SENATE BILL 5738
State of Washington 52nd Legislature 1991 Regular Session
By Senators Anderson and Nelson.
Read first time February 19, 1991. Referred to Committee on Education.
AN ACT Relating to mandatory arbitration for educational employees; amending RCW 41.59.010 and 41.59.120; and adding new sections to chapter 41.59 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 41.59.010 and 1975 1st ex.s. c 288 s 2 are each amended to read as follows:
It is the purpose of this chapter to prescribe certain rights and obligations of the educational employees of the school districts of the state of Washington, and to establish procedures governing the relationship between such employees and their employers which are designed to meet the special requirements and needs of public employment in education.
It is further the intent of this chapter to recognize that education is one of the paramount duties of the state and that the uninterrupted and dedicated service of educational employees is vital to the welfare and well‑being of the citizens of the state of Washington. To promote the dedicated and uninterrupted public service, an effective and adequate means of settling disputes is provided.
Sec. 2. RCW 41.59.120 and 1975 1st ex.s. c 288 s 13 are each amended to read as follows:
between an employer and an exclusive bargaining representative shall begin not
later than May 1st of any year in which the contract will expire. If no
agreement has been reached before June 15th of the year in which a contract
will expire, either an employer or an exclusive bargaining representative
may declare that an impasse has been reached between them in collective
bargaining and may request the commission to appoint a mediator for the purpose
of assisting them in reconciling their differences and resolving the
controversy on terms which are mutually acceptable. ((
If the commission
determines that its assistance is needed,)) Not later than five days
after the receipt of a request therefor, (( it)) the commission
shall appoint a mediator in accordance with rules and regulations for such
appointment prescribed by the commission. The mediator shall meet with the
parties or their representatives, or both, forthwith, either jointly or
separately, and shall take such other steps as he may deem appropriate in order
to persuade the parties to resolve their differences and effect a mutually
acceptable agreement. The mediator, without the consent of both parties, shall
not make findings of fact or recommend terms of settlement. The services of
the mediator, including, if any, per diem expenses, shall be provided by the
commission without cost to the parties. Nothing in this subsection (1) shall
be construed to prevent the parties from mutually agreeing upon their own
mediation procedure, and in the event of such agreement, the commission shall
not appoint its own mediator unless failure to do so would be inconsistent with
the effectuation of the purposes and policy of this chapter. Mediation
procedures shall be completed before July 15th of the year in which the
contract will expire.
(2) If the mediator is unable to effect settlement of the controversy within ten days after his or her appointment, either party, by written notification to the other, may request that their differences be submitted to fact‑finding with recommendations, except that the time for mediation may be extended by mutual agreement between the parties but shall not be extended later than July 15th of the year in which the contract is to expire. Within five days after receipt of the aforesaid written request for fact‑finding, the parties shall select a person to serve as fact‑finder and obtain a commitment from that person to serve. If they are unable to agree upon a fact‑finder or to obtain such a commitment within that time, either party may request the commission to designate a fact‑finder. The commission, within five days after receipt of such request, shall designate a fact‑finder in accordance with rules and regulations for such designation prescribed by the commission. The fact‑finder so designated shall not be the same person who was appointed mediator pursuant to subsection (1) of this section without the consent of both parties.
The fact‑finder, within five days after his appointment, shall meet with the parties or their representatives, or both, either jointly or separately, and make inquiries and investigations, hold hearings, and take such other steps as he may deem appropriate. For the purpose of such hearings, investigations and inquiries, the fact‑ finder shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. If the dispute is not settled within ten days after his appointment, the fact‑finder shall make findings of fact and recommend terms of settlement within thirty days after his appointment, which recommendations shall be advisory only.
(3) Such recommendations, together with the findings of fact, shall be submitted in writing to the parties and the commission privately before they are made public. Either the commission, the fact‑finder, the employer, or the exclusive bargaining representative may make such findings and recommendations public if the dispute is not settled within five days after their receipt from the fact‑finder.
(4) The costs for the services of the fact‑finder, including, if any, per diem expenses and actual and necessary travel and subsistence expenses, and any other incurred costs, shall be borne by the commission without cost to the parties.
(5) Nothing in this section shall be construed to prohibit an employer and an exclusive bargaining representative from agreeing to substitute, at their own expense, their own procedure for resolving impasses in collective bargaining for that provided in this section or from agreeing to utilize for the purposes of this section any other governmental or other agency or person in lieu of the commission.
(6) Any fact‑finder designated by an employer and an exclusive representative or the commission for the purposes of this section shall be deemed an agent of the state.
(7) Any fact‑finding procedures under this section shall be completed by July 15th of the year in which the contract will expire.
NEW SECTION. Sec. 3. (1) If an agreement has not been reached following a reasonable period of negotiations and mediation but in no event later than July 15th of the year in which the contract expires, and the executive director of the commission, upon the recommendation of the assigned mediator, finds that the parties remain at impasse, then an interest arbitration panel shall be created under subsection (3) of this section to resolve the dispute. However, if both parties to the dispute, through a written agreement, agree to continue to work under terms that are mutually agreed upon until a new contract is signed, the provisions of this section may be waived.
(2) The issues for determination by the arbitration panel shall be limited to the issues certified by the executive director.
(3) Within five days following the issuance of the determination of the executive director, each party shall name one person to serve as its arbitrator on the interest arbitration panel. The two members so appointed shall meet within five days following the appointment of the later appointed member to attempt to choose a third member to act as the neutral chair of the interest arbitration panel. Upon the failure of the arbitrators to select a neutral chair within five days, the two appointed members shall use one of the two following options in the appointment of the third member, who shall act as chair of the panel:
(a) By mutual consent, the two appointed members may jointly request the commission, and the commission shall appoint a third member within two days of such request; or
(b) Either party may apply to the commission, the federal mediation and conciliation service, or the American arbitration association to provide a list of five qualified arbitrators from which the neutral chair shall be chosen by the parties. Each party shall pay the fees and expenses of its arbitrator. The fees and expenses of the neutral chair shall be shared equally between the parties. Other costs of the arbitration proceedings shall be borne by the commission.
(4) The interest arbitration panel shall promptly establish a date, time, and place for a hearing and shall provide reasonable notice thereof to the parties to the dispute.
(5) An informal hearing shall be held. Each party shall have the opportunity to present evidence and make argument. No member of the interest arbitration panel may present the case for a party to the proceedings. The rules of evidence prevailing in judicial proceedings may be considered, but are not binding. Any oral testimony or documentary evidence or other data deemed relevant by the chair of the interest arbitration panel may be received in evidence.
(6) The proceedings shall be recorded.
(7) The interest arbitration panel has the power to administer oaths, require the attendance of witnesses, and require the production of such books, papers, contracts, agreements, and documents as may be deemed by the panel to be material to a just determination of the issues in dispute. If any person refuses to obey a subpoena issued by the interest arbitration panel, or refuses to be sworn or to make an affirmation to testify, or any witness, party, or attorney for a party is guilty of any contempt while in attendance at any hearing held under this section, the interest arbitration panel may invoke the jurisdiction of the superior court in the county where the labor dispute exists, and the court has jurisdiction to issue an appropriate order. Any failure to obey the order may be punished by the court as contempt.
(8) The hearing conducted by the interest arbitration panel shall be concluded within twenty days following the selection or designation of the neutral chair of the arbitration panel.
(9) The neutral chair shall consult with the other members of the interest arbitration panel, and, within twenty days following the conclusion of the hearing, the neutral chair shall make written findings of fact and a written determination of the issues in dispute, based on the evidence presented. In making the written findings of fact and a written determination of the issues in dispute, the neutral chair may consider but shall not be bound by any offers made by the parties to the dispute.
(10) A copy shall be served on the commission, on each of the other members of the interest arbitration panel, and on each of the parties to the dispute.
(11) The determination shall be final and binding upon both parties, subject to review of the record by the superior court upon the application of either party within thirty days solely upon the question of whether the decision of the interest arbitration panel was arbitrary or capricious.
NEW SECTION. Sec. 4. An interest arbitration panel created pursuant to section 3 of this act, in the performance of its duties under this chapter, exercises a state function and is, for the purposes of this chapter, a state agency. Chapter 34.05 RCW does not apply to proceedings before an interest arbitration panel under this chapter.
NEW SECTION. Sec. 5. In making its determination, the interest arbitration panel shall be mindful of the legislative purpose enumerated in RCW 41.59.010 and as additional standards or guidelines to aid it in reaching a decision, it shall take into consideration the following factors:
(1) The constitutional and statutory authority of the employer;
(2) Stipulations of the parties;
(3) Negotiations between the parties before arbitration;
(4) The public interest and the financial capability of the school district;
(5) The interests and welfare of the employee group;
(6) Changes in the cost of living;
(7) The existing conditions of employment of the employee group and those of similar groups;
(8) The salaries, fringe benefits, and other conditions of employment prevailing in the state labor market; and
(9) Such other factors that are normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment.
NEW SECTION. Sec. 6. During the pendency of the proceedings before the interest arbitration panel, existing wages, hours, and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his or her rights or position under this chapter.
NEW SECTION. Sec. 7. If the representative of either or both the educational employee and the employer refuse to submit to the procedures set forth in RCW 41.59.120 and section 3 of this act, the parties, or the commission on its own motion, may invoke the jurisdiction of the superior court for the county in which the labor dispute exists and such court shall have jurisdiction to issue an appropriate order. A failure to obey such order may be punished by the court as contempt of court. A decision of the interest arbitration panel shall be final and binding on the parties, and may be enforced at the instance of either party, the interest arbitration panel, or the commission in the superior court for the county where the dispute arose.
NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.