BILL REQ. #:  H-3337.2 

Prefiled 1/7/2004. Read first time 01/12/2004.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to binding interest arbitration for certificated school employees; amending RCW 41.59.020; adding new sections to chapter 41.59 RCW; repealing RCW 41.59.120; and declaring an emergency.

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

Sec. 1   RCW 41.59.020 and 1989 c 11 s 11 are each amended to read as follows:
     ((As used in this chapter:)) The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (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,)) section 2 of this act 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.

NEW SECTION.  Sec. 2   A new section is added to chapter 41.59 RCW to read as follows:
     (1) The legislature recognizes that the uninterrupted and dedicated service of educational employees is vital to the welfare and public safety and health of this state, and that to promote such dedicated and uninterrupted public service there should exist an effective and adequate means of settling collective bargaining disputes.
     (2) With respect to contracts for the 2004-05 school year or beyond, negotiations between an employer and the exclusive bargaining representative of a unit of employees under this chapter must commence at least five months prior to adoption of the employer's budget. After the effective date of this section, renegotiation of an existing contract must commence as required by the contract, or if not specified by the contract, within twenty days of receipt by one party of a written notice requesting negotiations, served as required under the contract.
     (3) If the employer and exclusive bargaining representative have not reached an agreement within sixty days after commencing 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 forthwith 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. The mediator does not have a power of compulsion.
     (4)(a) If an agreement has not been reached following a reasonable period of mediation, and the executive director of the commission, upon the recommendation of the assigned mediator, finds that the parties remain at impasse, then an interest arbitration panel shall be created to resolve the dispute. The issues for determination by the arbitration panel are limited to the issues certified by the executive director of the commission.
     (b) Within seven days following the issuance of the determination of the executive director of the commission, 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:
     (i) By mutual consent, the two appointed members may jointly request the commission, and the commission shall appoint a third member within two days of such 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
     (ii) 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.
     (c)(i) The arbitration panel so constituted under this section shall promptly establish a date, time, and place for a hearing and shall provide reasonable notice thereof to the parties to the dispute. A hearing, which shall be informal, shall be held, 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.
     (ii) 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.
     (iii) 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 hereunder, the arbitration panel may invoke the jurisdiction of the superior court in the county in which 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 of court under chapter 7.21 RCW.
     (iv) 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.
     (d) 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 of the determination 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. The determination shall be final and binding upon both parties, subject to review by the superior court for the county in which the labor dispute exists upon the application of either party solely upon the question of whether the decision of the panel was arbitrary or capricious. The determination may be enforced at the instance of either party, the arbitration panel, or the commission in the superior court for the county in which the dispute exists.
     (5) An interest arbitration panel created under this section, 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. 3   A new section is added to chapter 41.59 RCW to read as follows:
     (1) In making the determination required under section 2 of this act, the arbitration panel shall be mindful of the legislative purpose enumerated in section 2(1) of this act and, as additional standards or guidelines to aid it in reaching a decision, it shall take into consideration the following factors:
     (a) The constitutional and statutory authority of the employer;
     (b) Stipulations of the parties;
     (c) Comparison of the wages, hours, and conditions of employment of employees involved in the proceedings with the wages, hours, and conditions of employment of like employees of similarly situated public schools in this state;
     (d) The average consumer prices for goods and services, commonly known as the cost of living;
     (e) The interest and welfare of the public;
     (f) The ability of the employer to finance economic adjustments;
     (g) Changes in any of the circumstances under (a) through (f) of this subsection during the pendency of the proceedings; and
     (h) Such other factors, not confined to the factors under (a) through (f) of this subsection, that are normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment.
     (2) The arbitration panel is not authorized to make a determination regarding salary or compensation increases in excess of those authorized in accordance with RCW 28A.150.410 and 28A.400.200. The state has no liability for funding the arbitration panel's award in excess of the funding resulting from state funding formulae or allocations in effect during the term of the contract. The arbitration panel's determination, or its implementation, may not be inconsistent with any statutory limitation on the employer's revenues or allocations of revenues.

NEW SECTION.  Sec. 4   A new section is added to chapter 41.59 RCW to read as follows:
     During the pendency of the proceedings before the arbitration panel created under section 2 of this act, 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 its rights or position under section 2 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 41.59 RCW to read as follows:
     If the representative of either or both the exclusive bargaining representative and the employer refuse to submit to the procedures set forth in section 2 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 the court has jurisdiction to issue an appropriate order. A failure to obey such an order may be punished by the court as a contempt of court under chapter 7.21 RCW.

NEW SECTION.  Sec. 6   A new section is added to chapter 41.59 RCW to read as follows:
     (1) The right of educational employees to engage in any strike, work slowdown, or work stoppage is prohibited. The right of a school district to engage in a lockout is prohibited.
     (2) An organization recognized as the exclusive bargaining representative of employees subject to this chapter that willfully disobeys a lawful order of enforcement by a superior court pursuant to this section or section 2 or 5 of this act or that willfully offers resistance to such an 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 under this section or section 2 or 5 of this act or willfully offers resistance to such an order is in contempt of court as provided in chapter 7.21 RCW.

NEW SECTION.  Sec. 7   RCW 41.59.120 (Resolving impasses in collective bargaining -- Mediation -- Fact-finding with recommendations--Other) and 1975 1st ex.s. c 288 s 13 are each repealed.

NEW SECTION.  Sec. 8   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 immediately.