WSR 08-21-098

EMERGENCY RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed October 16, 2008, 9:04 a.m. , effective October 16, 2008, 9:04 a.m. ]


Effective Date of Rule: Immediately.

Purpose: In 2007, the legislature amended RCW 41.56.070 to allow collective bargaining agreements between cities, counties, school districts, and other municipal corporations and their represented employees to provide for a term of up to six years. The law previously allowed a maximum term of three years. Adopted in 1980 and last amended in 2001, WAC 391-25-030 establishes the timing for the filing of representation petition, and recognizes that under RCW 41.56.070, a collective bargaining agreement only operates as a "bar" to a representation election for three years. This is known as the contract bar doctrine. The amendment to WAC 391-25-030 conforms the existing rule to the 2007 statutory change by recognizing that for cities, counties, school districts and other municipal corporations, collective bargaining agreements may be up to six years in length, and as a result, operate as a contract bar to a representation election for up to six years.

Citation of Existing Rules Affected by this Order: Amending WAC 391-25-030.

Statutory Authority for Adoption: RCW 28B.52.080, 41.56.050, 41.56.060, 41.56.070, 41.56.090, 41.58.050, 41.59.070, 41.59.080, 41.59.110, 41.76.020, 41.76.060, 41.80.070, 41.80.080.

Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.

Reasons for this Finding: RCW 41.56.070 amended the maximum term for collective bargaining agreements between cities, counties, and other municipal corporations. The proposed change is necessary to clarify ongoing confusion recently expressed by clientele between the amended statute and the rule in its current form.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.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.

Date Adopted: October 14, 2008.

Dario de la Rosa

Appeals Administrator

OTS-1990.1


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

WAC 391-25-030   Petition -- Time for filing.   (1) A "contract bar" exists while a valid collective bargaining agreement is in effect, so that a petition involving any or all of the employees covered by the agreement will be timely only if it is filed during the "window" period not more than ninety nor less than sixty days prior to the stated expiration date of the collective bargaining agreement.

(a) To constitute a valid collective bargaining agreement for purposes of this subsection:

(i) The agreement must cover a bargaining unit that is appropriate under the terms of the applicable statute;

(ii) The agreement must be in writing, and signed by the parties' representatives;

(iii) The agreement must contain a fixed expiration date not less than ninety days after it was signed; and

(iv) The agreement will only operate as a bar for the first three years after its effective date, except that any agreement entered into between school districts, cities, counties or municipal corporations and their represented employees will only operate as a bar for the first six years after its effective date.

(b) An agreement to extend or replace a collective bargaining agreement shall not bar a petition filed in the "window" period of the previous agreement.

(c) A "protected" period is in effect during the sixty days following a "window" period in which no petition is filed, and a successor agreement negotiated by the employer and incumbent exclusive bargaining representative during that period will bar a petition under this chapter. If the filing and withdrawal or dismissal of a petition under this chapter intrudes upon the protected period, the employer and incumbent exclusive bargaining representative shall be given a sixty-day protected period commencing on the date the withdrawal or dismissal is final.

(2) A "certification bar" exists where a certification has been issued by the agency, so that a petition involving the same bargaining unit or any subdivision of that bargaining unit will only be timely if it is filed:

(a) More than twelve months following the date of the certification of an exclusive bargaining representative; or

(b) More than twelve months following the date of the latest election or cross-check in which the employees failed to select an exclusive bargaining representative.

(3) Where neither a "contract bar" nor a "certification bar" is in effect under this section, a petition may be filed at any time.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.413, 41.56.050, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 01-14-009, 391-25-030, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.413, 41.56.060, [41.56].070, 41.59.070 and [41.59].080. 96-07-105, 391-25-030, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.070 and 41.59.070. 90-06-072, 391-25-030, 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), 391-25-030, filed 9/30/80, effective 11/1/80.]

Washington State Code Reviser's Office