HB 1677-FN –AS INTRODUCED
2012 SESSION
06/10
HOUSE BILL 1677-FN
AN ACT relative to choice as to whether to join a labor union and eliminating the duty of a public employee labor organization to represent employees who elect not to join or to pay dues or fees to the employee organization.
SPONSORS: Rep. W. Smith, Rock 18; Rep. Bettencourt, Rock 4; Sen. Forsythe, Dist 4
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill prohibits collective bargaining agreements that require employees to join a labor union.
This bill also provides that no public employee labor organization shall be required to represent employees who elect not to join or to pay dues or fees to the employee organization.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2342
06/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to choice as to whether to join a labor union and eliminating the duty of a public employee labor organization to represent employees who elect not to join or to pay dues or fees to the employee organization.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Employee Freedom of Choice Act. Amend RSA by inserting after chapter 273-C the following new chapter:
CHAPTER 273-D
EMPLOYEE FREEDOM OF CHOICE ACT
273-D:1 Short Title. This act may be cited as the “Employee Freedom of Choice Act.”
273-D:2 Declaration of Public Policy. It is hereby declared to be the public policy of this state in order to maximize individual freedom of choice in the pursuit of employment and to encourage an employment climate conducive to economic growth, that all persons shall have, and shall be protected in the exercise of, the right freely, and without fear of penalty or reprise, to form, join, or assist labor organizations, or to refrain from any such activity.
273-D:3 Definitions. In this chapter:
I. “Employer” means any individual, corporation, association, organization, or entity that employs one or more persons. The term includes, but is not limited to, the state of New Hampshire and its agencies, every district, board, commission, instrumentality, or other unit whose governing body exercises similar governmental powers. The term “employer” includes, but is not limited to, employers of agricultural labor.
II. “Labor organization” means any organization of any kind, or agency or employee representation committee or plan, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of work, or other conditions of employment.
273-D:4 Freedom of Choice Guaranteed; Discrimination Prohibited. No person shall be required, as a condition of employment or continuation of employment:
I. To resign or refrain from voluntary membership in, voluntary affiliation with, or voluntary financial support of a labor organization;
II. To become or remain a member of a labor organization;
III. To pay any dues, fees, assessments, or other charges of any kind or amount to a labor organization;
IV. To pay any charity or other third party, in lieu of such payments, any amount equivalent to or a pro-rata portion of dues, fees, assessments, or other charges of a labor organization; or
V. To be recommended, approved, referred, or cleared by or through a labor organization.
273-D:5 Voluntary Deductions Protected. It shall be unlawful for any employer to deduct from the wages, earnings, or compensation of any employee any dues, fees, assessments, or other charges, to be held for, transferred to, or paid over to a labor organization, unless the employee has first presented, and the employer has received, a signed written authorization of such deductions, which authorization may be revoked by the employee at any time by giving written notice of such revocation 30 days in advance of its effective date. Every employer who receives such an authorization from an employee shall have a duty to promptly notify that employee in writing that the employee may revoke an authorization at any time by giving the employer 30 days written notice.
273-D:6 Agreements in Violation, and Actions to Induce Such Agreements, Declared Illegal. Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer which violates the rights of employees as guaranteed by the provisions of this chapter is hereby declared to be unlawful, null and void, and of no legal effect. Any strike, picketing, boycott, or other action, by a labor organization for the sole purpose of inducing or attempting to induce an employer to enter into any agreement prohibited under this chapter is hereby declared to be for an illegal purpose and is a violation of the provisions of this chapter.
273-D:7 Notice to be Posted. It shall be the duty of every employer to post and keep continuously displayed the following notice at such a place or places in the business, establishment, or premises where it may be readily seen by all employees, and it shall be the further duty of every employer to furnish a copy of such notice to each employee at the time the employee is hired:
EMPLOYEE FREEDOM OF CHOICE
Under the law of the state of New Hampshire, employees are protected in the exercise of their free choice to join or refrain from joining labor unions, and it is unlawful for an employer and a labor union to enter into a contract or agreement requiring them to pay dues, fees, or charges of any kind to a labor union as a condition of obtaining or keeping a job. Under this law, an employer may not discharge or otherwise discriminate against an employee because of joining or refusing to join a labor union, or to pay dues, or other charges to a labor union.
273-D:8 Coercion and Intimidation Prohibited. It shall be unlawful for any person, labor organization, or officer, agent, or member thereof, or employer or officer thereof, by any threatened or actual intimidation of an employee or prospective employee, or the employee’s parents, spouse, children, grandchildren, or any other persons residing in the employee’s or prospective employee’s home, or by any damage or threatened damage to property, to compel or attempt to compel such employee to join, affiliate with, or financially support a labor organization or to refrain from doing so, or otherwise forfeit any rights as guaranteed by provisions of this chapter. It shall also be unlawful to cause or attempt to cause an employee to be denied employment or discharged from employment because of support or nonsupport of a labor organization by inducing or attempting to induce any other person to refuse to work with such employees.
273-D:9 Penalties. Any person, employer, labor organization, agent, or representative of an employer or labor organization, who directly or indirectly imposes upon any person any requirement prohibited by this chapter shall be guilty of a misdemeanor, and, notwithstanding RSA 651:2, shall be subject for each offense to a fine not exceeding $1,000, or to imprisonment not exceeding 90 days, or both.
273-D:10 Civil Remedies. Any person harmed as a result of any violation or threatened violation of the provisions of this chapter shall be entitled to injunctive relief against any and all violators or persons threatening violation, and may also recover any or all damages of any character, including costs and reasonable attorney fees, resulting from such violation or threatened violation, cognizable at common law. Such remedies shall be independent of, and in addition to, the penalties and remedies prescribed in other provisions of this chapter.
273-D:11 Duty to Investigate. It shall be the duty of the attorney general and of each county attorney, to investigate any complaints of violation of this chapter, and to prosecute all persons violating any of its provisions, and to use all means at their command to insure effective enforcement of the provisions of this chapter.
273-D:12 Existing Contracts. The provisions of this chapter shall apply to all contracts entered into on or after the effective date of this chapter and shall not apply to existing contracts, but shall apply to any renewal or extensions of such existing contracts.
273-D:13 Exceptions. The provisions of this chapter shall not apply:
I. To employers and employees covered by the federal Railway Labor Act.
II. To federal employers and employees.
III. To employers and employees on exclusive federal enclaves.
IV. Where they would otherwise conflict with, or be preempted by, federal law.
273-D:14 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.
2 Obligation to Bargain. Amend RSA 273-A:3, I to read as follows:
I. It is the obligation of the public employer and the employee organization certified by the board as the [exclusive] representative of its members in the bargaining unit to negotiate in good faith. “Good faith” negotiation involves meeting at reasonable times and places in an effort to reach agreement on the terms of employment, and to cooperate in mediation and fact-finding required by this chapter, but the obligation to negotiate in good faith shall not compel either party to agree to a proposal or to make a concession.
3 New Paragraph; Obligation to Bargain. Amend RSA 273-A:3 by inserting after paragraph IV the following new paragraph:
V. The employee organization certified by the board as the representative of the bargaining unit shall not be required to represent employees who elect not to join or to pay dues or fees to the employee organization. A collective bargaining agreement reached under this chapter shall apply only to public employees in the bargaining unit who are members of, or who elect to pay dues or fees to, the employee organization.
4 Unfair Labor Practices Prohibited. Amend RSA 273-A:5, I(e) to read as follows:
(e) To refuse to negotiate in good faith with the [exclusive] certified representative of its members in a bargaining unit, including the failure to submit to the legislative body any cost item agreed upon in negotiations;
5 Unfair Labor Practices Prohibited. Amend the introductory paragraph of RSA 273-A:5, II to read as follows:
II. It shall be a prohibited practice for the [exclusive] certified representative of any public employee:
6 Determining Bargaining Unit. Amend RSA 273-A:8, I to read as follows:
I. The board or its designee shall determine the appropriate bargaining unit and shall certify the [exclusive] majority representative thereof when petitioned to do so under RSA 273-A:10. In making its determination the board should take into consideration the principle of community of interest. The community of interest may be exhibited by one or more of the following criteria, although it is not limited to such:
(a) Employees with the same conditions of employment;
(b) Employees with a history of workable and acceptable collective negotiations;
(c) Employees in the same historic craft or profession;
(d) Employees functioning within the same organizational unit.
In no case shall the board certify a bargaining unit of fewer than 10 employees with the same community of interest. For purposes of this section, probationary employees shall be counted to satisfy the employee minimum number requirement. In no case shall such probationary employees vote in any election conducted under the provisions of this chapter to certify an employee organization as the [exclusive] majority representative of a bargaining unit.
7 Bargaining by State Employees. Amend RSA 273-A:9, I to read as follows:
I. All cost items and terms and conditions of employment affecting state employees in the classified system generally shall be negotiated by the state, represented by the governor as chief executive, with a single employee bargaining committee comprised of [exclusive] the certified representatives of all interested bargaining units. Negotiations regarding terms and conditions of employment unique to individual bargaining units shall be negotiated individually with the representatives of those units by the governor.
8 Bargaining by Judicial Employees. Amend RSA 273-A:9-a, I to read as follows:
I. All cost items and terms and conditions of employment affecting judicial employees generally shall be negotiated by the unified court system, represented by the chief justice of the supreme court with the advice and consent of the judicial branch administrative council appointed pursuant to supreme court rule 54, with a single employee bargaining committee comprised of [exclusive] the certified representatives of all interested bargaining units. Negotiations regarding terms and conditions of employment unique to individual bargaining units shall be negotiated individually with the representatives of those units by the chief justice and the administrative council.
9 Elections. Amend RSA 273-A:10, I to read as follows:
I. If a petition is filed by:
(a) At least 30 percent of the employees in the bargaining unit seeking recognition, alleging that they wish to be represented in collective bargaining by an employee organization as their [exclusive] representative or asserting that the employee organization which has been certified by the board is no longer the representative of the majority of employees in the bargaining unit; or
(b) A public employer alleging that one or more employee organizations has petitioned to be recognized as the [exclusive] representative of a majority of employees in a bargaining unit; the board shall investigate such petition and may hold hearings for the purpose of determining whether or not grounds exist for conducting an election. Upon so finding, the board shall order an election to be held under its supervision and in accordance with rules prescribed by the board. Otherwise, it shall dismiss the petition.
10 Elections. Amend RSA 273-A:10, IV through VII to read as follows:
IV. An employee organization receiving a simple majority of the votes cast shall be certified by the board as the [exclusive] representative of its members in the bargaining unit. In the absence of a simple majority, a run-off election shall be conducted between the 2 options receiving the most votes.
V. The board shall not certify any employee organization as the [exclusive] majority representative of a bargaining unit without an election being held pursuant to this section.
VI.(a) Certification as [exclusive] majority representative shall remain valid until the employee organization is dissolved, voluntarily surrenders certification, loses a valid election or is decertified.
(b) The board shall decertify any employee organization which is found in a judicial proceeding to discriminate with regard to membership, or with regard to the conditions thereof, because of age, sex, race, color, creed, marital status or national origin; or has systematically failed to allow its membership equal participation in the affairs of the employee organization.
(c) Any challenge to a certified [exclusive] bargaining representative, whether in a decertification election or a challenge by another labor organization, shall result in decertification or change in bargaining representation if decertification or the challenging organization is approved by a majority vote of members of the bargaining unit voting.
VII. Two or more bargaining units may with the approval of the public employer affected combine for the purpose of engaging in collective bargaining negotiations with a single public employer and the bargaining unit thus created shall enjoy the same rights and be subject to the same duties as if a single [exclusive] majority representative for the combined bargaining unit had been certified by the board.
11 Rights Accompanying Certification. Amend RSA 273-A:11 to read as follows:
273-A:11 Rights Accompanying Certification.
I. Public employers shall extend the following rights to the [exclusive] majority representative of a bargaining unit certified under RSA 273-A:8:
(a) The right to represent employees who are its members in collective bargaining negotiations and in the settlement of grievances. An individual employee may present an oral grievance to his employer without the intervention of the [exclusive] certified representative. Until the grievance is reduced to writing, the [exclusive] certified representative shall be excluded from a hearing if the employee so requests; but any resolution of the grievance filed by a member of the certified representative shall not be inconsistent with the terms of an existing agreement between the parties.
(b) The right to represent its members in the bargaining unit [exclusively and] without challenge during the term of the collective bargaining agreement. Notwithstanding the foregoing, an election may be held not more than 180 nor less than 120 days prior to the budget submission date in the year such collective bargaining agreement shall expire.
II. A reasonable number of employees who act as representatives of the certified representative in the bargaining unit shall be given a reasonable opportunity to meet with the employer or his representatives during working hours without loss of compensation or benefits.
12 Actions by or Against Public Employer Organizations. Amend RSA 273-A:15 to read as follows:
273-A:15 Actions by or Against Public Employee Organizations. Actions by or against the [exclusive] certified representative of a bargaining unit may be brought, without respect to the amount of damages, in the superior court of the county in which it is principally located, or where the plaintiff resides or has its principal place of business, if the plaintiff is a resident of this state or is incorporated in this state.
13 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2342
Revised 01/18/12
HB 1677 FISCAL NOTE
AN ACT relative to choice as to whether to join a labor union and eliminating the duty of a public employee labor organization to represent employees who elect not to join or to pay dues or fees to the employee organization.
FISCAL IMPACT:
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The Department of Administrative Services, Public Employee Labor Relations Board, Department of Labor, Department of Justice, Judicial Council, Judicial Branch, New Hampshire Association of Counties, and New Hampshire Municipal Association state this bill will have an indeterminable impact on state, county and local expenditures in FY 2013 and each year thereafter. There will be no impact on state, county and local revenues.
METHODOLOGY:
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The Department of Administrative Services states there are currently three major unions covering state employees and over 40 bargaining units within those unions. The Department states given the multiple bargaining units and all of the topics covered under collective bargaining, it is unable to estimate this bill’s potential fiscal impact on the state.
The Public Employee Labor Relations Board states this bill’s fiscal impact is not easily ascertainable as there are too many unknown factors, specifically how public employers and employees will react to such legislation. The Board states this bill may result in a fiscal impact on its own budget, as well as the Judicial Branch, to the extent it may increase the amount of grievance proceedings commonly filed with it and the Superior and Supreme Courts.
The Department of Labor states employees with grievances over wage issues that are negotiated in a contract currently have representation by a union and their grievances are mediated in house, but under this bill, employees would likely come to them to file wage and whistleblower claims. The Department states it currently has processes in place for investigations, filing wage and whistleblower claims, and holding administrative hearings, but states to the extent those demands may increase under this bill, the Department may see an increase in expenditures.
The Department of Justice states this bill would require the Attorney General to investigate complaints of violations and prosecute all persons who violate provisions of this bill. The Department states it is unable to determine if this bill would result in a fiscal impact as it is unable to estimate how many investigations or prosecutions might be generated from this bill.
The New Hampshire Municipal Association states this bill prohibits collective bargaining from requiring employees to join a union or pay dues or fees to a union and also provides that no public employee union is required to represent employees who elect not to join or pay dues or fees to the union. The Association states it is possible this bill will have an effect on local costs relative to collective bargaining, however cannot estimate to what extent. There is no impact on local revenue.
The Judicial Council states this bill establishes a new unspecified misdemeanor and may result in an indeterminable increase in state general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is capped at $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal. The Council is unable to estimate how many new criminal misdemeanor level offenses may arise as a result of this bill.
The Judicial Branch states it could incur a fiscal impact from this bill as it provides for a misdemeanor penalty (RSA 273-D:9), as well as civil remedies (RSA 273-D:10). The Branch states this bill establishes an unspecified misdemeanor penalty on an individual found guilty of directly or indirectly imposing upon any person any requirement prohibited by the employee freedom of choice act, as established by this bill, to which the Branch has no information to estimate how many charges would be brought to determine the fiscal impact on expenditures. The Branch states a class A misdemeanor will cost $59.11 per case in FY 2013 and $61.31 per case in FY 2014 and each year thereafter, and a class B misdemeanor will cost $43.19 in FY 2013 and $44.54 in FY 2013 and each year thereafter based on case weight information from the last needs assessment completed in 2005. The Branch states this bill may result in additional complex civil cases and complex equity cases but has no information as to estimate how many of each may be brought as a result of this bill. However, the Branch states the cost of processing an average complex civil case in Superior Court would be $633.81 in FY 2013 and $651.29 in FY 2014 and the cost of processing an average complex equity case would be $576.01 in FY 2013 and $602.60 in FY 2014. The Branch states none of the estimated average costs per case in this fiscal note include potential appeals that may be taken following a trial, which would result in an additional fiscal impact.
The New Hampshire Association of Counties states this bill requires county attorneys to investigate complaints of violations and prosecute all persons who violate provisions of this bill and which could increase county expenditures by an indeterminable amount based on additional workload. The Association also states this bill establishes an unspecified misdemeanor and to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
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