S-2104

AN ACT Relating to labor relations in institutions of higher education; 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 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. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Collective bargaining" and "bargaining" means the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times to bargain in good faith, subject to section 9 of this act, in an effort to reach agreement with respect to wages, hours, and other terms and conditions of employment.

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

(3) "Confidential employee" means: (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 a person in (a) of this subsection.

(4) "Employee" means any full or regular part-time faculty member, not including the chief executive or administrative officers of the institution of higher education, confidential employees, supervisors, and employees subject to chapter 41.06 or 41.56 RCW.

(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 collective bargaining with employers.

(6) "Employer" means the 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.

(7) "Exclusive bargaining representative" means any employee organization that has been certified or recognized under this chapter as the representative of the employees in an appropriate collective bargaining unit.

(8) "Institution of higher education" means the regional universities as defined under RCW 28B.15.005 and The Evergreen State College.

(9) "Person" means one or more individuals, labor organizations, partnerships, associations, corporations, employers, or legal representatives.

(10) "Shared governance" means the exercise of the functions of the faculty in any shared governance mechanisms or practices, including the faculty senate, faculty councils, and faculty codes.

(11) "Supervisor" means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, lay off, recall, suspend, discipline, or discharge peers, 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. An employee is not includable as a supervisor solely by reason of his or her membership on a faculty tenure or other governance committee or body or because of being a department chair or head. The term "supervisor" includes only those persons who perform a preponderance of the acts of authority specified in this subsection.

(12) "Unfair labor practice" means an unfair labor practice listed in section 11 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 established by the exclusive bargaining representative at an amount not greater than the periodic dues and initiation fees uniformly required as condition of acquiring or retaining membership in the exclusive bargaining representative.

NEW SECTION. Sec. 3. The boards of trustees of the institutions of higher education as defined in section 2 of this act may engage in collective bargaining with the exclusive bargaining representatives of their employees, as provided in this chapter. Provisions of collective bargaining agreements relating to compensation are subject to the restrictions under RCW 41.56.201(2)(c) and (3).

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 the voluntary written authorization of a bargaining unit employee, the employer shall deduct from the pay of the 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 may be irrevocable for up to one year. Such dues and fees shall be transmitted monthly by the employer to the exclusive bargaining representative or to the depository designated by the exclusive bargaining representative.

(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 pay of all bargaining unit employees affected by the collective bargaining agreement and shall transmit the funds to the exclusive bargaining representative or to the depository designated by the exclusive bargaining representative.

(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, as a condition of employment, make alternative payments to a nonreligious charity designated by agreement of the employee and the exclusive bargaining representative. The amount of the alternative payment shall be equal to the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the exclusive bargaining representative. The employee shall furnish written proof that the payments have been made. If the employee and the exclusive bargaining representative do not reach agreement on the matter, the dispute shall be submitted to the commission for determination.

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. A faculty bargaining unit consists of all full-time and regular part-time faculty. Unnecessary fragmentation shall be avoided.

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) No question concerning representation may be raised within one year following an election or cross-check in which the employees failed to designate an exclusive bargaining representative.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) 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 serious 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.

(h) The representation election ballot shall contain a choice for each employee organization qualifying under (d) or (f) 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.

(i) Representation that exists on the effective date of this section shall not be disturbed.

NEW SECTION. Sec. 8. 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.

NEW SECTION. Sec. 9. (1) The commission shall broadly construe the scope of bargaining.

(2) Tuition fees under RCW 28B.15.020 and services and activities fees under RCW 28B.15.041 are not subjects for bargaining.

(3) A written contract incorporating any agreements reached shall be executed if requested by either party.

(4) The obligation to bargain does not compel either party to agree to a proposal or to make a concession.

(5) 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.

NEW SECTION. Sec. 10. (1) The commission shall adopt rules as necessary and appropriate to administer this chapter, 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. 11. (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;

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

(f) To unilaterally alter or abolish the shared governance system.

(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;

(c) To discriminate against an employee because that employee has filed charges or given testimony under this chapter; or

(d) 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. 12. (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 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. 13. 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. 14. 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 employees, 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.

NEW SECTION. Sec. 15. (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.

NEW SECTION. Sec. 16. An employer and an exclusive bargaining representative who enter into a collective bargaining agreement shall include in the agreement procedures for binding arbitration of the disputes arising about the interpretation or application of the agreement.

NEW SECTION. Sec. 17. 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 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. 18. Except as otherwise expressly provided in this chapter, this chapter does not deny or otherwise abridge any rights, privileges, or benefits granted by law to employees.

NEW SECTION. Sec. 19. This chapter does not 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 of higher education.

NEW SECTION. Sec. 20. Sections 1 through 19, 21, and 22 of this act constitute a new chapter in Title 41 RCW.

NEW SECTION. Sec. 21. 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. 22. This act takes effect October 1, 2001. The public employment relations commission may immediately take such steps as are necessary to insure that this act is implemented on its effective date.