Connecticut Seal

General Assembly

 

Substitute Bill No. 6534

    January Session, 2009

*_____HB06534LABPD_031209____*

AN ACT CONCERNING LABOR UNION AUTHORIZATION CARD CHECKS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 5-275 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):

(a) (1) On and after October 1, 1975, any interested organization may notify the State Board of Labor Relations that thirty per cent or more of the employees in a bargaining unit established under sections 5-270 to 5-280, inclusive, desire to be exclusively represented for the purposes of collective bargaining within the unit by the petitioning organization and request the designation of said organization as their exclusive representative; (2) if the board certifies that a majority of the employees in such bargaining unit desire to be so represented, said board shall agree to said designation, unless there is a challenge. To challenge, an intervening organization must show that at least ten per cent or more of the employees of the unit seek to be the exclusive representative. Any additional organization meeting said ten per cent prerequisite shall be treated, upon request, as an additional intervenor; and (3) if there is a challenge, or if the board certifies that thirty per cent or more but less than a majority of employees in a bargaining unit desire to be exclusively represented by a particular organization, said board shall direct an election by secret ballot to determine whether and by which employee organization the employees desire to be represented and shall certify the results thereof. The board shall refer the petition to its agent who shall investigate the petition and issue a direction of election and conduct a secret ballot election to determine whether and by which employee organization the employees desire to be represented if [he] the agent has reasonable cause to believe that a question of representation exists, or issue a recommendation to dismiss the petition if [he] the agent finds that there is not such reasonable cause, or refer the petition to the board for a hearing without having conducted an election or issuing a recommendation of dismissal, in which event the board shall conduct an appropriate hearing upon due notice. The agent shall report his or her action to the board. The board shall issue an order confirming the agent's direction of election and certifying the results of the election, or issue an order confirming the agent's recommendation for dismissal, or order a further investigation, or provide for an appropriate hearing upon due notice. Before taking any of the aforesaid actions, the board shall provide the parties with an opportunity to file briefs on the questions at issue and shall fully consider any such briefs filed. After a hearing, the board shall order any of the aforesaid actions on the petition, or shall upon good cause order any other suitable method to determine whether and by which employee organization the employees desire to be represented. The board shall certify the results.

(b) In accordance with such regulations as may be adopted by the board in accordance with the provisions of chapter 54, whenever a petition is filed with the board by an employee or the employee's representative, or by the employer or the employer's representative complaining that a question or controversy exists concerning the representation of a bargaining unit by a labor organization where (1) such labor organization is the only organization seeking to be the exclusive representative of the bargaining unit, and (2) a majority of the employees in the unit have shown a preference to designate such labor organization to be the exclusive representative of the unit by signing authorization cards indicating such preference, the board shall refer the petition to an agent of the board who shall investigate the petition and determine the validity of the authorization cards. An authorization card indicating such preference shall be valid only if it is printed in a language understood by the employee who signed it. The agent shall determine whether a majority of the employees in the bargaining unit signed such valid authorization cards designating such labor organization to be the unit's exclusive representative. The agent shall report his or her findings to the board. The board shall issue an order confirming the results of the authorization card check and certify the results. Before taking any action under this subsection, the board shall provide the parties with an opportunity to file briefs on the questions at issue and shall fully consider any such briefs filed. After a hearing, the board shall order any action on the petition permitted by this subsection or shall, upon good cause, order any other suitable method to determine whether the employees desire to be represented. The board shall certify the results.

(c) No election shall be directed in any bargaining unit or any subdivision thereof within which in the preceding twelve-month period a valid election has been held. No election shall be directed by the board during the term of a written collective bargaining agreement, except for good cause. In any election where none of the choices on the ballot receives a majority, a runoff shall be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election. An employee organization which receives a majority of votes cast in an election shall be designated by the board as exclusive representative of the employees in the unit. No employee organization shall be eligible to petition for or participate in a recognition election until it has been in existence in state employment for at least six months.

[(b)] (d) The board shall determine the appropriateness of a unit which shall be the public employer unit or a subdivision thereof. In determining the appropriateness of the unit, the board shall: (1) Take into consideration, but shall not limit consideration to, the following: (A) Public employees must have an identifiable community of interest, and (B) the effects of overfragmentation; (2) not decide that any unit is appropriate if (A) such unit includes both professional and nonprofessional employees, unless a majority of such professional employees vote for inclusion in such unit, or (B) such unit includes both Department of Correction employees at or above the level of lieutenant and Department of Correction employees below the level of lieutenant; (3) take into consideration that when the state is the employer, it will be bargaining on a state-wide basis unless issues involve working conditions peculiar to a given governmental employment locale; (4) permit the faculties of (A) The University of Connecticut, (B) the Connecticut State University System, and (C) the state regional vocational-technical schools to each comprise a separate unit, which in each case shall have the right to bargain collectively with their respective boards of trustees or their designated representatives; and (5) permit the community college faculty and the technical college faculty as they existed prior to July 1, 1992, to continue to comprise separate units, which in each case shall have the right to bargain collectively with its board of trustees or its designated representative. Nonfaculty professional staff of the above institutions may by mutual agreement be included in such bargaining units, or they may form a separate bargaining unit of their own. This section shall not be deemed to prohibit multiunit bargaining.

[(c)] (e) An employee organization or an employer may file a petition with the board seeking a clarification or modification of an existing unit. The power of the board to make such clarifications and modifications shall be limited to those times when a petition for clarification or modification is filed by either an employee organization or an employer. No petition seeking a clarification or modification of an existing unit shall be considered to be timely by the board during the term of a written collective bargaining agreement, except that a petition for clarification or modification filed by an employee organization concerning either (1) a newly created position, or (2) any employee who is not represented by an employee organization, may be filed at any time.

Sec. 2. Section 7-471 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):

The State Board of Labor Relations shall have the following power and authority in relation to collective bargaining in municipal employment:

(1) Whenever, in accordance with such regulations as may be [prescribed] adopted by the board, a petition has been filed (A) by an employee or group of employees or any employee organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining by an employee organization as exclusive representative, or (ii) assert that the employee organization which has been certified or is currently being recognized by their municipal employer as the bargaining representative is no longer the representative of a majority of employees in the unit; (B) by a municipal employer alleging that one or more employee organizations have presented to him of her a claim to be recognized as the representative of a majority of employees in an appropriate unit; or (C) by either an employee organization or a municipal employer in accordance with subdivision [(4)] (6) of this section, the board shall refer the petition to its agent who shall investigate the petition and issue a direction of election and conduct a secret ballot election to determine whether and by which employee organization the employees desire to be represented if [he] the agent has reasonable cause to believe that a question of representation exists, or issue a recommendation to dismiss the petition if [he] the agent finds that there is not such reasonable cause, or refer the petition to the board for a hearing without having conducted an election or issuing a recommendation of dismissal, in which event the board shall conduct an appropriate hearing upon due notice. The agent shall report his or her action to the board. The board shall issue an order confirming the agent's direction of election and certifying the results of the election, or issue an order confirming the agent's recommendation for dismissal, or order a further investigation, or provide for an appropriate hearing upon due notice. Before taking any of the aforesaid actions, the board shall provide the parties with an opportunity to file briefs on the questions at issue and shall fully consider any such briefs filed. After a hearing, the board shall order any of the aforesaid actions on the petition or shall, upon good cause, order any other suitable method to determine whether and by which employee organization the employees desire to be represented. The board shall certify the results.

(2) In accordance with such regulations as may be adopted by the board, in accordance with the provisions of chapter 54, whenever a petition is filed with the board by an employee or the employee's representative, or by the municipal employer or the employer's representative alleging that a question or controversy exists concerning the representation of a bargaining unit by an employee organization where (A) such employee organization is the only organization seeking to be the exclusive representative of the unit, and (B) a majority of the employees in the unit have shown a preference to designate such employee organization to be the exclusive representative of the unit by signing authorization cards indicating such preference, the board shall refer the petition to an agent of the board who shall investigate the petition and determine the validity of the authorization cards. An authorization card indicating such preference shall be valid only if it is printed in a language understood by the employee who signed it. The agent shall determine whether a majority of the employees in the unit signed such valid authorization cards designating such employee organization to be the unit's exclusive representative. The agent shall report his or her findings to the board. The board shall issue an order confirming the results of the authorization card check and certify the results. Before taking any action under this subdivision, the board shall provide the parties with an opportunity to file briefs on the questions at issue and shall fully consider any such briefs filed. After a hearing, the board shall order any action on the petition permitted by this subdivision or shall, upon good cause, order any other suitable method to determine whether the employees desire to be represented. The board shall certify the results.

(3) No election shall be directed in any bargaining unit or any subdivision thereof within which in the preceding twelve-month period a valid election has been held. No election shall be directed by the board during the term of a written collective bargaining agreement, except for good cause. In any election where none of the choices on the ballot receives a majority, a runoff shall be conducted, the ballot providing for a selection between the two choices receiving the largest and the second largest number of valid votes cast in the election. An employee organization which receives a majority of votes cast in an election confirmed or ordered by the board shall be designated by the board as exclusive representative of the employees in the unit.

[(2)] (4) The board shall have the power to determine whether a position is covered by sections 7-467 to 7-477, inclusive, as amended by this act, in the event of a dispute between the municipal employer and an employee organization. In determining whether a position is supervisory the board shall consider, among other criteria, whether the principal functions of the position are characterized by not fewer than two of the following: (A) Performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees; (B) performing such duties as are distinct and dissimilar from those performed by the employees supervised; (C) exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing the provisions of a collective bargaining agreement; and (D) establishing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards. The above criteria for supervisory positions shall not necessarily apply to police or fire departments.

[(3)] (5) The board shall decide in each case whether, in order to insure to employees the fullest freedom in exercising the rights guaranteed by sections 7-467 to 7-477, inclusive, as amended by this act, and in order to insure a clear and identifiable community of interest among employees concerned, the unit appropriate for purposes of collective bargaining shall be the municipal employer unit or any other unit thereof, provided no unit shall include both supervisory and nonsupervisory employees except there shall be a single unit for each fire department consisting of the uniformed and investigatory employees of each such fire department and a single unit for each police department consisting of the uniformed and investigatory employees of each such police department. No existing units shall be altered or modified to conform to this provision. No unit shall include both professional and nonprofessional employees unless a majority of such professional employees vote for inclusion in such unit, provided employees who are members of a profession may be included in a unit which includes nonprofessional employees if an employee organization has been designated by the board or has been recognized by the municipal employer as the exclusive representative of such unit and a majority of the employees in such profession vote for inclusion in such unit, in which event all of the employees in such profession shall be included in such unit. The term "professional employee" means: (A) Any employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given time period; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual or physical processes; or (B) any employee who (i) has completed the courses of specialized intellectual instruction and study described in subparagraph (A)(iv) of this subdivision, and (ii) is performing related work under the supervision of a professional person to qualify himself or herself to become a professional employee, as defined in subparagraph (A) of this subdivision.

[(4)] (6) An employee organization or a municipal employer may file a petition with the board seeking a clarification or modification of an existing unit. The power of the board to make such clarifications and modifications shall be limited to those times when a petition for clarification or modification is filed by either an employee organization or a municipal employer. No petition seeking a clarification or modification of an existing unit shall be considered to be timely by the board during the term of a written collective bargaining agreement, except that a petition for clarification or modification filed by an employee organization concerning either (A) a newly created position, or (B) any employee who is not represented by an employee organization, may be filed at any time.

[(5)] (7) Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, as amended by this act, has been committed by a municipal employer or employee organization, the board shall consider that question in accordance with the following procedure: (A) When a complaint has been made to the board that a prohibited practice has been or is being committed, the board shall refer such complaint to its agent. Upon receiving a report from the agent, the board may issue an order dismissing the complaint or may order a further investigation or a hearing thereon. When a hearing is ordered, the board shall set the time and place for the hearing, which time and place may be changed by the board at the request of one of the parties for cause shown. Any complaint may be amended with the permission of the board. The municipal employer, the employee organization and the person so complained of shall have the right to file an answer to the original or amended complaint within five days after the service of such complaint or within such other time as the board may limit. Such municipal employer, such employee organization and such person shall have the right to appear in person or otherwise to defend against such complaint. In the discretion of the board any person may be allowed to intervene in such proceeding. In any hearing the board shall not be bound by the technical rules of evidence prevailing in the courts. A transcript of the testimony taken at any hearing before the board shall be filed with the board. (B) If, upon all the testimony, the board determines that a prohibited practice has been or is being committed, it shall state its findings of fact and shall issue and cause to be served on the party committing the prohibited practice an order requiring it, [or] him or her to cease and desist from such prohibited practice, and shall take such further affirmative action as will effectuate the policies of sections 7-467 to 7-477, inclusive, as amended by this act, including but not limited to: (i) Withdrawal of certification of an employee organization established or assisted by any action defined in said sections as a prohibited practice, (ii) reinstatement of an employee discriminated against in violation of said sections with or without back pay, or (iii) if either party is found to have refused to bargain collectively in good faith, ordering arbitration and directing the party found to have refused to bargain to pay the full costs of arbitration under section 7-473c, resulting from the negotiations in which the refusal to bargain occurred. (C) If, upon all of the testimony, the board determines that a prohibited practice has not been or is not being committed, it shall state its finding of fact and shall issue an order dismissing the complaint. (D) For the purposes of hearings and enforcement of orders under sections 7-467 to 7-477, inclusive, as amended by this act, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the municipal employer and the employee organization shall have the right of appeal as provided therein. (E) If, by the thirtieth day following the date on which a complaint citing a violation of section 7-470 was made to the board, said board has not determined whether a prohibited practice has been or is being committed and if the violation is of an ongoing nature, said board may issue and cause to be served on the party committing the act or practice cited in such complaint an order requiring such party to cease and desist from such act or practice until said board has made its determination.

Sec. 3. Section 7-467 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2009):

When used in sections 7-467 to 7-477, inclusive:

(1) "Municipal employer" means any political subdivision of the state, including any town, city, borough, district, district department of health, school board, housing authority or other authority established by law, a private nonprofit corporation which has a valid contract with any town, city, borough or district to extinguish fires and to protect its inhabitants from loss by fire, and any person or persons designated by the municipal employer to act in its interest in dealing with municipal employees;

(2) "Employee" means any employee of a municipal employer, whether or not in the classified service of the municipal employer, except elected officials, administrative officials, board and commission members, certified teachers, part-time employees who work less than twenty hours per week on a seasonal basis, department heads and persons in such other positions as may be excluded from coverage under sections 7-467 to 7-477, inclusive, in accordance with subdivision [(2)] (4) of section 7-471, as amended by this act;

(3) "Seasonal basis" means working for a period of not more than one hundred twenty calendar days in any calendar year;

(4) "Department head" means an employee who heads any department in a municipal organization, has substantial supervisory control of a permanent nature over other municipal employees, and is directly accountable to the board of selectmen of a town, city or borough not having a charter or special act form of government, or to the chief executive officer of any other town, city or borough;

(5) "Department" means any major functional division in a municipal organization, notwithstanding the provisions of any charter or special act to the contrary;

(6) "Employee organization" means any lawful association, labor organization, federation or council having as a primary purpose the improvement of wages, hours and other conditions of employment among employees of municipal employers.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2009

5-275

Sec. 2

October 1, 2009

7-471

Sec. 3

October 1, 2009

7-467

Statement of Legislative Commissioners:

Section 3 was added for accuracy of reference of the defined term "Employee" and "or her" was added in subdivisions (1) and (7) of section 2 for consistency with the style of the general statutes.

LAB

Joint Favorable Subst. C/R

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