WSR 03-03-064

PERMANENT RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed January 14, 2003, 1:56 p.m. ]

     Date of Adoption: January 6, 2003.

     Purpose: To implement: (a) Personnel System Reform Act of 2002 (PSRA) (chapter 41.80 RCW) providing collective bargaining rights for state civil service employees; (b) Initiative Measure No. 775 (I-775) (chapter 3, Laws of 2002) providing collective bargaining rights to individual providers under home care quality authority; (c) Faculty Collective Bargaining Act (FCBA) (chapter 41.76 RCW) providing collective bargaining rights to faculty at public four-year institutions of higher education; and (d) chapter 34, Laws of 2002, providing collective bargaining rights to teaching and research assistants at University of Washington.

     Citation of Existing Rules Affected by this Order: Amending WAC 391-08-001, 391-08-630, 391-08-670, 391-25-001, 391-25-002, 391-25-011, 391-35-001, 391-35-002, 391-45-001, 391-45-002, 391-55-001, 391-55-002, 391-55-200, 391-65-001, 391-65-002, 391-65-110, 391-95-001 and 391-95-010.

     Statutory Authority for Adoption: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060.

     Other Authority: WAC 391-08-630 is RCW 41.58.010 and [41.58].015; WAC 391-08-670 is RCW 34.05.220; WAC 391-25-011 is RCW 41.56.201; WAC 391-25-032 is RCW 41.59.070(3); WAC 391-25-036 is RCW 41.80.001 and [41.80].080; WAC 391-25-037 is RCW 41.76.020(2); WAC 391-25-051 is RCW 74.39A.240 and [74.39A].270; WAC 391-25-096 is RCW 41.80.070(2); WAC 391-25-136 and 391-25-496 is RCW 41.80.080; WAC 391-25-197, 391-25-217 and 391-24-427 is RCW 41.76.005(11); WAC 391-35-326 is RCW 41.80.005(4); WAC 391-35-327 is RCW 41.76.005 (5) and (10); WAC 391-35-346 is RCW 41.80.005(13) and [41.80].070(1); WAC 391-35-347 is RCW 41.76.005 (5) and (9); WAC 391-35-356 is RCW 41.80.005(6) and [41.80].070(1); WAC 391-55-200 is RCW 41.56.450, [41.56].475, [41.56].492, and 74.39A.270; WAC 391-65-110 is RCW 41.56.125; and WAC 391-95-010 is RCW 28B.52.045, 41.56.122, 41.59.100, 41.76.045, 41.80.100.

      Adopted under notice filed as WSR 02-23-088 on November 20, 2002.

     Changes Other than Editing from Proposed to Adopted Version: WAC 391-25-036(3) applies only to agreements negotiated under PSRA. Sentence added to WAC 391-25-136 requiring employer to send list (excluding employee addresses) to other parties at same time list is sent to agency. WAC 391-25-476 amended to provided list of voters to parties involved in election.

     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 22, Amended 16, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 5, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 18, Amended 18, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 23, Amended 18, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Thirty-one days after filing.

January 14, 2003

Marvin L. Schurke

Executive Director

OTS-5768.5


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

WAC 391-08-001   Application and scope of chapter 391-08 WAC.   Chapter 391-08 WAC has been added to the Washington Administrative Code by the public employment relations commission pursuant to the authority of section 12, chapter 288, Laws of 1975 1st ex. sess. (RCW 41.59.110); ((and)) sections 7, 14 and 20, chapter 296, Laws of 1975 1st ex. sess. (RCW 41.58.050, 28B.52.080 and 41.56.090, respectively); and section 232, chapter 354, Laws of 2002 (RCW 41.06.340); and section 15, chapter 356, Laws of 2002 (RCW 41.76.060), to promulgate comprehensive and uniform rules for practice and procedure before the agency. This chapter sets forth general rules applicable to all types of proceedings before the agency, and should be read in conjunction with the provisions of:

     (1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapters 391-25, 391-35, 391-45 and 391-95 WAC, except:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


AMENDATORY SECTION(Amending WSR 98-14-112, filed 7/1/98, effective 8/1/98)

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. Commission members serve on a part-time basis only. All commission members represent the interests of the public. The commission reserves to itself a policy-making and appellate 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.

     (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 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)) dispute resolution manager authorized to act as the designee of the executive director to make preliminary rulings on unfair labor practice cases under WAC 391-45-110, who has not been directly involved in the particular circumstances shall make decisions and rulings otherwise required of the executive director. Thereafter, this authority passes to the other dispute resolution managers in agency seniority order.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.58.010 and 41.58.015. 98-14-112, § 391-08-630, filed 7/1/98, effective 8/1/98; 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.]


AMENDATORY SECTION(Amending WSR 00-24-044, filed 11/30/00, effective 1/1/01)

WAC 391-08-670   Decision numbering -- Citation of cases -- Indexing of decisions.   (1) Each decision issued by the agency in an adjudicative proceeding under the Administrative Procedure Act is assigned a unique number consisting of two or three components, as follows:

     (a) The first component, consisting of a number, indicates the sequential number of adjudicative proceedings in which one or more decisions has been issued since the agency commenced operations on January 1, 1976.

     (b) The second component (where appropriate) consisting of an alphabetic code in ascending alphabetical order, indicates the second and subsequent decisions issued in the case to which the numerical component was originally assigned.

     (c) The third component, consisting of a four-letter alphabetic code, indicates the statute under which the decision was issued:

     "CCOL" indicates cases decided under chapter 28B.52 RCW((, which is titled: "))(Collective Bargaining -- Academic Personnel in Community Colleges).(("))

     "EDUC" indicates cases decided under chapter 41.59 RCW((, which is titled: "))(Educational Employment Relations Act).(("))

     "FCBA" indicates cases decided under chapter 41.76 RCW (faculty at public four-year institutions of higher education).

     "MRNE" (no longer in use) was formerly used to indicate cases decided under chapter 47.64 RCW, relating to the Washington state ferries system.

     "PECB" indicates cases decided under chapter 41.56 RCW((, which is titled: "))(Public Employees' Collective Bargaining Act),((")) including some cases involving port districts.

     "PORT" indicates cases decided exclusively under chapter 53.18 RCW((, which is titled: "))(Employment Relations -- Collective Bargaining and Arbitration(("))), relating to port districts.

     "PRIV" (((no longer in use) was formerly used to)) indicates cases decided under chapter 49.08 RCW, relating to private sector employers and employees.

     "PSRA" indicates cases decided under RCW 41.06.340 and/or chapter 41.80 RCW (Personnel System Reform Act).

     (2) All citations of agency decisions in subsequent agency decisions, in publications of agency decisions, and in briefs and written arguments filed by parties with the agency shall conform to the formats specified in this section:


GENERAL RULE: Citations shall list only the name of the employer italicized, the word "Decision" followed by the decision number, and the statute and year the decision was issued (in parenthesis).
    
     Examples:

City of Roe, Decision 1234 (PECB, 1992)


         

City of Roe, Decision 1234-A (PECB, 1993)


         

City of Roe, Decision 1234-B (PECB, 1994)


    
EXCEPTION 1: For decisions being cited within the first year following their issuance, the full date of issuance may be set forth.

     Example:

City of Roe, Decision 1234-C (PECB, December 15, 1995)


    
EXCEPTION 2: For decisions in which an employee organization or labor organization was named as the respondent in an unfair labor practice case, the citation shall list the name of the union (in parenthesis) following the name of the employer.

     Example:

City of Roe (Doe Union), Decision 2345 (PECB, 1995)


     (3) The agency encourages the publication and indexing of its decisions by private firms, but does not contribute financial support to any such firm and declines to declare any private firm as the "official reporter" of agency decisions.

     (4) The agency uses a commercially published index of its decisions, along with commercially produced computer assisted research tools, in its own operations. The agency makes those indexes available to the public in its offices, to satisfy the requirements of RCW 42.17.260(5).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, and 34.05.220. 00-24-044, § 391-08-670, filed 11/30/00, effective 1/1/01; 96-07-105, § 391-08-670, filed 3/20/96, effective 4/20/96.]

OTS-5769.7


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

     (4) Special provisions relating to RCW 41.06.340 and/or chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

     (5) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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


NEW SECTION
WAC 391-25-032   Special provision -- Educational employees.   Where there is a valid collective bargaining agreement in effect, no question of representation may be raised except during the period not more than ninety nor less than sixty days prior to the expiration date of the agreement. In the event that a valid collective bargaining agreement, together with any renewals or extensions thereof, has been or will be in existence for three years, then the question of representation may be raised not more than ninety nor less than sixty days prior to the third anniversary date of the agreement or any renewals or extensions thereof as long as such renewals and extensions do not exceed three years.

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

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

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

     (3) The duration of any collective bargaining agreement negotiated under chapter 41.80 RCW shall not exceed one fiscal biennium.

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NEW SECTION
WAC 391-25-037   Special provision -- Higher education faculty.   If there is a valid collective bargaining agreement in effect, no question concerning representation may be raised except during the period not more than ninety nor less than sixty days prior to the expiration date of the agreement; provided that in the event a valid collective bargaining agreement, together with any renewals or extensions thereof, has been or will be in existence for more than three years, then a question concerning representation may be raised not more than ninety nor less than sixty days prior to the third anniversary date or any subsequent anniversary date of the agreement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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NEW SECTION
WAC 391-25-096   Special provision -- State civil service employees.   (1) WAC 391-25-090 is inapplicable to bargaining units of state civil service employees.

     (2) Where an employer claims that an employee organization previously certified as the exclusive bargaining representative of state civil service employees has become defunct or has abandoned representation of a bargaining unit, it may file a petition under WAC 391-25-070 to obtain a determination as to whether the employee organization continues to represent the bargaining unit. Instead of a showing of interest under WAC 391-25-110, the employer shall attach affidavits and other documentation as may be available to it to demonstrate the existence of a good faith belief that the employee organization has become defunct or has abandoned representation of the bargaining unit. The documentation provided under this section shall not include signature documents provided to the employer by employees.

     (3) An employee organization named in a petition filed under this section shall be given a reasonable opportunity to respond and rebut the allegations in the petition. Ongoing activity as exclusive bargaining representative may be demonstrated by evidence showing that the employee organization has been holding meetings of its members, collecting dues, electing or appointing officers and representatives for the purposes of dealing with the employer, processing grievances, negotiating collective bargaining agreements, or similar activities for and on behalf of employees in the bargaining unit.

     (4) If it is determined that the employee organization is defunct or has abandoned its responsibilities for and on behalf of the employees in the bargaining unit, the executive director shall vacate the certification of the employee organization as exclusive bargaining representative. An order issued by the executive director shall be subject to appeal under WAC 391-25-660.

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NEW SECTION
WAC 391-25-136   Special provision -- State civil service employees.   In addition to the information required by WAC 391-25-130, lists of state civil service employees provided in proceedings under RCW 41.06.340 and/or chapter 41.80 RCW shall also contain the job classification and work location of each employee. The employer shall send a copy of the list (excluding employee addresses) to all other parties in the case, at the same time as the list is sent to the agency.

[]


NEW SECTION
WAC 391-25-137   Special provision -- Higher education faculty.   In addition to the information required by WAC 391-25-130, lists of higher education faculty provided in proceedings under chapter 41.76 RCW shall also contain the job classification and work location of each employee.

[]


NEW SECTION
WAC 391-25-197    Special provision–-Higher education faculty.   The description of bargaining unit requirement of WAC 391-25-190 is limited to a single unit per employer under chapter 41.76 RCW.

[]


NEW SECTION
WAC 391-25-216   Special provision -- State civil service employees.   WAC 391-25-210(2) shall not apply to state civil service employees covered by chapter 41.06 RCW. An intervenor may not seek a bargaining unit configuration other than that proposed by the original petition.

[]


NEW SECTION
WAC 391-25-217   Special provision -- Higher education faculty.   (1) The description of bargaining unit requirement of WAC 391-25-210(2) is limited to a single unit per employer under chapter 41.76 RCW.

     (2) The provisions of WAC 391-25-210(3) relating to alternative units or mergers of units are inapplicable to the employer-wide bargaining units under chapter 41.76 RCW.

[]


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

[]


NEW SECTION
WAC 391-25-416   Special provision -- State civil service employees.   As to state civil service employees, authorization documents signed and dated by employees in the bargaining unit no more than six months prior to the filing of the petition shall be honored for purposes of WAC 391-25-410.

[]


NEW SECTION
WAC 391-25-427   Special provision -- Higher education faculty.   The unit determination election procedures in WAC 391-25-420 are inapplicable to the employer-wide bargaining units under chapter 41.76 RCW.

[]


NEW SECTION
WAC 391-25-476   Special provision -- State civil service employees.   The requirement in WAC 391-25-470(2) that lists of voters be surrendered shall not apply to elections concerning state civil service employees covered by chapter 41.06 RCW. Upon request, the agency shall provide the parties involved in the election with the names of employees who voted.

[]


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

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

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

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

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

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

[]

OTS-5770.6


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

     (4) Special provisions relating to RCW 41.06.340 and/or chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

     (5) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.

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

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


NEW SECTION
WAC 391-35-026   Special provision -- State civil service employees.   In addition to the circumstances described in WAC 391-35-020, bargaining units of state civil service employees may be modified under this section until RCW 41.80.050 and 41.80.080 take effect on July 1, 2004.

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

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

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

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

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

     (b) All of the unit determination criteria set forth in RCW 41.80.070 shall be applicable to proceedings under this section. The history of bargaining in a unit configuration that is fragmentary and/or was based on narrower considerations shall not preclude creation of a "perfected" bargaining unit as to which a community of interests is demonstrated with regard to:

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

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

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

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

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

[]


NEW SECTION
WAC 391-35-326   Special provision--State civil service employees.   Confidential exclusions for state civil service employees shall be determined under RCW 41.80.005(4).

[]


NEW SECTION
WAC 391-35-327   Special provision -- Higher education faculty.   Confidential exclusions for higher education faculty employees shall be determined under RCW 41.76.005 (5) and (10).

[]


NEW SECTION
WAC 391-35-346   Special provision--State civil service employees.   Supervisor exclusions for state civil service employees shall be determined under RCW 41.80.005(13) and 41.80.070(1).

[]


NEW SECTION
WAC 391-35-347   Special provision -- Higher education faculty.   Administrator exclusions for higher education faculty employees shall be determined under RCW 41.76.005 (5) and (9).

[]


NEW SECTION
WAC 391-35-356   Special provision -- State civil service employees.   (1) For employees covered by chapter 41.06 RCW who work less than full-time, it shall be presumptively appropriate to include those employees in the same bargaining unit with full-time employees performing similar work.

     (2) The presumption set forth in this section is intended to avoid excessive fragmentation and a potential for conflicting work jurisdiction claims which would otherwise exist in separate units of full-time and less than full-time employees.

     (3) The presumption set forth in this section shall be subject to modification by adjudication.

[]

OTS-5771.3


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

     (((2))) (3) Special provisions relating to chapter 28B.52 RCW (Collective Bargaining -- Academic Personnel in Community Colleges) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

     (4) Special provisions relating to RCW 41.06.340 and/or chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

     (5) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.

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

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


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

[]

OTS-5772.3


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

WAC 391-55-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission relating to the resolution of impasses occurring in collective bargaining under all chapters of the Revised Code of Washington (RCW) administered by the commission. The provisions of this chapter should be read in conjunction with the provisions of:

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

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

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

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

     (5) Chapter 391-65 WAC, which regulates grievance arbitration proceedings.

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, § 391-55-001, filed 6/22/01, effective 8/1/01; 99-14-060, § 391-55-001, filed 7/1/99, effective 8/1/99. 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), § 391-55-001, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-002   Sequence and numbering of rules -- Special provisions.   This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule numbered as follows:

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

     Special provisions relating to bargaining units eligible for interest arbitration ((for bargaining units under chapter 41.56 RCW)) are set forth beginning with WAC 391-55-200.

     (2) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter. Special provisions relating to fact finding are set forth beginning with WAC 391-55-300.

     (3) Special provisions relating to chapter 28B.52 RCW (Collective Bargaining--Academic Personnel in Community Colleges) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

     (4) Special provisions relating to chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

     (5) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 99-14-060, § 391-55-002, filed 7/1/99, effective 8/1/99; 96-07-105, § 391-55-002, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-055 (Order 88-08), § 391-55-002, filed 5/31/88. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-035 (Order 83-05), § 391-55-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), § 391-55-002, filed 9/30/80, effective 11/1/80.]


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

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

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

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

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

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

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

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

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

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

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

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

OTS-5962.3


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

WAC 391-65-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission relating to arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement under all chapters of the Revised Code of Washington (RCW) administered by the commission. The provisions of this chapter should be read in conjunction with the provisions of:

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

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

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

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

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

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, § 391-65-001, filed 6/22/01, effective 8/1/01; 99-14-060, § 391-65-001, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-050 (Order 80-9), § 391-65-001, filed 9/30/80, effective 11/1/80.]


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

WAC 391-65-002   Sequence and numbering of rules -- Special provisions.   This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule numbered as follows:

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

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

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

     (4) Special provisions relating to chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.

     (5) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 99-14-060, § 391-65-002, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-036 (Order 83-06), § 391-65-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-050 (Order 80-9), § 391-65-002, filed 9/30/80, effective 11/1/80.]


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

WAC 391-65-110   Grievance arbitration -- Conduct of proceedings.   The arbitrator assigned or selected shall conduct the arbitration proceedings in the manner provided in the collective bargaining agreement under which the dispute arises, subject to the following:

     (1) Arbitration cases handled by members of the agency staff shall be kept in the public files of the agency.

     (2) The services of a member of the commission staff as arbitrator shall be subject to interruption for reassignment of the staff member to other functions of the agency having a higher priority.

     (3) Except as provided in subsections (1) and (2) of this section, all arbitrators shall maintain compliance with the "Code of Professional Responsibility for Arbitrators of Labor-Management Disputes" ((adopted by the National Academy of Arbitrators, the American Arbitration Association and)) as last amended with approval of the Federal Mediation and Conciliation Service ((on May 29, 1985)).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125. 99-14-060, § 391-65-110, filed 7/1/99, effective 8/1/99; 96-07-105, § 391-65-110, 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. 80-14-050 (Order 80-9), § 391-65-110, filed 9/30/80, effective 11/1/80.]

OTS-5963.1


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

WAC 391-95-001   Scope -- Contents -- Other rules.   This chapter governs proceedings before the public employment relations commission on disputes concerning the right of nonassociation under the union security provisions of certain ((statutes)) chapters of the Revised Code of Washington (RCW) administered by the commission. The provisions of this chapter should be read in conjunction with:

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

     (a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-95-110;

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

     (c) WAC 10-08-211, which is replaced by detailed requirements in WAC 391-95-270 and 391-95-290; and

     (d) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-95-170.

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

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

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

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

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

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, § 391-95-001, filed 6/22/01, effective 8/1/01; 00-14-048, § 391-95-001, filed 6/30/00, effective 8/1/00; 96-07-105, § 391-95-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59 and 53.18 RCW. 90-06-075, § 391-95-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), § 391-95-001, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 00-14-048, filed 6/30/00, effective 8/1/00)

WAC 391-95-010   Notice of union security obligation.   (1) Whenever a collective bargaining agreement negotiated under the provisions of chapter 28B.52, 41.56, ((or)) 41.59, 41.76, or 41.80 RCW contains a union security provision, the exclusive bargaining representative shall provide each affected employee with a copy of the collective bargaining agreement, and shall specifically advise each employee of his or her obligations under that agreement, including informing the employee of the amount owed, the method used to compute that amount, when such payments are to be made, and the effects of a failure to pay.

     (2) Disputes concerning whether an employee is within the bargaining unit covered by a union security provision shall be resolved through unit clarification proceedings under chapter 391-35 WAC, and shall not be a subject of proceedings under this chapter.

     (3) Disputes concerning interpretation or application of a union security provision shall be resolved through grievance arbitration or other procedures for interpretation or application of the collective bargaining agreement, and shall not be a subject of proceedings under this chapter.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, § 391-95-010, filed 6/30/00, effective 8/1/00; 90-06-075, § 391-95-010, 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), § 391-95-010, 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), § 391-95-010, filed 9/30/80, effective 11/1/80.]

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