H-4590.1  _______________________________________________

                          HOUSE BILL 2996

          _______________________________________________

State of Washington      57th Legislature     2002 Regular Session

By Representatives Clements, Mielke and Mulliken

Read first time 03/01/2002.  Referred to Committee on Commerce & Labor.

Prohibiting strikes by educational employees.

    AN ACT Relating to prohibiting strikes and lockouts under chapter 41.59 RCW; amending RCW 41.59.020; adding a new section to chapter 41.59 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1.  A new section is added to chapter 41.59 RCW to read as follows:

    (1) It is unlawful for an employee or an employee organization, directly or indirectly, to induce, instigate, encourage, authorize, ratify, or participate in a strike.

    (2) It is unlawful for an employer to authorize, consent to, or condone a strike, to conduct a lockout, to pay or agree to pay an employee for any day in which the employee participates in a strike, or to pay or agree to pay any increase in compensation or benefits to an employee in response to or as a result of a strike or any act that violates subsection (1) of this section.  It is unlawful for any representative of the employer to authorize, ratify, or participate in any violation of this subsection.

    (3)(a) If a violation of subsection (1) or (2) of this section occurs, or is imminently threatened, any citizen domiciled within the jurisdictional boundaries of the state may petition the superior court of the county in which the school district, or any part thereof, is situated for an injunction restraining the violation or imminently threatened violation.  Rules of civil procedure regarding injunctions apply to the action.  However, the court shall grant a temporary injunction if it appears to the court that a violation has occurred or is imminently threatened; the plaintiff need not show that the violation or threatened violation would greatly or irreparably injure him or her.  A bond may not be required of the plaintiff unless the court determines that a bond is necessary in the public interest.

    (b) Failure to comply with any temporary or permanent injunction granted under this subsection is contempt of court as provided in chapter 7.21 RCW.  The court may impose a penalty of up to ten thousand dollars for an employee organization or the employer, for each day during which the failure to comply continues.  The sanctions for an employee found to be in contempt shall be as provided in chapter 7.21 RCW.  An individual or an employee organization that makes an active good faith effort to comply fully with the injunction shall not be deemed to be in contempt.

    (4) Nothing in this section prevents new or renewed bargaining and agreement within the scope of bargaining, as defined by this chapter, at any time.  However, the parties may not agree to a provision regarding suspension or modification of any court-ordered penalty provided in this section and any such agreement is void.

    (5) Each of the remedies and penalties provided by this section is separate and several and is in addition to any other legal or equitable remedy or penalty.

    (6) In addition to the remedies and penalties provided by this section, the successful litigant is entitled to recover costs and reasonable attorneys' fees incurred in the litigation.

    Sec. 2.  RCW 41.59.020 and 1989 c 11 s 11 are each amended to read as follows:

    As used in this chapter:

    (1) ((The term)) "Employee organization" means any organization, union, association, agency, committee, council, or group of any kind in which employees participate, and which exists for the purpose, in whole or in part, of collective bargaining with employers.

    (2) ((The term)) "Collective bargaining" or "bargaining" means the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times in light of the time limitations of the budget-making process, and to bargain in good faith in an effort to reach agreement with respect to the wages, hours, and terms and conditions of employment:  PROVIDED, That prior law, practice or interpretation shall be neither restrictive, expansive, nor determinative with respect to the scope of bargaining.  A written contract incorporating any agreements reached shall be executed if requested by either party.  The obligation to bargain does not compel either party to agree to a proposal or to make a concession.

    In the event of a dispute between an employer and an exclusive bargaining representative over the matters that are terms and conditions of employment, the commission shall decide which item(s) are mandatory subjects for bargaining and which item(s) are nonmandatory.

    (3) ((The term)) "Commission" means the public employment relations commission established by RCW 41.58.010.

    (4) ((The terms)) "Employee" and "educational employee" means any certificated employee of a school district, except:

    (a) The chief executive officer of the employer.

    (b) The chief administrative officers of the employer, which shall mean the superintendent of the district, deputy superintendents, administrative assistants to the superintendent, assistant superintendents, and business manager.  Title variation from all positions enumerated in this subsection (4)(b) may be appealed to the commission for determination of inclusion in, or exclusion from, the term "educational employee".

    (c) Confidential employees, which shall mean:

    (i) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and

    (ii) Any person who assists and acts in a confidential capacity to such person.

    (d) Unless included within a bargaining unit pursuant to RCW 41.59.080, any supervisor, which means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment, and shall not include any persons solely by reason of their membership on a faculty tenure or other governance committee or body.  The term "supervisor" shall include only those employees who perform a preponderance of the above-specified acts of authority.

    (e) Unless included within a bargaining unit pursuant to RCW 41.59.080, principals and assistant principals in school districts.

    (5) ((The term)) "Employer" means any school district.

    (6) ((The term)) "Exclusive bargaining representative" means any employee organization which has:

    (a) Been selected or designated pursuant to the provisions of this chapter as the representative of the employees in an appropriate collective bargaining unit; or

    (b) Prior to January 1, 1976, been recognized under a predecessor statute as the representative of the employees in an appropriate collective bargaining or negotiations unit.

    (7) ((The term)) "Person" means one or more individuals, organizations, unions, associations, partnerships, corporations, boards, committees, commissions, agencies, or other entities, or their representatives.

    (8) ((The term)) "Nonsupervisory employee" means all educational employees other than principals, assistant principals and supervisors.

(9) "Labor dispute" means a controversy concerning terms 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 their public employment, regardless of whether the disputants in the controversy stand in the proximate relation of employer and employee.

(10) "Lockout" means the refusal of the employer, in connection with a labor dispute, to permit its employees to commence or continue the full performance of their normal duties and services as employees.

(11) "Strike" means any concerted action by employees or employee organizations, in connection with a labor dispute, to suspend, curtail, interrupt, withhold, or otherwise fail or refuse to perform fully their normal duties or services as employees.

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