S-2754.3

1287-S AMS LAB S2754.3

SHB 1287 - S COMM AMD

By Committee on Labor & Commerce

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. (1) This chapter shall be known and cited as the agricultural employment relations act.

(2) It is hereby stated to be the policy of the state of Washington to protect the right of agricultural employees to full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of collective bargaining. Industrial strife can be avoided or substantially minimized, and the public interest protected, if employers and employees recognize each other's legitimate rights under law in their relations with one another. It is the purpose and policy of this chapter to prescribe the collective bargaining rights of employees and employers in the agricultural industry, to provide orderly and peaceful procedures for preventing the interference by one with the rights of the other, to protect the rights of individual employees, to define and proscribe practices on the part of labor and management that are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Agriculture" includes farming in all its branches, and among other things, includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of agricultural or horticultural commodities, including commodities defined as agricultural commodities in 12 U.S.C. Sec. 1141j(g), the raising of livestock, bees, furbearing animals, or poultry, and practices, including forestry or lumbering operations, performed by a farmer or on a farm as an incident to or in conjunction with the farming operations, including preparation for market and delivery to storage, or to market, or to carriers for transportation to market.

(2) "Collective bargaining" means the performance of the mutual obligation 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 wages, hours, and other terms and conditions of employment, or the negotiation of a question arising under a collective bargaining agreement. A written contract incorporating an agreement 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, except as otherwise provided in this chapter.

(3) "Commission" means the commission established in chapter 41.58 RCW which for purposes of this chapter shall be known as the Washington employment relations commission.

(4) "Employee" means anyone employed by an employer in agriculture, and shall not be limited to the employees of a particular employer, unless this chapter explicitly states otherwise, and shall include an individual whose work has ceased as a consequence of, or in connection with, a current labor dispute or because of an unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include an individual employed in the domestic service of a family or person at his or her home, or an individual employed by his or her parent or spouse, or an individual having the status of an independent contractor, or an individual employed as a supervisor, unless included within a separate bargaining agreement pursuant to this chapter, or a person covered by the national labor relations act or the railway labor act.

(5) "Employee organization" means an organization of any kind, or an agency or employee representation committee or plan, in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

(6) "Employer" shall be liberally construed to include any of the following who, at any time during the preceding calendar year, employed fifteen or more employees at the same time: Any person acting directly or indirectly in the interest of an employer in relation to an employee, an individual grower, corporate grower, cooperative grower, harvesting association, hiring association, land management group, an association of persons or cooperatives engaged in agriculture, and a person who owns or leases or manages land used for agricultural purposes. A farm labor contractor, or a person supplying agricultural workers to an employer, is an agent of the employer.

(7) "Exclusive bargaining representative" means an employee organization which has been certified pursuant to section 7 of this act as the representative of the employees in an appropriate bargaining unit.

(8) "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, regardless of whether the disputants stand in the proximate relation of employer and employee.

(9) "Person" includes one or more individuals, employee organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in cases under Title II U.S.C., or receivers. In determining whether a person is acting as an agent of another person so as to make the 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.

(10) "Professional employee" means:

(a) An employee engaged in work:

(i) Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work;

(ii) Involving the consistent exercise of discretion and judgment in its performance;

(iii) Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

(iv) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes; or

(b) An employee, who:

(i) Has completed the courses of specialized intellectual instruction and study described in (a)(iv) of this subsection; and

(ii) Is performing related work under the supervision of a professional person to qualify himself or herself to become a professional employee as defined in (a) of this subsection.

(11) "Supervisor" means an individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not merely a routine or clerical nature, but requires the use of independent judgment.

(12) "Union security provision" means a provision in a collective bargaining agreement under which some or all of the employees in the bargaining unit may be required, as a condition of continued employment on or after the seventh day following the beginning of the employment or the effective date of the provision, whichever is later, to become a member of the exclusive bargaining representative or pay a representation fee not greater than the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the exclusive bargaining representative.

(13) "Unfair labor practice" means an unfair labor practice listed in section 8 of this act.

NEW SECTION. Sec. 3. The commission is an administrative agency within the meaning of chapter 34.05 RCW.

(1) The commission shall have authority from time to time to adopt, pursuant to chapter 34.05 RCW, rules as may be necessary to carry out this chapter, consistent with the best standards of labor management relations.

(2) The rules, practices, and precedents of the national labor relations board, provided they are consistent with this chapter, shall be considered by the commission in its interpretation of this chapter, and prior to the adoption of commission rules.

(3) The commission shall employ staff with sufficient language ability to implement this chapter efficiently and fairly.

(4) In consultation with agricultural employer and employee organizations, the commission shall appoint a coordinator for agricultural employment who shall have a knowledge of agricultural industry and employment issues. The coordinator shall perform the duties and have the powers as the commission shall prescribe, in consultation with its executive director, to implement and enforce this chapter.

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 to engage in other lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection, and also have the right to refrain from any or all of the 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 by this chapter.

NEW SECTION. Sec. 5. The employee organization that has been designated or selected 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. However, an employee or group of employees may at any time after the adoption of a collective bargaining agreement present complaints or concerns to the employer and have the 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 the 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.

NEW SECTION. Sec. 6. The commission shall resolve a dispute concerning the unit appropriate for collective bargaining or the allocation of employees or positions to bargaining units, taking into consideration the duties, skills, and working conditions of the employees; the extent of organization of the employees; and the desires of the employees, except that:

(1) A unit shall not be considered appropriate if it includes both supervisors and nonsupervisory employees;

(2) A unit that includes only supervisors may be considered appropriate if a majority of the employees in the category indicate by vote that they desire to be included in such a unit; and

(3) A unit that includes both professional employees and nonprofessional employees shall not be considered appropriate unless a majority of the professional employees indicate by vote that they desire to be included in such a unit.

NEW SECTION. Sec. 7. The commission shall resolve a dispute concerning selection of an exclusive bargaining representative in accordance with the procedures specified in this section.

(1) No question concerning representation may be raised within one year following certification of an exclusive bargaining representative under this section.

(2) 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.

(3) Where 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 prior to the expiration date of the agreement. However, in the event a valid collective bargaining agreement, together with a renewal or extension 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 prior to the third anniversary date or a 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 decertification.

(4) An employee organization seeking certification as exclusive bargaining representative of a bargaining unit of employees, or bargaining unit employees seeking decertification of their 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.

(5) A petition filed by an employer shall be supported by credible evidence demonstrating the good faith basis on which the employer claims the existence of a question concerning the representation among its employees.

(6) An 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 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.

(7) The commission shall determine a question concerning representation by conducting a secret ballot election among the employees in the bargaining 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 bargaining authorization cards against the employment records of the employer.

(8)(a) If a petition is filed by an employee organization seeking certification as an exclusive bargaining representative, and the number of persons currently employed by the employer named in the petition, as determined by the payroll immediately preceding the filing of the petition, is not less than fifty percent of the employer's peak employment during the preceding calendar year, the commission shall, within two working days of the receipt of the petition, determine the unit appropriate for collective bargaining and whether an election is to occur. If an election is to occur, it shall be conducted within seven days of the determination that it is to occur, unless the employer and the employee organizations eligible for the election agree otherwise.

(b) If a petition is filed by an employee organization seeking certification as an exclusive bargaining representative, and the number of persons currently employed by the employer named in the petition, as determined by the payroll immediately preceding the filing of the petition, is less than fifty percent of the employer's peak employment during the preceding calendar year, the commission shall, within seven days of the receipt of the petition, determine the unit appropriate for collective bargaining, and whether an election is to occur. If an election is to occur, it shall be conducted within fourteen days of the determination that it is to occur, unless the employer and the employee organizations eligible for the election agree otherwise.

(9) The representation election ballot shall contain a choice for each employee organization qualifying under subsection (4) or (6) of this section, 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 runoff election shall be conducted between the two choices receiving the highest and second highest numbers of votes.

(10) The ballots used by the commission shall include any symbol or trademark requested by an employee organization qualified under subsection (4) of this section in its petition, or requested by an employee organization qualified under subsection (6) of this section in its motion for intervention.

(11) Upon request of any party a reasonable time prior to the election, as established by the commission, the ballots used by the commission shall be printed in any language or languages used by employees voting in the election, and in English.

(12) Employers shall maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall make the list available to the commission upon request. Manipulation of employee assignments or records of employee assignments, or other action intended solely to circumvent the fifteen-employee threshold and thereby avoid the application of this chapter, is strictly prohibited. If the employer does not furnish a full and accurate list to the commission within a reasonable time prior to an election, the commission may proceed to determine eligibility on the basis of the other evidence as is available to the commission at that time.

(13) Challenges to commission determinations regarding units appropriate for collective bargaining or the selection of an exclusive bargaining representative shall not operate as a stay on any election, but shall be adjudicated after the election according to rules adopted by the commission.

NEW SECTION. Sec. 8. (1) It is an unfair labor practice for an employer or its agents to:

(a) Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in this chapter;

(b) Dominate or interfere with the formation or administration of an employee organization or contribute financial or other support to it. However, an employer shall not be prohibited from permitting employees to confer with it or its representatives or agents during working hours without loss of time or pay;

(c) Encourage or discourage membership in an employee organization by discrimination in regard to hiring, tenure of employment, or a term or condition of employment, but nothing contained in this subsection prevents an employer from enforcing a union security provision authorized by this chapter;

(d) Discharge or otherwise discriminate against an employee because he or she has filed charges or given testimony under this chapter;

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

(f) Permanently replace, or threaten to permanently replace, a striking employee.

(2) It is an unfair labor practice for an employee organization or its agents to:

(a) Restrain or coerce:

(i) Employees in the exercise of the rights guaranteed in this chapter. However, this subsection (2)(a)(i) shall not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or

(ii) An employer in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances;

(b) 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 the organization has been denied or terminated on some ground other than his or her failure to tender the amounts required under a union security provision authorized by this chapter;

(d) Refuse to bargain collectively with the employer of employees for whom it is the exclusive bargaining representative;

(e) Require of employees covered by a union security provision authorized under this chapter the payment, as a condition precedent to becoming a member of the organization, of a fee in an amount that the commission finds excessive or discriminatory under all the circumstances. In making such a finding, the commission shall consider, among other relevant factors, the practices and customs of employee organizations in the particular industry, and the wages currently paid to the employees affected;

(f) Cause or attempt to cause an employer to pay or deliver or agree to pay or deliver money or any other thing of value, in the nature of an exaction for services that are not performed or not to be performed;

(g) Breach its duty of fair representation with respect to an employee or employees in a bargaining unit for which the employee organization is the exclusive bargaining representative, by action or inaction which is arbitrary, discriminatory, perfunctory, or lacking in good faith. However, it is not a violation of this section for an employee organization to refuse to pursue a dispute under this chapter on behalf of one or more employees where, following investigation of the facts and circumstances, the employee organization makes a good faith determination that the employee claim is without merit.

(3) Nothing contained in this section shall be construed to make unlawful a refusal by a person to enter upon the premises of an employer, other than his or her own employer, if the employees of the employer are engaged in a strike ratified or approved by a representative of the employees whom the employer is required to recognize under the national labor relations act.

(4)(a) It is not an unfair labor practice under this section for an employer to make an agreement covering employees engaged, or who, upon their employment, will be engaged, in the harvesting of agricultural or horticultural commodities under this chapter because (i) the majority status of the employee organization has not been established under section 7 of this act prior to the making of the agreement; (ii) the agreement requires as a condition of employment, membership in the employee organization after the seventh day following the beginning of the employment or the effective date of the agreement, whichever is later; (iii) the agreement requires the employer to notify the employee organization of opportunities for employment with the employer, or gives the employee organization an opportunity to refer qualified applicants for employment; or (iv) the agreement specifies minimum training or experience qualifications for employment or provides for priority in opportunities for employment based upon length of service with the employer, in agriculture or in the particular geographical area.

(b) Subsections (1)(c) and (2)(b) of this section apply to any hiring hall operated under this subsection.

(5) The expressing of views, argument, or opinion, or the dissemination thereof, 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. 9. The commission shall adjudicate unfair labor practice disputes in accordance with the procedures specified in this section and in chapter 34.05 RCW.

(1) A complaint charging unfair labor practices must be filed within six months following the act or event complained of.

(2) 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.

(3) If the commission determines that a person has engaged in or is engaging in an 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 the policies of this chapter, including the reinstatement of employees with back pay.

(4) The commission may petition the superior court of Thurston county, the county in which the main office of the employer is located, or where the person who has engaged or is engaging in an unfair labor practice resides or transacts business, for appropriate temporary relief or for the enforcement of its order.

NEW SECTION. Sec. 10. (1) An employer shall:

(a) Maintain accurate and current payroll lists containing the names and addresses of all their employees, and shall release the lists to a requesting employee organization upon reasonable notice of intent to organize the employers' employees; and

(b) Upon request, allow an employee organization authorized to raise a question regarding representation under section 7 of this act to meet with the employer's employees at the employees' worksite one hour prior to the commencement of the work day, one hour after the end of the work day, and during meal breaks or other rest periods. Neither the employer, nor the employer's agents or representatives, may be in attendance at a meeting authorized under this subsection. This subsection shall not be construed to limit any other right, guaranteed by law, of employee organizations to communicate with employees.

(2) If an employer fails to comply with subsection (1) of this section, the jurisdiction of the superior court of Thurston county, or the county in which the main office of the employer is located may be invoked, and the court shall have jurisdiction to compel such action as may be appropriate, and award reasonable costs and attorneys' fees to the prevailing party.

NEW SECTION. Sec. 11. (1) An employee organization or its agents shall not:

(a) Engage in, or induce or encourage an individual to engage in, a strike or a refusal in the course of his or her employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials or commodities or to perform services; or threaten, coerce, or restrain a person, where in either case an object thereof is:

(i) Forcing or requiring an employer or self-employed person to join any employee or employer organization or to enter into any agreement that is prohibited by (b) of this subsection;

(ii) Forcing or requiring a person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with an employee organization as the representative of his or her employees unless the employee organization is the exclusive bargaining representative of the employees. However, nothing contained in this subsection shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing;

(iii) Forcing or requiring an employer to recognize or bargain with a particular employee organization as the representative of his or her employees if another employee organization is the exclusive bargaining representative;

(iv) Forcing or requiring an employer to assign particular work to employees in a particular employee organization or in a particular trade, craft, or class rather than to employees in another employee organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the commission determining the exclusive bargaining representative for employees performing such work.

Nothing in this subsection shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of an employee organization, that a product or products are produced by an employer with whom the employee organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his or her employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution; or

(b) Enter into a contract or agreement with an employer, express or implied, whereby the employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and a contract or agreement entered into heretofore or hereafter containing such an agreement shall be to that extent unenforceable and void.

(2) Notwithstanding RCW 49.36.015 or chapter 49.32 RCW, if an employee organization is engaging in any activity prohibited by subsection (1) of this section, the jurisdiction of the superior court of Thurston county or the county in which the activity is taking place may be invoked, and the court shall have jurisdiction to issue a permanent injunction against the prohibited activity, and award reasonable costs and attorneys' fees to the prevailing party.

NEW SECTION. Sec. 12. (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. The dues and fees shall be transmitted by the employer monthly 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. The employer shall enforce a union security provision by monthly deductions from the pay of all bargaining unit employees affected thereby, 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 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. 13. Members of the commission, the commission staff, mediators, or arbitrators serving under this chapter are immune from suit in any other civil action based upon commission proceedings or official acts performed in good faith to effectuate the policies of this chapter.

NEW SECTION. Sec. 14. Any person who willfully resists, prevents, impedes, or interferes with members of the commission or its agents in the performance or duties under this chapter is guilty of a gross misdemeanor punishable under chapter 9A.20 RCW.

NEW SECTION. Sec. 15. This chapter is intended to be additional to other rights and remedies and shall be liberally construed to accomplish its purpose. If any provision of this chapter conflicts with any other statute, ordinance, or rule, this chapter shall control.

NEW SECTION. Sec. 16. Nothing in this chapter may be construed to interfere with, impede, or diminish in any way the right to strike or lock out. However, the exclusive bargaining representative shall provide the employer with written notice of any vote to authorize the exclusive bargaining representative to call a strike on behalf of its membership. The notice shall be provided at least seventy-two hours prior to such a vote.

NEW SECTION. Sec. 17. 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. 18. Except as otherwise expressly provided in this chapter, nothing in this chapter shall be construed to annul, modify, or preclude the renewal or continuation of any lawful agreement entered into between an employer and an employee organization prior to the effective date of this act.

NEW SECTION. Sec. 19. Sections 1 through 18 of this act shall constitute a new chapter in Title 49 RCW."

SHB 1287 - S COMM AMD

By Committee on Labor & Commerce

On page 1, line 1 of the title, after "relations;" strike the remainder of the title and insert "adding a new chapter to Title 49 RCW; and prescribing penalties."