, or as soon thereafter as
practicable, two thousand three and annually thereafter, the board
shall elect a chairperson and other officers from its membership as
the board may consider 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 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 for the
executive officer and his or her staff in or near the state capitol
complex in Charleston, West Virginia.
§18A-8-9. Powers and duties of the board.
(a) The board has authority to propose legislative rules for
approval pursuant to chapter twenty-nine-a of this code as may be
necessary to carry out the provisions of this article. Rules shall
be filed in the office of the secretary of state within thirty days
of approval by the Legislature.
(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
(c) The board may issue subpoenas requiring, upon reasonable
notice, the attendance and testimony of witnesses and the
production of evidence, including books, records, correspondence or documents relating to any matter at issue. The board may
administer oaths and affirmations, examine witnesses and receive
(d) The board may hire personnel or contract with third
parties as it considers necessary to assist it in carrying out its
(e) The board has the power to enforce provisions of this
article through the imposition of appropriate administrative
(f) Any party aggrieved by a decision or order of the board
may apply, within ten days from the date of the decision or order,
for judicial review in the circuit court in the county in which the
board maintains its principal office.
§18A-8-10. Employee rights.
(a) Public school employees 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 the right may be
affected 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 costs as
provided in section twenty-two of this article.
(b) Nothing in this article prevents 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 is not inconsistent with the terms of the agreement
in effect between the employer and the exclusive bargaining
§18A-8-11. 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 is the exclusive
representative of all the employees in the unit for the purpose of
(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 in this article 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 reasons.
§18A-8-12. Unit determination.
(a) Upon the receipt of a petition for representation filed
pursuant to section thirteen of this article, the board shall
determine the appropriate bargaining unit for collective
bargaining. In determining the appropriate bargaining unit, the
board shall consider:
(1) The community of interest in the proposed bargaining unit,
including employee skills, functions, common supervision, wages,
hours and other working conditions;
(2) The effect of overfragmentation;
(3) The efficiency of operations of the public school
(4) The history of collective bargaining;
(5) The desires of employees; and
(6) The requirements of section ten, article III, and section
one, article XII of the state constitution: Provided, That nothing
in this article prohibits the board from recognizing multiunit
bargaining: Provided, however, That nothing in this article
prohibits coalition bargaining under which a coalition of public
school employers or a coalition of employee organizations engage in
(b) The board may not decide that any unit is appropriate if the unit includes both professional and nonprofessional employees,
unless a majority of members of each group of employees votes for
inclusion in the combined unit.
(c) The board may 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 may not permit confidential employees or
managerial employees to be included in any bargaining unit.
§18A-8-13. 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 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 may not be
challenged by the employer. Employee signatures 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 criteria:
(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 appears 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. The 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 the two choices or parties
receiving the highest number of ballots cast in the previous
(8) The board shall direct an election not later than one
hundred twenty days after the date the petition was filed:
Provided, That 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 from extending the time for holding an election
for up to sixty days, where the purpose for the 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.
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 be able to cast a
ballot or for other reasonable cause. The board has the final
determination on any controversy concerning the eligibility of an
(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 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 may 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 the stipulations or the 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 in this article
is the exclusive representative for the employees of the 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.
§18A-8-14. 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
(a) The duty to bargain includes 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 incorporating 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
(b) Public school employers are not required to bargain over
matters of inherent managerial policy, which shall include the
(1) The establishment of the functions and programs of the
public school employer;
(2) Standards for services provided by the public school
(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.
§18A-8-15. 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 selecting an impartial person experienced in labor relation
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.
§18A-8-16. 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 submit by written certification to the other party and to
the board, the remaining impasse issues to binding interest
(b) Unless the parties have agreed mutually 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 strike alternately 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
(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 may 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 meet, within ten days of appointment,
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
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 considered appropriate by the arbitrator in conducting
hearings, investigations or inquiries.
(e) In reaching a decision regarding resolution of the impasse
issues, the arbitrator shall take into consideration the following
(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 factors as to 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 for 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.
Agreed upon impasse procedures may be utilized by the parties.
§18A-8-17. 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 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
(b) An agreement between a public school employer and an
exclusive representative entered into pursuant to this article,
governs the wages, hours, 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 may not
automatically stay the order of the arbitration panel.
§18A-8-18. Strikes prohibited.
Strikes by public school employees are prohibited.
§18A-8-19. 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.
§18A-8-20. Prohibited practices.
(a) It is 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
(6) Refuse to participate in good faith in the mediation and
arbitration procedures set forth in sections fifteen and sixteen of
(7) Unilaterally change wages, hours or other terms and
conditions of employment;
(8) Refuse or fail to comply with any provision of this
(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
(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
§18A-8-21. 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 nineteen or 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
(b) In conducting the hearing, the board or its agent is
(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;
(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
considered fair and equitable in accordance with the provisions of
(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.
§18A-8-22. 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 may not be required as a condition of
(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 the
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 may not be
charged for any political or ideological activities of an employee
§18A-8-23. 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 controlled by the provisions of the
Open Governmental Meetings Act, 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.
§18A-8-24. List of employee organizations and exclusive
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 indicate clearly 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.
§18A-8-25. 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 adopted
by the employer which are not contrary to this article, or
agreements reached pursuant to the 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 chapter eighteen-a of the code of
West Virginia, the provision of the code shall prevail. The issues
provided for in chapter eighteen-a 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 in this article,
nothing in this article shall be construed to modify annually 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.
§18A-8-26. 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 determined to be inoperative.
§18A-8-27. 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.
NOTE: The purpose of this bill is to establish a procedure
for collective bargaining by public school employees. The bill
also creates a public school employment relations board and sets
forth criteria for collective bargaining, dispute mediation and
arbitration and grievance procedures.
This article is new; therefore, strike-throughs and
underscoring have been omitted.