WSR 97-01-065

PERMANENT RULES

PERSONNEL RESOURCES BOARD

[Filed December 13, 1996, 10:45 a.m.]

Date of Adoption: December 12, 1996.

Purpose: These rules pertain to labor relations, appeals, layoff and probationary/trial service periods.

Citation of Existing Rules Affected by this Order: Amending WAC 251-14-110, 251-06-070, 251-10-060, 251-11-110, 251-12-075, 251-12-080, 251-14-130, 251-19-050, and 251-19-060.

Statutory Authority for Adoption: RCW 41.06.150.

Adopted under notice filed as WSR 96-22-084 on November 6, 1996.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 9, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 9, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 9, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

December 13, 1996

Dennis Karras

Secretary

AMENDATORY SECTION (Amending WSR 96-09-055, filed 4/12/96, effective 6/1/96)

WAC 251-14-110 Arbitration--Collective bargaining impasse--Grievance disputes. (1) When the director or designee is unable to resolve the collective bargaining impasse, the institution or the certified exclusive representative may submit such impasse to the board for arbitration. The board will hold a hearing at which the parties may submit evidence and argument in support of their respective positions. The decision of the board shall be final and binding.

(2) When the director or designee is unable to resolve a grievance dispute, the exclusive representative, employee or employer may submit such dispute to the board for arbitration in accordance with WAC 251-14-130.

[Statutory Authority: RCW 41.06.150. 96-09-055, 251-14-110, filed 4/12/96, effective 6/1/96. Statutory Authority: RCW 28B.16.100. 89-08-003 (Order 176), 251-14-110, filed 3/23/89, effective 5/1/89; 87-20-023 (Order 162), 251-14-110, filed 9/30/87; Order 61, 251-14-110, filed 8/30/77, effective 10/1/77; Order 52, 251-14-110, filed 2/26/76; Order 2, 251-14-110, filed 3/12/70.]

AMENDATORY SECTION (Amending WSR 90-02-052, filed 12/29/89, effective 2/1/90)

WAC 251-06-070 Allocation appeal((--Higher education personnel board)). (1) The employee or employee representative may file a written appeal with the ((board)) director under provisions of WAC 251-06-050 or 251-06-060 when:

(a) The response required in WAC 251-06-060(2) is not issued to the employee or employee representative within the required sixty calendar day period following receipt of the employee request; or

(b) The response fails to address the specific reason(s) that the request was not approved; or

(c) The employee disagrees with the results of a position review conducted by the personnel officer. The written appeal should include information which will assist the board in determining the proper allocation of the position.

(2) ((Allocation appeals will be processed under the procedure provided in WAC 251-12-075 (1) or (2).)) The director shall investigate and issue a determination. Within thirty calendar days of the date of service of the director's determination, the employee, employee representative or institution may file written exceptions with the personnel appeals board as provided in Title 358 WAC.

[Statutory Authority: RCW 28B.16.100. 90-02-052, 251-06-070, filed 12/29/89, effective 2/1/90; 82-04-069 (Order 93), 251-06-070, filed 2/3/82; 79-12-088 (Order 81), 251-06-070, filed 12/3/79; 78-06-068 (Order 68), 251-06-070, filed 5/25/78, effective 7/1/78; Order 63, 251-06-070, filed 11/22/77; Order 61, 251-06-070, filed 8/30/77, effective 10/1/77; Order 37, 251-06-070, filed 10/15/74; Order 10, 251-06-070, filed 12/16/71.]

AMENDATORY SECTION (Amending WSR 93-19-078, filed 9/14/93, effective 10/1/93)

WAC 251-10-060 Layoff lists--State-wide. (1) A permanent employee of any institution of higher education, related board, or state agency who is on layoff status or is scheduled for layoff shall, upon his/her request, be placed on the state-wide layoff list(s) at any higher education institutions or related boards: Provided, That:

(a) The employee must demonstrate the ability to meet the minimum qualifications and pass the qualifying examination; and

(b) The list must be for:

(i) Class(es) in which he/she has held permanent status; or

(ii) Lower class(es) in the same class series; or

(iii) Equivalent classes under the jurisdiction of the state department of personnel; or

(iv) Class(es) at the same or lower level as the class from which laid off and in which permanent status has not been held; and

(c) The option must be exercised by the affected employee within thirty calendar days of the effective date of layoff.

(2) Employees shall be ranked by their total layoff seniority as measured by their last period of unbroken service in the classified service of the state. The list shall consist of two categories, provided that, employees who have held permanent status in the class or in higher level classes in the series shall be certified prior to employees who have not held permanent status, and certification within each category shall be in order of:

(a) Employees of higher education institutions/related boards;

(b) Employees of other state agencies.

(3) The duration of eligibility on this list shall be two years from the date of placement on the list.

(4) Referral from this list shall be on a rule of ((five)) seven.

(5) Employees appointed from this list shall be required to serve a trial service period of six months. If the trial service period is not satisfactorily completed, the employee shall be placed on the institution-wide layoff list at the institution/related board from which he/she came or the corresponding state agency department of personnel register. Failure to satisfactorily complete the trial service period shall not affect the employees' status on other state-wide layoff lists upon which they previously have been placed.

(6) Employees appointed from this list shall be credited with unused sick leave accrued at the time of layoff. Vacation leave shall be computed as provided in WAC 251-22-060.

(7) The institution will provide each employee scheduled for layoff with a copy of this rule and the comparable state department of personnel rule and a listing of institutions, related boards, or offices of the state department of personnel which they may contact. It shall be the responsibility of the employee to contact the institution/related board, or the state department of personnel if he/she has an interest in being placed on the respective state-wide layoff list(s).

(8) Certification from the state-wide layoff list shall be as provided in WAC 251-18-240.

[Statutory Authority: RCW 41.06.040 and 41.06.150. 93-19-078, 251-10-060, filed 9/14/93, effective 10/1/93. Statutory Authority: RCW 28B.16.100. 83-20-020 (Order 108), 251-10-060, filed 9/23/83, effective 10/24/83; 82-16-002 (Order 98), 251-10-060, filed 7/22/82, effective 9/1/82; 78-10-090 (Order 70), 251-10-060, filed 9/29/78, effective 11/1/78; Order 61, 251-10-060, filed 8/30/77, effective 10/1/77; Order 32, 251-10-060, filed 3/19/74.]

AMENDATORY SECTION (Amending WSR 88-22-057 (Order 174), filed 11/1/88)

WAC 251-11-110 Presumption of resignation--Unauthorized absence. An employee may be presumed to have resigned his/her position when there has been an absence without authorized leave from the job for a period of three consecutive working days. Thereafter, a notice acknowledging the presumption of resignation shall be sent by certified mail to the last known address of the employee. Within seven calendar days after the date of service, the employee may petition the appointing authority in writing for reinstatement upon proof that the absence was involuntary or unavoidable. If a permanent employee petitions within the seven calendar days and is not reinstated, notification shall be given advising of the right to appeal to the ((higher education)) personnel appeals board ((per the provision of WAC 251-12-075)) as provided in Title 358 WAC.

[Statutory Authority: RCW 28B.16.100. 88-22-057 (Order 174), 251-11-110, filed 11/1/88.]

AMENDATORY SECTION (Amending WSR 89-22-020, filed 10/24/89, effective 12/1/89)

WAC 251-12-075 Appeals from alleged violations of ((HEPB)) higher education personnel law or rules. Any employee, employee representative or appointing authority desiring to appeal an alleged violation of the higher education personnel law or rules adopted thereunder, may appeal such alleged violation ((to the board)). ((Such)) ((a)) Appeals must be in writing and must be filed ((in the office of the director)) with the personnel appeals board as provided in Title 358 WAC within thirty calendar days after the effective date of the action appealed. ((The director shall forward the written notice of appeal to the board which shall determine that one of the following actions be taken:))

(((1) The case may be handled in the same manner as appeals from demotion, suspension, layoff, reduction or dismissal, as provided in WAC 251-12-080 through 251-12-260; or))

(((2) The director may investigate the case and based upon that investigation issue a determination. Within thirty calendar days of the date of service either party may file written exceptions with the board detailing the specific items of the determination to which exception is taken. A hearing on the exceptions will be scheduled before the board which may do one or more of the following:))

(((a) Limit argument to the exceptions;))

(((b) Request clarification of information upon which the director's determination was based;))

(((c) Remand the case for further investigation;))

(((d) Rehear the case in its entirety; or))

(((3) Both parties to the appeal may be requested to submit evidence upon which the board may take action without a hearing.))

[Statutory Authority: RCW 28B.16.100, 34.05.220 and [34.05.]250. 89-22-020, 251-12-075, filed 10/24/89, effective 12/1/89. Statutory Authority: RCW 28B.16.100. 89-08-003 (Order 176), 251-12-075, filed 3/23/89, effective 5/1/89; Order 61, 251-12-075, filed 8/30/77, effective 10/1/77.]

AMENDATORY SECTION (Amending WSR 89-22-020, filed 10/24/89, effective 12/1/89)

WAC 251-12-080 Appeals from demotion, suspension, layoff, reduction in salary, separation, dismissal. Any permanent employee who is demoted, suspended, laid off, reduced in salary, separated or dismissed, may appeal such action. Appeals must be in writing and must be filed ((in the office of the director)) with the personnel appeals board as provided in Title 358 WAC within thirty calendar days after the effective date of the action appealed.

[Statutory Authority: RCW 28B.16.100, 34.05.220 and [34.05.]250. 89-22-020, 251-12-080, filed 10/24/89, effective 12/1/89. Statutory Authority: RCW 28B.16.100. 84-16-067 (Order 119), 251-12-080, filed 7/31/84; 82-10-006 (Order 95), 251-12-080, filed 4/26/82, effective 6/1/82; Order 61, 251-12-080, filed 8/30/77, effective 10/1/77; Order 21, 251-12-080, filed 5/24/73; Order 1, 251-12-080, filed 9/15/69.]

AMENDATORY SECTION (Amending WSR 96-09-055, filed 4/12/96, effective 6/1/96)

WAC 251-14-130 Arbitration--Grievance--Procedure. Whenever arbitration of a grievance is requested of the personnel resources board pursuant to an agreement as authorized by WAC 251-14-060(2), the procedure set forth below shall apply:

(1) The request for arbitration shall be in the form of a complaint. It shall be filed on a form supplied by the board, or in a writing containing the same information as required on the form within thirty calendar days or less from the date the director of personnel or designee indicates in writing that the mediation is at impasse. The request shall state the following:

(a) The name, address and telephone number of the party filing the request, and the name, address and telephone number of any principal representative.

(b) The name, address and telephone number of the opposing party, and, if known, the opposing party's principal representative.

(c) Clear and concise statements of the facts upon which the grievance is based, including times, dates, places and participants in occurrences.

(d) A listing of the applicable sections of the collective bargaining agreement, rules, policies, etc., upon which the grievance is based and which are claimed to be violated. A copy of the collective bargaining agreement or of the pertinent sections of the agreement shall be attached to the request for arbitration.

(e) A statement of the specific issue(s) to be arbitrated.

(f) A statement of the relief sought.

(g) The signature and, if any, the title of the person filing the request for arbitration.

(h) A copy of the original grievance and the ((agency's)) institution's last written response to the grievance shall be attached to the request for arbitration.

(2) By mutual agreement the parties to the grievance may extend the thirty-day time frame for requesting arbitration established in subsection (1) of this section. Agreements to extend the time frame shall be reported in writing by the parties to the director of personnel.

(3) The board's hearings coordinator shall review the request for arbitration to determine compliance with subsection (1) of this section. If the hearings coordinator determines the request is incomplete, the person filing the request is notified of the portions which need to be supplemented or changed to comply with subsection (1) of this section. When the hearings coordinator determines that the request substantially complies with subsection (1) of this section, he or she shall mail, or otherwise cause to be served, the request on the opposing party(ies). Any refusal by the hearings coordinator to serve the request for arbitration on the opposing party is reviewable by the board upon motion of the requesting party.

(4) After the request for arbitration is served on the opposing party(ies), the board or the board's designee may direct the parties or their representatives to engage in a prehearing conference(s) in accordance with WAC 251-12-232.

(5) The board's hearings coordinator shall schedule the arbitration for hearing pursuant to WAC 251-12-105.

(6) Within thirty calendar days from the date of service of the acknowledgment of the arbitration request, the respondent shall submit a written statement of issue(s) to be arbitrated. If no response is received, the petitioners' statement of issue(s) will be deemed to be the issue(s) at the arbitration hearing unless otherwise determined by the personnel resources board.

(7) Upon stipulation between the parties, the board or designee may grant the grievant's request to waive the right to an evidentiary hearing and thereafter require the parties to submit written evidence upon which the board or designee may act without a hearing.

(8) If the matter is heard directly by the board, a final and binding decision will be issued. If the matter is heard by the board's designee, a recommended decision will be issued. Within thirty calendar days of its service, either party may request the board to review the designee's decision. The review will be limited to specific areas of the decision to which the party takes exception. The requesting party must provide written argument in support of the exceptions. The board will consider the exceptions and may in its discretion hear oral argument. Thereafter, the board will issue a decision which shall be final and binding on the parties. The designee's decision will become final and binding forty calendar days after it was served on the parties if no exceptions are filed, unless the board calls a hearing to reconsider the decision.

(9) The grievant shall have the burden of proof and go forward with the evidence.

(10) The board or its designee shall be the judge of relevancy and materiality of evidence offered. Technical rules of evidence shall not apply to the proceedings.

(11) The provisions of chapter 251-12 WAC (Appeals) shall apply to the conduct of grievance arbitration hearings, except as otherwise provided in this section.

[Statutory Authority: RCW 41.06.150. 96-09-055, 251-14-130, filed 4/12/96, effective 6/1/96.]

AMENDATORY SECTION (Amending WSR 88-02-018 (Order 165), filed 12/30/87, effective 2/1/88)

WAC 251-19-050 Appointment--Probationary. (1) Probationary appointment shall be made only upon appointment of eligibles from the:

(a) Open-competitive or noncompetitive list.

(b) Institution-wide layoff list - when the employee was in probationary status at the time of layoff.

(c) State-wide layoff list.

(d) Combined eligible list as provided in WAC 251-18-180(10) and 251-18-240 (3)(b)(ii) when the person appointed is neither a permanent employee of the institution nor an employee moving pursuant to WAC 251-19-110.

(2) The probationary period will continue for the length of time as determined under WAC 251-06-090, unless interrupted as provided in these rules. All positions in a class shall require the same probationary period. In the event an employee is on leave without pay and/or shared leave for more than ten work days during the probationary period, the completion date of the probationary period shall be extended by an amount of time equal to the period of leave without pay and/or shared leave.

(3) Qualified probationary employees may be reappointed during the probationary period to other classes. Upon such reappointment the following shall apply:

(a) The employee shall begin a probationary period in the new class;

(b) The salary in the new class shall be established as provided in WAC 251-08-080;

(c) The former periodic increment date shall be abolished and a new periodic increment date established in the same manner as provided in WAC 251-08-100(2).

[Statutory Authority: RCW 28B.16.100. 88-02-018 (Order 165), 251-19-050, filed 12/30/87, effective 2/1/88.]

AMENDATORY SECTION (Amending WSR 93-19-078, filed 9/14/93, effective 10/1/93)

WAC 251-19-060 Trial service period. (1) A trial service period of six months shall be required upon appointment of a permanent employee to a new class at the institution, unless

(a) During the current period of employment at the institution, permanent status has been held in the class to which the employee is moving, or

(b) The class is lower in that same class series, or

(c) The employee is being reallocated per the provisions of WAC 251-06-080 (1)(a), or

(d) The employee is moving to the class as part of a recognized apprenticeship program as provided in WAC 251-19-140(5).

(2) A trial service period of six months shall be required upon employee movement as specified in WAC 251-19-110.

(3) A trial service period shall be required upon appointment from an institution-wide promotional list as provided in WAC 251-18-180 (3)(b).

(4) The trial service period provides the employing official an opportunity to observe and evaluate the new employee's work. Employees who do not perform satisfactorily during the trial service period may be reverted as follows:

(a) With preemptive rights to the former position in which permanent status was last held, or to a vacant position in that class (except when reversion is from a position the appointment to which was a result of disciplinary demotion or employee movement as specified in WAC 251-19-110). The personnel officer shall determine which position to preempt. However, if the employee was in a trial service appointment in another class prior to the current trial service period, the personnel officer may provide the employee the opportunity to complete the first interrupted trial service period.

(b) Reversion must be preceded by written notice at least one work day (eight hours), before the effective date.

(c) If the former position to which the employee has preemptive rights has been abolished and a vacant position in the class is not available, or if there is no class to which the reverted employee has preemptive rights, the affected employee shall be accorded such bumping rights and placement on layoff lists as would be provided in layoff from his/her former class.

(5) Reversion from trial service must be preceded by:

(a) Written notice detailing deficiencies in performance, which shall include the specific changes required; and

(b) A reasonable opportunity to overcome identified deficiencies.

(6) An employee who is reverted may appeal to the board regarding:

(a) Whether the employer complied with the requirements of subsection (5)(a) and (b) of this section; and

(b) Whether the claimed deficiencies existed at the time of reversion.

(7) The board may uphold the reversion action, extend the trial service period, overturn the reversion, grant permanent status or order such other actions as may be determined appropriate pursuant to the best standards of personnel administration.

(8) In the event an employee is on leave without pay status and/or shared leave for more than ten work days during the trial service period, the completion date of the trial service period shall be extended by an amount of time equal to the period of leave without pay and/or shared leave.

(9) Successful completion of the trial service period shall result in permanent status in the class.

(10) Salary and periodic increment date shall be determined as follows:

(a) Upon promotional trial service appointment, the salary shall be established as provided in WAC 251-08-110; and the existing periodic increment date shall be eliminated and a new date established to be effective the date of completion of trial service;

(b) Upon trial service reversion the salary shall be established as provided in WAC 251-08-115(4) and the former periodic increment date shall be reestablished;

(c) Upon trial service appointment to a class at the same salary level, the salary and periodic increment date shall remain unchanged.