BILL REQ. #:  S-3962.2 

Read first time 01/26/2004.   Referred to Committee on Commerce & Trade.

     AN ACT Relating to educational employee collective bargaining; amending RCW 41.59.020 and 41.59.120; adding new sections to chapter 41.59 RCW; creating a new section; prescribing penalties; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature recognizes the state's paramount duty to provide a basic education to all students residing in Washington. The legislature further recognizes that uninterrupted service of educational employees is vital to the welfare of the state, and that such uninterrupted service must be ensured. The legislature acknowledges that the state's courts have long considered strikes by public employees, including teachers, to be unlawful, and in order to ensure that no student is denied his or her constitutional right to a basic education, the legislature affirms that strikes by public employees are unlawful.

Sec. 2   RCW 41.59.020 and 1989 c 11 s 11 are each amended to read as follows:
     As used in this chapter:
     (1) The term "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 collective bargaining with employers.
     (2) The term "collective bargaining" or "bargaining" means the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times in light of the time limitations of the budget-making process, and to bargain in good faith in an effort to reach agreement with respect to the wages, hours, and terms and conditions of employment: PROVIDED, That 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 item(s) are mandatory subjects for bargaining and which item(s) are nonmandatory.
     (3) The term "commission" means the public employment relations commission established by RCW 41.58.010.
     (4) The terms "employee" and "educational employee" means any certificated employee of a school district, except:
     (a) The chief executive officer of the employer.
     (b) The chief administrative officers of the employer, which shall mean the superintendent of the district, deputy superintendents, administrative assistants to the superintendent, assistant superintendents, and business manager. Title variation from all positions enumerated in this subsection (b) may be appealed to the commission for determination of inclusion in, or exclusion from, the term "educational employee".
     (c) Confidential employees, which shall mean:
     (i) Any 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, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and
     (ii) Any person who assists and acts in a confidential capacity to such person.
     (d) Unless included within a bargaining unit pursuant to RCW 41.59.080, any supervisor, which means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment, and shall not include any persons solely by reason of their membership on a faculty tenure or other governance committee or body. The term "supervisor" shall include only those employees who perform a preponderance of the above-specified acts of authority.
     (e) Unless included within a bargaining unit pursuant to RCW 41.59.080, principals and assistant principals in school districts.
     (5) The term "employer" means any school district.
     (6) The term "exclusive bargaining representative" means any employee organization which has:
     (a) Been selected or designated pursuant to the provisions of this chapter as the representative of the employees in an appropriate collective bargaining unit; or
     (b) Prior to January 1, 1976, been recognized under a predecessor statute as the representative of the employees in an appropriate collective bargaining or negotiations unit.
     (7) The term "person" means one or more individuals, organizations, unions, associations, partnerships, corporations, boards, committees, commissions, agencies, or other entities, or their representatives.
     (8) The term "nonsupervisory employee" means all educational employees other than principals, assistant principals and supervisors.
     (9) "Strike" means a concerted work stoppage or slowdown by one or more educational employees in a school district for all or part of a regularly scheduled school day for the purpose of inducing, influencing, or coercing a change in conditions, compensation, rights, privileges, or obligations of employment of educational employees.
     (10) "Lockout" means the refusal of the employer school district, in connection with a labor dispute, to permit its educational employees to commence or continue the full performance of their normal duties and services as educational employees.
     (11) "Labor dispute" means a controversy concerning terms or conditions of employment.

NEW SECTION.  Sec. 3   A new section is added to chapter 41.59 RCW to read as follows:
     (1) It is unlawful for an employee or an employee organization, directly or indirectly, to induce, instigate, encourage, authorize, ratify, or participate in a strike.
     (2) It is unlawful for an employer to conduct a lockout.

Sec. 4   RCW 41.59.120 and 1975 1st ex.s. c 288 s 13 are each amended to read as follows:
     (1) Either an employer or an exclusive bargaining representative may declare that an impasse has been reached between them in collective bargaining and may request the commission to appoint a mediator for the purpose of assisting them in reconciling their differences and resolving the controversy on terms which are mutually acceptable. If the commission determines that its assistance is needed, not later than five days after the receipt of a request therefor, it shall appoint a mediator in accordance with rules and regulations for such appointment prescribed by the commission. The mediator shall meet with the parties or their representatives, or both, forthwith, either jointly or separately, and shall take such other steps as he may deem appropriate in order to persuade the parties to resolve their differences and effect a mutually acceptable agreement. The mediator, without the consent of both parties, shall not make findings of fact or recommend terms of settlement. The services of the mediator, including, if any, per diem expenses, shall be provided by the commission without cost to the parties. Nothing in this subsection (1) shall be construed to prevent the parties from mutually agreeing upon their own mediation procedure, and in the event of such agreement, the commission shall not appoint its own mediator unless failure to do so would be inconsistent with the effectuation of the purposes and policy of this chapter.
     (2) If the mediator is unable to effect settlement of the controversy within ten days after his or her appointment, either party, by written notification to the other, may request that their differences be submitted to fact-finding with recommendations, except that the time for mediation may be extended by mutual agreement between the parties. Within five days after receipt of the aforesaid written request for fact-finding, the parties shall select a person to serve as fact-finder and obtain a commitment from that person to serve. If they are unable to agree upon a fact-finder or to obtain such a commitment within that time, either party may request the commission to designate a fact-finder. The commission, within five days after receipt of such request, shall designate a fact-finder in accordance with rules and regulations for such designation prescribed by the commission. The fact-finder so designated shall not be the same person who was appointed mediator pursuant to subsection (1) of this section without the consent of both parties.
     The fact-finder, within five days after his appointment, shall meet with the parties or their representatives, or both, either jointly or separately, and make inquiries and investigations, hold hearings, and take such other steps as he may deem appropriate. For the purpose of such hearings, investigations and inquiries, the fact-finder shall have the power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. If the dispute is not settled within ten days after his appointment, the fact-finder shall make findings of fact and recommend terms of settlement within thirty days after his appointment, which recommendations shall be advisory only.
     (3) Such recommendations, together with the findings of fact, shall be submitted in writing to the parties and the commission privately before they are made public. Either the commission, the fact-finder, the employer, or the exclusive bargaining representative may make such findings and recommendations public if the dispute is not settled within five days after their receipt from the fact-finder.
     (4) The costs for the services of the fact-finder, including, if any, per diem expenses and actual and necessary travel and subsistence expenses, and any other incurred costs, shall be borne by the commission without cost to the parties.
     (5) Nothing in this section shall be construed to prohibit an employer and an exclusive bargaining representative from agreeing to substitute, at their own expense, their own procedure for resolving impasses in collective bargaining for that provided in this section or from agreeing to utilize for the purposes of this section any other governmental or other agency or person in lieu of the commission.
     (6) Any fact-finder designated by an employer and an exclusive representative or the commission for the purposes of this section shall be deemed an agent of the state.
     (7) This section expires June 30, 2004, and any collective bargaining activity being carried out under this section on June 30, 2004, shall proceed under section 5 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 41.59 RCW to read as follows:
     (1) With respect to contracts for the 2004-05 school year and beyond, negotiations between an employer and the exclusive bargaining representative of a unit of employees under this chapter must commence by May 1st.
     (2) If by June 30th an agreement has not yet been ratified, the commission shall designate a fact-finder in accordance with rules for such designation adopted by the commission. The fact-finder, within five days after his or her appointment, shall meet with the parties or their representatives, or both, either jointly or separately, and make inquiries and investigations, hold hearings, and take such other steps as he or she may deem appropriate. For the purpose of such hearings, investigations and inquiries, the fact-finder may issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence. On or before July 16th, the fact-finder must issue written findings of fact to the parties and to the commission. The commission shall hold a public fact-finding hearing and make the findings available to the public if the parties have not reached a settlement within three days of their receipt of the findings.
     (3) Beginning the first day following the public fact-finding hearing, the parties must conduct contract negotiations daily until a contract is adopted. The negotiations must be open to the public.