AN ACT Relating to faculty governance 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 develop and engage in procedures for shared governance with designated 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 shall 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) "Casual employee" includes but is not limited to student assistants, research assistants, teaching assistants, temporary employees, and professional consultants employed by institutions of higher education.

(3) "Confidential employee" includes:

(a) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of a shared governance proceeding, or the administration of shared governance 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) Any person who assists and acts in a confidential capacity to such person.

(4) "Supervisor" means chairpersons of departments, deans, and higher level administrators having authority in personnel matters to exercise 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.

(5) "Shared governance" means the performance of the mutual obligation of the representatives of the employer and the exclusive negotiations representative to meet at reasonable times early in the college or university budget-making process to negotiate 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 negotiation. Subjects for negotiation shall include, but not be limited to the following aspects of faculty governance consistent with faculty codes: Procedures for determining tenure, recognizing merit, and offering promotions; grievance procedures; policies affecting working conditions; and internal distribution of salary moneys allocated by the legislature. Prior law, practice, or interpretation shall be neither restrictive, expansive, nor determinative with respect to the scope of negotiations. A written contract incorporating any agreements reached shall be executed. The obligation to negotiate does not compel either party to agree to a proposal or to make a concession. Binding arbitration under section 15 of this act shall be used to resolve any failure to reach an agreement.

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

(6) "Faculty code" means a body of rules formulated for the governance of an institution of higher education by the faculty under rules as may be prescribed by the boards of regents or trustees.

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

(8) "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.

(9) "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 negotiations with employers.

(10) "Exclusive negotiations representative" means any employee organization which has been certified or recognized pursuant to the provisions of this chapter as the representative of the employees in an appropriate negotiations unit.

(11) "Institution of higher education" means each of the state universities, regional universities, and The Evergreen State College. The term does not include community college districts.

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

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

(14) "Agency shop provision" means a provision in a shared governance agreement under which some or all employees in the negotiations 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 negotiations unit or pay an agency fee equal to the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the negotiations unit.

NEW SECTION. Sec. 4. (1) Employees have the right to self-organization, to form, join, or assist employee organizations, to negotiate 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 negotiations representative or charitable organization under a agency shop provision authorized in this chapter: PROVIDED, That nothing contained in this chapter shall permit or grant any employee covered under this chapter the right to strike or refuse to perform his or her official duties.

(2) Nothing in this chapter shall 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: PROVIDED, That nothing contained in this chapter shall permit or grant any employer the right to lock out its employees in connection with a labor dispute.

NEW SECTION. Sec. 5. (1) Upon filing with the employer the voluntary written authorization of a negotiations unit employee under this chapter, the employee organization which is the exclusive negotiations representative of the negotiations unit shall have the right to have deducted from the salary of the negotiations unit employee the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the exclusive negotiations representative. Such 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 such deduction, and shall be transmitted by the employer to the employee organization or to the depository designated by the employee organization.

(2) A negotiations agreement may include agency shop agreements, but not provide for a closed shop. The employer shall enforce any agency shop provisions by monthly deductions from the salary of negotiations unit employees affected thereby and shall transmit such funds to the employee organization or to the depository designated by the employee organization.

(3) An employee who is covered by agency shop provisions and who asserts a right of nonassociation based on bona fide religious tenets or teachings of a church or religious body of which such 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 negotiations representative. The charity shall be agreed upon by the employee and the employee organization to which such employee would otherwise pay the dues and fees. The employee shall furnish written proof that such payments have been made. If the employee and the employee organization do not reach agreement on such matter, the commission shall designate the charitable organization.

NEW SECTION. Sec. 6. To avoid unnecessary fragmentation, negotiations units shall cover the employees of an entire campus. All employees who are tenured or eligible to seek or be awarded tenure, including librarians, shall be included in the same negotiations unit at each institution of higher education.

NEW SECTION. Sec. 7. (1) The employee organization which has been designated by the majority of the employees in an appropriate negotiations unit as their representative for the purposes of shared governance shall be the exclusive negotiations representative of, and shall be required to represent, all the employees within the negotiations 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 negotiations representative, and may request that the exclusive negotiations representative be given an opportunity to be present at that adjustment and to make its views known, and as long as the adjustment is made known to the negotiations representative and is not inconsistent with the terms of a shared governance agreement then in effect.

(2) The commission shall resolve any dispute concerning selection of a negotiations 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) Where there is a valid shared governance agreement in effect, no question concerning 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. In no event shall an agreement be for longer than a two-year period or the end of the state's fiscal biennium whichever is first.

(c) An employee organization seeking certification as exclusive negotiation representative of a negotiations unit of employees, or negotiations unit employees seeking decertification of an exclusive negotiation representative, shall make a confidential showing to the commission of credible evidence demonstrating that at least thirty percent of the employees in the negotiations 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 negotiation 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 which 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 negotiations unit involved shall be entitled to intervene in proceedings under this section and to 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 negotiations unit, except where the commission determines that a serious unfair labor practice has been committed which 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 negotiating 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. Where 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.

(3) If a negotiations representative is chosen under this section, negotiations shall begin immediately.

NEW SECTION. Sec. 8. (1) The commission shall adopt rules under the administrative procedure act, chapter 34.04 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 nothing in this subsection prevents 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 otherwise discriminate against an employee because the employee has filed charges or given testimony under this chapter;

(e) To refuse to negotiate with the exclusive negotiations 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 shared governance 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;

(3) The expression of any views, argument, or opinion, or the dissemination thereof 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 shall have the right to file an answer to the complaint and to appear in person or otherwise to give testimony at the place and time set by the commission for hearing.

(4) If the commission determines that any 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 34.04 RCW, or rules adopted under chapter 34.04 RCW. The right of judicial review under chapter 34.04 RCW is applicable to all these actions and rules.

NEW SECTION. Sec. 12. Shared governance agreements, or any provision of shared governance agreements, entered into between an employer institution of higher education and an exclusive negotiations representative under this chapter are not subject to chapter 28B.19 RCW.

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

(2) Any shared governance 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 negotiations unit for the same or related period.

(3) Any shared governance 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 negotiations unit, if the employer receives, by increased appropriation, additional moneys for such purposes.

NEW SECTION. Sec. 14. (1) The commission, through the executive director, shall offer its mediation services in any labor dispute involving an employer and an exclusive negotiations representative, upon the request of one or more of the parties to the dispute, when 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 shall 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. Nothing in this section shall be construed to prohibit an employer and an exclusive negotiations representative from agreeing to substitute at their own expense some other mediator or mediation procedure.

NEW SECTION. Sec. 15. An employer and an exclusive negotiations representative who enter into a shared governance agreement shall include in the agreement procedures for binding arbitration of the disputes arising about the interpretation or application of the agreement. The agreement shall provide that good faith negotiations and mediation procedures shall be tried before binding arbitration procedures are begun.

NEW SECTION. Sec. 16. Except as otherwise expressly provided in this chapter, nothing contained in this chapter shall be construed to deny or otherwise abridge any rights, privileges, or benefits granted by law to employees.

Sec. 17. Section 4, chapter 296, Laws of 1975 1st ex. sess. and RCW 41.58.020 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, and binding arbitration, as applicable.

(2) The commission, through the director, may proffer its services in any labor dispute involving a political subdivision, municipal corporation, or ((~~the community college system~~)) institutions of higher education of the state, 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, and binding arbitration services available in the settlement of such grievance disputes only as a last resort.

NEW SECTION. Sec. 18. Sections 1 through 16 of this act shall constitute a new chapter in Title 41 RCW.

NEW SECTION. Sec. 19. 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. 20. This act shall take effect October 1, 1987. The commission may immediately take such steps as are necessary to insure that this act is implemented on its effective date.