BILL REQ. #: S-0788.1
State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 02/01/11. Referred to Committee on Labor, Commerce & Consumer Protection.
AN ACT Relating to granting binding interest arbitration rights to certain uniformed personnel; amending RCW 41.80.005 and 41.80.010; adding new sections to chapter 41.80 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 41.80.005 and 2002 c 354 s 321 are each amended to
read as follows:
Unless the context clearly requires otherwise, the definitions in
this section apply throughout this chapter.
(1) "Agency" means any agency as defined in RCW 41.06.020 and
covered by chapter 41.06 RCW.
(2) "Collective bargaining" means the performance of the mutual
obligation of the representatives of the employer and the exclusive
bargaining representative to meet at reasonable times and to bargain in
good faith in an effort to reach agreement with respect to the subjects
of bargaining specified under RCW 41.80.020. The obligation to bargain
does not compel either party to agree to a proposal or to make a
concession, except as otherwise provided in this chapter.
(3) "Commission" means the public employment relations commission.
(4) "Confidential employee" means an employee who, in the regular
course of his or her duties, assists in a confidential capacity persons
who formulate, determine, and effectuate management policies with
regard to labor relations or who, in the regular course of his or her
duties, has authorized access to information relating to the
effectuation or review of the employer's collective bargaining
policies, or who assists or aids a manager. "Confidential employee"
also includes employees who assist assistant attorneys general who
advise and represent managers or confidential employees in personnel or
labor relations matters, or who advise or represent the state in tort
actions.
(5) "Director" means the director of the public employment
relations commission.
(6) "Employee" means any employee, including employees whose work
has ceased in connection with the pursuit of lawful activities
protected by this chapter, covered by chapter 41.06 RCW, except:
(a) Employees covered for collective bargaining by chapter 41.56
RCW;
(b) Confidential employees;
(c) Members of the Washington management service;
(d) Internal auditors in any agency; or
(e) Any employee of the commission, the office of financial
management, or the department of personnel.
(7) "Employee organization" means any organization, union, or
association in which employees participate and that exists for the
purpose, in whole or in part, of collective bargaining with employers.
(8) "Employer" means the state of Washington.
(9) "Exclusive bargaining representative" means any employee
organization that has been certified under this chapter as the
representative of the employees in an appropriate bargaining unit.
(10) "Institutions of higher education" means the University of
Washington, Washington State University, Central Washington University,
Eastern Washington University, Western Washington University, The
Evergreen State College, and the various state community colleges.
(11) "Labor dispute" means 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 with
respect to the subjects of bargaining provided in this chapter,
regardless of whether the disputants stand in the proximate relation of
employer and employee.
(12) "Manager" means "manager" as defined in RCW 41.06.022.
(13) "Supervisor" means an employee who has authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, direct, reward, or discipline employees, or to
adjust employee grievances, or effectively to recommend such action, if
the exercise of the authority is not of a merely routine nature but
requires the consistent exercise of individual judgment. However, no
employee who is a member of the Washington management service may be
included in a collective bargaining unit established under this
section.
(14) "Unfair labor practice" means any unfair labor practice listed
in RCW 41.80.110.
(15) "Uniformed personnel" means campus police officers at
institutions of higher education.
Sec. 2 RCW 41.80.010 and 2010 c 104 s 1 are each amended to read
as follows:
(1) For the purpose of negotiating collective bargaining agreements
under this chapter, the employer shall be represented by the governor
or governor's designee, except as provided for institutions of higher
education in subsection (4) of this section.
(2)(a) If an exclusive bargaining representative represents more
than one bargaining unit, the exclusive bargaining representative shall
negotiate with each employer representative as designated in subsection
(1) of this section one master collective bargaining agreement on
behalf of all the employees in bargaining units that the exclusive
bargaining representative represents. For those exclusive bargaining
representatives who represent fewer than a total of five hundred
employees each, negotiation shall be by a coalition of all those
exclusive bargaining representatives. The coalition shall bargain for
a master collective bargaining agreement covering all of the employees
represented by the coalition. The governor's designee and the
exclusive bargaining representative or representatives are authorized
to enter into supplemental bargaining of agency-specific issues for
inclusion in or as an addendum to the master collective bargaining
agreement, subject to the parties' agreement regarding the issues and
procedures for supplemental bargaining. This section does not prohibit
cooperation and coordination of bargaining between two or more
exclusive bargaining representatives.
(b) This subsection (2) does not apply to exclusive bargaining
representatives who represent employees of institutions of higher
education, except when the institution of higher education has elected
to exercise its option under subsection (4) of this section to have its
negotiations conducted by the governor or governor's designee under the
procedures provided for general government agencies in subsections (1)
through (3) of this section.
(c) If five hundred or more employees of an independent state
elected official listed in RCW 43.01.010 are organized in a bargaining
unit or bargaining units under RCW 41.80.070, the official shall be
consulted by the governor or the governor's designee before any
agreement is reached under (a) of this subsection concerning
supplemental bargaining of agency specific issues affecting the
employees in such bargaining unit.
(3) The governor shall submit a request for funds necessary to
implement the compensation and fringe benefit provisions in the master
collective bargaining agreement or for legislation necessary to
implement the agreement. Requests for funds necessary to implement the
provisions of bargaining agreements shall not be submitted to the
legislature by the governor unless such requests:
(a) Have been submitted to the director of the office of financial
management by October 1 prior to the legislative session at which the
requests are to be considered; and
(b) Have been certified by the director of the office of financial
management as being feasible financially for the state or reflects the
decision of an arbitration panel reached under section 5 of this act.
The legislature shall approve or reject the submission of the
request for funds as a whole. The legislature shall not consider a
request for funds to implement a collective bargaining agreement unless
the request is transmitted to the legislature as part of the governor's
budget document submitted under RCW 43.88.030 and 43.88.060. If the
legislature rejects or fails to act on the submission, either party may
reopen all or part of the agreement or the exclusive bargaining
representative may seek to implement the procedures provided for in RCW
41.80.090.
(4)(a)(i) For the purpose of negotiating agreements for
institutions of higher education, the employer shall be the respective
governing board of each of the universities, colleges, or community
colleges or a designee chosen by the board to negotiate on its behalf.
(ii) A governing board of a university or college may elect to have
its negotiations conducted by the governor or governor's designee under
the procedures provided for general government agencies in subsections
(1) through (3) of this section, except that:
(A) The governor or the governor's designee and an exclusive
bargaining representative shall negotiate one master collective
bargaining agreement for all of the bargaining units of employees of a
university or college that the representative represents; or
(B) If the parties mutually agree, the governor or the governor's
designee and an exclusive bargaining representative shall negotiate one
master collective bargaining agreement for all of the bargaining units
of employees of more than one university or college that the
representative represents.
(iii) A governing board of a community college may elect to have
its negotiations conducted by the governor or governor's designee under
the procedures provided for general government agencies in subsections
(1) through (3) of this section.
(b) Prior to entering into negotiations under this chapter, the
institutions of higher education or their designees shall consult with
the director of the office of financial management regarding financial
and budgetary issues that are likely to arise in the impending
negotiations.
(c)(i) If appropriations are necessary to implement the
compensation and fringe benefit provisions of the bargaining agreements
reached between institutions of higher education and exclusive
bargaining representatives agreed to under the provisions of this
chapter, the governor shall submit a request for such funds to the
legislature according to the provisions of subsection (3) of this
section, except as provided in (c)(ii) of this subsection.
(ii) In the case of a bargaining unit of employees of institutions
of higher education in which the exclusive bargaining representative is
certified during or after the conclusion of a legislative session, the
legislature may act upon the compensation and fringe benefit provisions
of the unit's initial collective bargaining agreement if those
provisions are agreed upon and submitted to the office of financial
management and legislative budget committees before final legislative
action on the biennial or supplemental operating budget by the sitting
legislature.
(5) There is hereby created a joint committee on employment
relations, which consists of two members with leadership positions in
the house of representatives, representing each of the two largest
caucuses; the chair and ranking minority member of the house
appropriations committee, or its successor, representing each of the
two largest caucuses; two members with leadership positions in the
senate, representing each of the two largest caucuses; and the chair
and ranking minority member of the senate ways and means committee, or
its successor, representing each of the two largest caucuses. The
governor shall periodically consult with the committee regarding
appropriations necessary to implement the compensation and fringe
benefit provisions in the master collective bargaining agreements, and
upon completion of negotiations, advise the committee on the elements
of the agreements and on any legislation necessary to implement the
agreements.
(6) If, after the compensation and fringe benefit provisions of an
agreement are approved by the legislature, a significant revenue
shortfall occurs resulting in reduced appropriations, as declared by
proclamation of the governor or by resolution of the legislature, both
parties shall immediately enter into collective bargaining for a
mutually agreed upon modification of the agreement.
(7) After the expiration date of a collective bargaining agreement
negotiated under this chapter, all of the terms and conditions
specified in the collective bargaining agreement remain in effect until
the effective date of a subsequently negotiated agreement, not to
exceed one year from the expiration date stated in the agreement.
Thereafter, the employer may unilaterally implement according to law.
NEW SECTION. Sec. 3 A new section is added to chapter 41.80 RCW
to read as follows:
The intent and purpose of sections 4 through 10 of this act is to
recognize that there exists a public policy in the state of Washington
against strikes by uniformed personnel as a means of settling their
labor disputes; that the uninterrupted and dedicated service of these
classes of employees is vital to the welfare and public safety of the
state of Washington; and that to promote such dedicated and
uninterrupted public service there should exist an effective and
adequate alternative means of settling disputes.
NEW SECTION. Sec. 4 A new section is added to chapter 41.80 RCW
to read as follows:
Negotiations between the employer and the exclusive bargaining
representative of a unit of uniformed personnel shall be commenced at
least five months prior to the submission of the budget to the
legislature. If no agreement has been reached sixty days after the
commencement of such negotiations then, at any time thereafter, either
party may declare that an impasse exists and may submit the dispute to
the commission for mediation, with or without the concurrence of the
other party. The commission shall appoint a mediator, who shall
promptly meet with the representatives of the parties, either jointly
or separately, and shall take such other steps as he or she may deem
appropriate in order to persuade the parties to resolve their
differences and effect an agreement. A mediator, however, does not
have a power of compulsion. The mediator may consider only matters
that are subject to bargaining under this chapter.
NEW SECTION. Sec. 5 A new section is added to chapter 41.80 RCW
to read as follows:
(1) Within ten working days after the first Monday in September of
every odd-numbered year, the state's bargaining representative and the
exclusive bargaining representative for the appropriate bargaining unit
shall attempt to agree on an interest arbitration panel consisting of
three members to be used if the parties are not successful in
negotiating a comprehensive collective bargaining agreement. Each
party shall name one person to serve as its arbitrator on the
arbitration panel. The two members so appointed shall meet within
seven days following the appointment of the later appointed member to
attempt to choose a third member to act as the neutral chair of the
arbitration panel. Upon the failure of the arbitrators to select a
neutral chair within seven days, the two appointed members shall use
one of the two following options in the appointment of the third
member, who shall act as chair of the panel: (a) By mutual consent,
the two appointed members may jointly request the commission to, and
the commission shall, appoint a third member within two days of such a
request. Costs of each party's appointee shall be borne by each party
respectively; other costs of the arbitration proceedings shall be borne
by the commission; or (b) either party may apply to the commission, the
federal mediation and conciliation service, or the American arbitration
association to provide a list of five qualified arbitrators from which
the neutral chair shall be chosen. Each party shall pay the fees and
expenses of its arbitrator, and the fees and expenses of the neutral
chair shall be shared equally between the parties.
(2) Immediately upon selecting an interest arbitration panel, the
parties shall cooperate to reserve dates with the arbitration panel for
potential arbitration between August 1st and September 15th of the
following even-numbered year. The parties shall also prepare a
schedule of at least five negotiation dates for the following year,
absent an agreement to the contrary. The parties shall execute a
written agreement before November 1st of each odd-numbered year setting
forth the names of the members of the arbitration panel and the dates
reserved for bargaining and arbitration. This subsection imposes
minimum obligations only and is not intended to define or limit a
party's full, good faith bargaining obligation under other sections of
this chapter.
(3) If the parties are not successful in negotiating a
comprehensive collective bargaining agreement, a hearing shall be held.
The hearing shall be informal and each party shall have the opportunity
to present evidence and make argument. No member of the arbitration
panel may present the case for a party to the proceedings. The rules
of evidence prevailing in judicial proceedings may be considered, but
are not binding, and any oral testimony or documentary evidence or
other data deemed relevant by the chair of the arbitration panel may be
received in evidence. A recording of the proceedings shall be taken.
The arbitration panel has the power to administer oaths, require the
attendance of witnesses, and require the production of such books,
papers, contracts, agreements, and documents as may be deemed by the
panel to be material to a just determination of the issues in dispute.
If any person refuses to obey a subpoena issued by the arbitration
panel, or refuses to be sworn or to make an affirmation to testify, or
any witness, party, or attorney for a party is guilty of any contempt
while in attendance at any hearing held under this section, the
arbitration panel may invoke the jurisdiction of the superior court in
the county where the labor dispute exists, and the court has
jurisdiction to issue an appropriate order. Any failure to obey the
order may be punished by the court as a contempt thereof. The hearing
conducted by the arbitration panel shall be concluded within
twenty-five days following the selection or designation of the neutral
chair of the arbitration panel, unless the parties agree to a longer
period.
(4) The neutral chair shall consult with the other members of the
arbitration panel, and, within thirty days following the conclusion of
the hearing, the neutral chair shall make written findings of fact and
a written determination of the issues in dispute, based on the evidence
presented. A copy thereof shall be served on the commission, on each
of the other members of the arbitration panel, and on each of the
parties to the dispute.
(5) Except as provided in this subsection, the written
determination shall be final and binding upon both parties.
(a) The written determination is subject to review by the superior
court upon the application of either party solely upon the question of
whether the decision of the panel was arbitrary or capricious.
(b) The written determination is not binding on the legislature
and, if the legislature does not approve the funds necessary to
implement provisions pertaining to compensation and fringe benefits of
an arbitrated collective bargaining agreement, is not binding on the
state.
(6) The arbitration panel may consider only matters that are
subject to bargaining under this chapter.
NEW SECTION. Sec. 6 A new section is added to chapter 41.80 RCW
to read as follows:
An interest arbitration panel created pursuant to section 5 of this
act, in the performance of its duties under this chapter, exercises a
state function and is, for the purposes of this chapter, a state
agency. Chapter 34.05 RCW does not apply to proceedings before an
interest arbitration panel under this chapter.
NEW SECTION. Sec. 7 A new section is added to chapter 41.80 RCW
to read as follows:
In making its determination, the panel shall be mindful of the
legislative purpose enumerated in section 3 of this act and, as
additional standards or guidelines to aid it in reaching a decision,
shall take into consideration the following factors:
(1) The constitutional and statutory authority of the employer;
(2) Stipulations of the parties;
(3) Comparison of the hours and conditions of employment of
personnel involved in the proceedings with the hours and conditions of
employment of like personnel of like employers of similar size on the
west coast of the United States;
(4) Changes in any of the circumstances under subsections (1)
through (3) of this section during the pendency of the proceedings; and
(5) Such other factors, not confined to the factors under
subsections (1) through (4) of this section, that are normally or
traditionally taken into consideration in the determination of matters
that are subject to bargaining under this chapter.
NEW SECTION. Sec. 8 A new section is added to chapter 41.80 RCW
to read as follows:
During the pendency of the proceedings before the arbitration
panel, existing wages, hours, and other conditions of employment shall
not be changed by action of either party without the consent of the
other but a party may so consent without prejudice to his rights or
position under sections 4 through 10 of this act.
NEW SECTION. Sec. 9 A new section is added to chapter 41.80 RCW
to read as follows:
(1) If the representative of either or both the uniformed personnel
and the employer refuse to submit to the procedures set forth in
sections 4 and 5 of this act, the parties, or the commission on its own
motion, may invoke the jurisdiction of the superior court for the
county in which the labor dispute exists and such court shall have
jurisdiction to issue an appropriate order. A failure to obey such
order may be punished by the court as a contempt thereof.
(2) Except as provided in this subsection, a decision of the
arbitration panel shall be final and binding on the parties, and may be
enforced at the instance of either party, the arbitration panel or the
commission in the superior court for the county where the dispute
arose.
(a) The written determination is subject to review by the superior
court upon the application of either party solely upon the question of
whether the decision of the panel was arbitrary or capricious.
(b) The written determination is not binding on the legislature
and, if the legislature does not approve the funds necessary to
implement provisions pertaining to compensation and fringe benefits of
an arbitrated collective bargaining agreement, is not binding on the
state.
NEW SECTION. Sec. 10 A new section is added to chapter 41.80 RCW
to read as follows:
The right of uniformed personnel to engage in any strike, work
slowdown, or stoppage is not granted. An employee organization
recognized as the exclusive bargaining representative of uniformed
personnel subject to this chapter that willfully disobeys a lawful
order of enforcement by a superior court pursuant to this section and
section 9 of this act, or willfully offers resistance to such order,
whether by strike or otherwise, is in contempt of court as provided in
chapter 7.21 RCW. An employer that willfully disobeys a lawful order
of enforcement by a superior court pursuant to section 9 of this act or
willfully offers resistance to such order is in contempt of court as
provided in chapter 7.21 RCW.
NEW SECTION. Sec. 11 A new section is added to chapter 41.80 RCW
to read as follows:
The exclusive bargaining representatives certified to represent the
bargaining units that consist of or include uniformed personnel and
exist on the effective date of this section shall continue as the
exclusive bargaining representative without the necessity of an
election as of the effective date of this section. However, there may
be proceedings concerning representation under this chapter thereafter.