Citations Affected: IC 5-14-1.5-2 ; IC 36-8.
Synopsis: Collective bargaining for public safety employees. Allows
the police officers and firefighters of a unit (a county, city, town, or
township) to bargain collectively with an employer through an
exclusive representative. Requires the Indiana education employment
relations board to implement the collective bargaining law. Specifies
the rights and duties of employees and employers in collective
bargaining. Provides for the recognition of exclusive representatives,
payroll deductions, complaint proceedings before the board, judicial
review of complaints, mediation, and arbitration. Prohibits lockouts and
strikes. Provides that an agent appointed by a unit to conduct collective
bargaining for the unit is not a "governing body" for open door law
Effective: July 1, 2001.
January 11, 2001, read first time and referred to Committee on Labor and Employment.
A BILL FOR AN ACT to amend the Indiana Code concerning labor.
of Indiana that issues bonds for the purpose of constructing public
(5) Any advisory commission, committee, or body created by statute, ordinance, or executive order to advise the governing body of a public agency, except medical staffs or the committees of any such staff.
(6) The Indiana gaming commission established by IC 4-33, including any department, division, or office of the commission.
(7) The Indiana horse racing commission established by IC 4-31, including any department, division, or office of the commission.
(b) "Governing body" means two (2) or more individuals who are:
(1) a public agency that:
(A) is a board, a commission, an authority, a council, a committee, a body, or other entity; and
(B) takes official action on public business;
(2) the board, commission, council, or other body of a public agency which takes official action upon public business; or
(3) any committee appointed directly by the governing body or its presiding officer to which authority to take official action upon public business has been delegated. An agent or agents appointed by a school corporation or a unit to conduct collective bargaining on behalf of that school corporation or unit does not constitute a governing body for purposes of this chapter.
(c) "Meeting" means a gathering of a majority of the governing body of a public agency for the purpose of taking official action upon public business. It does not include:
(1) any social or chance gathering not intended to avoid this chapter;
(2) any on-site inspection of any project or program;
(3) traveling to and attending meetings of organizations devoted to betterment of government; or
(4) a caucus.
(d) "Official action" means to:
(1) receive information;
(3) make recommendations;
(4) establish policy;
(5) make decisions; or
(6) take final action.
(e) "Public business" means any function upon which the public agency is empowered or authorized to take official action.
(f) "Executive session" means a meeting from which the public is
excluded, except the governing body may admit those persons
necessary to carry out its purpose.
(g) "Final action" means a vote by the governing body on any motion, proposal, resolution, rule, regulation, ordinance, or order.
(h) "Caucus" means a gathering of members of a political party or coalition which is held for purposes of planning political strategy and holding discussions designed to prepare the members for taking official action.
(i) "Deliberate" means a discussion which may reasonably be expected to result in official action (defined under subsection (d)(3), (d)(4), (d)(5), or (d)(6)).
(j) "News media" means all newspapers qualified to receive legal advertisements under IC 5-3-1 , all news services (as defined in IC 34-6-2-87 ), and all licensed commercial or public radio or television stations.
(k) "Person" means an individual, a corporation, a limited liability company, a partnership, an unincorporated association, or a governmental entity.
upper level policy making position (as defined in
except a person in an upper level policy making position included
in an agreement in effect on July 1, 2001.
Sec. 4. "Board" refers to the Indiana education employment relations board created by IC 20-7.5-1-9.
Sec. 5. "Complainant" means an employer, employee, employee organization, or exclusive representative that files a complaint with the board under IC 36-8-23.
Sec. 6. "Employee" means a person who is a member of a bargaining unit.
Sec. 7. "Employee organization" means an organization in which employees participate and that exists to deal with an employer concerning any of the following:
(2) Labor disputes.
(4) Rates of pay.
(5) Hours of employment.
(6) Employment conditions.
Sec. 8. "Employer" means either of the following:
(1) A unit to which IC 36-8-22 applies.
(2) A person designated by the unit to act in the unit's interests in dealing with employees.
Sec. 9. "Exclusive representative" means an employee organization that is:
(1) certified under IC 36-8-22 by the board; or
(2) recognized by the employer as the exclusive representative of the employees in a bargaining unit.
Sec. 10. "Respondent" means a person against whom a complainant files a complaint under IC 36-8-23.
Sec. 11. "Strike" includes concerted:
(1) willful absence from the employee's position;
(2) stoppage of work; or
(3) abstinence in whole or in part from the full and proper performance of the duties of employment.
apply to all units.
Sec. 2. The board shall implement this chapter, IC 36-8-23 , IC 36-8-24 , and IC 36-8-25. In the administration of this chapter, IC 36-8-23 , IC 36-8-24 , and IC 36-8-25 , the board may exercise the powers granted to the board under IC 20-7.5-1-9.
Sec. 3. Employees may do the following:
(1) Form, join, or participate in employee organizations.
(2) Participate in collective bargaining with the employer through representatives of the employees' choosing.
(3) Engage in other activities, individually or in concert, to establish, maintain, or improve the following:
(D) Salary and wage related fringe benefits.
(E) All other terms and conditions of employment, including health and safety conditions.
Sec. 4. An employer shall manage and direct the employer's operations and activities to the full extent authorized by law.
Sec. 5. An employer may do the following:
(1) Direct the work of an employee, except where otherwise provided by law.
(2) Establish policy.
(3) Hire, promote, demote, transfer, assign, and retain an employee in accordance with law and collective bargaining agreements.
(4) Suspend or discharge an employee in accordance with law.
(5) Maintain the efficiency of governmental operations.
(6) Take action necessary to carry out the missions of the police department and the fire department.
(7) Protect the fiscal soundness and assure the continuation of vital public safety services.
(8) Take actions necessary to carry out the employer's responsibilities in emergencies, including any of the following:
(B) Military action.
(C) Natural disaster.
(D) Civil disorder.
Sec. 6. In accordance with rules adopted by the board under IC 4-22-2 , the board shall investigate a petition filed with the board by:
(1) an employee organization alleging that thirty percent
(30%) of the employees in the appropriate bargaining unit
wish to be represented for collective bargaining purposes by
an exclusive representative;
(2) an employer alleging that at least one (1) employee organization has presented a claim to be recognized as the exclusive representative in an appropriate bargaining unit; or
(3) an employee or a group of employees alleging that thirty percent (30%) of the employees assert that the designated exclusive representative is no longer the representative of the majority of employees in the bargaining unit.
Sec. 7. If the board has reasonable cause to believe that a question of representation exists, the board shall conduct a hearing within thirty (30) days after a petition is filed with the board. If the board finds upon the record of the hearing that a question of representation exists, the board shall do the following:
(1) Direct an election by secret ballot within thirty (30) days after the hearing.
(2) Certify the results within ten (10) days after the election.
Sec. 8. If the parties referred to in section 6 of this chapter waive the hearing, the board is not required to conduct a hearing under section 7 of this chapter before a consent election.
Sec. 9. The board shall determine who is eligible to vote in an election directed under section 7 of this chapter and shall establish rules governing the election, subject to the following conditions:
(1) To be placed on the ballot, an employee organization must be designated by more than ten percent (10%) of the employees in the unit.
(2) If none of the choices on the ballot receives a majority in an election but a majority of all votes cast are for representation by some employee organization, the board shall conduct a runoff election.
(3) An employee organization that receives the majority of the votes cast in an election shall be certified by the board as the exclusive representative.
Sec. 10. An election may not be directed in a bargaining unit or in a subdivision of a bargaining unit within which a valid election has been held in the preceding twelve (12) months.
Sec. 11. Notwithstanding sections 6 through 10 of this chapter, an employer shall recognize a particular employee organization as the exclusive representative of the employees within an appropriate bargaining unit if the employee organization presents to the employer evidence that the employee organization represents a
majority of the employees within the bargaining unit, unless an
employee organization or a group of employees representing
employees within the bargaining unit files a written objection to
recognition with the employer or the board.
Sec. 12. If:
(1) an employee organization under section 11 of this chapter provides an employer with evidence that the employee organization represents a majority of the employees within an appropriate bargaining unit; and
(2) no written objection to the recognition of the employee organization as the exclusive representative of the employees within the bargaining unit is filed under section 11 of this chapter by another employee organization or a group of employees representing the employees within the bargaining unit;
the board is not required to hold a hearing or to direct an election on the question of whether the employee organization referred to in subdivision (1) shall be recognized as the exclusive representative of the employees within the bargaining unit.
Sec. 13. Before recognizing an employee organization as an exclusive representative under section 11 of this chapter, the employer must post a written public notice of the employer's intention to recognize the employee organization as the exclusive representative of the employees within the bargaining unit. The notice must be posted in a place where it will be seen by the employees within the bargaining unit for at least thirty (30) days immediately preceding the recognition.
Sec. 14. In a case in which:
(1) there is a historical pattern of recognition; and
(2) the employer has recognized an employee organization as the sole and exclusive bargaining agent for an existing bargaining unit;
the board shall find that the employees in the bargaining unit are represented by that employee organization and recognize the employee organization as the exclusive representative.
Sec. 15. A determination made under this chapter that an employee organization has been chosen as the exclusive representative by a majority of the employees in an appropriate bargaining unit is subject to judicial review under the same procedure, time limits, and other requirements set forth in IC 36-8-23-12 through IC 36-8-23-22 for review of an order of the board. The record of the board's determination of the appropriate
bargaining unit and the exclusive representative may be a part of
the transcript of a proceeding under this section.
Sec. 16. An employer, upon receipt of a written authorization from an employee subject to this chapter, shall:
(1) deduct from the pay of the employee the dues, fees, or assessments designated or certified by the appropriate officer of an employee organization; and
(2) remit those amounts to the employee organization.
Sec. 17. A collective bargaining agreement with an employee organization that is recognized as an exclusive representative may include a provision requiring an employee who is covered by the collective bargaining agreement but is not a member of the employee organization to pay a proportionate share of the costs of the collective bargaining process, contract administration, and matters affecting wages, hours, and conditions of employment. This proportionate share may not exceed the amount of dues uniformly required of members of the employee organization.
Sec. 18. An employee organization referred to in section 17 of this chapter shall certify to an employer the amount constituting each nonmember employee's proportionate share. The employer shall deduct the proportionate share payment from the earnings of a nonmember employee and pay the amount to the employee organization.
Sec. 19. Only the exclusive representative of the employees within a bargaining unit may negotiate provisions in a collective bargaining agreement providing for the payroll deduction of any of the following:
(1) Labor organization dues.
(2) Fair share payment.
(3) Initiation fees.
Sec. 20. Except as provided in sections 17 and 18 of this chapter, deductions may be made only upon an employee's written authorization and shall be continued until:
(1) revoked in writing; or
(2) the termination date of the applicable collective bargaining agreement.
Sec. 21. A collective bargaining agreement providing for an employee who is not a member of the employee organization recognized as the exclusive representative to pay a proportionate share agreement must safeguard the right of nonassociation based upon bona fide religious tenets of an employee. An affected
employee may be required to pay an amount equal to the
employee's proportionate share, determined under a lawful
proportionate share agreement, to a nonreligious charitable
organization agreed upon by the employee and the exclusive
representative to which the employee would otherwise pay the
Sec. 22. If an affected employee referred to in section 21 of this chapter and the exclusive representative are unable to agree on a payment under section 21 of this chapter, the board may establish an approved list of charitable organizations to which the payments may be made.
Sec. 23. It is an unfair labor practice for an employer to do any of the following:
(1) Interfere with, restrain, or coerce an employee in the exercise of the rights guaranteed in this chapter, IC 36-8-23 , IC 36-8-24 , or IC 36-8-25.
(2) Dominate, interfere, or assist in the formation or administration of an employee organization, or contribute financial or other support to the employee organization.
(3) Discriminate in regard to:
(A) hiring practices;
(B) tenure of employment; or
(C) a term or condition of employment;
to encourage or discourage membership in an employee organization.
(4) Discharge or otherwise discriminate against an employee because that employee has:
(A) filed a complaint, an affidavit, or a petition; or
(B) given information or testimony under this chapter or IC 36-8-23.
(5) Refuse to bargain collectively in good faith with an exclusive representative concerning the following:
(B) Rates of pay.
(D) Working conditions.
(E) Any other terms or conditions of employment.
(6) Fail or refuse to comply with this chapter, IC 36-8-23 , IC 36-8-24 , or IC 36-8-25.
Sec. 24. It is an unfair labor practice for an employee organization to do any of the following:
(1) Interfere with, restrain, or coerce:
respondent would not be unfairly prejudiced by the amendment.
(b) The respondent shall file an answer to the original or amended complaint. The complainant and the respondent are parties and are entitled to appear in person or otherwise give testimony at the hearing. At the discretion of the board, an interested person may be allowed to intervene in the hearing and present testimony.
Sec. 4. The board is not bound by the rules of evidence in conducting a hearing under this chapter. Testimony received at a hearing shall be reduced to writing and filed with the board. After receiving the testimony, the board may take further testimony or hear arguments upon notice to the parties.
Sec. 5. (a) In a proceeding on a complaint under this chapter, the board shall make a determination based on the preponderance of evidence received.
(b) If the board determines that the respondent was or is engaged in an unfair labor practice, the board shall state the findings of fact and serve on the respondent an order requiring that the respondent cease the unfair labor practice and take affirmative actions, including reinstatement of an employee with or without back pay, to carry out IC 36-8-22 , IC 36-8-24 , IC 36-8-25 , and this chapter. The order may further require that the respondent make reports showing the extent of the respondent's compliance with the order.
Sec. 6. If the board determines that a respondent:
(1) did not engage in; or
(2) is not engaging in;
an unfair labor practice, the board shall state the findings of fact and dismiss the complaint.
Sec. 7. A hearing may be conducted by:
(1) a member of the board; or
(2) a hearing examiner or an agency designated by the board;
instead of by the full board. However, after the hearing, the member, hearing examiner, or agency shall serve on the parties and file with the board proposed findings and a recommended order.
Sec. 8. If an exception is not filed by a party:
(1) within twenty (20) days after service on the parties; or
(2) within a period authorized by the board;
the recommended order filed under section 7 of this chapter becomes the order of the board.
Sec. 9. If an exception to a recommended order filed under
section 7 of this chapter is filed, the board shall grant review if the
board determines that the exception raises a substantial issue of
fact or law.
Sec. 10. If the board determines that an exception to a recommended order filed under section 7 of this chapter does not raise a substantial issue of fact or law, the recommended order becomes the order of the board.
Sec. 11. An order of the board under sections 7 through 10 of this chapter is a final order and binding on the parties to the complaint, subject to judicial review under sections 12 through 22 of this chapter.
Sec. 12. Not later than thirty (30) days after service of the board's order under:
(1) IC 36-8-22-6 through IC 36-8-22-15 ; or
(2) sections 1 through 11 of this chapter;
on the complainant and respondent, the board or the complainant may petition the circuit or superior court of a county in which the unit is located for the enforcement of the board's order and for appropriate relief.
Sec. 13. A party aggrieved by the board's order may petition the court for a review of the order and for appropriate relief. If a petition is not filed within the thirty (30) day period allowed by section 12 of this chapter, the order may not be reviewed. The board shall then file a petition with the court to enforce the order.
Sec. 14. The commencement of proceedings after the filing of a petition under section 13 of this chapter does not, unless specifically ordered by the court, operate as a stay of the board's order.
Sec. 15. After a petition is filed under section 13 of this chapter, the court shall have notice served upon the parties of the petition and send a copy to the board.
Sec. 16. In a proceeding on a petition filed under section 13 of this chapter, an objection that was not made at the hearing conducted under section 7 of this chapter may not be considered by the court, unless the failure to make the objection is excused because of extraordinary circumstances.
Sec. 17. If either party to a petition filed under section 13 of this chapter applies to the court for leave to introduce additional evidence and shows to the satisfaction of the court that:
(1) the additional evidence is material; and
(2) there were reasonable grounds for the failure to introduce the evidence in the hearing conducted under section 7 of this
the court may order the additional evidence to be taken by the board and made a part of the record.
Sec. 18. After a court, under section 17 of this chapter, orders the board to make additional evidence a part of the record, the board:
(1) may modify the findings of fact by reason of the additional evidence; and
(2) shall file the modified findings and the recommendations for a modification or setting aside of the original order with the court.
Sec. 19. A petitioner who petitions a court for review of an order of the board under section 13 of this chapter must file a record of the hearing, certified by the board, with the court. Until a record of the hearing is filed, the board may, at any time upon reasonable notice, modify or set aside all or part of a finding or an order made or issued by the board.
Sec. 20. After the record of a hearing conducted under section 7 of this chapter is filed with the court under section 19 of this chapter, the jurisdiction of the court to modify, set aside, or enforce a board's order and to grant other appropriate relief is exclusive, and the court's judgment and decree are final, subject to review in accordance with the rules of court.
Sec. 21. Petitions filed under section 12 of this chapter shall be heard not later than sixty (60) days after the petitions are docketed. The petition takes precedence over all other civil matters except matters of the same character docketed earlier.
Sec. 22. In a court's review of an order of the board under this chapter, the original or modified findings of fact by the board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, are conclusive.
this chapter, the board shall select from the employees' labor
mediation roster established by
five (5) persons as
nominees to serve as impartial arbitrators on the arbitration panel.
Not later than five (5) days after the selection, the parties shall each
alternately strike the names of two (2) of the nominees, with the
first person to request arbitration under section 9 of this chapter
Sec. 12. The member remaining after the striking under section 11 of this chapter and the members selected by the employer and the exclusive representative constitute the panel. The panel member not struck under section 11 of this chapter is the chairperson of the arbitration panel.
Sec. 13. The chairperson of the arbitration panel shall schedule a hearing to begin not later than fifteen (15) days after the panel's membership is selected and shall give reasonable notice of the time and place of the hearing to the parties. The hearing shall be held at the location the board considers appropriate. The chairperson shall preside over the hearing and take testimony.
Sec. 14. Oral or documentary evidence and other data considered relevant by the arbitration panel may be received in evidence at an arbitration hearing held under this chapter. The hearing shall be informal and the rules of evidence do not apply. A verbatim record of a hearing must be made. The arbitrator shall arrange for the necessary recording service. Transcripts may be ordered at the expense of the party ordering the transcripts, but the transcripts are not necessary for a decision by the arbitration panel.
Sec. 15. If a member of an arbitration panel assembled under this chapter is a public officer or employee, the public officer or employee continues on the payroll of the employer without loss of pay.
Sec. 16. A hearing conducted by an arbitration panel under this chapter may be adjourned periodically, but, unless otherwise agreed to by the parties, must be concluded not later than thirty (30) days after the date of commencement. Arbitration proceedings under this chapter may not be interrupted or terminated by an unfair labor practice charge filed by either party at any time.
Sec. 17. An arbitration panel may do the following:
(1) Administer oaths.
(2) Require the attendance of witnesses and the production of evidence considered material to a just determination of an issue in dispute.
discussions for a new agreement or an amendment of the existing
agreement, and wage rates or other conditions of employment
under the proposed new or amended agreement are in dispute, the
arbitration panel shall base its findings, opinions, and order upon
the following factors:
(1) The lawful authority of the employer.
(2) Stipulations of the parties.
(3) The interests and welfare of the public and the financial ability of the employer to meet the costs.
(4) Comparison of the wages, hours, and conditions of employment of the employees involved in the arbitration proceeding with the wages, hours, and conditions of employment of employees performing similar services and with other employees generally in comparable communities.
(5) The average consumer prices for goods and services.
(6) The overall compensation currently received by the employees, including the following:
(A) Direct wage compensation, vacations, holidays, and other excused time.
(B) Insurance, pension, medical, and hospitalization benefits.
(C) The continuity and stability of employment.
(7) Changes in any of the circumstances during the arbitration proceedings.
(8) Other factors normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment through voluntary collective bargaining, mediation, factfinding, or arbitration between parties in public or private employment.
Sec. 26. If a fiscal year begins:
(1) after the initiation of arbitration procedures under this chapter; and
(2) before the arbitration decision or enforcement of the decision;
this occurrence does not render a dispute moot or impair the jurisdiction or authority of the arbitration panel or the decision.
Sec. 27. Except as provided in section 28 of this chapter, an increase in rates of compensation awarded by an arbitration panel under this chapter is effective at the beginning of the employer's fiscal year beginning on or after the date of the arbitration award.
Sec. 28. If a fiscal year begins after the initiation of arbitration procedures, section 27 of this chapter does not apply. However, an
increase awarded by an arbitration panel under this chapter may
be retroactive to the beginning of the fiscal year.
Sec. 29. The parties may, by stipulation, amend or modify an award of arbitration under this chapter.
Sec. 30. Upon petition by either the employer or the exclusive representative, an order of an arbitration panel under this chapter may be reviewed by the circuit court with jurisdiction in the county in which the dispute arose or in which a majority of the affected employees reside. However, the only grounds upon which the panel's order may be reviewed are that:
(1) the arbitration panel was without authority or exceeded the panel's authority;
(2) the order is arbitrary or capricious; or
(3) the order was procured by fraud, collusion, or unlawful means.
Sec. 31. A petition for review of an order of an arbitration panel under section 30 of this chapter must be filed with the circuit court not later than ninety (90) days after the issuance of the arbitration order. The pendency of the proceeding for review does not automatically stay the order of the arbitration panel.
Sec. 32. If the court, in proceedings on a petition for review of an order of an arbitration panel, finds the appeal or petition frivolous, the party against whom the final decision of the court is adverse shall pay reasonable attorney's fees and costs to the successful party.
Sec. 33. If the court's decision in a proceeding on a petition for review of an order of an arbitration panel affirms an award of money, the award, if retroactive, bears interest at the rate of twelve percent (12%) annually from the effective retroactive date.
Sec. 34. During the pendency of proceedings before an arbitration panel, currently applicable wages, hours, and other conditions of employment may not be changed by either party without the consent of the other. However, a party may consent to a change without prejudice to the party's rights or position under IC 36-8-22 or this chapter.
Sec. 35. An employee covered under IC 36-8-22 and this chapter may not withhold services.
Sec. 36. An employer may not lock out or prevent an employee from performing services.
Sec. 37. (a) All terms decided upon by an arbitration panel under this chapter must be included in an agreement to be submitted to the employer's legislative body for ratification and:
chapter or procedures mandated by a collective bargaining
agreement, a civil action for the violation of an agreement between
an employer and a labor organization representing employees may
be brought by either party to the agreement in the circuit or
superior court of a county in which the employer:
(1) transacts business; or
(2) has the employer's principal office.