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. This chapter shall be known and cited as the "Washington agricultural labor relations act."

NEW SECTION. Sec. 2. It is hereby stated to be the policy of the state of Washington to encourage and protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing. The legislature finds that industrial strife can be avoided or substantially minimized, and the public interest protected, if employers and employees recognize each other's legitimate rights under law in their relations with one another. It is the purpose and policy of this chapter to prescribe the collective bargaining rights of employees and employers in the agricultural industry, to provide orderly and peaceful procedures for preventing the interference by one with the rights of another, to protect the rights of individual employees, to define and proscribe practices on the part of labor and management that are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes.

NEW SECTION. Sec. 3. Unless the context clearly requires 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, the raising of livestock, bees, fur-bearing animals, or poultry, and any practice, including forestry or lumbering operations, performed by a farmer or on a farm incident to or in conjunction with such farming operations, including preparation for market and delivery to storage, market, or carriers for transportation to market. "Agriculture" also includes farming, harvesting, and primary processing of organic food products under chapter 15.86 RCW, cultured aquatic products as defined in RCW 15.85.020, mushrooms under chapter 15.90 RCW, specialized forest products under chapter 76.48 RCW, and other similar activities.

(2) "Employee" includes any individual employed by an employer in agricultural work, and is not limited to the employees of a particular employer unless specifically stated in this chapter, but does not include an individual employed in the domestic service of a family or person at his or her home, or an individual employed by his or her parent or spouse, or an individual having the status of an independent contractor, including those engaged in sharecrop operations, or an individual employed as a supervisor.

(3) "Employer" shall 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 cooperative engaged in agriculture, and any person who owns, leases, or manages land used for agricultural purposes. "Employer" does not include any person supplying agricultural employees to an employer, any farm labor contractor as defined in RCW 19.30.010(2), or any person functioning in the capacity of a farm labor contractor, or any person who does not employ more than twenty-four employees at any time during the current calendar year. If an employer uses the services of a farm labor contractor, or of a person functioning as a farm labor contractor, or of another person supplying agricultural labor, the employer shall be deemed to be the employer of the employees for the purposes of this chapter.

(4) "Certification year" means one year from the date on which the board certifies the results of an election conducted under section 10 of this act.

(5) "Labor dispute" includes 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.

(6) "Employee organization" means any organization, union, association, agency, committee, council, or group of any kind in which employees participate and which 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.

(7) "Person" includes one or more individuals, employee organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, receivers, or other legal entities.

(8) "Representative" includes any individual or employee organization.

(9) "State agricultural labor relations board" or "board" means the board established in section 4 of this act.

(10) "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 action, if the exercise of such authority is not of merely routine or clerical nature but requires the use of independent judgment.

(11) "Unfair labor practice" means any unfair labor practice listed in sections 7 and 8 of this act.

NEW SECTION. Sec. 4. (1) There is hereby 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 first member shall be appointed from a mutually agreed upon list of not less than three persons, submitted to the governor by the employee and employer organizations described below. The second member shall represent agricultural employers and shall be selected from a list of not less than three names submitted to the governor by a recognized state-wide employer organization, representing a majority of employers. The third member shall represent agricultural employees and shall be selected from a list of not less than three names submitted to the governor by an employee organization, state-wide in scope, which through its affiliates embraces a cross-section and a majority of the organized labor of the state. The original third member shall be appointed for a term of six years, and the other two original members shall be appointed for terms of two years and 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 shall be 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.

(2) A vacancy in the board shall not impair the right of the remaining members to exercise all of the powers of the board, and two members of the board shall, 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.

NEW SECTION. Sec. 5. (1) Members of the board shall devote their entire time to the duties of the board and shall receive for services a salary as fixed by the governor in accordance with RCW 43.03.040, which shall be in addition to reimbursement for travel expenses incurred in the discharge of their official duties as provided in RCW 43.03.050 and 43.03.060.

(2) The board may appoint an executive director whose annual salary shall be determined under RCW 43.03.028. The executive director shall perform the duties and have the powers the board prescribes to carry out the provisions of this chapter. The executive director, with additional legal assistance consistent with chapter 43.10 RCW, shall have authority on behalf of the board in matters concerning the administration of this chapter, and shall perform the duties prescribed by the board.

(3) When necessary to carry out or enforce any action or decision of the board, the executive director shall have authority to petition a court of competent jurisdiction for an order requiring compliance with the board action or decision.

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

(5) 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, shall be subject to the provisions of RCW 43.03.050 and 43.03.060.

(6) The board shall have the authority to make, amend, and rescind, in the manner prescribed by the administrative procedure act, chapter 34.05 RCW, rules necessary to carry out this chapter.

NEW SECTION. Sec. 6. Employees shall 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 to an exclusive bargaining representative under a union security provision authorized by this chapter.

NEW SECTION. Sec. 7. (1) It is an unfair labor practice for an employer:

(a) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in this chapter. Violations of this subsection include the hiring of permanent employees to replace striking or locked out employees;

(b) To control, dominate, or interfere with the formation or administration of any employee organization or to contribute financial or other support to it;

(c) To encourage or discourage support for or membership in any employee organization by discrimination in regard to hire, tenure of employment, or any term or condition of employment. Termination of an agricultural employee after the initiation of organizational activities shall be presumed to be an unfair labor practice absent clear and convincing proof to the contrary;

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

(e) To influence or attempt to influence the outcome of a secret ballot election by the threat of loss of jobs or benefits, or by the conferring of benefits or the promise of benefits;

(f) To recognize, bargain with, or sign a collective bargaining agreement with any employee organization not certified under this chapter as the exclusive bargaining representative of its employees;

(g) To interrogate, poll, or otherwise inquire into the views or preferences of any agricultural employee as to collective bargaining or collective bargaining representation;

(h) To engage in surveillance or cause the surveillance of any agricultural employee;

(i) To visit the residence or dwelling place of any agricultural employee during the pendency of a petition for an election under this chapter among the employees;

(j) To communicate to any agricultural employee, expressly or impliedly, a preference for recognizing, bargaining with, or otherwise dealing with any particular labor organization or organizations unless the communication contains no threat of reprisal or force or promise of benefit;

(k) To refuse to bargain collectively with the representatives of its employees; or

(l) To refuse to bargain with or to refuse to cooperate with or assist an employee organization regarding compliance with the conditions of an affirmative action program or a program or plan designed to assure compliance by the employer with the provisions of 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.

(2) The provisions of subsection (1)(c) of this section shall be subject to the following limitations:

(a) Nothing in this chapter precludes an employer from making an agreement with an employee organization to require, as a condition of employment, payment of a union shop fee on or after the seventh day following the beginning of employment or the effective date of the agreement, whichever is later, (i) if the employee organization is the exclusive representative of the employees as provided in section 10 of this act, in the appropriate collective bargaining unit covered by the agreement when made, and (ii) unless following an election held as provided in section 10 of this act within one year preceding the effective date of the agreement, the board has certified that at least a majority of the employees eligible to vote in the election have voted to rescind the authority of the employee organization to make such an agreement; and

(b) Agreements involving union security provisions must safeguard the right of nonassociation of employees based on bona fide religious tenets or teachings of a church or religious body of which the employee is a member. The employee shall pay an amount equivalent to the union shop fee to a nonreligious charity or to another charitable organization mutually agreed upon by the employee affected and the bargaining representative to which the employee would otherwise pay the union shop fee. The employee shall furnish written proof that the payment has been made. If the employee and the bargaining representative do not reach agreement on such matter, the board shall designate the charitable organization.

NEW SECTION. Sec. 8. It is an unfair labor practice for an employee organization:

(1) To interfere with, restrain, or coerce: (a) Employees in the exercise of the rights guaranteed in this chapter, but nothing in this subsection shall impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of its membership; or (b) an employer in the selection of representatives for the purposes of collective bargaining or the adjustment of grievances;

(2) To cause or attempt to cause an employer to discriminate against an employee in violation of section 7 of this act;

(3) To solicit or accept financial or other support from an employer. Any violation of this subsection shall be per se grounds for setting aside the election and disqualifying the employee organization from representing the employees of the employer for three years;

(4)(a) 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

(b) To threaten, coerce, or restrain any person with the object of:

(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 the provisions of section 10 of this act. However, nothing contained in this subsection (4)(b)(ii) shall 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 such employees under the provisions of section 10 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 such employer is failing to conform to an order or certification of the board determining the bargaining representative for employees performing such work.

For the purposes of this subsection (4), nothing contained in this subsection shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of an employee organization, that a product is produced by an employer with whom the employee organization has a primary dispute and is distributed by another employer, as long as the publicity does not have the effect of inducing an individual employed by any person other than the primary employer, in the course of his or her employment, to refuse to pick up, deliver, or transport any goods, or not to perform any services at the establishment of the employer engaged in such distribution, and as long as such publicity does not have the effect of requesting the public to cease patronizing such other employer. However, publicity which includes picketing and has the effect of requesting the public to cease patronizing such other employer shall be permitted only if the employee organization is currently certified as the representative of the primary employer's employees. Publicity other than picketing, but including peaceful distribution of literature, which has the effect of requesting the public to cease patronizing such other employer, shall be permitted only if the employee organization has not lost an election for the primary employer's employees within the preceding twelve-month period, and no other employee organization is currently certified as the representative of the primary employer's employees. Nothing contained in this subsection shall be construed to prohibit publicity, including picketing, which may not be prohibited under the United States Constitution or the Washington Constitution;

(5) To refuse to bargain collectively with an employer, provided the employee organization is the representative of the employer's employees under this chapter; or

(6) 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 the provisions of 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.

NEW SECTION. Sec. 9. (1) For the purpose of this section, to bargain collectively is 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 thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require either party to make a concession. If there is in effect a collective bargaining contract covering employees, the duty to bargain collectively also means that no party to the contract may terminate or modify the contract, unless the party desiring termination or modification:

(a) Serves a written notice upon the other party to the contract of the proposed termination or modification not less than sixty days before the expiration date of the contract or, in the event the contract contains no expiration date, not less than sixty days before the time it is proposed to make the termination or modification;

(b) Offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications;

(c) Notifies the board within thirty days after notice of the existence of a dispute, provided no agreement has been reached by that time; and

(d) Continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after notice is given or until the expiration date of the contract, whichever occurs later.

(2) The duties imposed upon employers, employees, and employee organizations by subsection (1) (b), (c), and (d) of this section shall become inapplicable upon an intervening certification of the board under which the employee organization or individual that is a party to the contract has been superseded as or ceased to be the representative of the employees under this chapter and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before the terms and conditions can be reopened under the provisions of the contract. An employee who engages in a strike within the sixty-day period specified in this subsection shall lose his or her status as an employee of the employer engaged in the particular labor dispute for the purposes of sections 7 through 11 of this act, but such loss of status for the employee shall terminate if and when he or she is reemployed by the employer.

(3) If the parties have not settled the dispute after the termination of the sixty-day period provided in this section, the employees may strike or the employer may lock out employees.

NEW SECTION. Sec. 10. (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 such purposes shall be the exclusive bargaining representatives of all the employees in the unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. However, an individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect and as long as the bargaining representative has been given the opportunity to be present at such adjustment.

(2) The bargaining unit shall be all the agricultural employees of an employer. If the agricultural employees of the employer are employed in two or more noncontiguous geographical areas, the board shall determine the appropriate unit or units of agricultural employees in which a secret ballot election shall be conducted. In determining whether a unit is appropriate under this subsection, the extent to which the employees have organized shall not be controlling.

(3)(a) Petitions for elections shall be filed during the season of peak agricultural employment and shall allege that:

(i) Not less than thirty percent of an employees' unit of a particular employer wish to be represented for collective bargaining;

(ii) The number of agricultural employees currently employed by the employer named in the petition, as determined from the payroll immediately preceding the filing of the petition, is not less than fifty percent of the employer's peak agricultural employment for the current calendar year;

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

(iv) No employee organization is currently certified under this chapter as the exclusive collective bargaining representative of the agricultural employees of the employer named in the petition;

(v) The petition is not barred by an existing collective bargaining agreement; and

(vi) The employee organization named in the petition has not, within the twelve months immediately preceding the filing of the petition, discriminated against any member or prospective member of the organization who is engaged in agricultural employment on the basis of race, color, national origin, religion, sex, or any other arbitrary or invidious classification. A finding by the United States equal employment opportunities commission under 29 U.S.C. Sec. 2000 that the employee organization has violated subchapter IV of chapter 21 of Title 42 of the United States Code, or by the state human rights commission that the employee organization has engaged in unfair practices under RCW 49.60.190, shall be prima facie evidence of discrimination. Any issue of discrimination under this subsection may be determined by the board at a hearing following an election under this section. If the board determines that discrimination has occurred, it shall either (A) refuse to certify the employee organization if the organization receives a majority of the votes cast and has not yet been certified by the board, or (B) decertify the organization if it had certified the organization under this section.

(4)(a) Whenever a petition has been filed in accordance with subsection (3) of this section and the rules prescribed by the board, the board shall investigate the petition and if it has reasonable cause to believe that a question of representation exists shall direct that a representation election by secret ballot be held, upon due notice to all interested parties and within a maximum of seven days of the filing of the petition. If at the time the election petition is filed, a majority of the employees in a bargaining unit are engaged in a strike, the board shall, with all due diligence, attempt to hold a secret ballot election within forty-eight hours of the filing of the petition. (b) If any employee organization receives a majority of the votes cast in an election under this section, the organization shall be certified by the board for a period of twelve months as the exclusive bargaining representative of the employees among whom the election was conducted. An employer shall not initially recognize an employee organization as the collective bargaining representative of its employees unless the employee organization has received a majority of the votes cast in a representation election conducted pursuant to the provisions of this chapter.

(c) In determining whether or not a question of representation exists, the same rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief sought and in no case shall the board deny an employee organization a place on the ballot by reason of an order with respect to the employee organization or its predecessor not issued in conformity with section 11(3) of this act.

(d) No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election has been held. All agricultural employees of the employer whose names appear on the payroll applicable to the payroll period immediately preceding the filing of the petition for an election, except employees who are replacing striking or locked out employees, shall be eligible to vote. Employees engaged in an economic strike shall be 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. In any election where none of the choices on the ballot receives a majority, a run-off shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election.

(e) Nothing in this section shall 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.

(5) Once a petition for an election has been filed, any employee organization qualified to appear on the ballot shall have the right to communicate peacefully with the employees at their residences or dwelling places, or on the property of the employer during nonworking hours, including meal and rest periods or other breaks. However, an employee organization or its agents may not interfere with the performance of work in the exercise of the rights guaranteed by this section. The rights granted under this section shall be specifically enforceable in a court of competent jurisdiction.

(6) The employer shall make the payroll list available to the department and any labor organization qualified to appear on the ballot no less than forty-eight hours prior to any election. If the employer is unable to compile a full and accurate list within the time allowed, the board shall proceed to determine eligibility on the basis of such other evidence as is available to the board at that time. If an employer willfully supplies the board with an inaccurate list or otherwise willfully fails to perform its obligations under this section, the petitioning employee organization shall be certified as the exclusive bargaining representative of the employer's employees.

(7) An employee organization qualified to participate in an election may file with the board any symbol or trademark it wishes to appear on the ballots used by the board. The ballots of the board shall then contain the symbols of the employee organizations qualified to appear on the ballot. The board shall make available at any election ballots printed in English and Spanish and, on request of a qualified employee organization, any other language used by the employees voting in the election.

(8) Recognizing that agricultural employment is a seasonal occupation for the majority of agricultural employees and because it is the intent of this chapter to provide the fullest scope for employees' enjoyment of the rights provided under this chapter, the board shall not consider a representation petition or petition to decertify as timely filed unless at least fifty percent of the peak agricultural employment for the current calendar year is on the payroll for the period immediately preceding the filing of the petition. Peak employment shall be determined from past employment records, current crop data, and other relevant evidence. The prior season alone shall not be a basis for the determination, but the board shall estimate the peak employment on the basis of acreage and crop statistics applied uniformly throughout the state of Washington, and on all other relevant evidence.

(9) Whenever a majority of the agricultural employees in a bargaining unit engage in a bona fide strike for the right to an election under this chapter, and an employee or group of employees, or any individual or employee organization acting on their behalf, makes a demand on the employer for an election under this chapter, the employees shall be deemed to have selected the employee organization as their bargaining representative.

(10) Within five days after an election, any person may file with the board a signed petition asserting that allegations made in the petition filed pursuant to this section were incorrect, or that the board improperly determined the geographical scope of the bargaining unit, or raising objections to the conduct of the election or conduct affecting the results of the election. Upon receipt of a petition under this subsection, the board, after due notice, shall conduct a hearing to determine whether the election shall be decertified. The hearing may be conducted by an officer or employee of the board. If the board finds, on the record of the hearing, that any of the assertions made in the petition are correct, or the election was not conducted properly, or misconduct affecting the results of the election occurred, the board may refuse to certify the election. Unless the board determines that there are sufficient grounds to refuse to do so, it shall certify the election. If no petition under this subsection is filed within five days of the election, the board shall certify the election.

NEW SECTION. Sec. 11. (1) The board is empowered, as provided in this chapter, to prevent any person from engaging in any unfair labor practice listed in section 7 or 8 of this act. The procedures set forth in this section shall be the exclusive method of redressing unfair labor practices.

(2) Whenever it is charged that a person has engaged in or is engaging in an unfair labor practice, the board or its agent shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the board or a member thereof, or before its designated agent or at a place therein fixed, not less than five days after the serving of the complaint. However, no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the board and the service of a copy upon the person against whom the charge is made, unless the person aggrieved was prevented from filing the charge by reason of service in the armed forces in which event the six-month period shall be computed from the date of his or her discharge. A complaint may be amended by the member or the agent conducting the hearing or the board in its discretion at any time prior to the issuance of an order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint, and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member or the agent conducting the hearing or the board, any other person may be allowed to intervene in the proceeding and to present testimony. A proceeding shall, insofar as is practicable, be conducted in accordance with the rules of evidence applicable in the superior courts of the state.

(3)(a) The testimony taken by the member or the agent or the board shall be reduced to writing and filed with the board. Thereafter, in its discretion, the board upon notice may take further testimony or hear argument.

(b) If, upon the preponderance of the testimony taken, the board is of the opinion that a person named in the complaint has engaged in or is engaging in an unfair labor practice, the board shall state its findings of fact and shall issue and 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 and, when the board deems such relief appropriate, making employees whole for loss of pay resulting from the employer's refusal to bargain, and to provide such other relief as will effectuate the policies of this chapter. If an order directs the reinstatement of an employee, back pay may be required of the employer or employee organization, as the case may be, responsible for the discrimination. An order may further require reports showing the extent to which the order has been complied with.

(c) If, upon the preponderance of the testimony taken, the board is not of the opinion that the person named in the complaint has engaged in or is engaging in an unfair labor practice, the board shall state its findings of fact and shall issue an order dismissing the complaint.

(d) No order of the board shall require the reinstatement of an individual as an employee who has been suspended or discharged, or the payment of back pay to an individual, if the individual was suspended or discharged for cause.

(e) If the evidence is presented before a member of the board or before an examiner, the member or the examiner, as the case may be, shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the board, and if no exceptions are filed within seven days after service upon the parties, or within such further period as the board may authorize, the recommended order shall become the order of the board and become effective as prescribed therein.

(f) In determining whether a complaint shall issue alleging a violation of section 7(1) (a) or (b) of this act, and in deciding such cases, the same rules and decisions of the board shall apply whether or not the employee organization affected is affiliated with an employee organization that is national or international in scope. However, no officer or member of an employee organization and no employee organization participating or interested in a labor dispute shall be held responsible or liable for the unlawful acts of individual officers, members, or agents, except upon clear evidence of actual participation in, or actual authorization of, the acts, or of ratification of the acts after actual knowledge of the acts.

(4) Until the record in a case has been filed in a court as provided in this section, the board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it.

(5) Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the superior court of the county wherein the employer is located or wherein such person resides or transacts business, by filing in the court a written petition requesting that the order of the board be modified or set aside. The petition shall be filed with the court within thirty days from the date of issuance of the board's order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the board. The board shall file in the court the record of the proceedings, certified by the board, within ten days after the clerk's notice unless the time is extended by the court for good cause shown. The court shall have jurisdiction to grant to the board such temporary relief or restraining order as it deems just and proper, and in like manner to make and enter a decree enforcing, modifying and enforcing as modified, or setting aside in whole or in part the order of the board. The findings of the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall in like manner be conclusive.

(6) The commencement of proceedings under subsection (5) of this section shall not, unless specifically ordered by the court, operate as a stay of the board's order. An order directing an election shall not be stayed pending review.

(7) Petitions filed under this section shall be heard expeditiously.

(8) The board shall have power, upon issuance of a complaint as provided in subsection (2) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition a superior court of the county wherein the employer is located or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of a petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the board such temporary relief or restraining order as it deems just and proper.

(9) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of section 7 (1)(c) or (2) of this act, the charge shall be given priority over all other cases except cases of like character in the office where it is filed or to which it is referred.

NEW SECTION. Sec. 12. For the purpose of all hearings and investigations which, in the opinion of the board, are necessary and proper for the exercise of the powers vested in it by section 10 of this act:

(1) The board or its agents shall at all reasonable times have access to for the purpose of examination, and the right to copy, any evidence of a person being investigated or proceeded against that relates to a matter under investigation or in question. The board or any member thereof shall, upon application of a party to the proceedings, expeditiously issue to such party subpoenas requiring the attendance and testimony of witnesses or the production of evidence in the proceeding or investigation requested in the application. Within seven days after service of a subpoena on any person requiring the production of evidence in his or her possession or under his or her control, the person may petition the board to revoke, and the board shall revoke, the subpoena if, in its opinion, the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if, in its opinion, the subpoena does not describe with sufficient particularity the evidence whose production is required. Any member of the board or its agent may administer oaths and affirmations, examine witnesses, and receive evidence. The attendance of witnesses and the production of evidence may be required from any designated place of hearing;

(2) In case of contumacy or refusal to obey a subpoena issued to any person, a superior court within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person is found or resides or transacts business, upon application by the board, shall have jurisdiction to issue the person an order requiring the person to appear before the board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey an order of the court may be punished by the court as a contempt of court;

(3) Complaints, orders, and other process and papers of the board, its member, or agent may be served either personally or by registered mail or by leaving a copy at the principal office or place of business of the person required to be served or with an employee or agent duly authorized to receive complaints, orders, and other process and papers. The verified return by the individual making the service, setting forth the manner of the service, shall be proof of the service, and the return post office receipt, when registered and mailed as required in this subsection, shall be proof of service. Witnesses summoned before the board, its member, or agent shall be paid the same fees and mileage that are paid witnesses in the superior courts, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the superior courts; and

(4) Process of a court to which application may be made under this chapter may be served in the county wherein the defendant or other person required to be served resides or may be found.

NEW SECTION. Sec. 13. Upon the petition of any person made not earlier than the ninetieth day nor later than the sixtieth day preceding the expiration of a certification year, the board shall determine whether the employer whose employees are represented as provided under this chapter has bargained in good faith. If the board finds that the employer has not bargained in good faith, the board shall order the parties to submit to interest arbitration.

NEW SECTION. Sec. 14. Any person who willfully resists, prevents, impedes, or interferes with members of the board or its agents in the performance of duties pursuant to this chapter shall be guilty of a gross misdemeanor punishable under chapter 9A.20 RCW.

NEW SECTION. Sec. 15. The provisions of this chapter shall not apply to employees of the federal government, employees of the state or a political subdivision of the state, employees covered by the railway labor act, or employees covered by the national labor relations act.

NEW SECTION. Sec. 16. Nothing in this chapter, except as specifically provided, shall be construed to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.

NEW SECTION. Sec. 17. Nothing in this chapter shall prohibit any individual employed as a supervisor from becoming or remaining a member of an employee organization, but no employer subject to this chapter shall be compelled to recognize supervisors as employees for the purpose of this chapter.

NEW SECTION. Sec. 18. No provision of this chapter shall be deemed to make an unfair labor practice any act that was performed prior to the effective date of this act that did not constitute an unfair labor practice prior to the effective date of this act. The provisions of this chapter shall not make an unfair labor practice the performance of any obligation under a collective bargaining agreement entered into prior to the effective date of this act.

NEW SECTION. Sec. 19. 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. 20. Sections 1 through 19 of this act shall constitute a new chapter in Title 49 RCW.