H-3907

AN ACT Relating to labor relations in institutions of higher education; amending RCW 41.58.020; adding a new chapter to Title 41 RCW; and providing an effective date.

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

NEW SECTION. Sec. 1. It is the purpose of this chapter to promote cooperative efforts between employees and the boards of regents or boards of trustees of the four-year institutions of higher education in the state of Washington by prescribing certain rights and obligations of the employees and by establishing orderly procedures governing the relationship between the employees and their employers which procedures are designed to meet the special requirements and needs of public employment in higher education.

NEW SECTION. Sec. 2. The boards of regents and boards of trustees of the state institutions of higher education may engage in collective bargaining with the exclusive bargaining representatives of their employees, as provided in this chapter.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Employee" means any employee of an employer, but does not include the chief executive or administrative officers of the institution of higher education, confidential employees, casual employees, supervisors, or employees subject to chapter 28B.16 RCW.

(2) "Confidential employee" includes:

(a) A person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, if the role of the person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and

(b) A person who assists and acts in a confidential capacity to that person.

(3) "Casual employee" means an individual working in assignments of a limited scope or of a short term or of a transitory nature so as to indicate that the individual does not share a community of interest with other employees of the institution or lacks an expectancy of continued employment. However, an individual is not excluded from the coverage of this chapter solely because the person is both a student within the institution of higher education and an employee.

(4) "Supervisor" includes any individual having authority in the interest of an employer to hire, assign, promote, transfer, lay off, recall, suspend, discipline, or discharge other employees, to adjust employees' grievances, or to recommend effectively such action, if the exercise of the authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment. A person is not included solely by reason of his or her membership on a faculty tenure or other governance committee or body. The term "supervisor" includes only those persons who perform a preponderance of the acts of authority specified in this subsection.

(5) "Collective bargaining" and "bargaining" mean the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times early in the college budget-making process to bargain in good faith in an effort to reach agreement with respect to wages, hours, and other terms and conditions of employment. Service and activity fees as defined in RCW 28B.15.041 shall not be a subject for bargaining. Prior law, practice, or interpretation shall be neither restrictive, expansive, nor determinative with respect to the scope of bargaining. A written contract incorporating any agreements reached shall be executed if requested by either party. The obligation to bargain does not compel either party to agree to a proposal or to make a concession.

In the event of a dispute between an employer and an exclusive bargaining representative over the matters that are terms and conditions of employment, the commission shall decide which items are mandatory subjects for bargaining.

(6) "Commission" means the public employment relations commission established under RCW 41.58.010.

(7) "Employer" means the board of regents or board of trustees of each institution of higher education and includes any officer, board, commission, council, or other person or body acting on behalf of an employer.

(8) "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 collective bargaining with employers.

(9) "Exclusive bargaining representative" means any employee organization that has:

(a) Been certified or recognized pursuant to this chapter as the representative of the employees in an appropriate collective bargaining unit; or

(b) Before the effective date of this section, been certified or recognized under a predecessor statute as the representative of the employees in a bargaining unit that continues to be appropriate under this chapter.

(10) "Institution of higher education" means the University of Washington, Washington State University, the regional universities, and The Evergreen State College.

(11) "Person" means one or more individuals, labor organizations, partnerships, associations, corporations, employers, or legal representatives. In determining whether a person is acting as an agent of another person so as to make such other person responsible for his or her acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling.

(12) "Unfair labor practice" means an unfair labor practice listed in section 9 of this act.

(13) "Union security provision" means a provision in a collective bargaining agreement under which some or all employees in the bargaining unit may be required, as a condition of continued employment on or after the thirtieth day following the beginning of such employment or the effective date of the provision, whichever is later, to become a member of the exclusive bargaining representative or pay an agency fee equal to the periodic dues and initiation fees uniformly required as condition of acquiring or retaining membership in the exclusive bargaining representative.

NEW SECTION. Sec. 4. Employees have the right to self-organization, to form, join, or assist employee organizations, to bargain collectively through representatives of their own choosing, and also have the right to refrain from any or all of these activities except to the extent that employees may be required to make payments to an exclusive bargaining representative or charitable organization under a union security provision authorized in this chapter.

NEW SECTION. Sec. 5. (1) Upon filing with the employer the voluntary written authorization of a bargaining unit employee under this chapter, the employee organization that is the exclusive bargaining representative of the bargaining unit has the right to have deducted from the salary of the bargaining unit employee the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the exclusive bargaining representative. The employee authorization shall not be irrevocable for a period of more than one year. Such dues and fees shall be deducted monthly from the pay of all employees who have given authorization for the deduction, and shall be transmitted by the employer to the employee organization or to the depository designated by the employee organization.

(2) A collective bargaining agreement may include union security provisions, but not a closed shop. The employer shall enforce any union security provision by monthly deductions from the salary of bargaining unit employees affected by the collective bargaining agreement and shall transmit the funds to the employee organization or to the depository designated by the employee organization.

(3) An employee who is covered by a union security provision and who asserts a right of nonassociation based on bona fide religious tenets or teachings of a church or religious body of which the employee is a member shall pay to a nonreligious charity or other charitable organization an amount of money equivalent to the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the exclusive bargaining representative. The charity shall be agreed upon by the employee and the employee organization to which the employee would otherwise pay the dues and fees. The employee shall furnish written proof that the payments have been made. If the employee and the employee organization do not reach agreement on the matter, the commission shall designate the charitable organization.

NEW SECTION. Sec. 6. In any dispute concerning the unit appropriate for collective bargaining or the allocation of employees or positions to bargaining units, the commission, after a hearing or hearings, shall determine the dispute, taking into consideration the duties, skills, and working conditions of the employees, the extent of organization among the employees, the community of interest among the employees, the desire of the employees, and the overall management structure of the employer including the interrelationships of divisions within the institution. Unnecessary fragmentation shall be avoided. All employees who are tenured or eligible to seek or be awarded tenure shall be included in the same bargaining unit at each institution of higher education.

NEW SECTION. Sec. 7. (1) The employee organization that has been designated by the majority of the employees in an appropriate bargaining unit as their representative for the purposes of collective bargaining shall be the exclusive bargaining representative of, and shall be required to represent, all the employees within the bargaining unit without regard to membership in that employee organization: PROVIDED, That any employee may at any time present his or her complaints or concerns to the employer and have such complaints or concerns adjusted without intervention of the exclusive bargaining representative, as long as the exclusive bargaining representative has been given an opportunity to be present at that adjustment and to make its views known, and as long as the adjustment is not inconsistent with the terms of a collective bargaining agreement then in effect.

(2) The commission shall resolve any dispute concerning selection of a bargaining representative in accordance with the procedures specified in this section.

(a) No question concerning representation may be raised within one year following a certification or attempted certification.

(b) If there is a valid collective bargaining agreement in effect, no question concerning representation may be raised except during the period not more than ninety nor less than sixty days before the expiration date of the agreement. If a valid collective bargaining agreement, together with any renewals or extensions thereof, has been or will be in existence for more than three years, then a question concerning representation may be raised not more than ninety nor less than sixty days before the third anniversary date or any subsequent anniversary date of the agreement; if the exclusive bargaining representative is removed as the result of the procedure, the collective bargaining agreement shall be deemed to be terminated as of the date of the certification or the anniversary date following the filing of the petition, whichever is later.

(c) An employee organization seeking certification as exclusive bargaining representative of a bargaining unit of employees, or bargaining unit employees seeking decertification of an exclusive bargaining representative, shall make a confidential showing to the commission of credible evidence demonstrating that at least thirty percent of the employees in the bargaining unit are in support of the petition. The petition shall indicate the name, address, and telephone number of any employee organization known to claim an interest in the bargaining unit.

(d) A petition filed by an employer shall be supported by credible evidence demonstrating the basis on which the employer claims the existence of a question concerning the representation of its employees.

(e) Any employee organization that makes a confidential showing to the commission of credible evidence demonstrating that it has the support of at least ten percent of the employees in the bargaining unit involved may intervene in proceedings under this section and have its name listed as a choice on the ballot in an election conducted by the commission.

(f) The commission shall determine any question concerning representation by conducting a secret ballot election among the employees in the bargaining unit. However, if the commission determines that a serous unfair labor practice has been committed that interfered with the election process and precludes the holding of a fair election, the commission may determine the question concerning representation by conducting a cross-check comparing the employee organization's membership records or bargaining authorization cards against the employment records of the employer.

(g) The representation election ballot shall contain a choice for each employee organization qualifying under (c) or (e) of this subsection, together with a choice for no representation. The representation election shall be determined by the majority of the valid ballots cast. If there are three or more choices on the ballot and none of the choices receives a majority of the valid ballots cast, a run-off election shall be conducted between the two choices receiving the highest and second highest numbers of votes.

NEW SECTION. Sec. 8. (1) The commission shall adopt rules under the administrative procedure act, chapter 34.05 RCW, as it deems necessary and appropriate to administer this chapter, in conformity with the intent and purpose of this chapter, and consistent with the best standards of labor-management relations.

(2) The rules, precedents, and practices of the national labor relations board, if consistent with this chapter, shall be considered by the commission in its interpretation of this chapter, and before the adoption of any commission rules.

NEW SECTION. Sec. 9. (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 by this chapter;

(b) To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it. An employer may permit employees to confer with it or its representatives or agents during working hours without loss of time or pay;

(c) To encourage or discourage membership in any employee organization by discrimination in regard to hire, tenure of employment, or any term or condition of employment, but this subsection does not prevent an employer from requiring, as a condition of continued employment, payment of the periodic dues and initiation fees uniformly required to an exclusive bargaining representative under section 5 of this act;

(d) To discharge or discriminate otherwise against an employee because the employee has filed charges or given testimony under this chapter; or

(e) To refuse to bargain collectively with the exclusive bargaining representative of its employees.

(2) It is an unfair labor practice for an employee organization or its agents:

(a) To restrain or coerce: (i) Employees in the exercise of the rights guaranteed in section 4 of this act, but this does not impair the right of an employee organization to prescribe its own rules for the acquisition or retention of membership in the organization; 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 (1)(c) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership; or

(c) To refuse to bargain collectively with the employer of employees for whom it is the exclusive bargaining representative.

(3) The expression of any views, argument, or opinion, or the dissemination of those views, argument, or opinion to the public, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under this chapter, if the expression contains no threat of reprisal or force or promise of benefit.

NEW SECTION. Sec. 10. (1) The commission may prevent any person from engaging in any unfair labor practice. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, equity, or otherwise.

(2) A complaint charging unfair labor practices shall be filed within six months following the act or event complained of or discovery of such act or event complained of, whichever is later.

(3) The person or persons named as respondent in a complaint charging unfair labor practices may file an answer to the complaint and to appear in person or otherwise give testimony at the place and time set by the commission for hearing.

(4) If the commission determines that a person has engaged in or is engaging in any unfair labor practice, then the commission 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 as will effectuate the purposes and policy of this chapter, including the reinstatement of employees with back pay.

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

NEW SECTION. Sec. 11. Actions by or on behalf of the commission shall be under chapter 34.05 RCW, or rules adopted under chapter 34.05 RCW. The right of judicial review under chapter 34.05 RCW is applicable to all these actions and rules.

NEW SECTION. Sec. 12. If any provision of any collective bargaining agreement between the employer and the exclusive bargaining representative requires legislative implementation or an appropriation, the employer and the exclusive bargaining representative shall seek the appropriate legislative action actively and in good faith.

NEW SECTION. Sec. 13. (1) Whenever a collective bargaining agreement between an employer and an exclusive bargaining representative is concluded after the termination date of the previous collective bargaining agreement between the employer and an employee organization representing the same or a substantially similar bargaining unit, the effective date of the collective bargaining agreement may be the day after the termination date of the previous collective bargaining agreement, and all benefits included in the new collective bargaining agreement, including wage or salary increases, may accrue beginning with the effective date as established by this subsection.

(2) A collective bargaining agreement may provide for all benefits, including wage and salary increases, to accrue beginning with the effective dates of any individual employee contracts covering employees in the bargaining unit for the same or related period.

(3) A collective bargaining agreement may provide for the increase of any wages, salaries, and other benefits during the term of such agreement or the term of any individual employee contracts covering employees in the bargaining unit, if the employer receives, by increased appropriation or from other sources, additional moneys for such purposes.

NEW SECTION. Sec. 14. (1) The commission, through the executive director, may offer its mediation services in any labor dispute involving an employer and an exclusive bargaining representative, either upon its own motion or upon the request of one or more of the parties to the dispute, if in its judgment the dispute threatens to cause a substantial disruption to the public welfare.

(2) A person designated as a mediator in a labor dispute under this section shall meet with the representatives of the parties, either jointly or separately, and shall take other steps as he or she deems appropriate to persuade the parties to resolve their differences. A mediator does not have power of compulsion.

The services of the mediator, including any per diem expenses, shall be provided by the commission without cost to the parties. This section shall not be construed to prohibit an employer and an exclusive bargaining representative from agreeing to substitute at their own expense some other mediator or mediation procedure.

(3) If an employer and an exclusive bargaining representative are unable to reach an agreement in mediation, either party, by written notice to the other party and to the commission, may request that the matters in dispute be submitted to a fact-finder for recommendations. If the executive director, upon the recommendation of the mediator, finds that the parties remain at an impasse after a reasonable period of negotiations, the executive director shall initiate fact-finding proceedings.

(a) The executive director shall provide the parties with a list of five persons qualified to serve as the neutral fact-finder. The parties shall without delay attempt to agree upon a fact-finder from the list provided by the commission or to agree upon some other person as a fact-finder. Upon the failure of the parties to agree upon a fact-finder within seven days after the issuance of the list, the commission shall, upon the request of either party, appoint a fact-finder. The commission shall not appoint as fact-finder the same person who acted as mediator in the dispute.

(b) The fact-finder shall promptly establish a date, time, and place to meet with the representatives of the parties and shall provide reasonable notice of the meeting to the parties to the dispute. The requirements of chapter 34.05 RCW do not apply to fact-finding proceedings. The fact-finder shall make inquiries and investigations, hold hearings, and take such other steps as he or she deems appropriate. The fact-finder may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.

(c) The fact-finder shall, within thirty days following the conclusion of the hearing, make written findings of fact and written recommendations to the parties as to how their dispute should be resolved. A copy shall be delivered or mailed to each of the parties to the dispute. A copy shall be filed with the commission. The findings and recommendations of the fact-finder are advisory only.

(d) The findings and recommendations of the fact-finder shall be held in confidence among the fact-finder, the employer, the exclusive bargaining representative, and the commission for seven calendar days following their issuance, to permit the employer and the exclusive bargaining representative to study the recommendations. No later than seven calendar days following the issuance of the recommendations of the fact-finder, each party shall notify the commission and the other party whether it accepts or rejects, in whole or in part, the recommendations of the fact-finder. If the parties remain in disagreement following the expiration of the seven-day period, the findings and recommendations of the fact-finder may be made public.

(e) The fees and expenses of the fact-finder shall be paid by the commission. All other costs of the proceeding shall be paid by the party incurring those costs. This section does not prohibit an employer and an exclusive bargaining representative from agreeing to substitute, at their own expense, some other impasse procedure or from agreeing to some other allocation of the costs of fact-finding between them.

NEW SECTION. Sec. 15. An employer and an exclusive bargaining representative who enter into a collective bargaining agreement may include in the agreement procedures for binding arbitration of the disputes arising about the interpretation or application of the agreement.

NEW SECTION. Sec. 16. Except as otherwise expressly provided in this chapter, nothing in this chapter shall be construed to annul, modify, or preclude the renewal or continuation of any lawful agreement entered into before the effective date of this section 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 shall prevail

NEW SECTION. Sec. 17. Except as otherwise expressly provided in this chapter, nothing in this chapter may be construed to deny or otherwise abridge any rights, privileges, or benefits granted by law to employees.

NEW SECTION. Sec. 18. This chapter shall not be construed to interfere with the responsibilities and rights of the employer as specified by federal and state law, including the employer's responsibilities to students, the public, and other constituent elements of the institution.

NEW SECTION. Sec. 19. Nothing in this chapter permits or grants: (1) An employee the right to strike or to refuse to perform his or her official duties; or (2) an employer the right to lock out its employees in connection with a labor dispute.

NEW SECTION. Sec. 20. All agreements reached pursuant to this chapter shall contain the following clause: Implementation of any salary adjustment provided for in this agreement that is funded by general funds of the state of Washington shall be consistent with legislative appropriations and with any subsequent modification thereto.

Sec. 21. RCW 41.58.020 and 1975 1st ex.s. c 296 s 4 are each amended to read as follows:

(1) It shall be the duty of the commission, in order to prevent or minimize interruptions growing out of labor disputes, to assist employers and employees to settle such disputes through mediation and fact-finding.

(2) The commission, through the director, may proffer its services in any labor dispute involving a political subdivision, municipal corporation, ((or)) the community and technical college system of the state, or baccalaureate degree-granting state institutions of higher education either upon its own motion or upon the request of one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial disruption to the public welfare.

(3) If the director is not able to bring the parties to agreement by mediation within a reasonable time, he shall seek to induce the parties to voluntarily seek other means of settling the dispute without resort to strike or other coercion, including submission to the employees in the bargaining unit of the employer's last offer of settlement for approval or rejection in a secret ballot. The failure or refusal of either party to agree to any procedure suggested by the director shall not be deemed a violation of any duty or obligation imposed by this chapter.

(4) Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement. The commission is directed to make its mediation and fact-finding services available in the settlement of such grievance disputes only as a last resort.

NEW SECTION. Sec. 22. Sections 1 through 20 of this act shall constitute a new chapter in Title 41 RCW.

NEW SECTION. Sec. 23. 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. 24. This act shall take effect October 1, 1992. The public employment relations commission may immediately take such steps as are necessary to insure that this act is implemented on its effective date.