WSR 02-08-029

EXPEDITED RULES

MARINE EMPLOYEES' COMMISSION


[ Filed March 27, 2002, 12:21 p.m. ]

Title of Rule: WAC 316-02-001 (1)(b), (e) and (f), application and scope of chapter 316-02 WAC, 316-02-135 Service of process -- Method and completion of service on parties, 316-02-150 Service of process -- Filing with commission, 316-02-170 Service of process -- Notice of hearing, 316-02-300 Subpoenas -- Discovery, 316-02-600 Contested cases includes application for adjudicative proceeding -- Exceptions, 316-02-610 Contested cases -- Commencement, 316-02-620 Contested cases -- Denial of application, 316-02-630 Contested cases -- Commission action upon filing, 316-02-640 Contested cases -- Ex parte communications, 316-02-650 Commission decisions in contested cases -- Form and content, 316-02-660 Commission decisions in contested cases -- Service, 316-02-820 Commission offices, and 316-65-005 Grievance defined; and repealing WAC 316-02-310 Subpoenas -- Issuance to parties, 316-02-340 Subpoenas -- Proof of service, 316-02-350 Subpoenas -- Quashing, 316-02-360 Subpoenas -- Enforcing, and 316-02-370 Subpoenas -- Geographical scope.

Purpose: To make housekeeping changes and simplify/reduce language.

Statutory Authority for Adoption: RCW 34.05.230.

Summary: Makes housekeeping changes to chapters 316-02 and 316-65 WAC.

Reasons Supporting Proposal: In compliance with Executive Order 97-02, these rules were reviewed and clarification changes made to these rules.

Name of Agency Personnel Responsible for Drafting: Kathy Marshall, Evergreen Plaza Building, 711 Capitol [Way], (360) 586-6354; Implementation and Enforcement: John D. Nelson, Chairman, 711 Capitol [Way], (360) 586-6354.

Name of Proponent: Marine Employees' Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Makes housekeeping changes. The purpose and anticipated effect is to update the rule information and make the rules clearer and easier to understand.

Proposal Changes the Following Existing Rules: WAC 316-02-001 (1)(b), corrects WAC citation, WAC 316-02-001 (1)(e) and (f), deletes incorrect citation, WAC 316-02-135, revises service of process-method, WAC 316-02-150, revises service of process-filing, WAC 316-02-170, relocates phrase "by the commission," WAC 316-02-300, revises subpoenas, WAC 316-02-310, 316-02-340, 316-02-350, 316-02-360, and 316-02-370, repealed, WAC 316-02-600-316-02-660, changes "contested cases" to "adjudicative proceedings," WAC 316-02-820, adds "Suite 104" to commission address, and WAC 316-65-005, allows consolidation of the same or closely related unfair labor grievances.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THE USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Kathy Marshall, Marine Employees' Commission, P.O. Box 40902, Olympia, WA 98504-0902 , AND RECEIVED BY June 3, 2002.


March 26, 2002

Kathy J. Marshall

Administrator

OTS-5347.2


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-001   Application and scope of chapter 316-02 WAC.   Chapter 316-02 WAC has been added to the Washington Administrative Code by the marine employees' commission pursuant to the authority of RCW 47.64.280 and chapter 34.05 RCW, to promulgate comprehensive and uniform rules for practice and procedure before the commission. The provisions of chapter 1-08 WAC shall not be applicable to the proceedings before the commission. This chapter sets forth general rules applicable to all types of proceedings before the agency, and should be read in conjunction with the provisions of:

(1) Chapter 10-08 WAC which contains rules promulgated by the chief administrative law judge governing the conduct of adjudicative proceedings under chapters 316-25, 316-35, 316-45, 316-55, 316-65, and 316-75 WAC, except;

(a) WAC 10-08-035, which is supplanted by detailed requirements in WAC 316-25-070, 316-25-090, 316-35-050, 316-45-050, 316-65-050, and 316-75-110;

(b) WAC 10-08-110, which is supplanted by WAC ((316-08-120 through 316-08-180)) 316-02-120 through 316-02-180;

(c) WAC 10-08-120, to the extent that it is further limited by WAC 316-02-040 and 316-02-310;

(d) WAC 10-08-140, to the extent that it is further limited by WAC 316-02-040 and 316-02-310;

(e) WAC 10-08-211, which is supplanted by WAC 316-25-390, 316-25-590, 316-25-630, 316-25-670, 316-35-210, 316-35-230, 316-45-350, 316-45-370, 316-65-550, 316-65-555, and 316-75-270((, and 316-75-290)); and

(f) WAC 10-08-230, which is supplanted by WAC 316-02-005, 316-25-150, 316-25-230, 316-25-250, 316-25-270, 316-25-310, 316-35-070, 316-35-150, 316-45-070, 316-45-090, ((316-45-230, 316-65-505, 316-65-507,)) 316-65-515, and 316-75-210.

(2) Chapter 316-25 WAC, which contains rules relating to proceedings on petitions for investigation of questions concerning representation of ferry system employees.

(3) Chapter 316-35 WAC, which contains rules relating to proceedings on petitions for clarification of an existing ferry system employees' bargaining unit.

(4) Chapter 316-45 WAC, which contains rules relating to proceedings on complaints charging unfair labor practices in the Washington state ferry system.

(5) Chapter 316-55 WAC, which contains rules relating to the resolution of impasses occurring in ferry system collective bargaining.

(6) Chapter 316-65 WAC, which contains rules relating to arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement in the Washington state ferry system.

(7) Chapter 316-75 WAC, which contains rules relating to determination of union security disputes arising between ferry system employees and employee organizations certified or recognized as their bargaining representative.

(8) Chapter 316-85 WAC, which contains rules relating to surveys of compensation, benefits, and conditions of employment required by chapter 47.64 RCW.

In the event of a conflict between general rule in this chapter and a special rule in another chapter applicable to a particular proceeding, the special rule shall govern.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-001, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-001, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-135   Service of process -- Method and completion of service on parties.   Unless otherwise provided in chapter 47.64 RCW, any notice or other paper served under this chapter shall be in writing. Service thereof is sufficient if mailed by ((restricted)) certified mail, return receipt requested, addressed to the last known addresses of the parties or sent by electronic facsimile transmission with transaction report verification and same-day United States postal service mailing of copies. Refusal of ((restricted)) certified mail by any party shall be considered service. Any party may at any time execute and deliver an acceptance of service in lieu of mailed notice.

[Statutory Authority: RCW 47.64.260. 90-01-115, 316-02-135, filed 12/20/89, effective 1/20/90; 85-21-059 (Order 85-2), 316-02-135, filed 10/16/85.]


AMENDATORY SECTION(Amending WSR 01-01-124, filed 12/19/00, effective 1/19/01)

WAC 316-02-150   Service of process -- Filing with commission.   (1) Papers intended to be filed with the commission shall be deemed filed upon actual receipt by the commission during its regular office hours at its Olympia office.

(2) The following conditions apply for filing papers by fax:

(a) As used in this chapter, "fax" means electronic telefacsimile transmission.

(b) Papers may be filed by fax with the commission office. Filing by fax is perfected when a complete legible copy of the papers is reproduced on the commission office's fax machine during normal working hours, excluding weekends and holidays. If a transmission of papers commences after these office hours, the papers shall be deemed filed on the next succeeding business day.

(c) Any papers filed by fax with the commission office should be accompanied by a cover page or other form identifying the party making the transmission, listing the address, telephone, and fax number of the party, identifying the adjudicative proceeding to which the papers relate, and indicating the date of and the total number of pages included in the transmission.

(d) Papers filed by fax should not exceed fifteen pages in length, exclusive of any cover page.

(e) The party attempting to file the papers by fax bears the risk that the papers will not be timely received or legibly printed, regardless of the cause. If the fax is not received in legible form, it will be considered as if it had never been sent.

(f) The original of any papers filed by fax must be mailed to the commission office within twenty-four hours of the time that the fax was sent.

(3) Service of such shall be deemed to be incomplete if the party making the filing should subsequently fail, when requested to do so by the commission, to provide proof of service upon other parties required to be served.

(4) Filing a copy of the paper(s), together with one of the following shall constitute proof of service upon other parties:

(a) An acknowledgment of service; or

(b) A certificate that the person signing the certificate did serve the paper(s) upon all parties of record in the proceeding by:

(i) Mailing a copy thereof, by ((restricted)) certified mail, return receipt requested, to each party to the proceeding or to his or her attorney or authorized agent; or

(ii) ((Delivery of a copy thereof in person.)) Transmitting a copy thereof by fax, and on the same day mailing a copy, to each party to the proceeding or his or her attorney or authorized agent; or

(iii) Delivery of a copy thereof in person.

[Statutory Authority: RCW 34.05.230. 01-01-124, 316-02-150, filed 12/19/00, effective 1/19/01. Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-150, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-150, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-170   Service of process -- Notice of hearing.   In any contested case, all parties shall be served with a notice not less than seven days before the date set for hearing. The notice shall include:

(1) Unless otherwise ordered by the presiding officer, the names and mailing addresses of all parties to whom notice is being given and, if known, the names and addresses of their representatives;

(2) The official file or other reference number and the name of the proceeding;

(3) The name, official title, mailing address, and telephone number of the presiding officer;

(4) A statement of the time, place, and nature of the proceeding;

(5) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(6) A reference to the particular sections of the statutes and rules involved;

(7) A short and plain statement by the commission of the matters asserted ((by the commission));

(8) A statement that a party who fails to attend or participate in a hearing or other stage of an adjudicative proceeding, or be represented therein by agent or counsel, may be held in default.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-170, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-170, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-300   Subpoenas -- ((Form -- ))Discovery.   (1) Pursuant to RCW ((34.05.446 and)) 47.64.280, the commission ((or)) on its own motion or at the request of the attorney of record or a party in whose behalf the witness is required to appear may subpoena any ferry employee ((or employees,)) or ((their)) designated representative((s)), or any member or representative of the department, and any witness(es).

(2) The commission on its own motion or at the request of an attorney or a party may require attendance of witnesses and the production of all pertinent records in any adjudicative proceeding. Attendance of witnesses and production of evidence may be required from any place in the state of Washington, at any designated place of hearing.

(3) Except as otherwise provided by this chapter, the ((presiding officer)) hearing examiner or arbitrator may decide whether to permit the taking of depositions, the requesting of admissions, and all other procedures authorized by rules 26 through 36 of the superior court civil rules.

(4) Every subpoena shall identify the party causing issuance of the subpoena and shall state the name of the commission as: State of Washington, marine employees' commission; shall state the title of the proceeding((, if any; shall show on its face the name and address of the party at whose request the subpoena was issued)); and shall command the person to whom it is directed to attend and give testimony or produce designated books, documents or things under his control at a specified time and place.

(5) Subpoenas requiring the attendance and testimony of witnesses or the production of evidence shall be issued ex parte to any party to an adjudicative proceeding: Provided, however, That no subpoena shall be issued to require the attendance and testimony of, or the production of evidence by, any member of the commission or commission staff in any proceeding before the commission. The commission or its hearing examiner or arbitrator may condition the issuance of subpoenas to parties not represented by counsel upon a showing of general relevance and reasonable scope of the testimony or evidence sought.

(a) Witnesses in an adjudicatory proceeding shall be paid the same fees and allowances in the same manner and under the same conditions, as provided for witnesses in the courts of this state by chapter 2.40 RCW and by RCW 5.56.010, except that the commission shall have the power to fix the allowance for meals and lodging in like manner as provided in RCW 5.56.010 as to courts.

(b) The person initiating an adjudicative proceeding or the party requesting issuance of a subpoena shall pay the fees and allowances and the cost of producing records required to be produced by subpoena.

(6) A subpoena may be served by any suitable person over eighteen years of age by exhibiting and reading it to the witness, or by giving him or her a copy, or by leaving such copy at the place of his or her abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by filing the subpoena and the affidavit or declaration under penalty of perjury with the commission. Failure to make proof of service does not affect the validity of the service.

(7) Any motion to quash a subpoena shall be filed and served on all parties within five days after the date of service of the subpoena and, shall be made at or before the time specified in the subpoena for compliance. The person making such motion shall give notice of the motion to the party to whom the subpoena was issued. The commission, hearing examiner or arbitrator may (a) quash or modify the subpoena if it is unreasonable or requires evidence not relevant to any matter in issue, or (b) condition denial of the motion upon just and reasonable conditions.

(8) Upon application and for good cause shown, and upon proof of service of the subpoena involved if such proof was not previously provided pursuant to WAC 316-02-340, the commission may seek judicial enforcement of subpoenas which have not been quashed pursuant to RCW 34.05.588(1).

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-300, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-300, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-600   ((Contested cases includes application for)) Adjudicative proceedings (contested cases) -- Exceptions.   An application for the commission to investigate, and enter an order thereon, a question concerning (1) representation of ferry system employees, (2) clarification of an existing collective bargaining unit, (3) a complaint charging an unfair labor practice, (4) a grievance based upon alleged violation of rights granted by statute, rule or collective bargaining agreement, (5) union security dispute, or (6) other ferry system labor-management relations disputes, includes an application for the commission to conduct an appropriate adjudicative proceeding whether or not the applicant, complainant, petitioner or grievant expressly requests such proceeding: Provided, That an application for nomination of mediator(s) or arbitrators of impasse(s) in interest arbitration or grievance arbitration from a panel maintained for that purpose in accordance with RCW 47.64.210 or 47.64.240, and/or questions concerning fact-finding procedures or data shall not be deemed to be adjudicative in nature.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-600, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-600, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-610   ((Contested cases)) Adjudicative proceedings -- Commencement.   An adjudicative proceeding commences when the commission, or assigned commissioner, or the administrative assistant to the commission notifies a party that a prehearing conference, hearing or other stage of an adjudicative proceeding will be conducted.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-610, filed 12/20/89, effective 1/20/90; 84-07-037 (Resolution No. 84-01), 316-02-610, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-620   ((Contested cases)) Adjudicative proceedings -- Denial of application.   If the commission decides not to conduct an adjudicative proceeding in response to a complaint, petition or grievance, the commission shall serve the complainant, petitioner or grievant with a copy of its decision in writing, with a brief statement of the reason(s) for the commission's denial: Provided, That the commission shall advise said complainant, petitioner or grievant as to the appropriate review of such denial: And further provided, That unless the complainant, petitioner or grievant files a request for review within thirty days following receipt of the denial, the denial shall be entered as an order which shall be final and binding in accordance with RCW 47.64.280.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-620, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-630   ((Contested cases)) Adjudicative proceedings -- Commission action upon filing.   Upon receipt of an application for adjudicative proceeding under WAC 316-02-600, other than a declaratory order, the commission shall proceed as follows:

(1) Except in situations governed by subsection (2) or (3) of this section, within thirty days after receipt of the application or of the response to a timely request made by the commission under subsection (2) of this section, the commission shall commence an adjudicative proceeding in accordance with the appropriate chapter of these rules, or shall deny the application in accordance with WAC 316-02-620; or

(2) Within thirty days after receipt of the application, the commission shall notify the complainant, petitioner or grievant of any obvious errors or omissions, request any additional information the commission requires to make an initial determination scope or jurisdiction and is permitted by law to require, and shall notify said complainant, petitioner or grievant of the name, mailing address, and telephone number of an office that may be contacted regarding the application; or

(3) If the application seeks relief that is not available when the application is filed but may be available in the future, the commission may maintain the application on the commission's docket awaiting the expected availability of relief and shall notify the complainant, petitioner or grievant of the status of the application.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-630, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-640   ((Contested cases)) Adjudicative proceedings -- Ex parte communications.   (1) Unless required for the disposition of ex parte matters specifically authorized by statute or unless necessary to procedural aspects of maintaining orderly process, neither the commission nor any commissioner nor employee of the commission may communicate, directly or indirectly, regarding any issue in an adjudicative proceeding, with any person not employed by the commission who has a direct or indirect interest in the outcome of the proceeding, without notice and opportunity for all parties to participate.

(2) Unless necessary to procedural aspects of maintaining orderly process, persons to whom the commission or commissioner may not communicate under subsection (1) of this section, may not communicate with commissioners without notice and opportunity for all parties to participate.

(3) If a commissioner receives an ex parte communication of a type that cannot properly be received, that commissioner shall promptly disclose the communication in the manner prescribed in RCW 34.05.455 (5), (6), and (7).

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-640, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-650   Commission decisions in ((contested cases)) adjudicative proceedings -- Form and content.   Every decision and final order shall:

(1) Be correctly captioned as to name of commission and name of proceeding;

(2) Designate all parties and counsel to the proceeding;

(3) Include a concise statement of the nature and background of the proceeding;

(4) Be accompanied by appropriate numbered findings of fact and conclusions of law;

(5) Whenever practical, the conclusions of law shall include the reason or reasons for the particular order or remedy afforded;

(6) Wherever practical, the conclusions and/or order shall be referenced to specific provisions of the law and/or regulations appropriate thereto, together with reasons and precedents relied upon to support the same.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-650, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-115, filed 12/20/89, effective 1/20/90)

WAC 316-02-660   Commission decisions in ((contested cases)) adjudicative proceedings -- Service.   Every final order issued by the commission shall be served on each party or upon the person or organization designated by the party or by law to receive service of such papers; and a copy shall be furnished to any counsel or person appearing for a party in a representative capacity.

[Statutory Authority: RCW 47.64.280. 90-01-115, 316-02-660, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 01-01-124, filed 12/19/00, effective 1/19/01)

WAC 316-02-820   Commission offices.   The commission maintains its office at Evergreen Plaza Building, Suite 104, 711 Capitol Way South, PO Box 40902, Olympia, Washington 98504-0902. The telephone number is (360) 586-6354, the fax number is (360) 586-0820, the e-mail address is mec@olywa.net, and the internet address is http://www.marineempcom.org.

[Statutory Authority: RCW 34.05.230. 01-01-124, 316-02-820, filed 12/19/00, effective 1/19/01. Statutory Authority: RCW 47.64.280. 92-22-044, 316-02-820, filed 10/27/92, effective 11/27/92; 90-01-115, 316-02-820, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.260 and chapter 47.64 RCW. 88-10-019 (Order 88-1), 316-02-820, filed 4/29/88. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-02-820, filed 3/20/84.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 316-02-310 Subpoenas -- Issuance to parties.
WAC 316-02-340 Subpoenas -- Proof of service.
WAC 316-02-350 Subpoenas -- Quashing.
WAC 316-02-360 Subpoenas -- Enforcement.
WAC 316-02-370 Subpoenas -- Geographical scope.

OTS-5348.1


AMENDATORY SECTION(Amending WSR 92-22-044, filed 10/27/92, effective 11/27/92)

WAC 316-65-005   Grievance defined.   "Grievance" means a formal statement alleging injury, injustice, or violation of rights granted by rule, statute, collective bargaining agreement, or past practice: Provided, That any grievance involving alleged violations of rights protected by chapter 47.64 RCW may also be termed "unfair labor practices" and may also be filed and processed under chapter 316-45 WAC: And Provided Further, That ((because of the limitations on grievance arbitration decisions in RCW 47.64.150, requests for grievance arbitration and unfair labor practice complaints may not be consolidated)) when the commission is requested to provide grievance arbitration in a dispute where there is an unfair labor practice issue brought, which in the judgment of the commission raises the same or a closely related subject, and it would further the economy and efficiency of operations, the commission may consolidate such issues for hearing and decision.

[Statutory Authority: RCW 47.64.280. 92-22-044, 316-65-005, filed 10/27/92, effective 11/27/92. Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-119, 316-65-005, filed 12/20/89, effective 1/20/90.]

Washington State Code Reviser's Office