H. B. 2631
(By Delegates Eldridge, Rodighiero, Stephens,
Perry, Paxton, Shaver and Argento)
[Introduced January 13, 2010; referred to the
Committee on Education then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §29-9-1, §29-9-2,
§29-9-3, §29-9-4, §29-9-5, §29-9-6, §29-9-7, §29-9-8, §29-9-9,
§29-9-10, §29-9-11, §29-9-12, §29-9-13, §29-9-14, §29-9-15,
§29-9-16, §29-9-17, §29-9-18, §29-9-19, §29-9-20, §29-9-21,
§29-9-22, §29-9-23, §29-9-24, §29-9-25, §29-9-26, §29-9-27
and §29-9-28, all relating to the public school employment
relations act; stating legislative policy and purpose;
defining certain terms; establishing a West Virginia Public
School Employment Relations Board; providing for the
composition of the board, the terms of its members, and the
qualifications of the members; providing for the terms of the
original appointees and the method of filling vacancies;
limiting eligibility of board members for reappointment;
requiring an oath of office and establishing a method of
removal of board members; establishing procedural rules for meetings and requiring a quorum; providing payment for per
diem and expenses of board members; creating the board,
providing 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 takes precedence and when it is inoperative.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-nine of the Code of West Virginia, 1931,
as amended, be amended and reenacted by adding thereto a new
article, designated §29-9-1, §29-9-2, §29-9-3, §29-9-4, §29-9-5,
§29-9-6, §29-9-7, §29-9-8, §29-9-9, §29-9-10, §29-9-11, §29-9-12,
§29-9-13, §29-9-14, §29-9-15, §29-9-16, §29-9-17, §29-9-18,
§29-9-19, §29-9-20, §29-9-21, §29-9-22, §29-9-23, §29-9-24,
§29-9-25, §29-9-26, §29-9-27 and §29-9-28, all to read as follows:
ARTICLE 9. WEST VIRGINIA PUBLIC SCHOOL EMPLOYMENT RELATIONS ACT.
§29-9-1. Legislative purpose.
The Legislature of the State of West Virginia declares that it
is the public policy of this state and the purpose of the
Legislature in the enactment of this article to promote orderly and
constructive employment relations between public school employers
and their employees; to increase the efficiency of state and local
government throughout the state; and to ensure the health and
safety of the citizens of this state. The Legislature has
determined that these policies and purposes may best be
accomplished by:
(a) Granting to public school employees the right to associate
with others in organizing and choosing representatives for the
purpose of collective bargaining;
(b) 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
(c) Encouraging labor peace through the establishment of
standards and procedures which protect the rights of the public
school employer, the public school employee and the citizens of
this state.
§29-9-2. Short title.
This article shall be known and may be cited as the "Public
School Employment Relations Act."
§29-9-3. Definitions.
The following words 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
binding upon the parties for resolving a dispute between public
school employees and public school employers.
(c) "Grievance arbitration" means arbitration of disputes
arising over the interpretation or application of a collective
bargaining agreement.
(d) "Interest arbitration" means arbitration of disputes
arising during the course of contract negotiations resulting in incorporation of the arbitrator's decision into the collective
bargaining agreement.
(e) "Board" means the Public School Employment Relations Board
created pursuant to section four of this article.
(f) "Certification" means official recognition by the Public
School Employment Relations Board that the employee organization is
the exclusive representative for all the employees in an
appropriate bargaining unit for the purpose of collective
bargaining.
(g) "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. However, neither
party may be compelled to agree to a proposal put forth by the
other party.
(h) "Confidential employee" means an employee, who in the
regular course of his or her duties, acts in a confidential
capacity to persons who formulate, determine and effectuate
management policies with regard to labor relations. For example,
the personal secretary to a managerial employee is a confidential
employee.
(i) "Employee" or "public school employee" means any person, other than elected officials, employed by a public school employer.
(j) "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 conditions of
employment of public school employees.
(k) "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.
(l) "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.
(m) "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.
(n) "Public school employer" means county boards of education,
multicounty vocational centers, public institutions of higher
education and the State Board of Education.
(o) "Supervisory employee" means an employee who devotes a substantial amount of work time to supervisory duties, who
customarily and regularly directs the work of two or more other
employees and who has the authority in the interest of the employer
to hire, promote, discipline, or evaluate other employees or to
recommend such actions effectively but does not include individuals
who perform merely routine, incidental or clerical duties or who
occasionally assume supervisory or directory roles or whose duties
are substantially similar to those of their subordinates and does
not include lead employees, mentor teacher, or employees who
participate in peer review or occasional employee evaluation
programs.
§29-9-4. West Virginia Public School Employment Relations Board
created.
There is created a state agency to be known as the West
Virginia Public School Employment Relations Board.
§29-9-5. Composition of board; terms of members; qualifications of
members.
The board consists of three members, one represents the public
school employers, one represents the public school employees and
one represents the general public. All members must be citizens of
the state, and appointed by the Governor with the advice and
consent of the Senate. The terms of the members are 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 board members who will represent public
school employers and public school employees.
No person may at the same time serve as a member of the board
and be a holder of any public office or public employment under the
federal or state or any of their political subdivisions, or an
appointee or employee of the board. No more than two members of
the board may be members of the same political party.
§29-9-6. Original term of members; vacancies; eligibility for
reappointment; oath of office; removal from office.
The Governor shall appoint the three members of the board as
soon as practicable after the effective date of this article. The
original terms of office of members begin on July 1, 2010.
The Governor shall appoint a member 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 serves for the
unexpired term of the vacating member.
All members of the board appointed by the Governor are
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 is 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 the oath
of office prescribed by section five, article four of the State
Constitution.
No member of the board appointed by the Governor may be
removed from office by the Governor except for official misconduct,
incompetence, neglect of duty or gross immorality, and only in the
manner prescribed by law for the removal of state elective
officers.
§29-9-7. Meetings; quorum; per diem and expenses of members.
The board shall hold at least six meetings in every fiscal
year beginning July 1 and ending the following June 30. One
meeting, known as the annual meeting, shall be held in July 2010,
or as soon after that as practicable, and in June of each
subsequent year. The five additional required meetings in each
fiscal year, shall be held on dates and at places as the board may
prescribe. In addition to the statutorily required meetings, the
board may, upon its own resolution or at the call of the
chairperson of the board meet at other times.
The three members of the board, consisting of the chairperson,
a member representative of the public school employers, and a
member representative of the public school employees, is 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, has the same powers and duties as the regular
member and must meet the same requirements for selection.
The members of the board shall be paid $200 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 2010, or as soon after
that as practicable, and annually after that, the board shall elect
a chairperson and other officers from its membership as the board
finds necessary. The chairperson and officers serve for a one-year
term commencing on July 1, following the annual meeting and ending
on June 30 the following year.
The board may employ an executive officer and such
professional, administrative, clerical and other employees,
including, but not limited to, mediators and hearing officers, as
may be necessary to assist the board in the performance of its
duties and responsibilities. The board shall prescribe the duties and fix the compensation of board employees in accordance with
applicable law. Employees of the board serve under the direction
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. Powers and duties of the board.
(a) The board has authority from time to time to make, amend
and rescind rules as may be necessary to carry out 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
article three, chapter twenty-nine-a of this code apply to the
board.
(b) The board shall hold hearings and make inquiries necessary
to carry out its duties and may conduct studies pertaining to
employee-employer relation problems, 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 duties.
(c) The board may issue subpoenas requiring, upon reasonable
notice, the attendance and testimony of witnesses and the
production of any evidence, including books, records,
correspondence or documents relating to any matter at issue. The
board may prescribe the form of the subpoena, but it shall adhere insofar as practicable to the form used in civil actions in the
circuit court. The board may administer oaths and affirmations,
examine witnesses and receive evidence.
(d) The board may hire personnel or contract with third
parties as necessary to assist it in carrying out its duties.
(e) The board has the power to enforce this article through
its imposition of appropriate administrative remedies.
(f) Any party aggrieved by any decision or order of the board,
may, within ten days from the date of the decision or order, apply
for judicial review in the circuit court in the county the board
maintains its principal office.
§29-9-10. Employee rights.
(a) Public school employees have the right to organize, form,
join or assist in employee organizations and engage in concerted
activities for collective bargaining or other mutual aid and
protection, and to bargain collectively through representatives of
their own without interference, restraint or coercion. Employees
also have the right to refrain from these activities, except to the
extent that these rights may be effected by agreements between the
public school employer and a labor organization which is the
exclusive bargaining representative requiring, as a condition of
employment, the payment of a service fee in lieu of, and in an
amount not greater than, dues which are payable by members of the
labor organization, to cover such costs as collective bargaining and contract administration as provided in section twenty-two.
(b) Nothing in this article prevents an employee from
presenting a grievance to the employer and having the grievance
heard and settled without the intervention of an employee
organization, although the exclusive bargaining representative is
afforded the opportunity to be present and to present its views on
the matter. However, any settlement made may not be inconsistent
with the agreement in effect between the employer and the exclusive
bargaining representative.
§29-9-11. Representatives and elections.
(a) When a majority of the public school employees in an
appropriate bargaining unit select a representative for the purpose
of bargaining collectively, the representative is the exclusive
collective bargaining representative of all the employees in the
unit. Where exclusive recognition has previously been granted or
where prior to January 1, 2010, a signed agreement is in effect,
the board may not alter the agreement nor the appropriate unit
previously agreed to. The employer must continue to recognize and
bargain with the exclusive representative of the bargaining units
that existed prior to the first day of January 1, 2010, and the
exclusive representative of the bargaining units and employees in
the bargaining units are accorded the full rights under this
article.
(b) Employee organizations recognized by a public school employer as the exclusive representative or so designated in
accordance with this article are responsible for representing the
interests of all public school employees in the bargaining unit.
Nothing in this article limits an exclusive representative's right
to exercise its discretion to refuse to process grievances of
employees that are not meritorious or for other proper reason.
§29-9-12. Unit determination.
(a) Upon the receipt of a petition for representation filed
pursuant to section thirteen, the board shall determine the
appropriate bargaining unit for collective bargaining. In
determining the appropriate bargaining unit, the board shall
consider:
(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
employer;
(4) The history of collective bargaining;
(5) The desires of employees; and
(6) The requirements of section ten, article three, and
section one, article twelve of the State Constitution, although
nothing in this article prohibits the board from recognizing
multiunit bargaining. In addition, nothing in this article prohibits coalition bargaining under which a coalition of public
school employers or a coalition of employee organizations engage in
collective bargaining.
(b) The board may not decide that any unit is appropriate if
the unit includes both professional and nonprofessional employees,
unless members of a majority of each group of employees votes for
inclusion in the combined unit.
(c) The board 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.
§29-9-13. Representation election; procedures.
(a) Whenever an employee or group of employees or any
individual or employee organization acting on behalf of an employee
or group of employees files a petition with the board containing
the signatures of thirty percent of the employees in a unit to be
represented for collective bargaining by a designated
representative, the board shall either order an election to be held
by secret ballot and certify the results, or it may at its
discretion, investigate, including holding a hearing, to determine
the validity of the petition before determining whether or not an
order should be issued. However, once the board determines the
employee signatures are valid, the determination may not be challenged by the employer. Employee signatures shall remain
confidential at all times.
(b) Representation elections shall be supervised by the board
and conducted by secret ballot at times and places selected by the
board, subject to the following:
(1) Within seven days after the board issues its order
determining the appropriate bargaining unit and directing that an
election be conducted, the public school employer shall submit to
the employee organization or organizations whose name 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, rules
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. An employee
organization may 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 allow 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 only the
two choices or parties receiving the highest number of ballots cast
in the previous election.
(8) The board shall direct an election not later than one
hundred twenty days after the date the petition was filed. However,
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. However, nothing in this section prohibits the board, in its
discretion, 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. The unfair
labor practice charges shall be addressed by the board in an
expedited manner. It is the purpose of this section to ensure a
prompt and fair representation election.
(9) Mail ballots are not favored, except, the board may permit
mail ballots when employees would otherwise not reasonably be able
to cast a ballot or for other reasonable cause. The board has the
final determination on any controversy concerning the eligibility
of an employee vote.
(10) The board shall certify the results of an election within
five working days after the final tally of votes if the employee
organization received a majority of the valid ballots cast in an
election conducted pursuant to this section.
(c) No election may 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 may be directed by the board in any bargaining
unit where there is in force a valid collective bargaining
agreement. The board, however, may process an election petition filed between one hundred twenty and ninty days prior to the
expiration of the date of an agreement. Pursuant to this section,
extensions of agreements do not affect the expiration date of the
original agreement.
(e) Nothing in this section prohibits waiving 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 waiver 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 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.
§29-9-14. Duty to bargain; scope of bargaining.
A public school employer and the exclusive representative have
the duty to bargain collectively pursuant to this section.
(a) The duty to bargain includes an obligation to negotiate
over any matter with respect to wages, hours, 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 matters agreed to by
the parties. Under the duty to bargain collectively, the employer
and the exclusive representative shall meet at reasonable times
including meeting in advance of the budget-making process, and to
negotiate in good faith.
(b) Public school employers may not be required to bargain
over matters of inherent managerial policy, which include the
following:
(1) The establishment of functions and programs of the public
school employer;
(2) Standards for services provided by the public school
employer;
(3) Organizational structure of the public school employer;
and
(4) The preparation and administration of the public school
employer's budget. However, the impact of the exercise of these
management rights on public school employees is a proper subject of
collective bargaining.
§29-9-15. Impasses; mediation.
If the parties reach an impasse over wages, hours, working
conditions or other conditions of employment, either party may
promptly notify the board in writing of the impasse. The board
shall assist in the resolution of this impasse by promptly selecting an impartial person experienced in labor relations
disputes to serve as a mediator. The mediator shall meet
immediately with parties or their representatives, either jointly
or separately, and shall take other appropriate steps in order to
encourage the parties to reach a mutually acceptable agreement.
The mediator has the power to control the agenda and issue
subpoenas requiring the attendance of parties. All expenses of
mediation shall be paid by the board.
§29-9-16. Impasses; arbitration.
(a) If the mediator is unable to effect settlement of the
impasse within twenty days from the first day of mediation in
accordance with the preceding section, either party may, by written
certification to the other party and to the board, submit the
remaining impasse issues to binding interest arbitration.
(b) Unless the parties have mutually agreed to retain the
mediator as arbitrator, or have agreed upon another individual, the
board shall submit five names of potential arbitrators to the
parties. Each party shall alternately strike a name until one
arbitrator remains. The names of potential arbitrators shall be
submitted by the board from lists provided by the American
Arbitration Association or the Federal Mediation and Conciliation
Service.
(c) Each party shall submit a final offer on each separate
item remaining at impasse to the arbitrator and the other party. The arbitrator, following 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.
However, 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, within ten days of appointment, meet
with the parties or their representatives, either jointly or
separately, and shall investigate and hold hearings, and take other
appropriate steps in accordance with procedures prescribed by the
board.
The arbitrator has the power to issue subpoenas requiring the
attendance and testimony of the parties, their representatives and
other relevant witnesses and the production of any evidence deemed
appropriate by the arbitrator in conducting hearings,
investigations or inquiries.
(e) In reaching a decision regarding resolution of the
impasses issues, the arbitrator shall take into consideration the
following factors:
(1) Comparison of the wages, hours and terms and conditions of
employment of the employees involved in the arbitration proceeding
with the wages, hours and 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 the hazards of employment; physical
qualifications; educational qualifications; job training and
skills.
(5) Previous collective bargaining agreements negotiated
between the parties, or of other previously existing arrangements
providing for compensation and fringe benefits and other matters,
including, but not limited to, 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 paid 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.
The agreed upon impasse procedures may be used by the parties.
§29-9-17. Written agreements; appropriations.
(a) Any collective bargaining agreement between the employer
and the exclusive representative shall be in writing and subject to
appropriate ratification by both parties. The agreement shall be
fully executed by the parties and is effective upon ratification.
(b) An agreement between a public school employer and an
exclusive representative pursuant to this article, governs the
wages, hours and terms and conditions of public school employment.
The agreement shall prevail in a conflict between the collective
bargaining agreement and any rules or regulations implemented by a
public school employer or its representative.
(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 does not
automatically stay the order of the arbitration panel.
§29-9-18. Strikes prohibited.
Strikes by public school employees are prohibited at any time.
§29-9-19. Remedies for prohibited strikes.
If a strike of public school employees occurs which is
prohibited under 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 relief.
§29-9-20. Prohibited practices.
(a) It is a prohibited practice for a public school employer
or its designated representative to:
(1) Interfere with any employee in the exercise of any right
guaranteed under this article;
(2) Interfere or assist in the formation, existence or
administration of any employee organization, or 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) Discriminate against an employee because he or she has
signed or filed an affidavit, petition or complaint or given any
information under this article, or because he or she has formed,
joined or chosen to be represented by any employee organization, or because of participation in a safety or health walkout;
(5) Refuse to bargain collectively in good faith with the
exclusive representative as required in section fourteen of this
article;
(6) Refuse to participate in good faith in the mediation and
arbitration procedures set forth in sections fifteen and sixteen of
this article;
(7) Unilaterally change wages, hours or other terms and
conditions of employment;
(8) Refuse or fail to comply with any provision of this
article; or
(9) Refuse to supply to any interested party budgetary
information regarding the receipts and disbursements of any public
body or refuse to supply any other information necessary to the
preparation and conduct of negotiations or the processing of
grievances.
(b) It is prohibited practice for a public school employee
organization or its designated agent to refuse or fail to comply
with this article, including 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; or
(2) Refuse to participate in good faith in the mediation and
arbitration procedures set forth in sections fifteen and sixteen of this article.
§29-9-21. Prohibited practices; hearings and remedies.
(a) A public school employer, public school employee, or
exclusive representative may file a written complaint with the
board. The complaint shall state that a prohibited practice as
defined in section twenty of this article has been committed and
that relief from the prohibited practice is requested. The
complaint shall be filed within six months of the alleged
prohibited practice. Upon receipt of a written complaint the board
or its agent shall:
(1) Cause to be served, upon the person or entity alleged to
have committed the prohibited practice, a copy of the complaint.
(2) Investigate the complaint to determine if a hearing on the
prohibited practice allegation is warranted. If the investigation
reveals that no issue of law or fact exists, the board may either
grant the relief or dismiss the complaint. However, a party shall
be given the opportunity to voluntarily withdraw a complaint prior
to a dismissal.
(3) If the investigation reveals an issue of fact or law
exists, a board hearing on the matter shall be held within twenty
days after the charged party received notice of the complaint.
(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) Serve 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 any defense was made frivolously or in bad
faith; and
(5) Take all necessary action, including, but not limited to,
the reinstatement of employees with pay, as considered fair and
equitable in accordance with this article.
(d) Where the board finds that the person or entity charged in the complaint has not engaged or is not engaging in a prohibited
practice the board shall issue an order dismissing the complaint
and may award representation costs to the prevailing party if it is
concluded that the complaint was made frivolously or in bad faith.
The decision of the board is final upon the parties and is
enforceable in circuit court by any of them. In addition, the
board may petition the circuit court in the county in which the
principal offices of the board are located to enforce its orders
and to grant other appropriate relief including, but not limited
to, injunctive and other equitable relief.
§29-9-22. Payroll deductions.
(a) Payroll deduction of dues and fair share fees shall be a
mandatory subject of bargaining. The employer, upon receiving from
the exclusive representative a written statement which certifies
the amount of initiation fees and monthly dues and in accord with
the negotiated agreement, shall deduct the fees and monthly dues
from the wages due to the employees from the employer. The
deductions, in accordance with the applicable law, 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 employment.
(b) A collective bargaining agreement may require 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. In addition, the exclusive
representative shall, as a condition of receiving such fair share
fee, establish and implement, if due, a rebate procedure for
nonmembers, issue a sufficient fair share fee notice to nonmembers,
establish a challenge procedure for objecting nonmembers which
includes a prompt resolution by a neutral third party and otherwise
conform to existing law. Nonmembers may not be charged for any
political or ideological activities of an employee organization.
§29-9-23. Public records and proceedings.
The complaints, orders and testimony relating to a proceeding
instituted by the Public School Employment Relations Board are
public records and shall be made available for inspection or
copying. However, meetings of the public school employer and
employee organization held for the purpose of engaging in
collective bargaining are not open to the public and the parties by
mutual agreement may declare the meetings closed to all
individuals, except the representatives of the parties or other
individuals specifically approved by the parties.
§29-9-24. List of employee organizations and exclusive
representatives.
The Public Employment Relations Board shall maintain a list of
employee organizations. To be recognized and included in the list,
an organization must file a written statement with the board setting forth its name, the name and address of its secretary or
other officer to whom notices may be sent, the date of its
organization and its affiliation, if any, with other organizations.
No other qualifications for inclusion on the list may be required,
but every employee organization shall notify the board promptly of
any change of name or of the name and address of its affiliates.
The list shall clearly indicate which organizations are
exclusive representatives of appropriate bargaining units, the
effective date of their certification, and the effective date and
expiration date of any agreement reached between a public school
employer and the exclusive representative. Copies of the list
shall be made available to interested parties upon request.
§29-9-25. Article takes precedence; when.
(a) In case of conflict between this article and any other
law, executive order or administrative rule, this article controls.
All existing rules adopted by the employer which are not contrary
to this article, remain applicable. Nothing contained in this
article or in any agreement reached pursuant to this article may
deny any rights, privileges or benefits granted by law to public
school employees. In case of a conflict between any agreement and
chapters eighteen-a and eighteen-b of this code, the code prevails.
The issues provided in chapters eighteen-a and eighteen-b of this
code may be the subject of bargaining only to the extent that the
rights, benefits or protections granted to employees in those chapters may be enhanced by agreement of the parties.
(b) Except as otherwise expressly provided in this article,
nothing in this article annually modifies or precludes the renewal
or continuation of any lawful agreement entered into prior to the
effective date of this article between a public school employer and
an employee organization covering wages, hours, terms and
conditions of employment.
§29-9-26. Article inoperative; when.
If this article prevents the receipt by the state or any
county of any federal grant-in-aid or other federal allotment of
money, this article, insofar as the fund is jeopardized, is
inoperative.
§29-9-27. Liberal construction.
This article shall be construed liberally for the purpose of
promoting orderly and constructive relationships between all public
school employees and their employers and for the promotion of the
rights of public school employees to organize and otherwise engage
in activities for their mutual aid and protection.
§29-9-28. Severability.
This article is declared to be severable. Should any of the
provisions of sections one through twenty-seven of this article be
declared unconstitutional or in conflict with some other provision
of law, the remaining provisions of this article continue to be the
law of the state in regard to public school employment relations.
NOTE: The purpose of this bill is to create an orderly process
for collective bargaining between public school employers and
public school employees.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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