WEST virginia Legislature
2017 regular session
By
[
to the Committee on Political Subdivisions then the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§8-15B-1, §8-15B-2, §8-15B-3, §8-15B-4 and §8-15B-5, all relating to meeting
and conference rights for members of fire departments employed by political
subdivisions; providing for the right of self-organization; allowing
designation of an exclusive representative agent; imposing a duty to meet and
confer with employees; allowing deduction of employee organization dues and
assessments; providing for compulsory arbitration of disputes; listing
prohibited acts; allowing hearing before Civil Service Commission; providing
judicial review; specifying powers and duties of the Civil Service Commission;
and allowing injunctive relief.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §8-15B-1, §8-15B-2, §8-15B-3,
§8-15B-4 and §8-15B-5, all to read as follows:
ARTICLE 15B. MEETING AND CONFERENCE RIGHTS FOR MEMBERS OF
FIRE DEPARTMENTS.
§8-15B-1. Definitions.
As used in this article:
"Commission"
means the firemen's Civil Service
Commission provided in article fifteen of this chapter.
"Employee
organization" means any association, organization, federation or council
composed of 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.
"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 and proper performance of the duties
of employment or any manner of interference with the operation of any 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 obligations of employment.
§8-15B-2. Right to self-organization and exclusive
representation; dues.
(a) Firefighters 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. An employee organization duly
designated to represent the firefighters employed by a political subdivision
shall be the exclusive contracting agent for all firefighters so employed. The
organization shall act, negotiate agreements and contract for rights for all
firefighters and is responsible for representing the interests of all
firefighters.
(b) An employee
organization claiming to represent a majority of the firefighters of a
political subdivision shall be recognized as the exclusive contracting agent by
the political subdivision upon the presentation of a petition or other document
in which a majority of the firefighters employed by the political subdivision
designates the employee organization as their exclusive contracting agent. If 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, the
political subdivision shall deduct from the payroll of the firefighter 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.
§8-15B-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,
or the negotiation of an agreement or any questions arising thereunder, and
shall execute a written contract incorporating any agreement reached. 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 each strike two names from the
list. The individual whose name remains on the list is the third arbitrator. The
third arbitrator is the chair of the board of arbitration.
(c) The chair 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 do not apply. The chair 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 is final and binding upon both
parties, except as provided in subsection (d) of this section. The
compensation, if any, for the appointed arbitrators 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 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 is 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 shall contain the following notice:
"It is agreed by
the parties that any provision contained herein requiring legislative action to
permit its implementation by amendment of law or by providing the additional
funds therefor, will not become effective until the appropriate legislative
body has given approval."
§8-15B-4. Prohibited acts; hearings.
(a) Political
subdivisions are prohibited from:
(1) Interfering with,
restraining or coercing firefighters 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 because he or she 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;
(5) Refusing to discuss
grievances with the agent of the firefighters; or
(6) Refusing to abide by
a valid arbitration decision.
(b) Employee
organizations are prohibited from:
(1) Restraining or
coercing a firefighter in the exercise of his or her rights guaranteed under
this article;
(2) Causing or
attempting to cause a political subdivision to discriminate against a
firefighter 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.
Firefighters who are absent from work without permission are presumed to
have engaged in a strike unless evidence of illness or other good cause is
presented by each firefighter for each absence; or
(5) Refusing to abide by
a valid arbitration decision.
(c) Any firefighter 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 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 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.
(d) Any private citizen
of a political subdivision against which a prohibited act has been committed
may seek a writ of mandamus or any other remedy which is authorized by law to
enforce compliance with this subdivision by any treasurer or chief financial
officer.
(e) (1) Any firefighter,
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.
(2) The commission may
make and enter an order dismissing the complaint or may conduct an
investigation or hold a hearing on the complaint. The firefighter, employee
organization or political subdivision complained of has 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.
(3) The firefighter,
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.
(4) The commission is
not bound by the rules of evidence promulgated by the Supreme Court of Appeals
and the commissioner has 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 be opened for inspection by either of
the parties or their authorized representatives. The commission shall bear the
cost of producing the transcript.
(f) (1) 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.
(2) 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.
(g) If a firefighter,
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 where the prohibited act
was or is being committed.
§8-15B-5. Judicial review.
(a) Except as otherwise
provided in subsection (b) of this section, any party adversely affected by an
order of the commission is entitled to appeal a decision of the commission to
circuit court as provided in article five, chapter twenty-nine-a of this code.
(b) An action appealing
a decision of the commission may only be initiated 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 meetings and conference rights for members of municipal fire
departments. The bill also creates duties for the firefighters' Civil Service Commissions.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.