Bill Text: WV HB2355 | 2018 | Regular Session | Introduced
Bill Title: Repealing the West Virginia Workplace Freedom Act and restoring prior law
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced - Dead) 2018-01-10 - To House Industry and Labor [HB2355 Detail]
Download: West_Virginia-2018-HB2355-Introduced.html
WEST virginia Legislature
2017 regular session
By
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to the Committee on Industry and Labor then the Judiciary.
A BILL to repeal §21-5G-1,
3 §21-5G-2, §21-5G-3, §21-5G-4, §21-5G-5, §21-5G-6, §21-5G-7 and §21-5G-8 of
the Code of West Virginia, 1931, as amended; and to amend and reenact §21-1A-3
and §21-1A-4 of said code, all relating to repealing the West Virginia
Workplace Freedom Act and restoring prior law; and authorizing employers,
through agreement with a labor organization, to require membership in the
organization as a condition of employment.
Be it enacted by the
Legislature of West Virginia:
That §21-5G-1, 3 §21-5G-2,
§21-5G-3, §21-5G-4, §21-5G-5, §21-5G-6, §21-5G-7 and §21-5G-8 of the Code of
West Virginia, 1931, as amended, be repealed; and that §21-1A-3 and §21-1A-4 of
said code be amended and reenacted, all to read as follows:
ARTICLE 1A.
LABOR-MANAGEMENT RELATIONS ACT FOR THE PRIVATE SECTOR.
§21-1A-3. Rights of employees.
Employees shall have the
right to self-organization, to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to refrain from
any or all of such activities, including the right to refrain from paying
any dues, fees, assessments or other similar charges however denominated of any
kind or amount to a labor organization or to any third party including, but not
limited to, a charity in lieu of a payment to a labor organization except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in subdivision (3), subsection (a),
section four of this article.
§21-1A-4. Unfair labor practices.
(a) It shall be an unfair
labor practice for an employer:
(1) To interfere with,
restrain or coerce employees in the exercise of the rights guaranteed in
section three of this article;
(2) To dominate or
interfere with the formation or administration of any labor organization or
contribute financial or other support to it: Provided, That an employer shall not be prohibited from permitting
employees to confer with him or her during working hours without loss of time
or pay;
(3) By discrimination in
regard to hire or tenure of employment or any term or condition of employment,
to encourage or discourage membership in any labor organization: Provided, That nothing
contained in this article, or in any other statute of this state, shall
preclude an employer from making an agreement with a labor organization (not
established, maintained or assisted by any action defined in this section as an
unfair labor practice) to require as a condition of employment membership
therein on or after the thirtieth day following the beginning of such
employment or the effective date of such agreement, whichever is the later: (i)
If such labor organization is the representative of the employees as provided
in section five of this article, in the appropriate collective-bargaining unit
covered by such agreement when made; and (ii) unless following an election held
as provided in subsection (d), section five of this article, within one year
preceding the effective date of such agreement, the board shall have certified
that at least a majority of the employees eligible to vote in such election
have voted to rescind the authority of such labor organization to make such an
agreement: Provided, however, That no employer shall justify any
discrimination against an employee for nonmembership in a labor organization:
(A) If he or she has reasonable grounds for believing that such membership was
not available to the employee on the same terms and conditions generally
applicable to other members; or (B) if he or she has reasonable grounds for
believing that membership was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining membership;
(4) To discharge or
otherwise discriminate against an employee because he or she has filed charges
or given testimony under this article; and
(5) To refuse to bargain
collectively with the representatives of his or her employees, subject to the
provisions of subsection (a), section five of this article.
(b) It shall be an unfair
labor practice for a labor organization or its agents:
(1) To restrain or coerce:
(A) Employees in the exercise of the rights guaranteed in section three of this
article: Provided, That this subdivision shall not impair the right of a
labor organization to prescribe its own rules with respect to the acquisition
or retention of membership therein; or (B) an employer in the selection of his
or her representatives for the purposes of collective bargaining or the
adjustment of grievances;
(2) To cause or attempt to
cause an employer to discriminate against an employee in violation of
subdivision (3), subsection (a) of this section or to discriminate against an
employee with respect to whom membership in such organization has been denied
or terminated on some ground other than his or her failure to tender the periodic
dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership;
(3) To refuse to bargain
collectively with an employer, provided it is the representative of his or her
employees subject to the provisions of subsection (a), section five of this
article;
(4) (i) To engage in, or
induce or encourage any individual employed by any person to engage in, a
strike or a refusal in the course of employment to use, manufacture, process,
transport or otherwise handle or work on any goods, articles, materials or
commodities or to perform any services; or (ii) to threaten, coerce or restrain
any person, where in either case an object thereof is:
(A) Forcing or requiring
any employer or self-employed person to join any labor or employer organization
or to enter into any agreement which is prohibited by subsection (e) of this
section;
(B) Forcing or requiring
any 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 a labor organization as the
representative of his or her employees unless such labor organization has been
certified as the representative of such employees under the provisions of
section five of this article: Provided,
That nothing contained in this paragraph may be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary picketing;
(C) Forcing or requiring
any employer to recognize or bargain with a particular labor organization as
the representative of his or her employees if another labor organization has
been certified as the representative of such employees under the provisions of
section five of this article;
(D) Forcing or requiring
any employer to assign particular work to employees in a particular labor
organization or in a particular trade, craft or class rather than to employees
in another labor organization or in another trade, craft or class, unless such
employer is failing to conform to an order of certification of the board
determining the bargaining representative for employees performing such work: Provided, That nothing contained in this
subsection shall be construed to make unlawful a refusal by any person to enter
upon the premises of any employer (other than his or her own employer), if the
employees of such employer are engaged in a strike ratified or approved by a
representative of such employees whom such employer is required by law to
recognize;
(5) To require of employees
covered by an agreement authorized under subdivision (3), subsection (a) of
this section, the payment, as a condition precedent to becoming a member of
such organization, of a fee in an amount which the board finds excessive or
discriminatory under all the circumstances.
In making such a finding, the board shall consider, among other relevant
factors, the practices and customs of labor organizations in the particular
industry, and the wages currently paid to the employees affected;
(6) To cause or attempt to
cause an employer to pay or deliver or agree to pay or deliver any money or
other thing of value, in the nature of an exaction, for services which are not
performed or not to be performed; and
(7) To picket or cause to
be picketed, or threaten to picket or cause to be picketed, any employer where
an object thereof is forcing or requiring an employer to recognize or bargain
with a labor organization as the representative of his or her employees, or
forcing or requiring the employees of an employer to accept or select such
labor organization as their collective bargaining representative, unless such
labor organization is currently certified as the representative of such
employees:
(A) Where the employer has
lawfully recognized in accordance with this article any other labor
organization and a question concerning representation may not appropriately be
raised under subsection (c), section five of this article;
(B) Where within the
preceding twelve months a valid election under subsection (c), section five of
this article has been conducted; or
(C) Where such picketing
has been conducted without a petition under subsection (c), section five of
this article being filed within a reasonable period of time not to exceed
fifteen days from the commencement of such picketing: Provided,
That when such a petition has been filed the board shall forthwith, without
regard to the provisions of said subsection or the absence of a showing of a
substantial interest on the part of the labor organization, direct an election
in such unit as the board finds to be appropriate and shall certify the results
thereof. Nothing in this subdivision
shall be construed to permit any act which would otherwise be an unfair labor
practice under this subsection.
(c) The expressing of any
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, or be prohibited under this article, if such expression
contains no threat of reprisal or force or promise of benefit.
(d) For the purposes of
this section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith with respect to wages, hours and
other terms and conditions of employment, or the negotiation of an agreement,
or any question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party, but such
obligation does not compel either party to agree to a proposal or require the
making a concession: Provided,
That where there is in effect a collective bargaining contract covering
employees, the duty to bargain collectively shall also mean that no party to
such contract shall terminate or modify such contract, unless the party
desiring such termination or modification:
(1) Gives a written notice
to the other party of the proposed termination or modification sixty days prior
to the expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make such
termination or modification;
(2) Offers to meet and
confer with the other party for the purpose of negotiating a new contract or a
contract containing the proposed modifications;
(3) Notifies the
Commissioner of Labor of the existence of a dispute;
(4) Continues in full force
and effect, without resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of sixty days after such
notice is given or until the expiration date of such contract, whichever occurs
later. The duties imposed upon
employers, employees and labor organizations by this subdivision and
subdivisions (2) and (3) of this subsection shall become inapplicable upon an
intervening certification of the board, under which the labor organization or
individual, which is a party to the contract, has been superseded as or ceased
to be the representative of the employees subject to the provisions of
subsection (a), section five of this article, and the duties so imposed shall
not be construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and
conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within
the sixty-day period specified in this subsection shall lose his or her status
as an employee of the employer engaged in the particular labor dispute, for the
purposes of this section and sections three and five of this article, but such
loss of status for such employee shall terminate if and when he or she is
reemployed by such employer.
(e) It shall be an unfair
labor practice for any labor organization and any employer to enter into any
contract or agreement, express or implied, whereby such 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 any such contract or
agreement entered into heretofore or hereafter shall be to such extent
unenforceable and void.
NOTE: The purpose of this bill is
to repeal the Workplace Freedom Act of 2016 and restore the prior provisions of
the Labor-Management Relations Act.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.
