The original instrument and the following digest, which constitutes no part of the
legislative instrument, were prepared by Carla S. Roberts.
DIGEST
SB 438 Original 2016 Regular Session Peterson
Proposed law enacts the "Public Employee Partnership Act".
Proposed law authorizes public employees to form, join, or assist a labor organization for the
purpose of collective bargaining through representatives chosen by public employees without
interference, restraint, or coercion and to refuse any such activities.
Proposed law, provides that, unless limited by the provisions of state or federal law, authorizes a
public employer to:
(1)Direct the work of, hire, promote, assign, transfer, demote, suspend, discharge, or terminate
a public employee for just cause.
(2)Determine qualifications for employment and the nature and content of personnel
examinations.
(3)Take actions as may be necessary to carry out the mission of the public employer in
emergencies.
(4)Retain all rights not specifically limited by a collective bargaining agreement or by proposed
law.
Proposed law creates the Public Employees Labor Relations Board within the office of the governor,
consisting of three members, serving three-year terms, appointed by the governor subject to Senate
confirmation. Provides that no member shall hold or be a candidate for an elected public office while
serving on the board.
Proposed law provides that the board shall administer proposed law and shall promulgate rules
necessary to accomplish and perform its functions and duties, including the establishment of
procedures for:
(1)The designation of appropriate bargaining units.
(2)The selection, certification, and decertification of exclusive representatives.
(3)The filing of, hearing on, and determination of complaints of prohibited practices.
Proposed law requires that the board: (1)Hold hearings and make inquiries necessary to conduct its functions and duties.
(2)Conduct studies on problems pertaining to employee-employer relations.
(3)Request from public employers and labor organizations the information and data necessary
to carry out the board's functions and responsibilities.
Proposed law provides that the board shall decide issues by majority vote and shall issue its decisions
in the form of written orders and opinions.
Authorizes the board:
(1)To hire personnel or contract with third parties as it deems necessary to assist it in carrying
out its functions.
(2)To enforce proposed law through the imposition of appropriate administrative remedies.
(3)To issue subpoenas.
Proposed law provides that a board rule shall not require, directly or indirectly, as a condition of
continuous employment, a public employee covered by proposed law to join a labor organization that
is certified as an exclusive representative.
Proposed law authorizes the board to hold hearings for the purposes of:
(1)Information gathering and inquiry.
(2)Adopting rules.
(3)Adjudicating disputes and enforcing proposed law and rules adopted pursuant thereto.
Proposed law provides that a rule proposed to be adopted by the board that affects a person or
governmental entity outside of the board and its staff shall not be adopted, amended, or repealed
without public hearing and comment on the proposed action before the board. Provides that except
as otherwise provided in proposed law, all rules shall be proposed, adopted, and promulgated in
accordance with the Administrative Procedure Act.
Proposed law requires that a verbatim record made by electronic or other suitable means be made
of every rulemaking and adjudicatory hearing, and such records be maintained for a period of not
less than three years. The record shall not be transcribed unless required for judicial review or unless
ordered by the board.
Proposed law requires that the board, upon receipt of a petition for a representation election filed by
a labor organization, designate the appropriate bargaining units for collective bargaining.
Appropriate bargaining units shall be established on the basis of occupational groups or clear and identifiable communities of interest in employment terms and conditions and related personnel
matters among the public employees involved.
Proposed law provides that either party may notify the board in writing of a disagreement arising
between a public employer and a labor organization concerning the composition of an appropriate
bargaining unit. Requires that the board notify both parties within 10 business days that a
disagreement has been filed and hold a hearing within 30 days after the notification concerning the
composition of the bargaining unit before designating an appropriate bargaining unit.
Proposed law provides that whenever, in accordance with board rules, a petition is filed with the
board by a labor organization containing the signatures of at least 30% of the public employees in
an appropriate bargaining unit, the board shall conduct a secret ballot representation election to
determine whether and by which labor organization the public employees in the appropriate
bargaining unit shall be represented. Requires that the ballot shall contain the name of any labor
organization submitting a petition containing signatures of at least 30% of the public employees in
the appropriate bargaining unit and a provision allowing a public employee to indicate that he does
not desire to be represented by a labor organization. Requires that election results be determined by
the majority of the votes cast in the appropriate bargaining unit.
Proposed law provides that once a labor organization has filed a valid petition with the board calling
for a representation election, other labor organizations may seek to be placed on the ballot by filing
a petition containing the signatures of not less than 20% of the public employees in the appropriate
bargaining unit no later than 10 days after the board and the public employer post a written notice
that the petition has been filed by a labor organization. Provides that if a labor organization receives
a majority of votes cast, it shall be certified as the exclusive representative of all public employees
in the appropriate bargaining unit. Provides for a runoff election between the two choices receiving
the largest number of votes cast if no organization receives a majority within 15 days. Requires the
board to certify the results of the election, and, when a labor organization receives a majority of the
votes cast, the board shall certify the labor organization as the exclusive representative of all public
employees in the appropriate bargaining unit.
Proposed law provides that an election shall not be conducted if an election or runoff election has
been conducted in the 12-month period immediately preceding the proposed representation election.
Prohibits an election being held during the term of an existing collective bargaining agreement,
except as provided in the impasse provisions of proposed law.
Proposed law provides that a labor organization that has been certified by the board as representing
the public employees in the appropriate bargaining unit shall be the exclusive representative of all
public employees in the appropriate bargaining unit which shall act for all public employees in the
appropriate bargaining unit and negotiate a collective bargaining agreement covering all public
employees in the appropriate bargaining unit.
Proposed law provides that a member of a labor organization or the labor organization itself may
initiate decertification of a labor organization as the exclusive representative if 35% of the public
employees in the appropriate bargaining unit make a written request to the board for a decertification election. Decertification elections shall be held in a manner prescribed by board rule.
Proposed law provides that, except for retirement programs, provided by state and statewide
retirement systems or other such matters specifically covered by state law, appropriate governing
bodies and exclusive representatives:
(1)Shall bargain in good faith on wages, hours, and all other terms and conditions of
employment and other issues agreed to by the parties. However, neither the appropriate
governing body nor the exclusive representative shall be required to agree to a proposal or
to make a concession.
(2)Shall enter into written collective bargaining agreements covering employment relations.
Proposed law provides that the obligation to bargain collectively shall not be construed as
authorizing an appropriate governing body and an exclusive representative to enter into an agreement
that is in conflict with the provisions of any other state law. Specifies that in the event of conflict
between the provisions of any other state law and an agreement entered into by the appropriate
governing body and the exclusive representative in collective bargaining, state law prevails.
Proposed law provides that the amount of dues shall be certified in writing by an official of the labor
organization. Requires the public employer to honor payroll deductions until the authorization is
revoked in writing by the public employee in accordance with the negotiated agreement and for so
long as the labor organization is certified as the exclusive representative. Prohibits the public
employer from deducting dues for any other labor organization during the time that a board
certification is in effect for a particular appropriate bargaining unit.
Proposed law provides that the scope of bargaining for public schools as well as educational
employees in state agencies shall include, as a mandatory subject of bargaining, the impact of
professional and instructional decisions made by the employer.
Proposed law provides that an impasse resolution or an agreement provision between an appropriate
governing body and an exclusive representative that requires the expenditure of funds shall not be
contingent upon the specific appropriation of funds by the legislature and the availability of funds.
Proposed law requires that an agreement include a grievance procedure to be used for the settlement
of disputes pertaining to employment terms and conditions and related personnel matters which shall
provide for a final and binding determination. Provides the final determination constitutes an
arbitration award within the meaning of the La. Binding Arbitration Law; subject to judicial review
pursuant to the standard set forth in the La. Binding Arbitration Law. Requires that the costs of an
arbitration proceeding be shared equally by the parties.
Proposed law requires the following meetings may be closed:
(1)Meetings for the discussion of bargaining strategy preliminary to collective bargaining
negotiations between the appropriate governing body and the exclusive representative of the public employees of the appropriate bargaining unit.
(2)Collective bargaining sessions.
(3)Consultations and impasse resolution procedures at which the appropriate governing body
and the exclusive representative of the appropriate bargaining unit are present.
Proposed law requires that the following negotiations and impasse procedures be followed by the
appropriate governing bodies of appropriate bargaining units of the state and exclusive
representatives for employees in such units:
(1)A request to the appropriate bargaining unit of the state for the commencement of initial
negotiations to be filed in writing by the exclusive representative no later than June 1 of the
year in which negotiations are to take place. Requires negotiations to begin no later than July
1 of that year.
(2)In subsequent years, negotiations agreed to by the parties shall begin no later than August 1
following the submission of written notice to the state by the exclusive representative no later
than July 1 of the year in which negotiations are to take place.
(3)If an impasse occurs during negotiations between the parties, and if an agreement is not
reached by the parties by October 1, either party may request mediation services from the
board. Requires that a mediator from the federal mediation and conciliation service be
assigned by the board to assist in negotiations unless the parties agree to another mediator.
(4)The mediator shall provide services to the parties until the parties reach agreement or the
mediator believes that mediation services are no longer helpful or until November 1,
whichever occurs first.
(5)If the impasse continues after November 1, either party may request a list of seven arbitrators
from the federal mediation and conciliation service. One arbitrator shall be chosen by the
parties by alternately eliminating names from such list. Who eliminates first shall be
determined by coin toss. The arbitrator shall render a final, binding, written decision
resolving unresolved issues pursuant to R.S. 23:861.16(5) and the La. Binding Arbitration
Law no later than 30 days after the arbitrator has been notified of his selection by the parties.
The costs of an arbitrator and the arbitrator's related costs shall be shared equally by the
parties. Each party shall be responsible for bearing the cost of presenting its case. The
decision shall be subject to judicial review pursuant to the La. Binding Arbitration Law.
Proposed law provides that the following impasse procedures be followed by all appropriate
governing bodies of appropriate bargaining units of political subdivisions and exclusive
representatives of the employees in such units:
(1)If an impasse occurs, either party may request from the board that a mediator be assigned to
the negotiations unless the parties can agree on a mediator. A mediator with the federal mediation and conciliation service shall be assigned by the board to assist negotiations unless
the parties agree to another mediator.
(2)If the impasse continues after a 30-day mediation period, either party may request a list of
seven arbitrators from the federal mediation and conciliation service. One arbitrator shall be
chosen by the parties by alternately eliminating names from such list. Who eliminates first
shall be determined by coin toss. The arbitrator shall render a final, binding, written decision
resolving unresolved issues pursuant to R.S. 23:861.16(5) and the La. Binding Arbitration
Law no later than 30 days after the arbitrator has been notified of his selection by the parties.
The costs of an arbitrator and the arbitrator's related costs shall be shared equally by the
parties. Each party shall be responsible for bearing the cost of presenting its case. The
decision shall be subject to judicial review pursuant to the La. Binding Arbitration Law.
Proposed law provides that an appropriate governing body of an appropriate bargaining unit of a
political subdivision may enter into a written agreement with the exclusive representative of the
employees in such bargaining units setting forth an alternative impasse resolution procedure.
Proposed law provides that in the event that an impasse continues after the expiration of a contract,
the existing contract shall continue in full force and effect until it is replaced by a subsequent written
agreement.
Proposed law prohibits a public employer or its representative from:
(1)Discriminating against a public employee with regard to terms and conditions of employment
because of the employee's membership in a labor organization.
(2)Interfering with, restraining, or coercing a public employee in the exercise of a right
guaranteed pursuant to proposed law.
(3)Dominating or interfering in the formation, existence, or administration of a labor
organization.
(4)Discriminating in regard to hiring, tenure, or a term or condition of employment in order to
encourage or discourage membership in a labor organization.
(5)Discharging or otherwise discriminating against a public employee because he has signed or
filed an affidavit, petition, grievance, or complaint or given information or testimony
pursuant to proposed law or because a public employee is forming, joining, or choosing to
be represented by a labor organization.
(6)Refusing to bargain collectively in good faith with the exclusive representative.
(7)Expending or causing the expenditure of public funds to any external agent, individual, firm,
agency, partnership, or association in any attempt to influence the outcome of a
representation election. (8)Refusing or failing to comply with proposed law or board rule.
(9)Refusing or failing to comply with a collective bargaining agreement.
Proposed law prohibits a public employee or labor organization or its representative from:
(1)Discriminating against a public employee with regard to labor organization membership
because of race, color, religion, creed, age, sex, or national origin.
(2)Interfering with, restraining, or coercing any public employee in the exercise of a right
guaranteed pursuant to proposed law.
(3)Refusing to bargain collectively in good faith with a public employer.
(4)Refusing or failing to comply with a collective bargaining agreement or other agreement with
the public employer.
(5)Refusing or failing to comply with proposed law.
Proposed law provides that:
(1)A public employee or labor organization shall not engage in a strike.
(2)A public employer shall not engage in a lockout.
(3)A public employer may apply to the district court for injunctive relief to end a strike, and an
exclusive representative of public employees affected by a lockout may apply to the district
court for injunctive relief to end a lockout.
Proposed law provides that collective bargaining agreements and other agreements between
appropriate governing bodies and exclusive representatives shall be valid and enforceable according
to the terms of the agreements when entered into in accordance with proposed law.
Proposed law authorizes the board to request the district court to enforce orders issued pursuant to
proposed law, including those for appropriate temporary relief and restraining orders which shall
consider the request on the record made before the board. Requires the court to uphold the action of
the board and take appropriate action to enforce it unless it concludes that the order is either:
(1)Arbitrary, capricious, or an abuse of discretion.
(2)Not supported by substantial evidence on the record considered as a whole.
(3)Otherwise not in accordance with law.
Proposed law authorizes a person or party, including a labor organization affected by a final rule, order, or decision of the board, to appeal to the district court for further relief that shall be based
upon the record made at the board hearing. Requires all such appeals to be taken within 30 days of
the date of the final rule, order, or decision of the board. Requires the court to affirm the board
actions unless the court concludes that the action is either:
(1)Arbitrary, capricious, or an abuse of discretion.
(2)Not supported by substantial evidence on the record considered as a whole.
(3)Otherwise not in accordance with law.
Proposed law provides that nothing in proposed law shall be construed to annul or modify a
collective bargaining agreement entered into between a public employer and an exclusive
representative prior to July 1, 2016, or to annul or modify the status of an existing or recognized
exclusive representative.
Proposed law provides that in the event of conflict with other law or regulation, the provisions of
proposed law shall supersede other previously enacted laws and regulations; provided that proposed
law shall not supersede any provision of applicable civil service law.
Effective July 1, 2016.
(Adds R.S. 23:861-861.21 and R.S. 36:4(BB))