BILL REQ. #:  H-1963.2 

READ FIRST TIME 02/17/09.   

     AN ACT Relating to placing symphony orchestras, operas, performing arts theaters, and other entertainment-based organizations under the jurisdiction of the public employment relations commission for purposes of collective bargaining; and adding a new chapter to Title 49 RCW.

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

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Bargaining representative" means any lawful organization which has as one of its primary purposes the representation of employees in their employment relations with employers.
     (2) "Collective bargaining" means the performance of the mutual obligations of the employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours, and working conditions, which may be peculiar to an appropriate bargaining unit of such employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.
     (3) "Commission" means the public employment relations commission.
     (4)(a) "Employee" means a musician who is an employee of a symphony orchestra that does not meet the jurisdictional standards of the national labor relations board, or a musician who is an employee of an opera or performing arts theater with a gross annual revenue of more than one hundred fifty thousand dollars and does not meet the jurisdictional standards of the national labor relations board. "Employee" shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute with an employer or because of any unfair labor practice with an employer, and who has not obtained any other regular and substantially equivalent employment.
     (b) "Employee" does not include any supervisor, unless the supervisor is included within a bargaining unit under section 4 of this act.
     (5)(a) "Employer" means a symphony orchestra that does not meet the jurisdictional standards of the national labor relations board, or an opera or performing arts theater with a gross annual revenue of more than one hundred fifty thousand dollars and does not meet the jurisdictional standards of the national labor relations board. "Employer" includes any person acting as an agent of an employer, directly or indirectly.
     (b) In determining whether any 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.
     (6) "Executive director" means the executive director of the commission.
     (7) "Labor dispute" includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association of 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. 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.
     (8) "Labor organization" means an organization of any kind, or an agency or employee representation committee or plan, in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment.
     (9) "Person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees in bankruptcy, or receivers.
     (10) "Supervisor" means an employee having authority, in the interest of an employer, to hire, assign, promote, transfer, lay off, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if the exercise of this authority is not merely routine or clerical in nature and calls for the consistent exercise of independent judgment.
     (11) "Unfair labor practice" means any activity listed in sections 12 and 13 of this act.

NEW SECTION.  Sec. 2   No employer, or other person, shall directly or indirectly, interfere with, restrain, coerce, or discriminate against any employee or group of employees in the free exercise of their right to organize and designate bargaining representatives of their own choosing for the purpose of collective bargaining, or in the free exercise of any other right under this chapter.

NEW SECTION.  Sec. 3   If an employer and employees are in disagreement as to the selection of a bargaining representative the commission shall be invited to intervene as is provided in sections 4 through 7 of this act.

NEW SECTION.  Sec. 4   The commission, upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider the duties, skills, and working conditions of the employees; the history of collective bargaining by the employees and their bargaining representatives; the extent of organization among the employees; and the desire of the employees. The commission shall determine the bargaining representative by: (1) Comparison of signatures on organization bargaining authorization cards; or (2) conducting an election specifically therefor.

NEW SECTION.  Sec. 5   (1) If the commission elects to conduct an election to ascertain the exclusive bargaining representative, and upon the request of a prospective bargaining representative showing written proof of at least thirty percent representation of the employees within the unit, the commission shall hold an election by secret ballot to determine the issue. The ballot shall contain the name of the bargaining representative and of any other bargaining representative showing written proof of at least ten percent representation of the employees within the unit, together with a choice for any employee to designate that he or she does not desire to be represented by any bargaining agent. Where more than one organization is on the ballot and neither of the three or more choices receives a majority vote of valid ballots cast, a run-off election shall be held. The run-off ballot shall contain the two choices which received the largest and second-largest number of votes. No question concerning representation may be raised within one year of a certification or attempted certification.
     (2) Where there is a valid collective bargaining agreement in effect, no question of representation may be raised except during the period not more than ninety nor less than sixty days prior to the expiration date of the agreement. A collective bargaining agreement may provide for a term of any length. However, a valid collective bargaining agreement, together with any renewals or extensions thereof, will only bar a question concerning representation for three years. A question concerning representation may be raised at any time thereafter, and if the exclusive bargaining representative is removed as the result of such procedure, the collective bargaining agreement shall be deemed to be terminated as to the date of the certification.

NEW SECTION.  Sec. 6   The bargaining representative which has been determined to represent a majority of the employees in a bargaining unit shall be certified by the commission as the exclusive bargaining representative of, and shall be required to represent, all the employees within the unit without regard to membership in the bargaining representative. However, any employee at any time may present his or her grievance to the employer and have such grievance adjusted without the intervention of the exclusive bargaining representative, if the adjustment is not inconsistent with the terms of a collective bargaining agreement then in effect, and if the exclusive bargaining representative has been given reasonable opportunity to be present at any initial meeting called for the resolution of the grievance.

NEW SECTION.  Sec. 7   The commission may adopt rules necessary to administer this chapter in conformity with the intent and purpose of this chapter and consistent with the best standards of labor-management relations.

NEW SECTION.  Sec. 8   An employer may engage in collective bargaining with the exclusive bargaining representative and no employer may refuse to engage in collective bargaining with the exclusive bargaining representative. Upon the failure of the employer and the exclusive bargaining representative to conclude a collective bargaining agreement, any matter in dispute may be submitted by either party to the commission. If an employer implements its last and best offer where there is no contract settlement, allegations that either party is violating the terms of the implemented offer are subject to grievance arbitration procedures if and as such procedures are set forth in the implemented offer, or, if not in the implemented offer, if and as such procedures are set forth in the parties' last contract.

NEW SECTION.  Sec. 9   Upon the written authorization of any employee within the bargaining unit and after the certification or recognition of the bargaining representative, the employer must deduct from the pay of the employee the monthly amount of dues as certified by the secretary of the exclusive bargaining representative and must transmit the dues to the treasurer of the exclusive bargaining representative.

NEW SECTION.  Sec. 10   A collective bargaining agreement negotiated under this chapter may:
     (1) Contain union security provisions. However, nothing in this section authorizes a closed shop provision. 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 must pay an amount of money equivalent to regular union dues and initiation 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 dues and initiation fee. The employee must furnish written proof that the payment has been made. If the employee and the bargaining representative do not reach agreement on this matter, the commission must designate the charitable organization;
     (2) Include procedures for final and binding arbitration of grievances or labor disputes arising over the application or interpretation of the matters contained in a collective bargaining agreement.

NEW SECTION.  Sec. 11   In addition to any other method for selecting arbitrators, the parties may request the commission to appoint a qualified person who may be an employee of the commission to act as an arbitrator to assist in the resolution of a labor dispute between the employer and the bargaining representative arising from the application of the matters contained in a collective bargaining agreement. The arbitrator must conduct the arbitration of the dispute in a manner as provided for in the collective bargaining agreement. The commission may not collect any fees or charges from the employer or the bargaining representative for services performed by the commission under this chapter. The provisions of chapter 49.08 RCW do not apply to this chapter.

NEW SECTION.  Sec. 12   It is an unfair labor practice for an employer:
     (1) To interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by this chapter;
     (2) To control, dominate, or interfere with a bargaining representative;
     (3) To discriminate against an employee who has filed an unfair labor practice charge or who has given testimony under this chapter;
     (4) To refuse to engage in collective bargaining.

NEW SECTION.  Sec. 13   It is an unfair labor practice for a bargaining representative:
     (1) To interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by this chapter;
     (2) To induce the employer to commit an unfair labor practice;
     (3) To discriminate against an employee who has filed an unfair labor practice charge or who has given testimony under this chapter;
     (4) To refuse to engage in collective bargaining.

NEW SECTION.  Sec. 14   (1) The commission must prevent unfair labor practices and issue appropriate remedial orders. However, a complaint may not be processed for an unfair labor practice occurring more than six months before the filing of the complaint with the commission.
     (2) If the commission determines that a person has engaged in or is engaging in an unfair labor practice, the commission must issue and serve upon the person an order requiring the person to cease and desist from the unfair labor practice. The commission may take action to carry out the purposes and policy of this chapter, including requiring the person to pay damages and reinstate employees.
     (3) The commission may petition the superior court for the county in which the main office of the employer is located or in which the person who has engaged or is engaging in the unfair labor practice resides or transacts business, for the enforcement of its order and for appropriate temporary relief.

NEW SECTION.  Sec. 15   Actions taken by or on behalf of the commission shall be pursuant to chapter 34.05 RCW, or rules adopted in accordance with chapter 34.05 RCW, and the right of judicial review provided by chapter 34.05 RCW is applicable to all actions and rules.

NEW SECTION.  Sec. 16   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. 17   Sections 1 through 16 of this act constitute a new chapter in Title 49 RCW.