1287-S

AN ACT Relating to agricultural labor relations; adding a new chapter to Title 49 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly indicates otherwise, the definitions in this section apply throughout this chapter.

(1) "Agriculture" includes farming in all its branches, and among other things, includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, including commodities defined as agricultural commodities in 12 U.S.C. Sec. 1141j(g) in effect on the effective date of this act, the raising of livestock, bees, furbearing animals, or poultry, and any practices, including any forestry or lumbering operations, performed by a farmer or on a farm as an incident to or in conjunction with the farming operations, including preparation for market and delivery to storage or to market or to carriers for transportation to market.

(2) "Board" means the state agricultural relations board created in section 4 of this act.

(3) "Collective bargaining" means the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising under the agreement, and the execution of a written contract incorporating any agreement reached if requested by either party, but the obligation does not compel either party to agree to a proposal or require the making of a concession unless otherwise provided in this chapter.

(4) "Employee" means one engaged in agriculture and includes any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice. However, "employee" does not include any person covered by the national labor relations act, individuals employed in the domestic service of a family or person at his or her home, any individual having the status as an independent contractor, or supervisors, unless included within a separate bargaining unit under this chapter.

(5) "Employee organization" means any organization, union, association, agency, committee, council, or group of any kind in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment.

(6) "Employer" must be liberally construed to include any person acting directly or indirectly in the interest of an employer in relation to an agricultural employee, any individual grower, corporate grower, cooperative grower, harvesting association, hiring association, land management group, any association of persons or cooperatives engaged in agriculture, and includes any person who owns or leases or manages land used for agricultural purposes, but does not include any person supplying agricultural workers to an employer, any farm labor contractor, and any person functioning in the capacity of a labor contractor. The employer engaging such a labor contractor or person is the employer for purposes of this chapter.

(7) "Labor dispute" means any controversy concerning terms, tenure, or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(8) "Person" means one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, employers, or any other legal entity.

(9) "Supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such an action, if the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment.

(10) "Unfair labor practice" means any of the enumerated practices set forth in section 6 of this act.

NEW SECTION. Sec. 2. Employees have the right to self-organization, to form, join, or assist employee organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except that employees may be required to pay a fee for an exclusive bargaining representative under a union security provision authorized under this chapter.

NEW SECTION. Sec. 3. (1) Representatives designated or selected for the purposes of collective bargaining, by a majority of the employees by secret ballot in a unit appropriate for these purposes shall be certified as the exclusive bargaining representative for all the employees in the unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. However, an individual employee or group of employees has the right at any time to present grievances to their employer and to have the grievances adjusted without the intervention of the certified bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining agreement then in effect, and as long as the certified bargaining representative has been given the opportunity to be present at the adjustment.

(2) The board shall determine, after hearing upon reasonable notice, to assure the employees the fullest freedom in exercising their rights contained in this chapter, the unit appropriate for the purposes of collective bargaining in each petition for certification. In determining, modifying, or combining any bargaining unit, the board shall consider the duties, skills, and working conditions of the employees, the extent of organization of the employees, and the desire of the employees. In order to carry out the duties set forth in this subsection and at the same time recognize the need for prompt determinations from the board, the board shall make its determination within seven days from receipt of the petition for certification.

Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed under this subsection were incorrect, or that the board improperly determined the bargaining unit, or raising objections to the conduct of the election or conduct affecting the results of the election.

(3) Employers shall maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall release the lists to any requesting employee organization upon reasonable notice of intent to organize the employers' employees. The employer shall make the list available to the board upon request. If the employer does not furnish a full and accurate list to the board within a reasonable time prior to an election, the board may proceed to determine eligibility on the basis of such other evidence as is available to the board at that time. The board shall adopt rules for the implementation of this subsection and set forth, among other things, appropriate timetables and procedural guidelines consistent with this chapter.

(4) If a petition is filed, in accordance with such rules as may be adopted by the board:

(a) By an employee, or group of employees, any individual, or employee organization acting in their behalf, alleging that a substantial number of employees wish to be represented for collective bargaining; and

(b) No valid election under this section has been held among the employees of the employer named in the petition within the twelve months immediately preceding the filing of the petition,

the board shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall direct that a representation election, by secret ballot, be held upon due notice to all interested parties.

(5) The board shall, consistent with this section, adopt rules to provide for elections to occur as soon as reasonably possible from the date a petition is filed in accordance with subsection (4) of this section.

(6) Upon the filing of a representation petition by an employee organization under this section, the employee organization may meet with the employees of the bargaining unit determined by the board, upon twenty-four hours notice not later than twenty-four hours before the election, at the workplace of the employee for one-half hour during the workday during nonworking hours, or immediately after the conclusion of the workday for one-half hour. Notice must be posted by the employer immediately upon receipt from the employee organization in three different locations that are conspicuous and most likely to be viewed by the greatest number of employees.

(7) All employees of the unit, determined by the board under this section, are eligible to vote, except those employees hired to replace striking or locked-out employees. Employees engaged in an economic strike are eligible to vote under such rules as the board finds are consistent with the purposes and provisions of this chapter, in any election conducted within twelve months after the commencement of the strike. Employees terminated due to employer unfair labor practices remain eligible to vote.

(8) Any other employee organization, not already on the ballot, is qualified to appear on the ballot if it presents authorization cards signed by at least fifteen percent of the employees in a bargaining unit within a reasonable time, set forth by the board, before the election.

(9) In any election in which none of the choices receives a majority, a run-off must be conducted, the ballot providing for a selection between all the choices other than that which received the least number of votes cast in the election. For purposes of this section, all initial ballots must contain the choice of no employee organization representation, available to all voting employees.

(10) Nothing in this section may be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with the rules and decisions of the board.

(11) An employee organization qualified to participate in an election may file with the board any symbol or trademark it wishes to appear on the ballot used by the board. The ballots of the board must then contain the symbols or trademarks of the employee organization qualified to appear on the ballot. On request by a qualified employee organization, for an election the board shall make available within a reasonable time period before the election, as determined by the board, ballots printed in English and Spanish, or any other language used by employees voting in the election.

(12) A question concerning representation may not be raised within one year following issuance of a certification under this section.

(13) If there is a valid collective bargaining agreement in effect, a question concerning representation, including, but not limited to petitions for decertification, may not be raised during the period not more than ninety, nor less than sixty days prior to the expiration date of the agreement and must be raised in a petition signed by at least thirty percent of the employees.

NEW SECTION. Sec. 4. (1) There is created the state agricultural labor relations board to administer this chapter. The board shall consist of three members appointed by the governor. The first member shall be a representative of the public and shall be the chair of the board. The members shall be appointed from a list of not less than six persons mutually agreed upon submitted by the employee and employer organizations described in this subsection. The employer organization shall be a recognized state-wide employer organization, representing a majority of employers. The employee organization shall be a farm labor employee organization registered as a labor organization with the United States department of labor, state-wide in scope, whose membership represents a majority of the organized agricultural workers of the state. One original member shall be appointed for a term of six years, another original member for a term of two years, and the remaining original member for a term of four years, respectively. Their successors shall be appointed for terms of six years each, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he or she succeeds. Board members are eligible for reappointment and shall hold office until the successor is appointed. A member of the board may be removed by the governor, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.

For the purposes of this subsection, the list submitted for the original first member must be submitted no later than sixty days from the effective date of this act. For all successors of the first member, the list must be submitted no later than thirty days from the termination date of the predecessor. In either case, original or successor, if a list is not submitted within the deadlines in this subsection, the presiding judge of the superior court of Thurston county shall make the appointment, consistent with this chapter, within fifteen days after the deadlines in this subsection.

(2) A vacancy in the board does not impair the right of the remaining members to exercise all of the powers of the board, and two members of the board, at all times, constitute a quorum of the board.

(3) The board shall, at the close of each fiscal year, make a report in writing to the legislature and to the governor stating the cases it has heard, the decisions it has rendered, the names, salaries, and duties of all employees and officers in the employ or under the supervision of the board, and an account of all moneys it has disbursed.

(4) Each member of the board shall be compensated in accordance with RCW 43.03.250. Members of the board, employees of the board, and mediators or arbitrators appointed by the board under this chapter, shall be reimbursed for all expenses, including travel expenses, subject to RCW 43.03.050 and 43.03.060.

(5) The board shall appoint an executive director in the same manner as set forth in RCW 41.58.015. The executive director shall have those duties, authorities, and powers of the executive director of the public employment relations commission as further set forth in RCW 41.58.015 consistent with this chapter.

(6) If necessary to carry out or enforce any action or decision of the board, the executive director may petition a court for an order requiring compliance with the board action or decision.

(7) The board may employ employees, including attorneys, as it finds necessary for the proper performance of its duties, consistent with this chapter.

(8) The payment of all of the expenses of the board, including travel expenses incurred by the members or employees of the board under its orders, is subject to RCW 43.03.050 and 43.03.060.

(9) The board may adopt, in the manner prescribed by the administrative procedure act, chapter 34.05 RCW, rules necessary to carry out this chapter.

(10) The board may, as provided in this chapter, prevent any person from engaging in any unfair labor practice set forth in section 6 of this act. The board shall comply with, use the procedures of, and have the authorities contained in the administrative procedure act, chapter 34.05 RCW. The board may conduct adjudication proceedings to enforce the provisions of this chapter.

(11) If the board determines that any person has engaged in, or is engaging in, any unfair labor practice as defined in section 6 of this act, the board shall cause to be served upon the person an order requiring the person to cease and desist from the unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the purposes and policies of this chapter.

(12) The board may petition the superior court for the county in which the main office of the employer is located, or in which the person who has engaged, or is engaging in, the unfair labor practice resides or transacts business, for the enforcement of its order for appropriate relief or restraining order.

(13) The board shall consider the applicable precedents of the national labor relations board, if the precedents are relevant to particular issues of labor relations in an agricultural context, and if consistent with this chapter.

(14) The board shall, in recognition of the unique nature of the agricultural industry and the need for prompt and speedy determinations, within one year of the effective date of this act, create a procedure whereby decisions rendered as a result of complaints filed under section 6 of this act be completed on an expedited basis and within thirty days of the filing of the complaint. At the end of one year from the effective date of this act, the board shall report to the legislature on the status of the expedited procedure with specific recommendations regarding its implementation.

NEW SECTION. Sec. 5. (1) As it is the policy of the state of Washington, in order to prevent or minimize interruptions of the agricultural economy arising from labor disputes, to assist parties to settle disputes through mediation, the board may appoint any competent, impartial, disinterested person to act as a mediator upon its own initiative or at the request of the parties. If making an appointment for a mediator the board shall be cognizant of the knowledge and experience of the person and endeavor to appoint those with expertise in alternative dispute resolution and labor relations in the state.

(2) Nothing in this section prohibits the parties to a labor dispute from agreeing, independent of the board, and at their own expense, to any mediator or arbitrator to settle any part or all of the dispute.

(3) Upon a finding by the board, under section 6 of this act after a complaint filed by a certified bargaining representative no sooner than one hundred twenty days after certification, if no bargaining agreement has ever been signed by the parties, or no sooner than ninety days after the expiration of a collective bargaining agreement between the parties, that the employer has not bargained in good faith, the board may order that the certification of the certified bargaining representative continues for one year from the date the employer begins to bargain in good faith, the certification to entitle the certified bargaining representative to the protections afforded in section 3 of this act.

NEW SECTION. Sec. 6. (1) It is an unfair labor practice for an employee organization, or its agents:

(a) To restrain, coerce, or interfere with:

(i) Employees in the exercise of the rights guaranteed in this chapter. However, nothing in this chapter impairs the right of an employee organization to prescribe its own rules with respect to the organization or retention of its membership; or

(ii) An employer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances;

(b) To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (2) of this section or to discriminate against an employee with respect to whom membership in the organization has been denied or terminated on some ground other than his or her failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;

(c) To refuse to bargain collectively with an employer, provided it is the certified bargaining representative of the bargaining unit under this chapter;

(d) To threaten, restrain, coerce, or impose any fine or other economic sanction against: (i) Any person who invokes the procedures of the board, or of a court; or (ii) an employer, in the selection of his or her representatives for the purposes of collective bargaining or the adjustment of grievances;

(e) To require of employees covered by an agreement authorized under this chapter, the payment, as a condition precedent to becoming a member of the collective bargaining representatives, of a fee in an amount that the board finds excessive or discriminatory under all of the circumstances. In making the determination the board shall consider, among other relevant factors, the practices and customs of employee organizations in the state and the wages currently paid to the employees affected;

(f) To do either of the following: To engage in, or to induce or encourage an individual employed by any person to engage in, a strike, or a refusal in the course of his or her employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services in a normal and expeditious manner; or to threaten, coerce, or restrain any person, if, in either case, an object is any of the following:

(i) Forcing or requiring an employer or self-employed person to join an employee or employer organization;

(ii) Forcing or requiring a person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with an employee organization as the representative of his or her employees unless such employee organization has been certified as the representative of the employees under section 11 of this act. However, nothing contained in this subsection (1)(f) may be construed to make unlawful, where not otherwise unlawful, a primary strike or primary picketing;

(iii) Forcing or requiring an employer to bargain with a particular employee organization as the representative of employees if another employee organization has been certified as the representative of the employees under section 11 of this act; or

(iv) Forcing or requiring an employer to assign particular work to employees in a particular employee organization or in a particular trade, craft, or class rather than to employees in another employee organization or in another trade, craft, or class, unless the employer is failing to conform to an order or certification of the board determining the bargaining representative for employees performing the work.

Nothing in this subsection (1)(f) may be construed to prohibit publicity, including picketing, for the purposes of truthfully advising the consumers and employees of another employer that a product is produced by an employer with whom the employee organization has a primary labor dispute, whether or not distributed by the primary employer, as long as the object of the publicity is not to request the public to cease patronizing the other employer;

(g) To refuse to bargain with or to refuse to cooperate with or assist an employer regarding compliance with the conditions of an affirmative action program or a program or plan designed to assure compliance by the employer with state or federal laws relating to equal employment opportunity for all persons regardless of race, creed, color, national origin, age, sex, marital status, or physical or mental handicap;

(h) To cause, induce, threaten, or compel another, to strike during the harvest period unless the following occurs:

(i) At least five days before an intended strike, the employee organization files with the board a notice of intent to strike with a copy simultaneously delivered to the employer; and

(ii) The board, after attempting to mediate the labor dispute, during the five-day period, is unsuccessful.

Nothing contained in this subsection (1) may be construed to prohibit any picketing or other publicity for the purposes of truthfully advising the public that an employer does not employ members of, or have a contract with, an employee organization.

(2) It is an unfair labor practice for an employer:

(a) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under this chapter;

(b) To control, dominate, or interfere with the formation or administration of any employee organization or to contribute financial or other support to it. However, subject to rules adopted by the board under this chapter, an employer is not prohibited from permitting employees to confer with him or her during working hours without loss of time or pay;

(c) To discriminate in regard to hiring or tenure of employment or by any term or condition of employment, in order to discourage or encourage membership in any employee organization.

Nothing in this subsection (2)(c) precludes an employer from making an agreement with an employee organization, not established, maintained, or assisted by any action defined in this section or as an unfair labor practice, to require as a condition of employment membership in the organization on or after the seventh day following the beginning of the employment or the effective date of the agreement, whichever is later, so long as the employee organization is the representative of the employees as provided in section 3 of this act in the appropriate collective bargaining unit covered by the agreement.

For purposes of this subsection (2)(c), any union fees which must be paid by an employee as a condition of employment resulting from an agreement between the employer and the employee organization made in compliance with this chapter may be deducted from the employee as a payroll deduction;

(d) To discharge, or otherwise discriminate against an employee because the employee has filed charges or given testimony under this chapter, or has opposed an unfair labor practice as defined in this chapter;

(e) To refuse to bargain collectively with the certified bargaining representatives of its employees; or

(f) To promise, threaten, or take other action:

(i) To hire a permanent replacement for an employee who:

(A) At the commencement of a labor dispute was an employee of the employer in a bargaining unit in which an employee organization was the certified representative; and

(B) In connection with that dispute has engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection through that employee organization; or

(ii) To withhold or deny any other employment right or privilege to an employee, who meets the criteria of (f)(i)(A) and (B) of this subsection and who is working for or has unconditionally offered to return to work for the employer, out of a preference for any other individual that is based on the fact that the individual is performing, who has performed, or has indicated a willingness to perform bargaining unit work for the employer during the labor dispute.

Notwithstanding the provisions set forth in this subsection (2)(f), an employer may hire permanent replacement workers if a strike exists in excess of one year.

NEW SECTION. Sec. 7. Any person who willfully resists, prevents, impedes, or interferes with members of the board or its agents in the performance of duties under this chapter is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW.

NEW SECTION. Sec. 8. Nothing in this chapter, except as specifically provided, may be construed to interfere with or impede, or diminish in any way, the right to strike or lock out.

NEW SECTION. Sec. 9. Any individual employed as a supervisor may become, or remain, a member of an employee organization, unless to do so would result in supervisors and nonsupervisors in the same bargaining unit. No employer may be compelled to recognize supervisors as employees for the purpose of collective bargaining.

NEW SECTION. Sec. 10. 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.

NEW SECTION. Sec. 11. Except as otherwise expressly provided in this chapter, nothing in this chapter may be construed to annul, modify, or preclude the renewal or continuation of any lawful agreement entered into prior to the effective date of this act, between an employer and an employee organization covering wages, hours, and terms and conditions of employment. If there is a conflict between any collective bargaining agreement and any resolution, rule, policy, or regulation of the employer or its agents, the terms of the collective bargaining agreement prevails.

NEW SECTION. Sec. 12. Sections 1 through 11 of this act shall constitute a new chapter in Title 49 RCW.