BILL REQ. #: H-1424.2
State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 02/19/2003. Referred to Committee on Commerce & Labor.
AN ACT Relating to employers that use public funds to encourage or discourage unionization; adding a new section to chapter 28B.10 RCW; adding a new section to chapter 39.04 RCW; adding a new section to chapter 39.29 RCW; adding a new section to chapter 43.19 RCW; adding a new section to chapter 47.28 RCW; adding a new chapter to Title 49 RCW; creating new sections; prescribing penalties; providing an effective date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The legislature finds that the state
currently places no limitation on the use of its funds to either
encourage or discourage unionization, and as a result, public funds
have been used by employers when there are efforts to unionize their
work force.
(2) The legislature declares that it is the policy of this state to
recognize the right of employees to freedom of association in the
workplace and freedom of choice in who will represent employees in
collective bargaining.
(3) The legislature further declares that the expenditure of public
funds to support an employer's support or opposition to unionization of
the employer's workers does not serve the purposes for which the public
funds were provided to the employer and, thus, the expenditure of those
funds to support or oppose unionization is a misuse and waste of public
funds.
(4) For these reasons, the legislature intends to ensure that
public funds are not used to encourage or discourage employees from
choosing union representation.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Public funds" means the same as in RCW 43.88.020.
(2) "Unionization" means organization of employees for the purpose
of collective bargaining.
NEW SECTION. Sec. 3 (1) An employer who receives public funds
may not use, either directly or indirectly, those funds, either in
whole or in part, to encourage or discourage unionization by that
employer's employees or any other employees. An employer who derives
revenue from property owned by the state and used by that employer
through lease, concession contract, or other agreement may not
encourage or discourage unionization by his or her employees who are
employed on or in relation to that state property.
(2) "Receive public funds" means to receive public funds pursuant
to a payment to a health care provider, a grant, a competitively bid
contract, or reimbursement for services, and also includes receipt by
a subcontractor of payment for the performance of services purchased by
or funded by the state.
(3) A recipient of public funds is deemed to use the public funds
if the recipient applies the funds, in whole or in part, to operating
or capital expenses.
(4) A use of public funds is deemed to encourage or discourage
unionization if the funds are used, either directly or indirectly, for:
(a) Any communication in any form that advocates directly or by
implication suggests that employees should vote for or against
representation by a union for purposes of collective bargaining;
(b) Hiring or consulting legal counsel or other consultants to
advise on how to assist or deter unionization or how to assist or
impede a labor organization that represents employees from fulfilling
its representation responsibilities;
(c) Holding meetings to influence employees to join or not to join
or form or not to form a labor organization for the purpose of
collective bargaining; or
(d) Planning or conducting activities by employer supervisors to
assist or deter the activities of a labor organization.
(5) Nothing in this chapter limits the right of individuals who are
not supervisors, managers, consultants, attorneys, advisers, or
contractors of a recipient of public funds to advocate for or against
unionization in the facilities of the recipient to the extent not
precluded by applicable law.
(6) Nothing in this chapter limits the right of any employer or
union to engage in lawful activities relating to the negotiation and
enforcement of a collective bargaining agreement.
(7) Every contract for the payment of public funds to an employer
shall contain a covenant that the employer will comply with this
chapter.
(8) Nothing in this chapter prohibits an employer from granting
voluntary recognition to a union as a representative of the employer's
employees.
NEW SECTION. Sec. 4 Each recipient of public funds shall account
for the public funds in accordance with the following:
(1) Public funds designated by the state for use for, or to
reimburse, a specific expenditure of the recipient shall be accounted
for as being allocated to that expenditure.
(2) Public funds that are not so designated shall be allocated on
a pro rata basis to all expenditures of the recipient that support or
are related to the purpose for which the public funds are received.
NEW SECTION. Sec. 5 The director of the department of labor and
industries shall adopt rules to implement the requirements of this act.
NEW SECTION. Sec. 6 (1) A labor organization or collective
bargaining representative at any time may file a complaint with the
director of the department of labor and industries alleging that an
employer that has a contract with the state is in violation of section
3 of this act.
(2) Within thirty days of receiving a complaint under subsection
(1) of this section, the director shall conduct a hearing to determine
whether the alleged violation has occurred.
(3) The director shall make a determination and render a decision
within ten days following conclusion of the hearing.
(4) If the director determines, by a preponderance of the evidence,
that it appears likely that the employer has violated section 3 of this
act, the director shall order the employer thereafter to keep accurate
and complete records of the employer's expenditures of all public funds
received by the employer. The records shall be sufficient to show
whether the employer has used public funds to encourage or discourage
unionization.
(5) Each employer subject to the recordkeeping requirements of
subsection (4) of this section during a calendar quarter shall prepare
and submit to the director, within thirty days following the end of the
quarter, a report specifying each expenditure of public funds and each
expenditure of funds to encourage or discourage unionization made by
the employer during the reported quarter.
(6) The report required by subsection (5) of this section shall
include a statement that the representations made are true, correct,
and contain no material omissions of fact to the best knowledge and
belief of the employer submitting the certification. A violation of
this subsection is a misdemeanor.
(7) The director, on his or her own initiative or in response to a
complaint the director deems credible, may at any time audit the
records of an employer subject to the requirements of this section to
ensure compliance with this act.
(8) Following a certification by the director that any employer has
willfully or materially failed to comply with the recordkeeping
requirements of subsection (4) of this act or the reporting
requirements of subsection (5) of this act, or has failed or refused to
promptly provide the director or his or her designated representative
access to the employer's records for the purpose of conducting an audit
under subsection (7) of this act, the person shall be ineligible to
receive public funds until the director certifies that the employer is
in full compliance with those requirements.
NEW SECTION. Sec. 7 (1) Any employer who knowingly authorizes or
permits an expenditure of public funds in violation of this act is
liable to the state for civil damages equal to twice the amount of the
expenditure, plus reasonable attorneys' fees and costs.
(2) Any taxpayer may bring an action to recover these civil damages
on behalf of the state provided that both of the following conditions
exist:
(a) The taxpayer has first served a copy of the complaint on the
attorney general with a written disclosure of substantially all
material evidence and information the taxpayer possesses.
(b) The attorney general has either notified the taxpayer that the
attorney general has agreed to bring an action to recover funds
expended in violation of this act or, after thirty days, the attorney
general has failed to agree to bring an action to recover the funds
expended in violation of this act.
(3) If the attorney general agrees to bring an action to recover
the funds expended in violation of this act, the action shall be
brought within sixty days of notifying the taxpayer of the intent of
the attorney general to do so and the taxpayer may intervene in the
action.
(4) In any action brought under subsection (2) of this section all
of the following provisions apply:
(a) The attorney general may intervene in any action brought by a
taxpayer at any time.
(b) The action may be dismissed only if the court and the attorney
general give written consent to the dismissal and their reasons for
that consent.
(c) The attorney general has the primary responsibility for
prosecuting any action that the attorney general initiates or in which
he or she intervenes, and is not bound by an act of the person bringing
the action.
(d) The attorney general may dismiss the action notwithstanding the
objections of the taxpayer initiating the action if the taxpayer has
been notified by the attorney general of the filing of the motion and
the court has provided the person with an opportunity for a hearing on
the motion.
(e) The attorney general may settle the action with the defendant
notwithstanding the objections of the taxpayer initiating the action if
the court determines, after a hearing, that the proposed settlement is
fair, adequate, and reasonable under all the circumstances.
(f) Upon a showing by the attorney general or a defendant that
unrestricted participation during the course of the litigation by the
taxpayer initiating the action would interfere with or unduly delay the
prosecution of the case, or would be repetitious, irrelevant, or for
purposes of harassment, the court may, in its discretion, impose
appropriate limitations on the taxpayer's participation.
(5) In any action brought under subsection (2) of this section in
which the defendant is found to have violated this act, the taxpayer
shall recover as part of the judgment his or her attorneys' fees and
costs.
(6) A final judgment of a court of competent jurisdiction stating
that an employer has violated section 3 of this act is a ground for
debarment of public funds for three years from the date the judgment is
entered.
NEW SECTION. Sec. 8 A new section is added to chapter 28B.10 RCW
to read as follows:
All contracts entered into under this chapter on or after September
1, 2003, are subject to the requirements established under chapter
49.-- RCW (sections 1 through 7 of this act).
NEW SECTION. Sec. 9 A new section is added to chapter 39.04 RCW
to read as follows:
All contracts entered into under this chapter on or after September
1, 2003, are subject to the requirements established under chapter
49.-- RCW (sections 1 through 7 of this act).
NEW SECTION. Sec. 10 A new section is added to chapter 39.29 RCW
to read as follows:
All contracts entered into under this chapter on or after September
1, 2003, are subject to the requirements established under chapter
49.-- RCW (sections 1 through 7 of this act).
NEW SECTION. Sec. 11 A new section is added to chapter 43.19 RCW
to read as follows:
All contracts entered into and purchases made, including leasing or
renting, under this chapter on or after September 1, 2003, are subject
to the requirements established under chapter 49.-- RCW (sections 1
through 7 of this act).
NEW SECTION. Sec. 12 A new section is added to chapter 47.28 RCW
to read as follows:
All contracts entered into under this chapter on or after September
1, 2003, are subject to the requirements established under chapter
49.-- RCW (sections 1 through 7 of this act).
NEW SECTION. Sec. 13 Sections 1 through 7 of this act constitute
a new chapter in Title
NEW SECTION. Sec. 14 This act shall not apply to contracts
entered into before September 1, 2003.
NEW SECTION. Sec. 15 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. 16 If any part of this act is found to be in
conflict with federal requirements that are a prescribed condition to
the allocation of federal funds to the state, the conflicting part of
this act is inoperative solely to the extent of the conflict and with
respect to the agencies directly affected, and this finding does not
affect the operation of the remainder of this act in its application to
the agencies concerned. Rules adopted under this act must meet federal
requirements that are a necessary condition to the receipt of federal
funds by the state.
NEW SECTION. Sec. 17 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
July 1, 2003.