BILL REQ. #:  S-5139.1 

READ FIRST TIME 02/07/08.   

     AN ACT Relating to labor and management relations; and adding a new chapter to Title 49 RCW.

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

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Employee" includes any employee of an employer and is not limited to the employees of a particular employer, unless this chapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment.
     (2)(a) "Employer" means a symphony orchestra, opera, or performing arts theater, that does not meet the jurisdictional standards of the national labor relations board, and includes any person acting as an agent of an employer, directly or indirectly.
     (b) 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.
     (3) "Labor dispute" includes any controversy concerning terms, tenure, or conditions of employment, or concerning the association of 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. 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 items are mandatory subjects for bargaining.
     (4) "Labor organization" means an organization of any kind, or an agency or employee representation committee or plan, in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment.
     (5) "Person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees in bankruptcy, or receivers.
     (6) "Public employment relations commission" or "commission" means the public employment relations commission created in chapter 41.58 RCW.
     (7) "Representative" includes any individual or labor organization.
     (8) "Supervisor" means any 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 responsibly 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 of a merely routine or clerical nature, but requires the use of independent judgment.
     (9) "Unfair labor practice" means any activity listed in section 8 of this act.

NEW SECTION.  Sec. 2   The employee organization that has been determined by the commission to be the exclusive bargaining representative of a bargaining unit shall be required to represent all the members within the bargaining unit without regard to membership in that employee organization. However, any bargaining unit member 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 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. 3   The commission shall certify exclusive bargaining representatives in accordance with the procedures specified in this section.
     (1) The commission, after hearing upon reasonable notice, shall decide the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider the duties, skills, and working conditions of the employees; the history of collective bargaining by the employees and their bargaining representatives; the extent of organization among the employees; and the desire of the employees to be represented. Supervisors shall not be included in the same bargaining unit as nonsupervisory employees, but shall be included in a bargaining unit containing only supervisors.
     (2) No question concerning representation may be raised within one year following issuance of a certification under this section.
     (3) If 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 any renewals or extensions 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 any subsequent anniversary date of the agreement; and if the exclusive bargaining representative is removed as the result of such procedure, the collective bargaining agreement shall be deemed to be terminated as of the date of the certification or the anniversary date following the filing of the petition, whichever is later.
     (4) An employee organization seeking certification as the exclusive bargaining representative of a bargaining unit, or employees seeking decertification of their exclusive bargaining representative, must 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. The petition must indicate the name, address, and telephone number of any employee organization known to claim an interest in the bargaining unit.
     (5) A petition filed by an employer must be supported by credible evidence demonstrating the good faith basis on which the employer claims the existence of a question concerning the representation.
     (6) 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 bargaining unit involved is 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 any question concerning representation by conducting a secret ballot election among the employees in the bargaining unit, except under the following circumstances:
     (a) If only one employee organization is seeking certification as exclusive bargaining representative of a bargaining unit for which there is no incumbent exclusive bargaining representative, the commission may, upon the concurrence of the employer and the employee organization, 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; or
     (b) If the commission determines that a serious unfair labor practice has been committed that 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) The representation election ballot must contain a choice for each employee organization qualifying under subsection (3) or (5) of this section, together with a choice for no representation. The representation election shall be determined by the majority of the valid ballots cast. If there are three or more choices on the ballot and none of the three or more 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.
     (9) The commission shall certify as the exclusive bargaining representative the employee organization that has been determined to represent a majority of employees in a bargaining unit.

NEW SECTION.  Sec. 4   In any dispute concerning inclusion in the bargaining unit or the allocation of employees or positions to a bargaining unit, the commission, after a hearing or hearings, shall determine the dispute.

NEW SECTION.  Sec. 5   (1) The commission shall conduct mediation activities upon the request of either party as a means of assisting in the settlement of unresolved matters considered under this chapter.
     (2) If any matter being jointly considered by the exclusive bargaining representative and the employer is not settled by the means provided in this chapter, either party may request the assistance of the commission. Nothing in this section prohibits an employer and an employee organization from agreeing to substitute, at their own expense, some other impasse procedure or other means of resolving matters considered under this chapter.

NEW SECTION.  Sec. 6   A collective bargaining agreement negotiated under this chapter may include procedures for final and binding grievance arbitration of the disputes arising about the interpretation or application of the agreement.
     (1) The parties to a collective bargaining agreement may agree on one or more permanent umpires to serve as arbitrator, may agree on any impartial person to serve as arbitrator, or may agree to select arbitrators from any source available to them, including federal and private agencies, in addition to the staff and dispute resolution panel maintained by the commission.
     (2) An arbitrator may require any person to attend as a witness, and to bring with him or her any book, record, document, or other evidence. Subpoenas shall issue and be signed by the arbitrator and shall be served in the same manner as subpoenas to testify before a court of record in this state. The fees for such attendance shall be paid by the party requesting issuance of the subpoena and shall be the same as the fees of witnesses in the superior court. If any person so summoned to testify refuses or neglects to obey such subpoena, upon petition authorized by the arbitrator, the superior court may compel the attendance of such person before the arbitrator, or punish the person for contempt in the same manner provided for the attendance of witnesses or the punishment of them in the courts of this state.
     (3) The arbitrator shall appoint a time and place for the hearing and notify the parties thereof, may adjourn the hearing from time to time as may be necessary, and, on application of either party and for good cause, may postpone the hearing to a time not extending beyond a date fixed by the collective bargaining agreement for making the award. The arbitrator has the power to administer oaths. The arbitration award shall be in writing and signed by the arbitrator or a majority of the members of the arbitration panel. The arbitrator shall, promptly upon its rendition, serve a true copy of the award on each of the parties or their attorneys.
     (4) If a party to a collective bargaining agreement negotiated under this chapter refuses to submit a grievance for arbitration, the other party to the collective bargaining agreement may invoke the jurisdiction of the superior court for any county in which the labor dispute exists, and such court has jurisdiction to issue an order compelling arbitration. Arbitration shall be ordered if the grievance states a claim which on its face is covered by the collective bargaining agreement, and doubts as to the coverage of the arbitration clause shall be resolved in favor of arbitration. Disputes concerning compliance with grievance procedures shall be reserved for determination by the arbitrator.
     (5) If a party to a collective bargaining agreement negotiated under this chapter refuses to comply with the award of an arbitrator determining a grievance arising under such collective bargaining agreement, the other party to the collective bargaining agreement, or any affected employee, may invoke the jurisdiction of the superior court for any county in which the labor dispute exists, and such court has jurisdiction to issue an order enforcing the arbitration award. The court shall not substitute its judgment for that of the arbitrator and shall enforce any arbitration award which is based on the collective bargaining agreement, except that an arbitration award shall not be enforced and a new arbitration proceeding may be ordered:
     (a) If the arbitration award was procured by corruption, fraud, or undue means;
     (b) If there was evident partiality or corruption in the arbitrator or arbitrators;
     (c) If the arbitrator or arbitrators were guilty of misconduct, in refusing to postpone a hearing upon sufficient cause shown, in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced; or
     (d) If the arbitrator or arbitrators have exceeded their powers or so imperfectly executed their powers that a final and definite award on the subject matter was not made, in which event the court also has discretion to remand the matter to the arbitrator or arbitrators who issued the defective award.

NEW SECTION.  Sec. 7   (1) Upon filing with the employer the voluntary written authorization of a bargaining unit member under this chapter, the employee organization that is the exclusive bargaining representative of the bargaining unit shall have the right to have deducted from the salary of the bargaining unit member the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in the employee organization. Such employee authorization shall not be irrevocable for a period of more than one year. Such dues and fees shall be deducted from the pay of all bargaining unit members 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 collective bargaining agreement may include union security provisions, but not a closed shop. If an agency shop or other union security provision is agreed to, the employer shall enforce any such provision by deductions from the salary of bargaining unit members affected thereby and shall transmit such funds to the employee organization or to the depository designated by the employee organization.
     (3) A bargaining unit member 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 such bargaining unit member 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 employee organization. The charity shall be agreed upon by the bargaining unit member and the employee organization to which such bargaining unit member would otherwise pay the dues and fees. The bargaining unit member shall furnish written proof that such payments have been made. If the bargaining unit member and the employee organization do not reach agreement on such matter, the dispute shall be submitted to the commission for determination.

NEW SECTION.  Sec. 8   (1) It is an unfair labor practice for an employer to:
     (a) Interfere with, restrain, or coerce bargaining unit members in the exercise of the rights guaranteed by this chapter;
     (b) Dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it. However, subject to rules adopted by the commission, an employer is not prohibited from permitting bargaining unit members to confer with it or its representatives or agents during working hours without loss of time or pay;
     (c) Encourage or discourage membership in any employee organization by discrimination in regard to hire, tenure of employment, or any term or condition of employment;
     (d) Discharge or discriminate otherwise against a bargaining unit member because that member has filed charges or given testimony under this chapter; or
     (e) Refuse to bargain collectively with the exclusive bargaining representative of its employees.
     (2) It is an unfair labor practice for an employee organization to:
     (a) Restrain or coerce a bargaining unit member in the exercise of the rights guaranteed by this chapter. However, this subsection does not impair the rights of (i) an employee organization to prescribe its own rules with respect to the acquisition or retention of membership in the employee organization or (ii) an employer in the selection of its representatives for the purpose of bargaining or the adjustment of grievances;
     (b) Cause or attempt to cause an employer to discriminate against a bargaining unit member in violation of subsection (1)(c) of this section;
     (c) Discriminate against a bargaining unit member because that member has filed charges or given testimony under this chapter; or
     (d) Refuse to bargain collectively with an employer.
     (3) The expressing of any view, arguments, 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 such expression contains no threat of reprisal or force or promise of benefit.

NEW SECTION.  Sec. 9    (1) The commission is empowered to prevent any person from engaging in any unfair labor practice as defined in this chapter; however, a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission. 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) If the commission determines that any person has engaged in or is engaging in any unfair labor practice as defined in this chapter, then the commission shall issue and cause to be served upon the person an order requiring the person to cease and desist the unfair labor practice, and to take such affirmative action as will effectuate the purposes and policy of this chapter, including ordering the payment of damages, the reinstatement of employees, or both.
     (3) The commission may petition the superior court for the county in which the main office of the employer is located or wherein the person who has engaged or is engaging in such unfair labor practice resides or transacts business, for the enforcement of its order and for appropriate temporary relief.

NEW SECTION.  Sec. 10   The commission may adopt rules necessary to carry out the provisions of this chapter.

NEW SECTION.  Sec. 11   Nothing in this chapter prohibits covered employees from engaging in lawful strikes against their employers, provided that the employee organization gives the employer and the commission at least thirty days' notice prior to the commencement of the strike. Nothing in this chapter prohibits covered employers from lawfully locking out employees, provided the employer gives the employee organization and the commission at least thirty days' notice prior to the commencement of the lockout.

NEW SECTION.  Sec. 12   Whenever a collective bargaining agreement between an employer and an exclusive bargaining representative is concluded after the termination date of the previous collective bargaining agreement between the same parties, the effective date of the collective bargaining agreement may be the day after the termination date of the previous collective bargaining agreement, and all benefits included in the new collective bargaining agreement, including wage or salary increases, may accrue beginning with the effective date as established by this section.

NEW SECTION.  Sec. 13    Nothing in this chapter shall be construed to annul, modify, or preclude the renewal or continuation of any lawful agreement entered into before the effective date of this act, between an employer and an employee organization covering wages, hours, and terms and conditions of employment.

NEW SECTION.  Sec. 14   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. 15   Sections 1 through 14 of this act constitute a new chapter in Title 49 RCW.