WSR 02-13-109

EMERGENCY RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed June 18, 2002, 4:31 p.m. ]

Date of Adoption: June 14, 2002.

Purpose: To implement provisions of Personnel System Reform Act of 2002 (PSRA-2002), chapter 354, Laws of 2002 that took effect on June 13, 2002, concerning collective bargaining rights of state civil service employees. To implement provisions of Initiative Measure No. 775 (I-775) passed by Washington voters in November of 2001, where a union has already filed petition seeking certification as exclusive bargaining representative and members of employer entity were not appointed by governor until May of 2002.

Citation of Existing Rules Affected by this Order: Amending WAC 391-08-001, 391-25-001, 391-25-002, 391-25-011, 391-35-001, 391-35-002, 391-45-001, 391-45-002, and 391-55-200.

Statutory Authority for Adoption: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340.

Other Authority: Additional statutory authority for the implementation of these rule changes are listed as follows: For WAC 391-25-011 is RCW 41.56.201; for WAC 391-25-051 is chapter 3, Laws of 2002; for WAC 391-35-326 is section 321(4), chapter 354, Laws of 2002; for WAC 391-35-346 is sections 308(1) and 321(13), chapter 354, Laws of 2002; and for WAC 391-55-200 is chapter 3, Laws of 2002.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: The commission acquired jurisdiction over representation, unit clarification, and unfair labor practice cases for state civil service employees on June 13, 2002, and did not have authority to adopt rules for such cases until that date. The large size of bargaining unit created by I-775 (approximately 26,000 employees) necessitates several variances from rules and processes customarily used by commission. Immediate adoption of rules is necessary for general welfare of public so commission can process cases under PSRA-2002 and I-775. Observing time requirements of permanent rule adoption process would delay processing of cases under PSRA-2002 and I-775 which is contrary to public interest.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 13, Amended 9, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 12, Amended 9, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 7, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Effective Date of Rule: Immediately.

June 18, 2002

Marvin L. Schurke

Executive Director

OTS-5768.1


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-08-001   Application and scope of chapter 391-08 WAC.   Chapter 391-08 WAC has been added to the Washington Administrative Code by the public employment relations commission pursuant to the authority of section 12, chapter 288, Laws of 1975 1st ex. sess. (RCW 41.59.110); ((and)) sections 7, 14 and 20, chapter 296, Laws of 1975 1st ex. sess. (RCW 41.58.050, 28B.52.080 and 41.56.090, respectively); and section 232, chapter 354, Laws of 2002 (RCW 41.06.340), to promulgate comprehensive and uniform rules for practice and procedure before the agency. 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 the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapters 391-25, 391-35, 391-45 and 391-95 WAC, except:

(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-25-070, 391-25-090, 391-35-050, 391-45-050, and 391-95-110;

(b) WAC 10-08-050, which relates to office of administrative hearings procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-083, which is replaced by detailed requirements in WAC 391-08-010;

(d) WAC 10-08-110, which is replaced by detailed requirements in WAC 391-08-120;

(e) WAC 10-08-120, which is replaced by detailed requirements in WAC 391-08-040, 391-08-300 and 391-08-310;

(f) WAC 10-08-140, which is limited by WAC 391-08-040, 391-08-300 and 391-08-310;

(g) WAC 10-08-150, which is limited by WAC 391-08-315;

(h) WAC 10-08-211, which is replaced by WAC 391-08-640 and detailed requirements in WAC 391-25-390, 391-25-391, 391-25-590, 391-25-630, 391-25-650, 391-25-660, 391-25-670, 391-35-210, 391-35-250, 391-45-350, 391-45-390, 391-95-270, and 391-95-290;

(i) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-25-150, 391-25-220, 391-25-230, 391-25-250, 391-25-270, 391-35-070, 391-35-080, 391-45-070, 391-45-090, 391-45-260, and 391-95-170; and

(j) WAC 10-08-250, 10-08-251, and 10-08-252 which are replaced by detailed requirements in WAC 391-08-520.

(2) Chapter 391-25 WAC, which regulates representation proceedings.

(3) Chapter 391-35 WAC, which regulates unit clarification proceedings and contains some well-established unit determination standards in a subchapter of rules beginning at WAC 391-35-300.

(4) Chapter 391-45 WAC, which regulates unfair labor practice proceedings.

(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.

(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.

In the event of a conflict between a 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 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-08-001, filed 6/22/01, effective 8/1/01; 00-14-048, 391-08-001, filed 6/30/00, effective 8/1/00; 98-14-112, 391-08-001, filed 7/1/98, effective 8/1/98; 96-07-105, 391-08-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-070, 391-08-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-031 (Order 83-01), 391-08-001, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-045 (Order 80-4), 391-08-001, filed 9/30/80, effective 11/1/80; Order 77-1, 391-08-001, filed 1/27/77.]

OTS-5769.2


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-25-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission on petitions for investigation of questions concerning representation of employees under all chapters of the Revised Code of Washington (RCW) administered by the commission. The provisions of this chapter should be read in conjunction with:

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapter 34.05 RCW, except:

(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-25-070 and 391-25-090;

(b) WAC 10-08-050, which relates to office of administrative hearings procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-211, which is replaced by detailed requirements in WAC 391-25-390, 391-25-391, 391-25-590, 391-25-630, 391-25-650, 391-25-660, and 391-25-670; and

(d) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-25-150, 391-25-220, 391-25-230, and 391-25-250.

(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.

(3) Chapter 391-35 WAC, which regulates unit clarification proceedings and contains some well-established unit determination standards in a subchapter of rules beginning at WAC 391-35-300.

(4) Chapter 391-45 WAC, which regulates unfair labor practice proceedings.

(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.

(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-25-001, filed 6/22/01, effective 8/1/01; 96-07-105, 391-25-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-072, 391-25-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-046 (Order 80-5), 391-25-001, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-25-002   Sequence and numbering of rules -- Special provisions.   This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule numbered as follows:

(1) Special provisions relating to chapter 41.56 RCW (Public Employees' Collective Bargaining Act) and to chapter 53.18 RCW (port employees) are set forth in WAC sections numbered one digit greater than the general rule on that subject matter.

(2) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter.

(3) Special provisions relating to chapter 28B.52 RCW (professional negotiations -- academic faculties of community college districts) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

(4) Special provisions relating to chapter 354, Laws of 2002 (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

(5) Special provisions relating to chapter 49.08 RCW (private sector and other employees) are set forth in WAC sections numbered nine digits greater than the general rule on that subject matter.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-25-002, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-072, 391-25-002, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-032 (Order 83-02), 391-25-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-046 (Order 80-5), 391-25-002, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 96-07-105, filed 3/20/96, effective 4/20/96)

WAC 391-25-011   Special provision -- Optional coverage of classified employees of institutions of higher education under chapter 41.56 RCW.   The commission acquires jurisdiction ((over)) under chapter 41.56 RCW with respect to bargaining units of classified employees of institutions of higher education defined in RCW 41.56.030(8) by a voluntary recognition process consisting of two stages completed prior to July 1, 2003.

(1) The commission acquires limited jurisdiction ((over a bargaining unit of classified employees of an institution of higher education as defined in RCW 41.56.030(8),)) under chapter 41.56 RCW upon the filing by the employer and an exclusive bargaining representative certified under chapter 41.06 RCW, of a notice of intent pursuant to RCW 41.56.201 (1)(a).

(a) The executive director shall docket a representation case to preserve a record of the transaction, but shall take no other steps to determine a question concerning representation under this chapter.

(b) The scope of bargaining and conduct of the parties in their negotiations for an initial collective bargaining agreement under chapter 41.56 RCW shall be regulated by the commission under chapter 391-45 WAC.

(c) During the parties' negotiations for an initial collective bargaining agreement under chapter 41.56 RCW, the Washington personnel resources board retains jurisdiction to determine appropriate bargaining units and to certify exclusive bargaining representatives under chapter 41.06 RCW.

(2) The commission acquires full jurisdiction under chapter 41.56 RCW over a bargaining unit ((of classified employees of an institution of higher education)) which has filed a notice of intent under this section, if the parties execute an initial collective bargaining agreement recognizing the notice of intent.

(a) The transfer of jurisdiction is effective on the first day of the month following the month during which the parties provide notice that they have executed an initial collective bargaining agreement under RCW 41.56.201 (1)(c).

(b) The executive director shall dismiss the representation case docketed upon the filing of the notice of intent, on the basis of "voluntary recognition."

(3) The jurisdiction of the commission under chapter 41.56 RCW ceases if the commission finds that the parties have reached an impasse in negotiations for an initial collective bargaining agreement under chapter 41.56 RCW.

(a) A finding of impasse shall not be made if unfair labor practice proceedings concerning the bargaining unit are pending under subsection (1)(b) of this section.

(b) The executive director shall dismiss the previously docketed representation case as "withdrawn."

(4) Collective bargaining agreements negotiated under this option shall be renewed, extended, or terminated in conformity with RCW 41.56.201(4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.201. 96-07-105, 391-25-011, filed 3/20/96, effective 4/20/96.]


NEW SECTION
WAC 391-25-036   Special provision -- State civil service employees.   For state civil service employees:

(1) The "window" period specified in WAC 391-25-030(1) shall be computed as not more than one hundred twenty nor less than ninety days prior to the stated expiration date of the collective bargaining agreement.

(2) The "protected" period specified in WAC 391-25-030 (1)(c) shall be computed as ninety days.

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NEW SECTION
WAC 391-25-051   Special provision -- Individual providers under home care quality authority.   This rule consolidates special rules applicable to individual providers under chapter 3, Laws of 2002, Initiative Measure No. 775 (I-775) passed by Washington voters in November of 2001. I-775 extended the coverage of chapter 41.56 RCW to "individual providers" defined as a person, including a personal aide, who has contracted with the department of social and health services to provide personal care or respite care services to functionally disabled persons under the Medicaid personal care, community options program entry system, chore services program, or respite care program, or to provide respite care or residential services and support to persons with developmental disabilities under chapter 71A.12 RCW, or to provide respite care as defined in RCW 74.13.270.

(1) The showing of interest requirement in WAC 391-25-110 is modified for the bargaining unit affected by I-775, to require a ten percent showing of interest for either a petitioner or an intervenor.

(2) The posting of notice requirement in WAC 391-25-140 is inapplicable to the bargaining unit affected by I-775.

(3) The description of bargaining unit requirement of WAC 391-25-190 is limited to a single, statewide unit of individual providers under I-775.

(4) The description of bargaining unit requirement of WAC 391-25-210(2) is limited to a single, statewide unit of individual providers under I-775.

(5) The provisions of WAC 391-25-210(3) relating to alternative units or mergers of units are inapplicable to the bargaining unit affected by I-775.

(6) The posting requirement in WAC 391-25-220(2), relating to investigation statements, is inapplicable to the bargaining unit affected by I-775.

(7) The posting requirement in WAC 391-25-230(2), relating to election agreements, is inapplicable to the bargaining unit affected by I-775.

(8) The cross-check procedures in WAC 391-25-250, 391-25-391, and 391-25-410 are inapplicable to the bargaining unit affected by I-775.

(9) The unit determination election procedures in WAC 391-25-420 are inapplicable to the bargaining unit affected by I-775.

(10) The requirements of WAC 391-25-430, relating to posting of election notices on the employer's premises, is inapplicable to the bargaining unit affected by I-775.

(11) Any representation election for the bargaining unit affected by I-775 shall be conducted by mail ballot under WAC 391-25-470, with the following modifications:

(a) Together with the procedures for casting ballots, the notice supplied to individual providers may describe the collective bargaining rights established by I-775 and agreements reached by a petitioning union and the employer concerning the election process;

(b) The notice and ballot materials supplied to individual providers shall be set forth in English and Spanish;

(c) The ballot materials supplied to individual providers shall include a card return-addressed to the commission, by which individual providers can request ballot materials in Cambodian, Korean, Mandarin, Russian, Tagalog, Ukrainian, or Vietnamese. Upon receipt of a request from an individual provider, the agency shall supply ballot materials to the individual provider in the requested language.

(d) At least twenty-four days shall be provided between the date on which ballot materials are mailed to individual providers and the deadline for return of cast ballots to the commission.

(e) The executive director shall have discretion to vary tally arrangements and procedures from those customarily used, because of the large size of the bargaining unit involved.

(f) The reference in WAC 391-25-470 to WAC 391-25-140 shall be interpreted in light of subsection (2) of this section.

(12) The procedure for on-site elections in WAC 391-25-490 is inapplicable to the bargaining unit affected by I-775.

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NEW SECTION
WAC 391-25-076   Special provision -- State civil service employees.   All representation cases pending before the Washington personnel resources board and/or the department of personnel on June 13, 2002, shall be transferred to and acted upon by the commission under this chapter. Documents filed in conformity with Washington personnel resources board and/or department of personnel rules prior to June 13, 2002, shall be acted upon by the commission unless a deficiency notice is issued and a period of at least twenty-one days is provided for a party to cure a noted defect.

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NEW SECTION
WAC 391-25-096   Special provision -- State civil service employees.   WAC 391-25-090 is inapplicable to petitions regarding state civil service employees covered by chapter 41.06 RCW.

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NEW SECTION
WAC 391-25-136   Special provision -- State civil service employees.   In addition to the information required by WAC 391-25-130, lists of state civil service employees provided in proceedings under the Personnel System Reform Act of 2002, chapter . . . . . RCW (chapter 354, Laws of 2002), shall also contain the job classification and work location of each employee.

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NEW SECTION
WAC 391-25-396   Special provision -- State civil service employees.   WAC 391-25-391 and the practices and precedents applicable under chapter 41.56 RCW shall also be applicable to state civil service employees.

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NEW SECTION
WAC 391-25-416   Special provision -- State civil service employees.   As to state civil service employees covered by chapter 41.06 RCW, authorization cards dated within the preceding six months shall be honored for purposes of WAC 391-25-410.

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NEW SECTION
WAC 391-25-496   Special provision -- State civil service employees.   If the executive director conducts an election involving state civil service employees by on-site balloting procedures, absentee ballots shall be allowed as prescribed in this section.

(1) Upon the request of an individual employee, the agency shall provide a notice and absentee ballot to the individual employee.

(2) To be counted, the absentee ballot must be received at the Olympia office of the commission:

(a) Directly from the employee or from the employee via the United States Postal Service; and

(b) Prior to the close of business on the last day the polls are open for the on-site election.

(3) Whenever absentee ballots are issued, the tally of ballots shall be delayed for one or more days after the last day on which the polls are open for the on-site election, and shall then be conducted in the commission's Olympia office in a manner which preserves the secrecy of the absentee ballots.

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OTS-5770.2


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-35-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission on petitions for clarification of existing bargaining units under all chapters of the Revised Code of Washington (RCW) administered by the commission and contains some well-established unit determination standards in a subchapter of rules beginning at WAC 391-35-300. The provisions of this chapter should be read in conjunction with:

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapter 34.05 RCW, except:

(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-35-050;

(b) WAC 10-08-050, which relates to office of administrative hearings procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-211, which is replaced by detailed requirements in WAC 391-35-210 and 391-35-250; and

(d) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-35-070.

(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.

(3) Chapter 391-25 WAC, which regulates representation proceedings.

(4) Chapter 391-45 WAC, which regulates unfair labor practice proceedings.

(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.

(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-35-001, filed 6/22/01, effective 8/1/01; 96-07-105, 391-35-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-073, 391-35-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-047 (Order 80-6), 391-35-001, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-35-002   Sequence and numbering of rules -- Special provisions.   This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule, numbered as follows:

(1) Special provisions relating to chapter 41.56 RCW (Public Employees' Collective Bargaining Act) and to chapter 53.18 RCW (port employees) are set forth in WAC sections numbered one digit greater than the general rule on that subject matter.

(2) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter.

(3) Special provisions relating to chapter 28B.52 RCW (professional negotiations -- academic faculties of community college districts) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

(4) Special provisions relating to chapter 354, Laws of 2002 (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

(5) Special provisions relating to chapter 49.08 RCW (private sector and other employees) are set forth in WAC sections numbered nine digits greater than the general rule on that subject matter.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-35-002, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-073, 391-35-002, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-033 (Order 83-03), 391-35-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-047 (Order 80-6), 391-35-002, filed 9/30/80, effective 11/1/80.]


NEW SECTION
WAC 391-35-026   Special provision -- State civil service employees.   Until July 1, 2004, when RCW 41.xx.xxx (section 306, chapter 354, Laws of 2002) and RCW 41.xx.xxx (section 309, chapter 354, Laws of 2002) take effect, WAC 391-35-020 and the practices and precedents applicable under chapter 41.56 RCW shall not be applicable to petitions filed and processed under this rule.

(1) Bargaining units of state civil service employees in existence on June 13, 2002, shall be subject to being "divided" into separate units of supervisors and nonsupervisory employees under this section.

(a) A petition to have an existing unit divided may be filed by the exclusive bargaining representative, by the employer, or by those parties jointly.

(b) The separation of bargaining units shall be implemented on or before July 1, 2004.

(2) Bargaining units of state civil service employees in existence on June 13, 2002, shall be subject to being "perfected" under this section.

(a) A petition to have an existing bargaining unit perfected may be filed by the exclusive bargaining representative, or by the employer and exclusive bargaining representative jointly.

(b) All of the unit determination criteria set forth in RCW 41.xx.xxx (section 308, chapter 354, Laws of 2002) shall be applicable to proceedings under this section. The history of bargaining in a unit configuration that is fragmentary and/or was based on narrower considerations shall not preclude creation of a "perfected" bargaining unit as to which a community of interests is demonstrated with regard to:

(i) The duties, skills and working conditions of all positions or classifications to be included in the "perfected" bargaining unit; and

(ii) The extent of organization and avoidance of unnecessary fragmentation shall be implemented to avoid stranding of other positions or classifications in units so small as to prejudice their statutory bargaining rights; and

(iii) The required separation of supervisors and nonsupervisory employees is implemented based on the delegations of authority then in existence; and

(iv) Two or more existing bargaining units can be merged through the procedure set forth in this section; and

(v) The exclusive bargaining representative demonstrates that it has majority support among any employees to be accreted to the bargaining unit(s) being "perfected."

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NEW SECTION
WAC 391-35-056   Special provision--State civil service employees.   All unit clarification cases pending before the Washington personnel resources board and/or the department of personnel on June 13, 2002, shall be transferred to and acted upon by the commission under this chapter. Documents filed in conformity with Washington personnel resources board and/or department of personnel rules prior to June 13, 2002, shall be acted upon by the commission unless a deficiency notice is issued and a period of at least twenty-one days is provided for a party to cure a noted defect.

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NEW SECTION
WAC 391-35-326   Special provision--State civil service employees.   Confidential exclusions for state civil service employees shall be determined under the Personnel System Reform Act of 2002, chapter . . . . . RCW (section 321(4), chapter 354, Laws of 2002).

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NEW SECTION
WAC 391-35-346   Special provision--State civil service employees.   Supervisor exclusions for state civil service employees shall be determined under the Personnel System Reform Act of 2002, chapter . . . . . RCW (sections 308(1) and 321(13), chapter 354, Laws of 2002).

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OTS-5771.1


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-45-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission on complaints charging unfair labor practices under all chapters of the Revised Code of Washington (RCW) administered by the commission. The provisions of this chapter should be read in conjunction with:

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapter 34.05 RCW, except:

(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-45-050;

(b) WAC 10-08-050, which relates to office of administrative hearings procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-211, which is replaced by detailed requirements in WAC 391-45-350 and 391-45-390; and

(d) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-45-070, 391-45-090, and 391-45-260.

(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.

(3) Chapter 391-25 WAC, which regulates representation proceedings.

(4) Chapter 391-35 WAC, which regulates unit clarification proceedings and contains some well-established unit determination standards in a subchapter of rules beginning at WAC 391-35-300.

(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.

(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-45-001, filed 6/22/01, effective 8/1/01; 00-14-048, 391-45-001, filed 6/30/00, effective 8/1/00; 96-07-105, 391-45-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59 and 53.18 RCW. 90-06-074, 391-45-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-048 (Order 80-7), 391-45-001, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 01-14-009, filed 6/22/01, effective 8/1/01)

WAC 391-45-002   Sequence and numbering of rules -- Special provisions.   This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule numbered as follows:

(1) Special provisions relating to chapter 41.56 RCW (Public Employees' Collective Bargaining Act) and to chapter 53.18 RCW (port employees) are set forth in WAC sections numbered one digit greater than the general rule on that subject.

(2) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter.

(((2))) (3) Special provisions relating to chapter 28B.52 RCW (Professional negotiations -- Academic faculties of community college districts) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

(4) Special provisions relating to chapter 354, Laws of 2002 (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

(5) Special provisions relating to chapter 49.08 RCW (Private sector and other employees) are set forth in WAC sections numbered nine digits greater than the general rule on that subject matter.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-45-002, filed 6/22/01, effective 8/1/01; 00-14-048, 391-45-002, filed 6/30/00, effective 8/1/00. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59 and 53.18 RCW. 90-06-074, 391-45-002, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-034 (Order 83-04), 391-45-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-048 (Order 80-7), 391-45-002, filed 9/30/80, effective 11/1/80.]


NEW SECTION
WAC 391-45-056   Special provision -- State civil service employees.   All unfair labor practice cases pending before the Washington personnel resources board and/or the department of personnel on June 13, 2002, shall be transferred to and acted upon by the commission under this chapter. Documents filed in conformity with Washington personnel resources board and/or department of personnel rules prior to June 13, 2002, shall be acted upon by the commission unless a deficiency notice is issued and a period of at least twenty-one days is provided for a party to cure a noted defect.

[]

OTS-5772.1


AMENDATORY SECTION(Amending WSR 99-14-060, filed 7/1/99, effective 8/1/99)

WAC 391-55-200   Interest arbitration -- Certification of issues.   (1) If a dispute involving a bargaining unit eligible for interest arbitration under RCW 41.56.030(7), 41.56.475 ((or)), 41.56.492 or 74.39A.270 (2)(c) has not been settled after a reasonable period of mediation, and the mediator is of the opinion that his or her further efforts will not result in an agreement, the following procedure shall be implemented:

(a) The mediator shall notify the parties of his or her intention to recommend that the remaining issues in dispute be submitted to interest arbitration.

(b) Within seven days after being notified by the mediator, each party shall submit to the mediator and serve on the other party a written list (including article and section references to parties' latest collective bargaining agreement, if any) of the issues that the party believes should be advanced to interest arbitration.

(2) The mediator shall review the lists of issues submitted by the parties.

(a) The mediator shall exclude from certification any issues that have not been mediated.

(b) The mediator shall exclude from certification any issues resolved by the parties in bilateral negotiations or mediation, and the parties may present those agreements as "stipulations" in interest arbitration under RCW 41.56.465 (1)(b), 41.56.475 (2)(b), or 41.56.492 (2)(b).

(c) The mediator may convene further mediation sessions and take other steps to resolve the dispute.

(3) If the dispute remains unresolved after the completion of the procedures in subsections (1) and (2) of this section, interest arbitration shall be initiated, as follows:

(a) ((For a bargaining unit covered by RCW 41.56.030(7) or 41.56.475)) Except as provided in (b) of this subsection, the mediator shall forward his or her recommendation and a list of unresolved issues to the executive director, who shall consider the recommendation of the mediator. The executive director may remand the matter for further mediation. If the executive director finds that the parties remain at impasse, the executive director shall certify the unresolved issues for interest arbitration.

(b) For a bargaining unit covered by RCW 41.56.492, the mediator shall certify the unresolved issues for interest arbitration.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.450, 41.56.475 and 41.56.492. 99-14-060, 391-55-200, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.450 and [41.56].492. 96-07-105, 391-55-200, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-200, filed 9/30/80, effective 11/1/80.]

Washington State Code Reviser's Office