WSR 98-14-112

PERMANENT RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[Filed July 1, 1998, 10:10 a.m.]



Date of Adoption: June 16, 1998.

Purpose: To improve clarity and readability by cross-referencing filing and service requirements; to use terms such as "appeal," "furnish," "submit," "file," "papers," "may," and "shall" consistently; to delete references to repealed WAC sections; to standardize appeal procedures; and to correct typographical errors.

WAC 391-08-120 Filing and service of papers, this rule is patterned after WAC 10-08-110. That section was last amended in 1989. The commission amended WAC 391-08-120 in 1996, in part to clarify ambiguous provisions of WAC 10-08-110 concerning the filing and service of documents by fax. Since 1996, there have been ongoing issues about when service must be completed, and the proof of service requirements. The current language does not expressly require a contemporaneous record of "service," but documents have been rejected when a party was unable to produce a contemporaneous record of service. Thus:

Language is modified for the sake of clarity.

Proof of service language is rewritten to clearly require the person who completes service to make a contemporaneous record of his or her actions.

WAC 391-08-180 Continuances, this rule previously paralleled WAC 10-08-090, but the commission has had difficulty enforcing the "check with opposing parties first" concept because of the "prior to the hearing date" clause in the existing rule. The commission's experience indicates a need for greater clarity. Requiring parties to communicate with one another before submitting any continuance request to the agency also minimizes their ex parte contacts with the agency staff.

WAC 391-08-300 Subpoenas--Discovery and 391-08-310 Subpoenas--Form--Issuance to parties, the commission's current rules on subpoenas supplement the provisions of WAC 10-08-120. The commission has received frequent questions from clientele concerning witness fees, mileage, and similar procedural issues regarding subpoenas. The changes to these rules were designed with the following goals:

All procedural requirements concerning subpoenas are now consolidated in this rule.

Requirements for service of subpoenas and witness fees (which have long been a mystery to PERC clientele not represented by attorneys) are briefly described with cross-references to appropriate sources of information.

WAC 391-08-520 Declaratory orders, the commission currently relies on the provisions of WAC 10-08-250, 10-08-251, and 10-08-252 to process petitions for declaratory orders. Recent experience with a University of Washington case demonstrated the need for a procedure to effect the rapid responses required by the APA. The new commission rule has the following purposes:

The executive director is delegated authority to notify parties, without having to first bring a case to PERC's part-time commission members.

Parties will be asked up front if they consent, under RCW 34.05.240(7), to use of declaratory order process.

The commission will make initial decisions on whether to take the case without public hearing.

WAC 391-08-640 Adjudicative proceedings--Appeals, 391-25-390 Proceedings before the executive director, 391-25-391 Special provision ..., 391-25-590 Filing and service of objections ..., 391-25-630 Procedure where conduct objections are filed, 391-25-650 Briefs ... on objections, 391-25-660 Appeals ..., 391-25-670 Commission action on objections and appeals, 391-35-210 ((Proceedings before the commission--Petition for review)) Appeals, 391-35-230 Filing and service of cross-petition for review, 391-35-250 Commission action on appeals, 391-45-350 ((Petition for review of examiner decision)) Appeals, 391-45-370 Filing and service of cross-petition for review, 391-45-390 Commission action on appeals, 391-95-270 ((Proceedings before the commission--Petition for review)) Appeals, 391-95-280 Filing and service of cross-petition for review and 391-95-290 Commission action on appeals, the provisions of WAC 10-08-211 have been previously replaced by detailed requirements in commission rules found at WAC 391-25-390, 391-25-590, 391-35-210, 391-45-350, and 391-95-270. Under these sections, the commission had three different appeal procedures. The "petition for review" terminology used in the Administrative Procedure Act has also been confusing to nonattorney practitioners.

These new, amended, and repealed sections are proposed to:

Call "appeals" what they are.

Cross-reference rules providing for appeals.

Retain prohibition of extension of time to appeal from current rules and practice.

Clarify the commission's authority to act on its own motion.

Standardize appeal procedures as much as possible in the following manner:

Directions of elections and directions of cross-checks are still only appealed by objections within seven days after the tally;

All other appeals are due twenty days after the order, with cross-appeals due seven days thereafter;

Appellant's briefs are due fourteen days after appeal deadline; and

Response briefs are due fourteen days after appeal briefs.

Grant more time than chapter 10-08 WAC allows for briefs on appeals, as parties request extension in 50% or more of all PERC appeals.

Explicitly cross-reference filing and service requirement to WAC 391-08-120.

Preserve authority of executive director to extend time for briefs, with caution that not routine or automatic.



Citation of Existing Rules Affected by this Order: Repealing WAC 391-35-230, 391-45-370, and 391-95-280; and amending WAC 391-08-001, 391-08-100, 391-08-120, 391-08-180, 391-08-230, 391-08-300, 391-08-310, 391-08-315, 391-08-630, 391-08-800, 391-08-810, 391-25-050, 391-25-090, 391-25-110, 391-25-190, 391-25-210, 391-25-220, 391-25-230, 391-25-250, 391-25-270, 391-25-350, 391-25-370, 391-25-390, 391-25-391, 391-25-410, 391-25-450, 391-25-590, 391-25-630, 391-25-650, 391-25-670, 391-35-030, 391-35-170, 391-35-190, 391-35-210, 391-35-250, 391-45-030, 391-45-110, 391-45-190, 391-45-250, 391-45-290, 391-45-310, 391-45-330, 391-45-350, 391-45-390, 391-45-430, 391-55-245, 391-55-345, 391-95-070, 391-95-090, 391-95-150, 391-95-230, 391-95-250, 391-95-260, 391-95-270, and 391-95-290.

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

Other Authority: Additional statutory authority for the implementation of these rule changes are listed as follows:

Chapter 391-08 WAC
-120 RCW 34.05.010 (6) and (19)
-300 RCW 34.05.446
-310 RCW 2.40.010, 5.56.010, and 34.05.446
-315 RCW 2.42.120 and 2.43.030
-520 RCW 34.05.240
-630 RCW 41.58.010 and 41.58.015
-640 RCW 34.05.464
-800 RCW 34.05.220 and 34.05.476
Chapter 391-25 WAC
-050 and -090 RCW 28B.52.030, 34.05.413, 41.56.060 and [41.56].070, and 41.59.070 and [41.59].080
-110 RCW 41.56.070 and 41.59.070
-190 RCW 28B.52.030, 41.56.070, and 41.59.070
-210 RCW 41.56.070 and 41.59.070
-220 RCW 34.05.431
-230, -250, and -270 RCW 28B.52.030, 41.56.060 and [41.56].070, and 41.59.070 and [41.59].080
-350 RCW 28B.52.030, 34.05.437, 41.56.060 and [41.56].070, and 41.59.070 and [41.59].080
-390 RCW 41.56.060 and [41.56].070, and 41.59.070 and [41.59].080
-391 and -410 RCW 41.56.060
-450 RCW 41.56.070 and 41.59.070
-590 RCW 28B.52.030, 41.56.060, and 41.59.070
-630 and -650 RCW 41.56.070 and 41.59.070
-660 and -670 RCW 34.05.464, 41.56.070, and 41.59.070
Chapter 391-35 WAC
-030 RCW 34.05.413, 41.56.060, and 41.59.080
-170 RCW 34.05.437, 41.56.060, and 41.59.080
-190 RCW 41.56.060 and 41.59.080
-210 and -250 RCW 34.05.464, 41.56.060, and 41.59.080
Chapter 391-45 WAC
-030 RCW 28B.52.065, 34.05.413, 41.56.160, and 41.59.150
-110 RCW 28B.52.065 and [28B.52].073, 34.05.419, 41.56.140 and [41.56].150, and 41.59.140
-190 and -250 RCW 28B.52.065, 41.56.160, and 41.59.150
-290 RCW 34.05.437, 41.56.160, and 41.59.150
-310 RCW 28B.52.065, 41.56.160, and 41.59.150
-350 and -390 RCW 28B.52.065, 34.05.464, 41.56.160, and 41.59.150
-430 RCW 41.56.160(3) and 41.59.150
Chapter 391-55 WAC
-245 RCW 41.56.450
-345 RCW 41.59.120
Chapter 391-95 WAC
-070 RCW 28B.52.045, 41.56.122, and 41.59.100
-090 RCW 28B.52.045, 34.05.413, 41.56.122, and 41.59.100
-150 RCW 28B.52.045, 34.05.419, 41.56.122, and 41.59.100
-230 RCW 28B.52.045, 34.05.437, 41.56.122, and 41.59.100
-250 RCW 28B.52.045, 41.56.122, and 41.59.100
-270 and -290 RCW 28B.52.045, 34.05.464, 41.56.122, and 41.59.100.



Adopted under notice filed as WSR 98-10-101 on May 6, 1998.

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 3, amended 55, repealed 3.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 3, amended 55, repealed 3.

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: Thirty-one days after filing.

July 1, 1998

Marvin L. Schurke

Executive Director

OTS-2162.3

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



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); sections 14 and 20, chapter 296, Laws of 1975 1st ex. sess. (RCW 28B.52.080 and ((41.56.040)) 41.56.090); and section ((3)) 7, chapter ((5)) 296, Laws of 1975 ((2nd)) 1st ex. sess. (RCW 41.58.050), to promulgate comprehensive and uniform rules for practice and procedure before the agency. ((The provisions of chapter 1-08 WAC shall not be applicable to proceedings 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 rules promulgated by the chief administrative law judge governing the conduct of adjudicative proceedings under chapters 391-25, 391-35, 391-45 and 391-95 WAC, except:

(a) WAC 10-08-035, which is ((supplanted)) 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 procedures of the office of administrative hearings, ((and so)) is inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-090, which is replaced by detailed requirements in WAC 391-08-180;

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

(((d))) (e) WAC 10-08-120, ((to the extent that it is further limited)) which is replaced by detailed requirements in WAC 391-08-040, 391-08-300 and 391-08-310;

(((e))) (f) WAC 10-08-140, ((to the extent that it is further)) which is limited by WAC 391-08-040, 391-08-300 and 391-08-310;

(((f))) (g) WAC 10-08-150, which is ((supplanted)) limited by ((detailed requirements in)) WAC 391-08-315;

(((g))) (h) WAC 10-08-211, which is ((supplanted)) 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, ((391-35-230)) 391-35-250, 391-45-350, ((391-45-370)) 391-45-390, 391-95-270, and ((391-95-280)) 391-95-290; ((and

(h))) (i) WAC 10-08-230, which is ((supplanted)) 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 ((contains rules relating to)) regulates representation proceedings ((on petitions for investigation of questions concerning representation of employees)).

(3) Chapter 391-35 WAC, which ((contains rules relating to)) regulates unit clarification proceedings ((on petitions for clarification of an existing bargaining unit)).

(4) Chapter 391-45 WAC, which ((contains rules relating to)) regulates unfair labor practice proceedings ((on complaints charging unfair labor practices)).

(5) Chapter 391-55 WAC, which ((contains rules relating to)) regulates the resolution of impasses ((occurring)) in collective bargaining.

(6) Chapter 391-65 WAC, which ((contains rules relating to)) regulates grievance arbitration ((of grievance disputes arising out of the interpretation or application of a collective bargaining agreement)) proceedings.

(7) Chapter 391-95 WAC, which ((contains rules relating to determination of)) regulates union security ((disputes arising between employees and employee organizations certified or recognized as their bargaining representative)) 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 and 41.58.050. 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.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-100  ((Service of process--))Computation of time. In computing any period of time prescribed or allowed by any applicable statute or rule, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation.



[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, 391-08-100, 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), 391-08-100, filed 12/1/83, effective 1/1/84; Order 77-1, 391-08-100, filed 1/27/77.]



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



WAC 391-08-120  Filing and service of papers.



filing of papers for adjudicative proceedings



(1) Filing of ((documents)) papers with the agency for adjudicative proceedings under the Administrative Procedure Act (cases under chapters 391-25, 391-35, 391-45 and 391-95 WAC) shall be deemed complete only upon actual receipt of the original ((document)) paper and any required copies during office hours at the agency office designated in this rule. Electronic telefacsimile transmissions shall not be accepted as filing for such ((documents)) papers, unless RCW 34.05.010(6) or WAC 10-08-110 is amended to permit filings by electronic telefacsimile transmission.

(a) Petitions or complaints to initiate adjudicative proceedings shall be filed in the Olympia office;

(b) ((Documents)) Papers to be filed with the executive director or with the agency generally shall be filed in the Olympia office;

(c) ((Documents)) Papers to be filed with a presiding officer can be filed in the Olympia office or in the office of the presiding officer;

(d) ((Documents)) Papers to be filed with the commission, including any ((petitions for review or)) objections, notice of appeal or notice of cross-appeal, shall be filed in the Olympia office.

submission of papers for nonadjudicative

proceedings

(2) Submission of papers to the agency for cases that are not adjudicative proceedings under the Administrative Procedure Act (cases under chapters 391-55 and 391-65 WAC) shall be deemed complete upon actual receipt of the original paper and any required copy during office hours at the Olympia office or at the office of the agency staff member assigned to process the case. Papers ((will also be accepted)) may be submitted by electronic telefacsimile transmission in cases under this subsection, with the following limitations:

(a) The maximum length of papers acceptable for submission by electronic telefacsimile transmission is ten pages;

(b) The party sending papers by electronic telefacsimile transmission is responsible for confirming that the material was complete and legible when received by the agency;

(c) An agency staff member processing the case may require mailing of the original papers to the agency;

(d) Electronic telefacsimile transmission shall not be used to submit authorization cards for purposes of a showing of interest or cross-check under chapter 391-25 WAC.



service on other parties



(3) ((All notices, pleadings, and other papers filed with the agency or the presiding officer shall be served)) A party which files or submits any papers to the agency shall serve a copy of the papers upon all counsel and representatives of record, and upon all parties not represented by counsel or upon their agents designated by them or by law. Service shall be completed no later than the day of filing or submission under subsection (1) or (2) of this section, by one of the following methods:

(a) Service may be made personally, and shall be regarded as completed when delivered in the manner provided in RCW 4.28.080;

(b) Service may be made by first class, registered, or certified mail, and shall be regarded as completed upon deposit in the United States mail properly stamped and addressed.

(c) Service may be made by telegraph or by commercial parcel delivery company, and shall be regarded as completed when deposited with a telegraph company or parcel delivery company properly addressed and with charges prepaid.

(d) Service may be made by electronic telefacsimile transmission, and shall be regarded as completed upon production by the telefacsimile device of confirmation of transmission, together with same day mailing of a copy of the papers, postage prepaid and properly addressed, to the person being served.



proof of service



(4) ((Where the sufficiency of service is contested, the timely filing of the papers under this section, together with one of the following shall constitute proof of service:)) On the same day that service of any papers is completed under subsection (3) of this section, the person who completed the service shall:

(a) Obtain an acknowledgment of service ((by)) from the person who accepted personal service((.)); or

(b) Make a certificate ((signed on the date of service,)) stating that the person signing the certificate personally served the papers ((upon all parties of record in the proceeding)) by delivering a copy ((thereof in person to (names) at dates, times and places)) at a date, time and place specified in the certificate((.)) to a person named in the certificate; or

(c) Make a certificate ((signed on the date of service,)) stating that the person signing the certificate completed service of the papers ((upon all parties of record in the proceeding)) by:

(i) Mailing a copy ((thereof, properly addressed with postage prepaid, to each party to the proceeding or his or her attorney or authorized agent)) under subsection (3)(b) of this section; or

(ii) Depositing a copy ((thereof)) under subsection (3)(c) of this section with a telegraph or parcel delivery company named in the certificate((, properly addressed with charges prepaid, to each party to the proceeding or to his or her attorney or authorized agent)); or

(iii) Transmitting and mailing a copy ((thereof by electronic telefacsimile device, and on the same day mailing a copy, to each party to the proceeding or his or her attorney or authorized agent)) under subsection (3)(d) of this section.

(5) Where the sufficiency of service is contested, an acknowledgment of service obtained under subsection (4)(a) of this section or a certificate of service made under subsection (4)(b) or (c) of this section shall constitute proof of service.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.010 (6) and (18). 96-07-105, 391-08-120, 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, 391-08-120, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-053 (Order 88-01), 391-08-120, filed 5/31/88. 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), 391-08-120, filed 12/1/83, effective 1/1/84; Order 77-1, 391-08-120, filed 1/27/77.]



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



WAC 391-08-180  ((Service of process--))Continuances. (1) Postponements, continuances, extensions of time, and adjournments may be ordered by the presiding officer:

(a) On his or her own motion;

(b) With the consent of all parties; or ((may be granted on))

(c) On the timely oral or written request of any party((, with notice to all other parties,)) showing good and sufficient cause ((therefor)).

(2) Before submitting a request for a continuance ((made prior to the hearing date may be oral or written and shall state that)), the party seeking the continuance ((has notified)) shall notify all other parties of the request ((and)), and shall attempt to obtain their consent. The request for continuance shall specify that ((either)) all other parties either agree to ((the continuance or that all parties do not agree to)) or disagree on the continuance.

(a) If all parties do not agree to ((the)) a continuance requested before or after a hearing, the presiding officer shall promptly schedule a prehearing conference to receive argument and to rule on the request.

(b) If all parties do not agree to a continuance requested during a hearing, the presiding officer shall receive argument and rule on the request.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 96-07-105, 391-08-180, 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, 391-08-180, 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), 391-08-180, 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), 391-08-180, filed 9/30/80, effective 11/1/80; Order 77-1, 391-08-180, filed 1/27/77.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-230  Summary judgment. A summary judgment may be issued if the pleadings and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that one of the parties is entitled to a judgment as a matter of law. Motions for summary judgment made in advance of a hearing shall be filed ((with the agency)) and served ((on all other parties to the proceeding)) as required by WAC 391-08-120.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045(3), 28B.52.060, 41.56.060, 41.56.122(1), 41.56.170, 41.59.080, 41.59.100 and 41.59.150. 90-06-070, 391-08-230, 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. 81-02-034 (Order 81-01), 391-08-230, filed 1/6/81.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-300  Subpoenas--Discovery((--Form)). (((1) Every subpoena shall state the name of the agency as: State of Washington, public employment relations commission; and shall state the title of the proceeding and case number.

(2))) The power of subpoena shall be limited to compelling the testimony of witnesses and production of documents or other tangible evidence at hearings conducted by the agency.

(((3))) Pursuant to the authority delegated to the agency by RCW 34.05.446(2), other forms of discovery shall not be available in proceedings before the agency.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045(3), 28B.52.060, 41.56.060, 41.56.122(1), 41.56.170, 41.59.080, 41.59.100 and 41.59.150. 90-06-070, 391-08-300, 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), 391-08-300, filed 12/1/83, effective 1/1/84; Order 77-1, 391-08-300, filed 1/27/77.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-310  Subpoenas--Form--Issuance to parties. ((Subpoenas requiring the attendance and testimony of witnesses or the production of evidence shall be issued ex parte to any party to a case: Provided, however, That)) (1) Every subpoena shall:

(a) State the name of the agency as: State of Washington, public employment relations commission;

(b) State the title of the proceeding and case number; and

(c) Identify the party causing issuance of the subpoena.

(2) Every subpoena shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under his or her control at the time and place set for the hearing, except no subpoena shall be issued or given effect to require the attendance and testimony of, or the production of evidence by, any member of the commission or any member of the agency staff in any proceeding before the agency.

(3) Subpoenas may be issued by the commission or its ((hearing officer or examiner shall issue subpoenas upon the application)) presiding officer:

(a) On the request of counsel or other representative authorized to practice before the agency((, and may condition the issuance of subpoenas to parties not so)); or

(b) On the request of a party not represented by counsel or other representative authorized to practice before the agency, but may then be conditioned upon a showing of general relevance and reasonable scope of the testimony or evidence sought.

(4) Subpoenas may be issued by attorneys ((may act)) under the authority conferred upon them by RCW 34.05.446(1).

(5) 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 of the subpoena, or by leaving a copy of the subpoena at the place of his or her abode. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit.

(6) The party which issues or requests issuance of a subpoena shall pay the fees and allowances and the cost of producing records required to be produced by subpoena.

(a) Witness fees, mileage, and allowances for meals and lodging shall be at the rates and terms allowed by the superior court for Thurston County.

(b) Witnesses shall be entitled to payment in advance for their fees for one day's attendance, together with mileage for traveling to and returning from the place where they are required to attend, if their demand for payment is made to the officer or person serving the subpoena at the time of service.

(7) The presiding officer, upon motion made at or before the time specified in the subpoena for compliance therewith, may:

(a) Quash or modify the subpoena if it is unreasonable or oppressive; or

(b) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045(3), 28B.52.060, 41.56.060, 41.56.122(1), 41.56.170, 41.59.080, 41.59.100 and 41.59.150. 90-06-070, 391-08-310, 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), 391-08-310, filed 12/1/83, effective 1/1/84; Order 77-1, 391-08-310, filed 1/27/77.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-315  Interpreters. (1) ((An "impaired person" is any person who is a hearing impaired person or a limited-English-speaking person.

(2) A "hearing impaired person" is a person who, because of a hearing impairment or speech defects, cannot readily understand or communicate in spoken language; and includes persons who are deaf, deaf and blind, or hard of hearing.

(3) A "limited-English-speaking person" is a person who, because of a non-English-speaking cultural background cannot readily speak or understand the English language.

(4) A "qualified interpreter" is a person who is qualified to act as interpreter under chapter 2.42 RCW as now or hereafter enacted.

(5) An "intermediary interpreter" is a person who is qualified to act under chapter 2.42 RCW as now or hereafter enacted.

(6) When an impaired person is a party to an adjudicative proceeding under chapter 391-25, 391-35, 391-45 or 391-95 WAC, the presiding officer shall, in the absence of a written waiver signed by the impaired person, require the appointment of a qualified interpreter to assist the impaired person throughout the proceedings. The right to a qualified interpreter may not be waived except when:

(a) The impaired person requests a waiver through the use of a qualified interpreter;

(b) The representative, if any, of the impaired person consents; and

(c) The presiding officer determines that the waiver has been made knowingly, voluntarily, and intelligently.

(7) Waiver of a qualified interpreter shall not preclude the impaired person from claiming his or her right to a qualified interpreter at a later time during the proceedings.

(8) The presiding officer shall make a preliminary determination that an interpreter is able in the particular proceeding to interpret accurately all communication to and from the impaired person. This determination shall be based upon the testimony or stated needs of the impaired person, the interpreter's education, certifications, and experience in interpreting adjudicative proceedings, and the interpreter's understanding of the basic vocabulary and procedure involved in the proceeding, and the interpreter's impartiality. The parties or their representatives may question the interpreter as to his or her qualifications and impartiality.

(9) If at any time during the proceeding, in the opinion of the impaired person, the presiding officer or a qualified observer, the interpreter does not provide accurate and effective communication with the impaired person, the presiding officer shall require the appointment of another qualified interpreter.

(10) If the communication mode or language of a hearing impaired person is not readily interpretable, the interpreter or hearing impaired person shall notify the presiding officer, who shall require the appointment of an intermediary interpreter to assist the qualified interpreter.

(11) The mode of interpretation shall be as permitted by chapter 2.42 RCW or WAC 10-08-150, as now or hereafter amended.

(12) A qualified interpreter shall not, without the written consent of the parties to the communication, be examined as to any communication the interpreter interprets under circumstances where the communication is privileged by law. A qualified interpreter shall not, without the written consent of the parties to the communication, be examined as to any information the interpreter obtains while interpreting pertaining to any proceeding then pending.

(13) The presiding officer shall explain to the impaired party that a written decision or order will be issued in English, and that the party may contact the interpreter for a translation of the decision. If the party has a right to review of the order or decision, the presiding officer shall orally inform him or her during the hearing of the right and the time limits to request review.

(14) At the hearing, the interpreter for a limited-English-speaking party shall provide to the presiding officer the interpreter's telephone number written in the primary language of the impaired party. A copy of such telephone number shall be attached to the decision or mailed to the impaired party. A copy of the decision or order shall also be mailed to the interpreter for use in translation.

(15) In any proceeding involving a hearing impaired person, the presiding officer may order that the testimony of the hearing impaired person and the interpretation of the proceeding by the qualified interpreter be visually recorded for use as the official transcript of that portion of the proceedings. Where simultaneous translation is used for interpreting statements of limited-English-speaking persons, the foreign language statements shall be recorded simultaneously with the English language statements by means of a separate tape recorder.

(16) A qualified interpreter appointed under this section is entitled to a reasonable fee for services, including waiting time and reimbursement for actual necessary travel expenses.

(17) The costs of providing the interpreter shall be borne by the impaired party or by the party who calls the impaired person as a witness, unless the impaired party is indigent under the standards applied in criminal proceedings in the superior court for Thurston County and thus unable to pay for the interpreter, in which case the cost shall be borne as an administrative cost by the commission.

(18) The cost of providing the interpreter may be a taxable cost of any proceeding in which costs are taxed.)) For all adjudicative proceedings under the Administrative Procedure Act (cases under chapters 391-25, 391-35, 391-45 and 391-95 WAC), the provisions of WAC 10-08-150 as now or hereafter amended shall apply.

(2) For all cases that are not adjudicative proceedings under the Administrative Procedure Act (cases under chapters 391-55 and 391-65 WAC), the provisions of WAC 10-08-150 as now or hereafter amended shall apply, except that all interpreter fees and expenses shall be paid by the party which requests the participation of an impaired person as defined in chapter 2.42 RCW or a non-English-speaking person as defined in chapter 2.43 RCW.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045(3), 28B.52.060, 41.56.060, 41.56.122(1), 41.56.170, 41.59.080, 41.59.100, 41.59.150 and chapter 2.42 RCW. 90-06-070, 391-08-315, filed 3/7/90, effective 4/7/90.]



NEW SECTION



WAC 391-08-520  Declaratory orders. Any person may petition the commission for a declaratory order, under RCW 34.05.240, with respect to the applicability to specified circumstances of a rule, order, or statute enforceable by the commission. For purposes of this section, the term person includes natural persons, employee organizations, and employers.

(1) A petition for a declaratory order shall generally adhere to the following form:

(a) At the top of the page shall appear the wording "Before the Public Employment Relations Commission", a caption setting out "In the Matter of the Petition of (name of petitioner to be inserted) for a Declaratory Order", and the title "Petition".

(b) The body of the petition shall set out, in numbered paragraphs:

(i) The name and address of the petitioner and the name and address, if any, of the representative appearing on behalf of the petitioner.

(ii) The name(s) and address(es) of any other party which the petitioner seeks to have bound by any declaratory order issued by the commission, and the name(s) and address(es) of their representatives, if known.

(iii) The rule(s), order(s) or statute(s) from which the controversy arises.

(iv) The facts which the petitioner wishes the commission to consider in issuing a declaratory order.

(v) The issues which the petitioner wishes the commission to address in its order.

(vi) The relief requested by the petitioner.

(vii) The reasons on which the petitioner relies to show that: Uncertainty necessitating resolution exists; there is actual controversy arising from the uncertainty such that a declaratory order will not be merely an advisory opinion; the uncertainty adversely affects the petitioner; and the adverse effect of uncertainty on the petitioner outweighs any adverse effects on others or on the general public that may likely arise from the order requested.

(c) The petition shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on other parties named in the petition as required by WAC 391-08-120 (3) and (4).

(2) Within fifteen days after receipt of a petition for a declaratory order, the executive director or designee shall give notice of the petition to all persons to whom notice is required by law, and may give notice to any other person he or she deems desirable. The notice shall establish a deadline for necessary parties other than the petitioner to file written consent to the determination of the matter by a declaratory order.

(3) The petition and any responses from parties shall be forwarded to the commission for consideration. The commission shall not issue a declaratory order if:

(a) The matter is or could have been the subject of any other adjudicative proceeding before the commission; or

(b) A necessary party whose rights would be substantially prejudiced does not consent, in writing, to the determination of the matter by a declaratory order.

(4) The commission may consider the petition without argument and shall, within thirty days after receipt of the petition, do one of the following:

(a) Enter an order declaring the applicability of the statute, rule, or order in question to the specified circumstances;

(b) Set a reasonable time and place for a hearing to be held within ninety days after receipt of the petition, including submission of evidence by the parties if deemed necessary by the commission, or submission of written argument upon the matter if the material facts are not in dispute. The commission shall give seven days or more advance written notice to the petitioner and other persons who have been given notice of the petition pursuant to subsection (2) of this section of the time, date, and place for the hearing or submission and of the issues it will be considering;

(c) Set a specified time within ninety days after receipt of the petition by which it will enter a declaratory order; or

(d) Decline to enter a declaratory order, stating the reasons for its action.

(5) The commission may extend the time limits of subsection (4)(b) and (c) of this section, for good cause.

(6) The commission may, at any time before taking final action on a petition under this section, request submission of additional facts or argument, including setting the case for oral argument.

(7) If the commission proceeds in the manner provided in subsection (4)(b) of this section, it shall within a reasonable time after conclusion of the proceeding:

(a) Issue a declaratory order; or

(b) Notify the petitioner and any other party to the proceeding that no declaratory order will be issued and state the reasons for such action.

(8) A declaratory order entered by the commission or a decision to decline to enter a declaratory order shall be in writing, and shall be served upon all parties identified in subsection (2) of this section. Each declaratory order shall contain the names of all parties to the proceeding on which it is based, the particular facts on which it is based, and the reasons for its conclusions.

(9) A declaratory order has the same status as any other order entered in an adjudicative proceeding conducted by the commission.



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AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-630  Agency structure--Substitution for executive director. (1) The public employment relations commission and its staff maintain an impartial role in all proceedings pending before the agency.

(2) The commission consists of three citizen members appointed by the governor with the advice and consent of the senate, pursuant to RCW 41.58.010. ((The)) Commission members ((of the commission)) serve on a part-time basis only. All ((of the)) commission members ((of the commission)) represent the interests of the public. The commission reserves to itself a policy-making and appellate((-review)) function.

(3) The executive director appointed by the commission pursuant to RCW 41.58.015(2) is the full-time agency head, with authority to act in administrative and personnel matters. Authority is also delegated to the executive director to make substantive decisions in certain types of cases((, subject in adjudicative proceedings to the right of the parties to appeal to the commission)).

(4) The commission's professional staff is appointed pursuant to RCW 41.58.015(3). A "multifunctional" staffing pattern is used, whereby individual members of the commission's professional staff are assigned from time to time to conduct any or all of the types of dispute resolution services provided by the agency. Authority is delegated to members of the professional staff to make decisions as "examiner" under chapters 391-45 and 391-95 WAC. The executive director may also delegate authority to members of the professional staff to make decisions in certain situations under chapters 391-25 and 391-35 WAC.

(5) In the event the executive director ((disqualifies himself or herself)) is disqualified from participation in a decision, the most senior (in terms of length of service with this agency) member of the agency's mediation staff, who has not been directly involved in the particular circumstances shall make decisions and rulings otherwise required of the executive director.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.58.010 and 41.58.015. 90-06-070, 391-08-630, 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. 85-19-059 (Resolution No. 85-01), 391-08-630, filed 9/16/85.]



NEW SECTION



WAC 391-08-640  Adjudicative proceedings--Appeals. Actions by the executive director and other agency staff members in adjudicative proceedings under the Administrative Procedure Act (cases under chapters 391-25, 391-35, 391-45 and 391-95 WAC) are taken under authority delegated by the commission.

(1) The parties shall have the right to appeal to the commission, as follows:

(a) Under chapter 391-25 WAC, a direction of election or direction of cross-check and other rulings in the proceedings up to the issuance of a tally are interim orders, and may only be appealed to the commission by objections under WAC 391-25-590 after the election or cross-check.

(b) Under chapter 391-25 WAC, an order issued under WAC 391-25-390 or 391-25-510 and any rulings in the proceedings up to the issuance of the order, as well as rulings that the employer or employees are subject to the jurisdiction of the commission, may be appealed to the commission under WAC 391-25-660.

(c) Under chapter 391-35 WAC, an order issued under WAC 391-35-190 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission under WAC 391-35-210.

(d) Under chapter 391-45 WAC, an order issued under WAC 391-45-110(1) or 391-45-310 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission under WAC 391-45-350.

(e) Under chapter 391-95 WAC, an order issued under WAC 391-95-150(1) or 391-95-250 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission under WAC 391-95-270.

(2) The commission may, on its own motion, review any order which is subject to appeal under subsection (1) of this section, by giving written notice to all parties within thirty days following the issuance of the order.



[]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-800  Agency records--Public access. The agency ((will)) shall maintain for public inspection:

(1) An index to all proceedings ((filed with and)) processed by the agency;

(2) A docket for each proceeding ((filed with and)) processed by the agency, showing the actions taken ((on)) and the final resolution of each such proceeding;

(3) A schedule of hearing dates assigned in particular cases; and

(4) The files for all proceedings, including all documents filed with the agency in the particular case, except materials held in confidence as provided in WAC 391-08-810.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090 and 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08, 53.18 and 42.17 RCW. 90-06-070, 391-08-800, filed 3/7/90, effective 4/7/90; Order 77-1, 391-08-800, filed 1/27/77.]



AMENDATORY SECTION (Amending WSR 90-06-070, filed 3/7/90, effective 4/7/90)



WAC 391-08-810  Agency records--Confidentiality. The agency, in order to protect the privacy of individual employees and in order to respect the confidential nature of the mediation process, shall not permit the disclosure to any person of (1) evidence ((filed)) furnished as a showing of interest in support of a representation petition or motion for intervention, or (2) notes and memoranda made by any member of the commission or its staff as a recording of communication made or received while acting in the capacity of a mediator between the parties to a labor dispute.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.060, 41.56.070, 41.56.100, 41.56.440, 41.58.020, 41.59.120 and 49.08.010. 90-06-070, 391-08-810, filed 3/7/90, effective 4/7/90; Order 77-1, 391-08-810, filed 1/27/77.]

OTS-2163.2

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



WAC 391-25-050  Petition form--Number of copies--Filing--Service. Each petition shall be prepared on a form furnished by the commission or on a facsimile thereof. The original and one copy of the petition shall be filed ((with the agency at its)) at the commission's Olympia office, as required by WAC 391-08-120(1). The party filing the petition shall serve a copy on the employer and on each employee organization named in the petition as having an interest in the proceedings, as required by WAC 391-08-120 (3) and (4).



[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, 391-25-050, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070 and 41.59.070. 90-06-072, 391-25-050, 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), 391-25-050, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-090  Contents of petition filed by employer. (1) Where an employer has been presented with one or more demands for recognition of an exclusive bargaining representative of previously unrepresented employees, it may ((file a petition to)) obtain a determination of the question concerning representation. A petition ((filed by an employer)) under this subsection shall contain all of the information required by WAC 391-25-070, except as follows:

(a) The petition shall contain a statement that the employer has been presented with a demand by an organization seeking recognition as the exclusive bargaining representative of the employees in the bargaining unit described in the petition.

(b) WAC 391-25-110 shall not be applicable to petitions filed under this subsection.

(c) The employer shall attach copies of any written demand(s) for recognition or other correspondence pertaining to the claimed question concerning representation.

(2) Where an employer has a good faith belief that a majority of its employees in an existing bargaining unit no longer desire to be represented by their incumbent exclusive bargaining representative, it may ((file a petition to)) obtain a determination of the question concerning representation. A petition ((filed by an employer)) under this subsection shall contain all of the information required by WAC 391-25-070 except as follows:

(a) The employer shall attach affidavits and other documentation as may be available to it to demonstrate the existence of a good faith doubt concerning the representation of its employees.

(b) To constitute a basis for a good faith doubt under this paragraph, signature documents provided to the employer by employees must be in a form which would qualify as supporting evidence under WAC 391-25-110 if filed by the employees directly with the commission.

(3) The original and one copy of a petition under this section shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1). The employer shall serve a copy on each employee organization named in the petition as having an interest in the proceedings, as required by WAC 391-08-120 (3) and (4).



[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, 391-25-090, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and 41.56.040. 90-06-072, 391-25-090, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-054 (Order 88-02), 391-25-090, filed 5/31/88. 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), 391-25-090, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-110  Supporting evidence. The original petition shall be accompanied by a showing of interest indicating that the petitioner has the support of ((not less than)) thirty percent or more of the employees in the bargaining unit which the petitioner claims to be appropriate. The showing of interest ((must be timely filed)) shall be furnished under the same timeliness standards applicable to the petition, and ((must)) shall consist of original or legible copies of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. Authorization documents shall not be valid unless signed and dated during the ninety-day period preceding the filing of the petition or the ((filing)) furnishing of such evidence ((with)) to the agency, whichever is later.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.070 and 41.59.070. 96-07-105, 391-25-110, 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, 391-25-110, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-054 (Order 88-02), 391-25-110, filed 5/31/88. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 81-02-034 (Order 81-01), 391-25-110, filed 1/6/81.]



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



WAC 391-25-190  Intervention--By organization other than incumbent. (1) An organization not covered by WAC 391-25-170 may, by motion, intervene in proceedings under this chapter and, upon granting of its motion for intervention, shall be entitled to participate in the proceedings and have its name listed as a choice on the ballot in any election. The motion for intervention shall be supported by a showing of interest indicating that the intervenor has the support of ((not less than)) ten percent or more of the employees in the bargaining unit which the petitioner claims to be appropriate or of ((not less than)) thirty percent or more of the employees in whatever different bargaining unit the intervenor claims to be appropriate. The showing of interest ((must)) shall consist of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. Such authorization cards shall not be valid unless signed and dated during the ninety-day period preceding the filing of the motion for intervention or the ((filing)) furnishing of such evidence ((with)) to the agency, whichever is later. The showing of interest shall be made confidentially to the agency at or before the time the motion for intervention is made: Provided, however,That a motion for intervention may be granted conditionally subject to the subsequent furnishing of a showing of interest under such conditions as the agency may impose to avoid undue delay of the proceedings.

(2) No motion for intervention shall be considered if made:

(((1))) (a) After the close of the hearing on the petition;

(((2))) (b) More than seven days after the filing and posting of an election agreement or cross-check agreement; or

(((3))) (c) More than seven days after the posting of an investigation statement.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.070 and 41.59.070. 96-07-105, 391-25-190, 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, 391-25-190, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-054 (Order 88-02), 391-25-190, filed 5/31/88. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 81-02-034 (Order 81-01), 391-25-190, filed 1/6/81.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-210  Showing of interest confidential. The question of whether a showing of interest requirement for a petition or for intervention has been satisfied is a matter for administrative determination by the agency and may not be litigated at any hearing. The agency shall not disclose the identities of employees whose authorization cards or letters are ((filed)) furnished to the agency in support of a petition or motion for intervention. In order to preserve the confidentiality of the showing of interest and the right of employees freely to express their views on the selection of a bargaining representative, the agency shall not honor any attempt to withdraw or diminish a showing of interest.



[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, 391-25-210, 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), 391-25-210, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-220  Investigation conferences. (1) The agency routinely conducts conferences with the parties, to investigate a representation petition according to a checklist provided to the parties.

(a) The issues which may properly arise in representation cases include:

(i) The identification of the parties;

(ii) The jurisdiction of the commission;

(iii) The qualification of the petitioner and any intervenor(s) for certification as exclusive bargaining representative;

(iv) The existence of a question concerning representation;

(v) The timeliness of the petition;

(vi) The existence of blocking charges under WAC 391-25-370;

(vii) The propriety of the petitioned-for bargaining unit;

(viii) The list of employees eligible to vote or be considered in determining a question concerning representation, and cut-off date for eligibility; and

(ix) The method and arrangements for determining a question concerning representation.

(b) The investigation conference may be conducted by telephone conference call, or in-person by agency staff;

(c) The parties are encouraged to reach binding stipulations on all issues during the course of the investigation conference.

(2) The stipulations made by the parties during an investigation conference may be set forth in an investigation statement issued in lieu of an election agreement or cross-check agreement.

(a) Immediately upon receipt of an investigation statement, the employer shall post it in conspicuous places on its premises where notices to affected employees are usually posted, and it shall remain posted for at least seven days thereafter.

(b) An investigation statement shall be binding on the parties unless written objections are filed ((with the agency)) and served ((on other parties)) as required by WAC 391-08-120 within ten days following issuance of the statement.

(3) When all conditions precedent to an election or cross-check in an appropriate bargaining unit have been met, the executive director shall proceed with the determination of the question concerning representation. Objections by parties named in the investigation statement shall be limited to matters relating to specific conduct affecting the results of an election.

(4) The parties may set forth stipulations in election agreements, cross-check agreements, and/or supplemental agreements provided for in this chapter.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.431. 96-07-105, 391-25-220, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073 and 41.56.040. 90-06-072, 391-25-220, filed 3/7/90, effective 4/7/90.]



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



WAC 391-25-230  Election agreements. Where an employer and all other parties agree on a representation election, they may ((file)) enter into an election agreement ((with the executive director)).

(1) An election agreement shall contain:

(((1))) (a) The name and address of the employer and the name, address and telephone number of its principal representative((.));

(((2))) (b) The names and addresses of all other parties participating in the election agreement and the names, addresses and telephone numbers of their principal representatives((.));

(((3))) (c) A description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions, and the number of employees in that unit((.));

(((4))) (d) A statement by the parties that((: (a))) no organization is known which is or may be entitled to intervene as an incumbent representative, or (((b))) the incumbent representative is a party to the election agreement, or (((c))) the incumbent representative has abandoned the unit as evidenced by documentation attached to the election agreement((.));

(((5))) (e) A statement by the parties that no other organization is known which claims to represent any of the employees in the bargaining unit; that the parties agree that a question concerning representation exists; that a hearing is waived; and that the agency is requested to proceed to conduct an election and certify the results((.));

(((6))) (f) A list, attached to the election agreement as an appendix, containing the names of the employees eligible to vote in the election and the eligibility cut-off date for the election. If the election is to be conducted by mail ballot, the list shall include the last known address of each of the employees eligible to vote. If no eligibility cut-off date is specified by the parties, the eligibility cut-off date shall be the date on which the election agreement is filed((.));

(((7))) (g) The suggestions of the parties as to the arrangements for conducting the election((.)); and

(((8))) (h) The signatures and, if any, the titles of all parties or their representatives.

(2) The original and one copy of the election agreement shall be filed ((with the agency at its)) at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be posted by the employer in conspicuous places on the employer's premises where notices to affected employees are usually posted. The election agreement shall remain posted for at least seven days after it is filed with the agency.

(3) Upon the filing of an election agreement conforming to the foregoing requirements and seeking an election in an appropriate bargaining unit, the executive director shall proceed to conduct an election.

(4) Objections to the election by a party to the election agreement shall be limited to matters relating to specific conduct affecting the results of the election.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, [41.56].070, 41.59.070 and [41.59].080. 96-07-105, 391-25-230, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 90-06-072, 391-25-230, 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), 391-25-230, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-250  Cross-check agreements. Where only one organization is seeking certification as the representative of unrepresented employees, the employer and the organization may ((file)) enter into a cross-check agreement ((with the executive director)).

(1) A cross-check agreement shall contain:

(((1))) (a) The name and address of the employer and the name, address and telephone number of its principal representative((.));

(((2))) (b) The name and address of the organization and the name, address and telephone number of its principal representative((.));

(((3))) (c) A description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions, and the number of employees in that unit((.));

(((4))) (d) A statement by the parties that no other organization is known which claims to represent any of the employees in the bargaining unit; that the parties agree that a question concerning representation exists; that a hearing is waived; and that the agency is requested to conduct and certify the results of a cross-check of individually signed and dated authorization cards or membership records submitted by the organization against the employment records of the employer((.));

(((5))) (e) A list, attached to the cross-check agreement as an appendix, containing the names of the employees in the bargaining unit((.));

(((6))) (f) The suggestions of the parties as to the arrangements for conducting the cross-check((.));

(((7))) (g) The agreement of the parties to be bound by the results of the cross-check((.)); and

(((8))) (h) The signatures and, if any, the titles of the representatives of the parties.

(2) The original and one copy of the cross-check agreement shall be filed ((with the agency at its)) at the commission's Olympia office as required by WAC 391-08-120(1), and copies ((thereof)) shall be posted by the employer in conspicuous places on the employer's premises where notices to affected employees are usually posted. The cross-check agreement shall remain posted for at least seven days after it is filed with the agency.

(3) Upon the filing of a cross-check agreement conforming to the foregoing requirements and seeking a cross-check in an appropriate bargaining unit, the executive director shall proceed with the cross-check of records. The cross-check may be conducted at any time following the execution of a cross-check agreement; but no certification shall be issued until seven days have elapsed following the filing and posting of the cross-check agreement. Where a motion for intervention is timely filed and granted, no certification shall be issued on the basis of the cross-check.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, [41.56].070, 41.59.070 and [41.59].080. 96-07-105, 391-25-250, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.56.070. 90-06-072, 391-25-250, 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), 391-25-250, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-270  Supplemental agreements. Where the parties are able to agree generally on the matters to be set forth in an election agreement under WAC 391-25-230 or a cross-check agreement under WAC 391-25-250, but are unable to agree on limited issues concerning the definition of the bargaining unit or employee eligibility, they may expedite the determination of the question concerning representation while reserving their disagreement for subsequent determination by ((filing)) entering into a supplemental agreement under this rule together with an agreement under WAC 391-25-230 or 391-25-250. ((Such))

(1) A supplemental agreement shall contain:

(((1))) (a) The names of all parties to the election agreement or cross-check agreement and the case number of the proceedings((.));

(((2))) (b) Identification of the employees or classifications as to which a dispute exists, together with the identification of the position taken by each party on the dispute((.));

(((3))) (c) A statement by all parties requesting that employees affected by the supplemental agreement be permitted to vote by challenged ballot or be challenged for purposes of a cross-check, subject to a subsequent determination of the dispute; and that the certification of the results of the election or cross-check not be withheld pending the determination of the dispute unless the challenges are sufficient in number to affect the outcome((.)); and

(((4))) (d) The signatures and, if any, the titles, of the representatives of the parties.

(2) The original and one copy of the supplemental agreement shall be filed ((with the agency)) at the commission's Olympia office as required by WAC 391-08-120(1), together with the agreement filed under WAC 391-25-230 or 391-25-250, and copies shall be posted with such agreement.

(3) Upon the filing of a supplemental agreement, the executive director shall proceed with the determination of the question concerning representation. If the challenges are sufficient in number to affect the outcome, they shall be determined prior to the issuance of a certification. Otherwise, ((a conditional)) an interim certification shall be issued which shall be amended upon final disposition of the issues framed in the supplemental agreement.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 90-06-072, 391-25-270, 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), 391-25-270, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-350  Hearings--Nature and scope. Hearings shall be public and shall be limited to matters concerning the determination of the existence of a question concerning representation, the appropriate bargaining unit and questions of eligibility. During the course of the hearing, the hearing officer may, upon motion by any party, or upon his or her own motion, sequester witnesses. It shall be the duty of the hearing officer to inquire fully into all matters in issue and to obtain a clear and complete factual record upon which the commission and the executive director may discharge their duties under the pertinent statutes and these rules. Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing. A party which desires to have a brief or written argument considered shall file an original and one copy with the hearing officer as required by WAC 391-08-120(1), and shall serve copies on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.437, 41.56.060, [41.56].070, 41.59.070 and [41.59].080. 96-07-105, 391-25-350, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070, 41.59.070, 41.59.080 and 53.18.015. 90-06-072, 391-25-350, 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), 391-25-350, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-370  Blocking charges--Suspension of proceedings--Request to proceed. (1) ((Where)) The executive director may suspend the processing of a representation ((proceedings have been commenced)) petition under this chapter ((and)) pending the outcome of related unfair labor practice proceedings, where:

(a) A complaint charging unfair labor practices is filed under the provisions of chapter 391-45 WAC; and

(b) It appears that the facts as alleged may constitute an unfair labor practice; and

(c) Such unfair labor practice could improperly affect the outcome of a representation election((; the executive director may suspend the representation proceedings under this chapter pending the resolution of the unfair labor practice case)).

(2) The complainant(s) in the unfair labor practice case may file and serve as required by WAC 391-08-120 a written request to proceed((, in writing,)) with the executive director. ((Such)) The request to proceed shall ((identify, by)) specify the case number((,)) of the representation ((proceedings for which it is made)) proceeding, shall request that ((those)) the representation ((proceedings be continued)) petition be processed notwithstanding the pending unfair labor practice case, and shall ((acknowledge that the commission will not entertain)) waive the right to file objections under WAC 391-25-590 (1)(a) based on conduct alleged in the unfair labor practice case. Upon the filing of a request to proceed ((conforming to the foregoing requirements)) under this subsection, the executive director shall resume the processing of the representation petition and shall summarily dismiss any objections filed in conflict with the request to proceed.

(3) Where a complaint charging unfair labor practices is filed after the issuance of a notice of election, the executive director shall proceed with the determination of the question concerning representation, subject to the right of any party to file objections as provided in WAC 391-25-590.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 96-07-105, 391-25-370, 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, 391-25-370, 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), 391-25-370, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-390  Proceedings before the executive director. (1) The executive director may proceed forthwith upon the record, after submission of briefs or after hearing, as may be appropriate.

(a) The executive director shall determine whether a question concerning representation exists, and shall issue a direction of election, dismiss the petition or make other disposition of the matter.

(b) Unless otherwise provided in a direction of election, the cut-off date for eligibility to vote in an election shall be the date of issuance of the direction of election.

(2) Where the executive director determines that employee eligibility issues exist, the executive director may delegate authority to the hearing officer to decide those issues. ((Such actions shall be subject to review by the commission only as follows:

(1) Except for rulings as to whether the employer is subject to the jurisdiction of the commission, a direction of election and any accompanying rulings shall not be subject to review by the commission except upon objections timely filed under WAC 391-25-590.

(2) An order of dismissal shall be subject to review by the commission on its own motion or at the request of any party made within twenty days following the date of the order. Briefs or written arguments shall be submitted as provided in WAC 391-25-650. Unless the matter is transferred to the commission for review, an order of dismissal issued by the executive director shall have the same force and effect as if issued by the commission.))

(3) A direction of election and other rulings in the proceedings up to the issuance of a tally are interim orders, and may only be appealed to the commission by objections under WAC 391-25-590 after the election. An exception is made for rulings on whether the employer or employees are subject to the jurisdiction of the commission, which may be appealed under WAC 391-25-660.

(4) Unless appealed to the commission under WAC 391-25-660, an order issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 90-06-072, 391-25-390, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-054 (Order 88-02), 391-25-390, filed 5/31/88. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-25-390, filed 9/16/85. 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), 391-25-390, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-391  Special provision--Public employees. (1) Where only one organization is seeking certification as the representative of unrepresented employees, and the showing of interest submitted in support of the petition indicates that the organization has been authorized by in excess of seventy percent of the employees to act as their representative for the purposes of collective bargaining, the executive director may issue a direction of cross-check. ((The direction of cross-check and any accompanying rulings shall not be subject to review by the commission except upon objections timely filed under WAC 391-25-590.))

(2) A direction of cross-check and other rulings in the proceedings up to the issuance of a tally are interim orders, and may only be appealed to the commission by objections under WAC 391-25-590 after the cross-check. An exception is made for rulings on whether the employer or employees are subject to the jurisdiction of the commission, which may be appealed under WAC 391-25-660.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.060. 96-07-105, 391-25-391, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and 41.56.060. 90-06-072, 391-25-391, 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), 391-25-391, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-410  Cross-check of records. (1) Where a cross-check of records is to be conducted to determine a question concerning representation, the organization shall ((submit)) furnish to the agency original or legible copies of individual cards or letters signed and dated by employees in the bargaining unit ((not more than)) within ninety days prior to the filing of the petition and indicating that the employees authorize the named organization to represent them for the purposes of collective bargaining, or shall ((submit)) furnish to the agency membership records maintained by the organization as a part of its business records containing the names of employees and indicating those employees currently members in good standing.

(2) The agency shall honor a valid revocation of authorization contained in an individual card or letter signed by the employee and ((filed with)) furnished to the agency by the employee.

(3) The employer shall make available to the agency original or legible copies of employment records maintained as a part of its business records containing the names and signatures of the employees in the bargaining unit.

(4) Prior to the commencement of the cross-check, the organization may file and serve, as required by WAC 391-08-120, a request that the question concerning representation be determined by a representation election ((and)). Any such requests shall be honored.

(5) Where the organization files a disclaimer or a request for election after the commencement of the cross-check, the cross-check shall be terminated and the organization shall not seek to be certified in the bargaining unit for a period of at least one year thereafter.

(((5))) (6) All cross-checks shall be by actual comparison of records ((submitted)) furnished by the parties. The agency shall not disclose the names of employees giving representation authorization in favor of or appearing on the membership rolls of the organization. Upon the conclusion of the comparison of records, the agency officer conducting the cross-check shall prepare and furnish to the parties a tally sheet containing the number of employees in the bargaining unit, the number of employee records examined and the number of employee records counted as valid evidence of representation.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.060. 96-07-105, 391-25-410, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and 41.56.060. 90-06-072, 391-25-410, 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), 391-25-410, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-450  Disclaimers. An organization may ((file a disclaimer)) disclaim a bargaining unit and have its name removed from the ballot((: Provided, however, That if such)) by written notice filed and served as required by WAC 391-08-120. If a disclaimer is filed after the issuance of a notice of election, the organization filing the disclaimer shall not seek to be certified in that bargaining unit for a period of at least one year thereafter.



[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, 391-25-450, 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), 391-25-450, filed 9/30/80, effective 11/1/80.]



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



WAC 391-25-590  Filing and service of objections to improper conduct and interim orders. ((Objections must be filed within)) The due date for objections is seven days after the tally has been served under WAC 391-25-410 or under WAC 391-25-550, regardless of whether challenged ballots are sufficient in number to affect the results of the election. The time period for objections cannot be extended.

(1) Objections ((filed)) by the petitioner, the employer or any intervenor ((may consist of)) shall set forth, in separate numbered paragraphs:

(a) ((Designation of)) The specific conduct which the party filing the objection claims has improperly ((affecting)) affected the results of the election; and/or

(b) ((Designation of one or more previous)) The direction of election, direction of cross-check or other interim rulings ((or directions in the matter)) which the objecting party desires to ((have reviewed by)) appeal to the commission.

(2) Objections ((filed)) by individual employees are limited to conduct or procedures which prevented them from casting a ballot.

(3) ((Objections shall contain, in separate numbered paragraphs, statements of the specific conduct, if any, alleged to have improperly affected the results of the election and, in separate numbered paragraphs, the specific rulings or directions, if any, which the party filing the objections desires to have reviewed.

(4))) The original and three copies of the objections shall be filed ((with the commission at its)) at the commission's Olympia office as required by WAC 391-08-120(1), and the party filing the objections shall serve a copy on each of the other parties to the proceedings((. Objections must be timely filed, whether or not challenged ballots are sufficient in number to affect the results of the election)) as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060 and 41.59.070. 96-07-105, 391-25-590, 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, 391-25-590, 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), 391-25-590, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-630  Procedure where conduct objections are filed. (((1) Objections to)) Where objections allege improper conduct ((improperly affecting the results of an election shall be referred to the executive director for investigation.)) under WAC 391-25-590 (1)(a) or (2), other parties may be requested to respond to the objections within a period of time established by the agency. The period shall be seven days or more.

(1) If the objections and any responses indicate there is no genuine issue as to any material fact and that one of the parties is entitled to a judgment as a matter of law, the commission may issue a summary judgment in the matter.

(2) If the objections and any responses raise material questions of fact which cannot be resolved without a hearing, there shall be issued and served on each of the parties a notice of hearing before a hearing officer.

(a) Hearings on objections to conduct affecting the results of an election may be consolidated with hearings on challenged ballots in the same proceeding.

(b) The rules relating to ((the conduct of)) hearings on petitions shall govern hearings on objections, except that the scope of the hearing shall be limited to matters relevant to the disposition of the objections.

(((2) Objections to prior rulings and/or directions in the matter shall be referred directly to the commission.)) (3) The objections, any responses, and the record made at any hearing on the objections shall be referred to the commission.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.56.040 and 41.59.110. 90-06-072, 391-25-630, 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), 391-25-630, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-650  Briefs and written arguments on objections. ((All parties shall be entitled to submit briefs or written arguments for consideration by the commission. The briefs or written arguments of all parties shall be due simultaneously, as follows:

(1) The deadline for the filing of briefs or written arguments shall be fourteen days)) (1) The due date for any brief which the party filing an objection desires to have considered by the commission is fourteen days following the later of:

(a) ((The close of an investigation under WAC 391-25-630(1);

(b))) The issuance of a transcript of a hearing held under WAC 391-25-630(((1))) (2); or

(((c))) (b) The filing of objections under WAC 391-25-590(((2))) (1)(b).

(((2) The commission, the executive director or the designee of the executive director may, for good cause, grant any party an extension of the time for filing of its brief or written argument where a request for additional time is made prior to the deadline previously established.

The original and three copies of any brief or written argument shall be filed with the commission at its Olympia office and a copy shall be served on each of the other parties. If a party presents an issue which requires study of a statute, rule, regulation, or finding of fact, the party should set out the material portions of the text verbatim or include them by facsimile copy in the text or in an appendix to the brief.)) The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(2) The due date for any responsive brief which other parties desire to have considered by the commission is fourteen days following the date on which that party is served with an appeal brief. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(3) The executive director or designee may extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070 and 41.59.070. 90-06-072, 391-25-650, 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. 85-19-059 (Resolution No. 85-01), 391-25-650, filed 9/16/85. 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), 391-25-650, filed 9/30/80, effective 11/1/80.]



NEW SECTION



WAC 391-25-660  Appeals from orders and jurisdictional rulings. An order issued under WAC 391-25-390 or 391-25-510 and any rulings in the proceedings up to the issuance of the order, as well as rulings that the employer or employees are subject to the jurisdiction of the commission, may be appealed to the commission as follows:

(1) The due date for a notice of appeal shall be twenty days following the date of issuance of the order being appealed. The time for filing a notice of appeal cannot be extended.

(2) Where an order has been appealed, the due date for a notice of cross-appeal by other parties shall be seven days after the last date on which a notice of appeal could be timely. The time for filing a notice of cross-appeal cannot be extended.

(3) A notice of appeal or notice of cross-appeal shall identify, in separate numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.

(4) The original and three copies of a notice of appeal or notice of cross-appeal shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(5) The due date for any appeal brief which the party filing an appeal or cross-appeal desires to have considered by the commission shall be fourteen days following the filing of its notice of appeal or notice of cross-appeal. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(6) The due date for any responsive brief which a party desires to have considered by the commission shall be fourteen days following the date on which that party is served with an appeal brief. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(7) The executive director or designee may extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.



[]



AMENDATORY SECTION (Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)



WAC 391-25-670  Commission action on objections and appeals. ((In all cases where objections have been filed)) If there are objections under WAC 391-25-590 or an order is appealed under WAC 391-25-660, the entire record in the proceedings shall be transferred to the commission. The commission may request the parties to appear before it to make oral argument as to ((certain of the issues)) any or all of the issues in the matter. The commission shall determine the objections or appeal and any challenged ballots referred to the commission pursuant to WAC 391-25-510, and shall issue appropriate orders.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.070. 90-06-072, 391-25-670, 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), 391-25-670, filed 9/30/80, effective 11/1/80.]

OTS-2164.2

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



WAC 391-35-030  Petition form--Number of copies--Filing--Service. Each petition for clarification of an existing bargaining unit shall be prepared on a form furnished by the commission or shall be prepared in conformance with WAC 391-35-050. The original and one copy of the petition shall be filed ((with the agency at its)) at the commission's Olympia office, as required by WAC 391-08-120(1). If the petition is filed other than as a jointly filed petition, the party filing the petition shall serve a copy on the other party to the collective bargaining relationship in which the disagreement arises, as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. 96-07-105, 391-35-030, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. 90-06-073, 391-35-030, 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. 80-14-047 (Order 80-6), 391-35-030, filed 9/30/80, effective 11/1/80.]



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



WAC 391-35-170  Hearings--Nature and scope. Hearings shall be public and shall be limited to matters concerning the determination of the petition for clarification of an existing bargaining unit. During the course of the hearing, the hearing officer may, upon motion by any party, or upon his or her own motion, sequester witnesses. It shall be the duty of the hearing officer to inquire fully into all matters in issue and to obtain a full and complete factual record upon which the commission ((or)) and the executive director may discharge their duties under the pertinent statutes and these rules. Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing. A party which desires to have a brief or written argument considered shall file an original and one copy with the hearing officer as required by WAC 391-08-120(1), and shall serve copies on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.437, 41.56.060 and 41.59.080. 96-07-105, 391-35-170, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.59.080 and 53.18.015. 90-06-073, 391-35-170, 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), 391-35-170, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-073, filed 3/7/90, effective 4/7/90)



WAC 391-35-190  Proceedings before the executive director. (1) The executive director may proceed forthwith upon the record, after submission of briefs or after hearing, as may be appropriate. The executive director shall determine the status of each position, classification or group of employees over which there is a disagreement and issue an order clarifying bargaining unit, dismiss the petition or make other disposition of the matter.

(2) Where the executive director determines that employee eligibility issues exist, the executive director may delegate authority to the hearing officer to decide those issues.

(3) Unless appealed to the commission under WAC 391-35-210, an order issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. 90-06-073, 391-35-190, 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. 85-19-059 (Resolution No. 85-01), 391-35-190, filed 9/16/85. 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), 391-35-190, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-073, filed 3/7/90, effective 4/7/90)



WAC 391-35-210  ((Proceedings before the commission--Petition for review.)) Appeals. ((The final order of the executive director shall be subject to review by)) An order issued under WAC 391-35-190 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission ((on its own motion, or at the request of any party made within twenty days after the date of the order. The original and three copies of the petition for review shall be filed with the commission at its Olympia office and the party filing the petition shall serve a copy on any other parties. The petition for review shall identify the actions or rulings claimed to be in error. Any party to the proceeding may, within fourteen days after the filing of the petition for review, file briefs or written arguments for consideration by the commission. The original and three copies of any brief or written argument shall be filed with the commission at its Olympia office and a copy shall be served on the other party.)) as follows:

(1) The due date for a notice of appeal shall be twenty days following the date of issuance of the order being appealed. The time for filing a notice of appeal cannot be extended.

(2) Where an order has been appealed, the due date for a notice of cross-appeal by other parties shall be seven days after the last date on which a notice of appeal could be timely. The time for filing a notice of cross-appeal cannot be extended.

(3) A notice of appeal or notice of cross-appeal shall identify, in separate numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.

(4) The original and three copies of a notice of appeal or notice of cross-appeal shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(5) The due date for any appeal brief which the party filing an appeal or cross-appeal desires to have considered by the commission shall be fourteen days following the filing of its notice of appeal or notice of cross-appeal. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(6) The due date for any responsive brief which a party desires to have considered by the commission shall be fourteen days following the date on which that party is served with an appeal brief. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(7) The ((commission, the)) executive director or ((the)) designee ((of the executive director may, for good cause, grant any party an extension of the time for filing of its brief or written argument where a request for additional time is made prior to the deadline previously established. The commission may request the parties to appear before it to make oral argument as to certain of the issues or all of the issues. If a party presents an issue which requires study of a statute, rule, regulation, or finding of fact, the party should set out the material portions of the text verbatim or include them by facsimile copy in the text or in an appendix to the brief)) may extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. 90-06-073, 391-35-210, 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. 85-19-059 (Resolution No. 85-01), 391-35-210, filed 9/16/85. 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), 391-35-210, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-073, filed 3/7/90, effective 4/7/90)



WAC 391-35-250  Commission action on appeals. ((The executive director shall transfer)) If an order is appealed under WAC 391-35-210, the entire record in the proceedings shall be transferred to the commission. The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter. The commission shall determine the status of each position, classification or group covered by the ((petition for review)) appeal, and shall issue appropriate orders.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. 90-06-073, 391-35-250, 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), 391-35-250, filed 9/30/80, effective 11/1/80.]



REPEALER



The following section of the Washington Administrative Code is repealed:



WAC 391-35-230 Filing and service of cross-petition for review.

OTS-2165.3

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



WAC 391-45-030  Form--Number of copies--Filing--Service. Charges shall be in writing, in the form of a complaint of unfair labor practices. The original and one copy shall be filed ((with the agency at its)) at the commission's Olympia office, as required by WAC 391-08-120(1). The party filing the complaint shall serve a copy on each party named as a respondent, as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 34.05.413, 41.56.160 and 41.59.150. 96-07-105, 391-45-030, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.170, 41.59.150 and 53.18.015. 90-06-074, 391-45-030, 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. 80-14-048 (Order 80-7), 391-45-030, filed 9/30/80, effective 11/1/80.]



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



WAC 391-45-110  Preliminary ruling by executive director. The executive director shall determine whether the facts as alleged may constitute an unfair labor practice within the meaning of the applicable statute.

(1) If it is determined that the facts as alleged do not, as a matter of law, constitute a violation, the executive director shall issue and cause to be served on all parties an order of dismissal containing the reasons for that action. ((An order of dismissal issued pursuant to this section shall be subject to a petition for review as provided in WAC 391-45-350.)) Unless appealed to the commission under WAC 391-45-350, an order issued under this subsection shall be the final order of the agency, with the same force and effect as if issued by the commission.

(2) If the complaint is found to state a cause of action for unfair labor practice proceedings before the commission, the executive director shall set a period for the respondent to file its answer, which shall be ((not less than)) ten days or more following the issuance of the preliminary ruling.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, [28B.52].073, 34.05.419, 41.56.140, [41.56].150 and 41.59.140. 96-07-105, 391-45-110, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.140, 41.56.150, 41.59.140 and 53.18.015. 90-06-074, 391-45-110, 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), 391-45-110, filed 9/30/80, effective 11/1/80.]



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



WAC 391-45-190  Answer--Filing and service. The respondent(s) shall, on or before the date specified ((therefor)) in the preliminary ruling or a notice of hearing, file ((with the agency)) the original and one copy of its answer to the complaint as required by WAC 391-08-120(1), and shall serve a copy on the complainant, as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 41.56.160 and 41.59.150. 96-07-105, 391-45-190, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.170, 41.59.150 and 53.18.015. 90-06-074, 391-45-190, 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), 391-45-190, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-074, filed 3/7/90, effective 4/7/90)



WAC 391-45-250  Motion to make complaint more definite and certain. If a complaint is alleged by a respondent to be so indefinite as to hamper the respondent in the preparation of its answer, such respondent may, on or before the date specified for the filing of an answer, ((file)) make a motion ((requesting)) for an order ((directing)) that the complaint be made more definite and certain. Such motion shall be filed ((with the examiner)) and served ((by the moving party on the complainant and on any other parties)) as required by WAC 391-08-120. The filing of such a motion will extend the ((time during which the respondent must file and serve an)) due date for the respondent's answer until such date as the executive director or examiner may set. The examiner may require the complainant to file and serve a statement supplying information necessary to make the complaint definite and certain.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.170, 41.59.150 and 53.18.015. 90-06-074, 391-45-250, 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), 391-45-250, filed 9/30/80, effective 11/1/80.]



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



WAC 391-45-290  Briefs and proposed findings. Any party shall be entitled, upon request made before the close of the hearing, to file a brief or proposed findings of fact, conclusions of law and order, or both, at such time as may be fixed by the examiner. The examiner may direct the filing of briefs when he or she deems such filing warranted by the nature of the proceeding or of particular issues therein. A party which desires to have a brief or written argument considered shall file an original and one copy with the examiner as required by WAC 391-08-120(1), and shall serve copies on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.437, 41.56.160 and 41.59.150. 96-07-105, 391-45-290, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-290, 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), 391-45-290, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-074, filed 3/7/90, effective 4/7/90)



WAC 391-45-310  Examiner decision. After the close of the hearing and the filing of all briefs, the examiner shall ((make a decision)) issue an order containing findings of fact((,)) and conclusions of law ((and order)). ((The examiner shall file the original decision with the commission and shall cause a copy thereof to be served on each of the parties.)) Unless appealed to the commission under WAC 391-45-350, an order issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-310, 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), 391-45-310, filed 9/30/80, effective 11/1/80.]



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



WAC 391-45-330  Withdrawal or modification of examiner decision. On the examiner's own motion or on the motion of any party, the examiner may set aside, modify, change or reverse any findings of fact, conclusions of law or order at any time within ten days following the issuance thereof, if any mistake is discovered therein: Provided, however, That this section shall be inoperative after the filing of ((a petition for review with)) an appeal to the commission.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 96-07-105, 391-45-330, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-330, 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), 391-45-330, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-074, filed 3/7/90, effective 4/7/90)



WAC 391-45-350  ((Petition for review of examiner decision.)) Appeals. ((The examiner's findings of fact, conclusions of law and)) An order ((shall be subject to review by)) issued under WAC 391-45-110(1) or 391-45-310 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission ((on its own motion, or at the request of any party made within twenty days following the date of the order issued by the examiner. The original and three copies of the petition for review shall be filed with the commission at its Olympia office and the party filing the petition shall serve a copy on each of the other parties to the proceeding. Such petition for review shall contain, in separate numbered paragraphs, statements of the specific findings, conclusions, orders or rulings on which the party filing the petition seeks review by the commission. A petition for review shall have attached to it any appeal brief or written argument which the party filing the petition for review desires to have considered by the commission. Other parties to the proceeding shall have fourteen days following the date on which they are served with a copy of such petition for review and accompanying brief or written argument to file a responsive brief or written argument.)) as follows:

(1) The due date for a notice of appeal shall be twenty days following the date of issuance of the order being appealed. The time for filing a notice of appeal cannot be extended.

(2) Where an order has been appealed, the due date for a notice of cross-appeal by other parties shall be seven days after the last date on which a notice of appeal could be timely. The time for filing a notice of cross-appeal cannot be extended.

(3) A notice of appeal or notice of cross-appeal shall identify, in separate numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.

(4) The original and three copies of a notice of appeal or notice of cross-appeal shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(5) The due date for any appeal brief which the party filing an appeal or cross-appeal desires to have considered by the commission shall be fourteen days following the filing of its notice of appeal or notice of cross-appeal. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(6) The due date for any responsive brief which a party desires to have considered by the commission shall be fourteen days following the date on which that party is served with an appeal brief. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(7) The ((commission, the)) executive director or ((his)) designee may((, for good cause, grant any party an extension of the time for filing of its brief or written argument. If a party presents an issue which requires study of a statute, rule, regulation, or finding of fact, the party should set out the material portions of the text verbatim or include them by facsimile copy in the text or in an appendix to the brief. In the event no timely petition for review is filed, and no action is taken by the commission on its own motion within thirty days following the examiner's final order, the findings of fact, conclusions of law and order of the examiner shall automatically become the findings of fact, conclusions of law and order of the commission and shall have the same force and effect as if issued by the commission)) extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-350, 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. 85-19-059 (Resolution No. 85-01), 391-45-350, filed 9/16/85. 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), 391-45-350, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-074, filed 3/7/90, effective 4/7/90)



WAC 391-45-390  Commission action on appeals. ((On its own motion, or on the filing of a petition for review,)) If an order is appealed under WAC 391-45-350, the entire record in the proceedings shall be transferred to the commission((, and thereafter all motions and arguments shall be directed to the commission)). The commission may request the parties to appear before it to make oral ((arguments as to certain of the issues)) argument as to any or all of the issues in the matter. The commission shall, on the basis of the record and any briefs or arguments submitted to it ((on review)), determine the ((matter)) appeal, and shall issue appropriate orders.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-390, 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), 391-45-390, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-074, filed 3/7/90, effective 4/7/90)



WAC 391-45-430  Motion for temporary relief. In addition to the remedies available under WAC 391-45-410, any complainant in an unfair labor practice proceeding may ((file)) make a motion requesting that the commission seek appropriate temporary relief through the superior court, and all such motions shall be processed as provided in this section.

(1) When the ((complainant shall, at the time its)) complaint is filed, or as soon thereafter as facts giving rise to the request for temporary relief become known, ((provide)) the complainant shall file written notice ((to the executive director)) of its intent to make a motion for temporary relief with the executive director as required by WAC 391-08-120(1), and shall((, at the same time,)) serve a copy of such notice on each of the other parties to the proceedings as required by WAC 391-08-120 (3) and (4).

(2) Upon the filing of a notice of intent to make a motion for temporary relief, the executive director shall expedite the processing of the matter under WAC 391-45-110.

(3) After ((the)) a determination ((of)) by the executive director that the complaint states a cause of action, ((any)) the complainant ((desiring temporary relief)) may file ((with the executive director)) and serve, as required by WAC 391-08-120, a motion for temporary relief together with affidavits as to the risk of irreparable harm and the adequacy of legal remedies((, and shall serve a copy of such motion and affidavits on all other parties to the proceedings. The)).

(4) If there is a motion for temporary relief, the due date for counter-affidavits from other parties ((shall have)) is seven ((calendar)) days ((thereafter to file and serve counter-affidavits.

(4))) following the date on which that party is served with a motion for temporary relief. The counter-affidavits shall be filed and served as required by WAC 391-08-120.

(5) The executive director shall forward all such motions and affidavits to the commission, which shall determine whether an injunction pendente lite should be sought. In making such determination, the commission shall adhere to the following policy:



"The name and authority of the public employment relations commission shall not be invoked in connection with a request for temporary relief prior to the completion of administrative proceedings under WAC 391-45-010, et seq., unless it appears that one or more of the allegations in the complaint of unfair labor practices is of such a nature that, if sustained, the complainant would have no fair or adequate remedy and the complainant would suffer irreparable harm unless the status quo be preserved pending the completion of administrative proceedings."



(a) If the commission concludes that temporary relief should be sought, the executive director, acting in the name and on behalf of the commission and with the assistance of the attorney general, shall petition the superior court of the county in which the main office of the employer is located or wherein the person who is alleged to be engaging in unfair labor practices resides or transacts business for an injunction pendente lite.

(b) Whenever temporary relief has been procured, the complaint which has been the basis for such temporary relief shall be heard expeditiously and the case shall be given priority over all other cases except cases of like character.

(c) ((If)) A determination by the commission ((concludes)) that temporary relief should not be sought ((prior to the conclusion of administrative proceedings in the matter, such determination)) at a particular time shall not bar renewal of the ((request)) motion for temporary relief following the completion of administrative proceedings in which unfair labor practice violations have been found to exist.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073 and 41.59.150. 90-06-074, 391-45-430, 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), 391-45-430, filed 9/30/80, effective 11/1/80.]



REPEALER



The following section of the Washington Administrative Code is repealed:



WAC 391-45-370 Filing and service of cross-petition for review.

OTS-2166.1

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



WAC 391-55-245  Interest arbitration--Award. The rulings and determination of the neutral chairman shall be controlling, and shall not require concurrence, but may be accompanied by the concurring and/or dissenting opinions of the appointed members. Such rulings and determinations shall not be subject to ((review by)) appeal to the commission, but the neutral chairman shall ((file)) submit a copy of the award ((with)) to the executive director.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450. 96-07-105, 391-55-245, 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), 391-55-245, filed 9/30/80, effective 11/1/80.]



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



WAC 391-55-345  Educational employees--Findings of fact and recommendations. The findings of fact and recommendations of the fact finder shall not be subject to ((review by)) appeal to the commission, but the fact finder shall ((file)) submit a copy of his or her written recommendations ((with)) to the executive director. Fact finders shall rule only on the reasonability of the proposals advanced in the context of the whole of the negotiations between the parties and shall not rule on whether or not a subject or proposal in dispute is a mandatory subject for collective bargaining.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 96-07-105, 391-55-345, 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. 81-02-034 (Order 81-01), 391-55-345, filed 1/6/81.]

OTS-2167.2

AMENDATORY SECTION (Amending WSR 90-06-075, filed 3/7/90, effective 4/7/90)



WAC 391-95-070  Union security--((Filing of dispute with)) Disputes resolved by commission. In the event of a disagreement between an employee and his or her exclusive bargaining representative as to the eligibility of such employee to make alternative payments or as to the organization which is to receive such payments, either the employee or the exclusive bargaining representative may ((file with)) obtain a ruling from the commission ((a petition for a declaratory ruling)) on the union security obligations of the ((affected)) employee.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-070, 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. 80-14-051 (Order 80-10), 391-95-070, filed 9/30/80, effective 11/1/80.]



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



WAC 391-95-090  Union security--Petition form--Number of copies--Filing--Service. Each petition for ((declaratory)) a ruling on union security obligations shall be prepared in conformance with WAC 391-95-110. The original and one copy of the petition shall be filed ((with the commission at its)) at the commission's Olympia office as required by WAC 391-08-120(1), and the party filing the petition shall serve a copy on the other party to the dispute and on the employer as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.413, 41.56.122 and 41.59.100. 96-07-105, 391-95-090, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-090, 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. 80-14-051 (Order 80-10), 391-95-090, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-075, filed 3/7/90, effective 4/7/90)



WAC 391-95-150  Union security--Initial processing by executive director. The ((matter shall be referred to the)) executive director ((who)) shall determine whether the facts as alleged may constitute a basis for assertion of a right of nonassociation within the meaning of the applicable statute.

(1) If it is determined that the claim does not, as a matter of law, constitute a basis for assertion of a right of nonassociation, the executive director shall issue and cause to be served on all parties an order of dismissal containing the reasons ((therefor; otherwise)) for that action. Unless appealed to the commission under WAC 391-95-270, an order issued under this subsection shall be the final order of the agency, with the same force and effect as if issued by the commission.

(2) If the petition is found to state a claim for nonassociation proceedings before the commission, the executive director shall assign the matter to an examiner and shall notify the parties of such assignment. ((An order of dismissal issued pursuant to this section shall be subject to a petition for review as provided in WAC 391-95-270.))



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-150, 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. 85-19-059 (Resolution No. 85-01), 391-95-150, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-150, filed 9/30/80, effective 11/1/80.]



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



WAC 391-95-230  Hearings--Nature and scope. Hearings shall be public and shall be limited to matters concerning the determination of the eligibility of the employee to make alternative payments and the designation of an organization to receive such alternative payments. During the course of the hearing, the examiner may, upon motion by any party, or upon his or her own motion, sequester witnesses. The employee has the burden to make a factual showing, through testimony of witnesses and/or documentary evidence, of the legitimacy of his or her beliefs, as follows:

(1) In cases where the claim of a right of nonassociation is based on the teachings of a church or religious body, the claimant employee ((must)) shall demonstrate:

(a) His or her bona fide religious objection to union membership; and

(b) That the objection is based on a bona fide religious teaching of a church or religious body; and

(c) That the claimant employee is a member of such church or religious body.

(2) In cases where the claim of a right of nonassociation is based on personally held religious beliefs, the claimant employee ((must)) shall demonstrate:

(a) His or her bona fide religious objection to union membership; and

(b) That the religious nature of the objection is genuine and in good faith.

(3) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.

(4) A party which desires to have a brief or written argument considered shall file an original and one copy with the examiner as required by WAC 391-08-120(1), and shall serve copies on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.437, 41.56.122 and 41.59.100. 96-07-105, 391-95-230, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-230, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-058 (Order 88-10), 391-95-230, filed 5/31/88. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-230, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-075, filed 3/7/90, effective 4/7/90)



WAC 391-95-250  Examiner decision. After the close of the hearing and the filing of all briefs, the examiner shall ((make a decision)) issue an order containing findings of fact((,)) and conclusions of law((, and order. The examiner shall file the original decision with the commission and shall cause a copy thereof to be served on each of the parties)). Unless appealed to the commission under WAC 391-95-270, an order issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-250, 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. 85-19-059 (Resolution No. 85-01), 391-95-250, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-250, filed 9/30/80, effective 11/1/80.]



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



WAC 391-95-260  Withdrawal or modification of examiner decision. On the examiner's own motion or on the motion of any party, the examiner may set aside, modify, change, or reverse any findings of fact, conclusions of law or order at any time within ten days following the issuance thereof, if any mistake is discovered therein: Provided, however, That this section shall be inoperative after the filing of ((a petition for review with)) an appeal to the commission.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 96-07-105, 391-95-260, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-260, 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. 85-19-059 (Resolution No. 85-01), 391-95-260, filed 9/16/85.]



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



WAC 391-95-270  ((Proceedings before the commission--Petition for review.)) Appeals. ((The final order of the examiner shall be subject to review by)) An order issued under WAC 391-95-150(1) or 391-95-250 and any rulings in the proceedings up to the issuance of the order, may be appealed to the commission ((on its own motion, or at the request of any party made within twenty days following the date of the order issued by the examiner. The original and three copies of the petition for review shall be filed with the commission at its Olympia office and the party filing the petition shall serve a copy on the other party to the proceeding and on the employer. The petition for review shall identify the actions or rulings claimed to be in error. Any party to the proceeding may, within fourteen days after the initiation of review, file briefs or written arguments for consideration by the commission. The original and three copies of any brief or written argument shall be filed with the commission at its Olympia office and a copy shall be served upon the other party.)) as follows:

(1) The due date for a notice of appeal shall be twenty days following the date of issuance of the order being appealed. The time for filing a notice of appeal cannot be extended.

(2) Where an order has been appealed, the due date for a notice of cross-appeal by other parties shall be seven days after the last date on which a notice of appeal could be timely. The time for filing a notice of cross-appeal cannot be extended.

(3) A notice of appeal or notice of cross-appeal shall identify, in separate numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.

(4) The original and three copies of a notice of appeal or notice of cross-appeal shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(5) The due date for any appeal brief which the party filing an appeal or cross-appeal desires to have considered by the commission shall be fourteen days following the filing of its notice of appeal or notice of cross-appeal. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(6) The due date for any responsive brief which a party desires to have considered by the commission shall be fourteen days following the date on which that party is served with an appeal brief. The original and three copies of the brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

(7) The ((commission, the)) executive director or ((the)) designee ((of the executive director)) may((, for good cause, grant any party an extension of the time for filing of its brief or written argument where a request for additional time is made prior to the deadline previously established. The commission may request the parties to appear before it to make oral argument as to certain of the issues or all of the issues in the matter. If a party presents an issue which requires study of a statute, rule, regulation, or finding of fact, the party should set out the material portions of the text verbatim or include them by facsimile copy in the text or in an appendix to the brief. In the event no timely petition for review is filed, and no action is taken by the commission on its own motion within thirty days following the examiner's final order, the findings of fact, conclusions of law and order of the examiner shall automatically become the findings of fact, conclusions of law and order of the commission and shall have the same force and effect as if issued by the commission)) extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.



[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.464, 41.56.122 and 41.59.100. 96-07-105, 391-95-270, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-270, 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. 85-19-059 (Resolution No. 85-01), 391-95-270, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-270, filed 9/30/80, effective 11/1/80.]



AMENDATORY SECTION (Amending WSR 90-06-075, filed 3/7/90, effective 4/7/90)



WAC 391-95-290  Commission action on appeals. ((The executive director shall transfer)) If an order is appealed under WAC 391-95-270, the entire record in the proceedings shall be transferred to the commission. The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter. The commission shall, on the basis of the record and any briefs or arguments submitted to it, determine the ((matter)) appeal, and shall issue appropriate orders.



[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-290, 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. 80-14-051 (Order 80-10), 391-95-290, filed 9/30/80, effective 11/1/80.]



REPEALER



The following section of the Washington Administrative Code is repealed:



WAC 391-95-280 Filing and service of cross-petition for review.

Legislature Code Reviser 

Register Index

1998 Washington State Code Reviser's Office