WSR 03-08-070

EXPEDITED RULES

MARINE EMPLOYEES' COMMISSION


[ Filed April 1, 2003, 8:40 a.m. ]

     Title of Rule: WAC 316-45-001 Scope -- Contents -- Other rules, 316-45-003 Unfair labor practices -- Defined, 316-45-010 Complaint charging unfair labor practices -- Who may file, 316-45-020 Unfair labor practice complaint -- Time limitations, 316-45-030 Complaint -- Number of copies -- Filing -- Service, 316-45-050 Contents of complaint charging unfair labor practices, 316-45-110 Initial processing of complaint, 316-45-130 Examiner -- Who may act, 316-45-150 Authority of examiner, 316-45-170 Notice of hearing, 316-45-190 Answer -- Filing and service, 316-45-210 Answer -- Contents and effect of failure to answer, 316-45-230 Amendment of answer, 316-45-250 Motion to make complaint more definite and certain, 316-45-270 Hearings -- Nature and scope, 316-45-290 Briefs and proposed findings, 316-45-310 Unfair labor practice -- Decision, 316-45-330 Withdrawal or modification of examiner decision, 316-45-350 Petition for review of examiner decision, 316-45-370 Filing and service of cross-petition for review, 316-45-390 Commission action, 316-45-410 Unfair labor practice remedies, 316-45-430 Motion for temporary relief, 316-45-550 Collective bargaining -- Mandatory subjects, 316-55-001 Scope -- Contents -- Other rules, 316-55-005 Impasse procedures -- Duty to adopt, 316-55-010 Resolution of impasses -- Request for mediation, 316-55-020 Mediation request -- Information required, 316-55-030 Impasse resolution -- Appointment of mediator, 316-55-070 Impasse resolution -- Function of mediator, 316-55-090 Impasse resolution -- Confidential nature of function, 316-55-110 Impasse resolution -- Dispute resolution panel, 316-55-120 Impasse resolution -- Expenses, 316-55-130 Impasse resolution -- Disclosure, 316-55-150 Impasse resolution -- Vacancies, 316-55-160 Fact finding, 316-55-170 Waiver of mediation and fact finding, 316-55-500 Binding arbitration, 316-55-505 Final offer, 316-55-510 Single arbitrator, 316-55-515 Arbitration panel, 316-55-517 Arbitration panel chairman -- Qualifications -- Replacement, 316-55-525 Conduct of interest arbitration, 316-55-600 Central filing of agreements, 316-55-700 Result of collective bargaining agreements -- If budget or fares exceeded, 316-55-710 Collective bargaining agreements stayed, and 316-55-730 Commission action.

     Purpose: To make housekeeping changes and simplify/reduce language.

     Statutory Authority for Adoption: RCW 34.05.230.

     Summary: Makes housekeeping changes and emphasizes "plain English" in chapters 316-45 and 316-55 WAC.

     Reasons Supporting Proposal: In compliance with Executive Order 97-02, these rules were reviewed and clarification changes made to these rules.

     Name of Agency Personnel Responsible for Drafting: Kathy Marshall, Evergreen Plaza Building, 711 Capitol Way South, Olympia, (360) 586-6354; Implementation and Enforcement: John D. Nelson, Chairman, Evergreen Plaza Building, 711 Capitol Way South, Olympia, (360) 586-6354.

     Name of Proponent: Marine Employees' Commission, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: Makes housekeeping changes and emphasizes "plain" English. The purpose and anticipated effect is to update the rules information and make the rules clearer and easier to understand.

     Proposal Changes the Following Existing Rules: WAC 316-45-001, 316-45-003, 316-45-010, 316-45-030, 316-45-050, 316-45-110, 316-45-130, 316-45-150, 316-45-170, 316-45-190, 316-45-210, 316-45-230, 316-45-250, 316-45-270, 316-45-290, 316-45-310, 316-45-330, 316-45-350, 316-45-370, 316-45-390, 316-45-430, 316-45-550, 316-55-001, 316-55-005, 316-55-010, 316-55-020, 316-55-130, 316-55-150, 316-55-160, 316-55-170, 316-55-500, 316-55-505, 316-55-510, 316-55-515, 316-55-525, 316-55-600, 316-55-700, 316-55-710, and 316-55-730, plain English changes; WAC 316-45-020, revises and makes more clear unfair labor practices; WAC 316-45-410, revises and makes more clear unfair labor practice remedies; WAC 316-55-110, revises and makes more clear dispute resolution panel; WAC 316-55-120, plain English changes, revises and makes more clear impasse resolution expenses; and WAC 316-55-517, changes case list requirement from five years to two years; adds requirement of three arbitration awards; plain English changes.

NOTICE

     THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THE USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Kathy Marshall, Marine Employees' Commission, P.O. Box 40902, Olympia, WA 98504-0902 , AND RECEIVED BY June 2, 2003.


March 31, 2003

Kathy J. Marshall

Administrator

OTS-6213.1


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-001   Scope -- Contents -- Other rules.   This chapter ((governs)) directs proceedings before the marine employees' commission on complaints charging unfair labor practices. The provisions of this chapter should be read in conjunction with the provisions of:

     (1) Chapter 10-08 WAC, which contains rules ((promulgated)) adopted by the chief administrative law judge ((governing)) outlining the conduct of adjudicative proceedings under chapter 316-45 WAC, except:

     (a) WAC 10-08-035, which is ((supplanted)) replaced by detailed requirements in WAC 316-45-050;

     (b) WAC 10-08-211, which is ((supplanted)) replaced by WAC 316-45-350 and 316-45-370; and

     (c) WAC 10-08-230, which is ((supplanted)) replaced by WAC 316-45-070, 316-45-090, and 316-45-260.

     (2) Chapter 316-02 WAC, which ((contains)) lists rules of practice and procedure ((applicable)) which apply to all types of proceedings before the marine employees' commission.

     (3) Chapter 316-25 WAC, which ((contains)) lists rules ((relating to)) about proceedings on petitions for investigation of questions concerning representation of ferry system employees.

     (4) Chapter 316-35 WAC, which ((contains)) lists rules ((relating to)) about petitions for clarification of existing ferry system employees' bargaining units.

     (5) Chapter 316-55 WAC, which ((contains)) lists rules ((relating to)) about resolution of impasses occurring in ferry system collective bargaining.

     (6) Chapter 316-65 WAC, which ((contains)) lists rules ((relating to)) about arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement in the Washington state ferry system.

     (7) Chapter 316-75 WAC, which ((contains)) lists rules ((relating to)) about determination of union security disputes arising between ferry system employees and employee organizations certified or recognized as their bargaining representative.

     (8) Chapter 316-85 WAC, which ((contains)) lists rules ((relating to)) about surveys of compensation, benefits and conditions of employment required by chapter 47.64 RCW.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-001, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-001, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 92-22-044, filed 10/27/92, effective 11/27/92)

WAC 316-45-003   Unfair labor practices -- Defined.   (1) It is an unfair labor practice for ferry system management or its representatives:

     (a) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by chapter 47.64 RCW;

     (b) To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it: Provided, That subject to rules made by the commission pursuant to RCW 47.64.130 and 47.64.280 an employer ((shall)) is not ((be)) prohibited from permitting employees to confer with it or its representatives or agents during working hours without loss of time or pay;

     (c) To encourage or discourage membership in any employee organization by discrimination in regard to hiring, tenure of employment, or any term or condition of employment, but nothing contained in this subsection prevents an employer from requiring, as a condition of continued employment, payment of periodic dues and fees uniformly required to an exclusive bargaining representative pursuant to RCW 47.64.160: Provided, That nothing prohibits ferry system management from agreeing to obtain employees by referral from a lawful hiring hall operated by or participated in by a labor organization;

     (d) To discharge or otherwise discriminate against an employee because ((he)) the employee has filed charges or given testimony concerning subjects covered by chapter 47.64 RCW;

     (e) To refuse to bargain collectively with the representatives of its employees.

     (2) It is an unfair labor practice for an employee organization:

     (a) To restrain or coerce (i) employees in the exercise of the rights guaranteed by this chapter: Provided, That this paragraph does not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein, or (ii) an employer in the selection of ((his)) its representatives for the purposes of collective bargaining or the adjustment of grievances;

     (b) To cause or attempt to cause an employer to discriminate against an employee in violation of subsection (1)(c) of this section;

     (c) To refuse to bargain collectively with an employer, when it is the representative of employees subject to RCW 47.64.170.

     (3) The rights guaranteed by chapter 47.64 RCW include:

     (a) The right of self-organization, including the right to form, join, or assist a labor organization;

     (b) The right to bargain collectively through a representative freely chosen by the employees themselves;

     (c) The right to engage in other concerted activities for collective bargaining or for mutual aid or protection; ((or)) and

     (d) The right to refrain from concerted activity. The right to refrain from concerted activities is limited to the extent that lawful union security agreements may be enforced.

     (4) The expression of any view, argument, or opinion, or the dissemination thereof to the public, whether in written, printed, graphic, or visual form, ((shall)) will not constitute or be evidence of an unfair labor practice under any of the provisions of this chapter, if the expression contains no threat of reprisal or force or promise of benefit.

[Statutory Authority: RCW 47.64.280. 92-22-044, § 316-45-003, filed 10/27/92, effective 11/27/92. Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-003, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-010   Complaint charging unfair labor practices -- Who may file.   A complaint charging that any person has ((engaged)) taken part in or is ((engaging)) taking part in an unfair labor practice, ((hereinafter referred to as)) from now on called a "complaint," may be filed by any employee, group of employees, employee organization, the department of transportation, or their agents.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-010, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-010, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 92-22-044, filed 10/27/92, effective 11/27/92)

WAC 316-45-020   Unfair labor practice complaint -- Time limitations.   (1) ((Unless otherwise specified in statute or rule, a complaint charging an unfair labor practice may not be filed later than one hundred eighty calendar days after the party filing such complaint knew or should have known of the event, activity, or practice alleged to be violations of protected rights under RCW 47.64.130 and WAC 316-45-003. For the purpose of computing timeliness of complaints, each event, activity, or practice in a series of identical or similar practices may be construed as a separate instance: Provided, That the commission shall only consider those events, activities, or practices which have occurred no earlier than one hundred eighty days prior to the filing of the complaint unless the statute of limitations are deemed to be tolled pursuant to subsection (3) of this section.

     (2) Where the event, activity, or practice is alleged to be a violation of a collective bargaining agreement in addition to violating rights protected by chapter 47.64 RCW, and the complainant chooses also to file a request for grievance arbitration pursuant to RCW 47.64.150, the statute of limitations herein run only after the remedies available in the contractual grievance procedures have been exhausted. The commission may accept the final resolution of the grievance arbitration process and defer to that decision. If the commission determines that the grievance procedure did not satisfactorily resolve the entire charge of unfair labor practice, the commission may resume processing the remaining unfair labor practice issue(s).)) A complaint charging an unfair labor practice may not be filed later than one hundred eighty calendar days after the party filing the complaint knew or should have known of the event, activity, or practice alleged to be a violation of RCW 47.64.130, or the regulations implementing that statute. For the purpose of computing timeliness, each event, activity, or practice in an alleged series of events, activities or practices will be construed as separate, provided that only those events, activities or practices occurring within the one hundred eighty days before the filing of the complaint may be remedied by the commission.

     (2) Where an alleged violation of RCW 47.64.130, or the regulations implementing that statute, is also alleged to be a violation of a collective bargaining agreement and the matter is being actively pursued through the grievance and arbitration procedure of the collective bargaining agreement, the commission may hold the unfair labor practice in abeyance pending the outcome of the grievance and arbitration procedure. If the commission then determines that the grievance and arbitration procedure has satisfactorily resolved the entire matter or any portion of it, the commission may defer to that decision and dismiss the entire unfair labor practice complaint or that portion of it that has been resolved to the satisfaction of the commission. Otherwise, the commission will resume processing the unfair labor practice complaint or any portion of it that has not been resolved to the satisfaction of the commission.

     (3) The limitation period specified in subsection (((2))) (1) of this section may be tolled where the charging party did not have actual or constructive knowledge of the alleged unfair labor practice. In the ((instance that)) case where the respondent has engaged in fraudulent concealment and/or deception as to its unlawful conduct, the commission may determine the limitation tolled, both as to the filing of the complaint and as to the remedy.

[Statutory Authority: RCW 47.64.280. 92-22-044, § 316-45-020, filed 10/27/92, effective 11/27/92.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-030   Complaint -- Number of copies -- Filing -- Service.   Charges ((shall)) must be in writing, ((in the form of)) on a complaint of unfair labor practices form. The original copy of the complaint ((shall)) must be filed with the commission at its Olympia office. The party filing the complaint ((shall)) must also serve a copy on each party named as a respondent.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-030, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-030, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-050   Contents of complaint charging unfair labor practices.   Each complaint ((shall)) must contain, in separate numbered paragraphs:

     (1) The name and address of the party filing the complaint, ((hereinafter referred to as)) from now on called the complainant, and the name, address and telephone number of its principal representative.

     (2) The name(s) and address(es) of the person(s) charged with engaging in, or having engaged in, unfair labor practices, ((hereinafter referred to as)) from now on called the respondent(s), and, if known, the names, addresses and telephone numbers of the principal representatives of the respondent(s).

     (3) Clear and concise statements of the facts ((constituting)) about the alleged unfair labor practices, including times, dates, places and participants in occurrences.

     (4) A listing of the subsections of RCW 47.64.130 and/or WAC 316-45-003 alleged to have been violated, along with a statement of which alleged facts provide evidence of that alleged violation of the identified subsections.

     (5) A statement of the remedy ((sought)) wanted by the complainant.

     (6) The signature and, if any, the title of the person filing the complaint.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-050, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-050, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-110   Initial processing of complaint.   The commission or an assigned commissioner ((shall)) will determine whether the facts as alleged may constitute an unfair labor practice within the meaning of RCW 47.64.130 and WAC 316-45-003. If it is determined that the alleged facts ((as alleged)) do not, as a matter of law, constitute a violation, the commission or commissioner ((shall)) will issue and ((cause to be served)) will serve on all parties an order of dismissal ((containing)) explaining the reasons ((therefor)) for the dismissal; otherwise, the commission or commissioner ((shall cause)) will have the contents of the charge ((to be)) issued and served as a complaint of unfair labor practices. An order of dismissal issued ((pursuant to)) in accordance with this section by an examiner other than the commission ((shall)) will be subject to a petition for review as provided in WAC 316-45-350.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-110, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.260 and chapter 47.64 RCW. 88-10-019 (Order 88-1), § 316-45-110, filed 4/29/88. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-110, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-130   Examiner -- Who may act.   The examiner may be the commission or a member of the commission designated by the commission. ((Upon notice to)) After notifying all parties, an examiner may be substituted for the examiner previously presiding.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-130, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-130, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-150   Authority of examiner.   The examiner ((shall have)) has the authority:

     (1) To administer oaths and affirmations;

     (2) To issue subpoenas in the name of the commission;

     (3) To rule upon objections to evidence and offers of proof, receive relevant evidence and to exclude irrelevant, immaterial or unduly repetitious evidence;

     (4) To question witnesses;

     (5) To regulate the time, place, and course of the hearing;

     (6) To dispose of procedural requests or other similar matters;

     (7) To hold conferences for the settlement, simplification or adjustment of issues;

     (8) To make and issue findings of fact, conclusions of law and orders;

     (9) To take any other action authorized by these rules.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-150, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-150, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-170   Notice of hearing.   ((Notwithstanding)) WAC 316-02-170 aside, at least twenty days ((prior to)) before a hearing, the examiner ((shall)) will issue and ((cause to be served)) serve on the parties a notice of hearing at a specific time and place ((specified therein)). ((Attached to the notice of hearing shall be a copy of the complaint as approved under WAC 316-45-110.)) A copy of the complaint (as approved under WAC 316-45-100) will be attached to the notice of hearing. The notice of hearing ((shall)) will specify the date for the filing of an answer, which ((shall)) must be not less than ten days ((prior to)) before the date set for hearing. ((Any such)) Notices of hearing may be amended or withdrawn before the close of the hearing.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-170, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-170, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-190   Answer -- Filing and service.   Before or on the date specified in the hearing notice, each respondent ((shall, on or before the date specified therefor in the notice of hearing,)) will file ((with the examiner)) the original copy of its answer to the complaint with the commission, and ((shall)) serve a copy on the complainant.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-190, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-190, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-210   Answer -- Contents and effect of failure to answer.   An answer filed by a respondent ((shall)) must specifically admit, deny or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent ((shall so)) will state so, ((such)) with that statement operating as a denial. ((The failure of)) If a respondent fails to file an answer, or ((the failure)) fails to specifically deny or explain in the answer a fact alleged in the complaint ((shall,)) (except for good cause shown), the respondent will be deemed to ((be an admission that)) have admitted the facts ((is)) true as alleged in the complaint((, and as a waiver of the respondent of)). The respondent will be deemed to have waived a hearing as to the admitted facts ((so admitted)).

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-210, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-210, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-230   Amendment of answer.   The respondent may amend its answer at any time prior to the hearing. During or after the hearing ((or subsequent thereto, it may amend its answer in any case where the complaint has been amended, within such period as may be fixed by the examiner or the commission. Whether or not the complaint has been amended, the answer may, in the discretion of the examiner or the commission, be amended upon motion under such terms and within such period as may be fixed by the examiner or the commission)), the answer may be amended under such terms as are set by the examiner.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-230, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-230, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-250   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 a motion requesting an order directing that the complaint be made more definite and certain. ((Such)) The motion ((shall)) will be filed with the examiner and served by the ((moving party)) respondent on the complainant and on any other parties. The filing of ((such)) this motion ((will)) extends the time during which the respondent must file and serve an answer until ((such)) the date ((as)) the commission or examiner ((may)) sets. The commission or examiner may require the complainant to file and serve a statement supplying information necessary to make the complaint definite and certain.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-250, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-250, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-270   Hearings -- Nature and scope.   Hearings ((shall)) will be public and ((shall be)) are adversary in nature((,)). Hearings are limited to matters concerning the unfair labor practices alleged in the complaint. The complainant ((shall)) will prosecute its own complaint and ((shall have)) has the burden of proof. It ((shall be the duty of)) is the examiner's duty to ((inquire fully into)) ask about the full facts ((as to)) of whether the respondent has ((engaged in or is engaging)) taken part or is taking part in an unfair labor practice ((so as)), to obtain a clear and complete factual record on which the examiner and commission may ((discharge)) fulfill their duties under these rules((: Provided, however, That such duty of)). The examiner's ((shall)) duty will not be ((construed)) seen as authorizing or requiring the examiner to ((undertake the responsibilities of the complainant with respect to the prosecution of its complaint or of the respondent with respect to the presentation of its)) prosecute the complainant's complaint or present the respondent's defense.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-270, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-270, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-290   Briefs and proposed findings.   Any party ((shall be)) is 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, if requested before the close of the hearing. The commission or ((assigned commissioner)) examiner may ((direct)) require the filing of briefs when he or she ((deems such filing warranted by)) considers filing necessary due to the nature of the proceeding or of its particular issues ((therein)). The original copy of a brief or proposed findings ((shall be)), conclusion and order is filed with the commission ((or commissioner)) and a copy ((shall)) must be served ((upon)) on all other parties.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-290, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-290, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-310   Unfair labor practice -- Decision.   After the ((close of the hearing and the filing of all briefs)) hearing is over and all briefs are filed, the examiner ((shall)) makes a decision containing findings of fact, conclusions of law and order. If the examiner is a single member of the commission, he/she ((shall)) files the original decision with the commission and ((shall cause)) serves a copy ((thereof to be served)) on ((each of)) the parties. Any party may file a petition for review ((thereof)) with the commission. If the full commission is the examiner, the decision and order ((shall be)) are entered and ((shall be)) served on all parties and the commission decision ((shall be)) is final and binding upon the parties in accordance with RCW 47.64.280.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-310, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-310, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-330   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 twenty days ((following the issuance thereof)) after issuing the decision, if any mistake is discovered ((therein)) or ((upon)) on grounds of newly discovered evidence which could not with reasonable ((diligence)) care have been discovered and produced at the hearing((: Provided, however, That)). This section ((shall be inoperative)) does not apply after the filing of a petition for review with the commission.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-330, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-330, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-350   Petition for review of examiner decision.   The examiner's findings of fact, conclusions of law and order ((shall be subject)) are open 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 issued)) after the order's date of issue by the examiner. The original petition for review ((shall)) is to be filed with the commission at its Olympia office, and the party filing the petition ((shall)) must serve a copy on each of the other parties to the proceeding. ((Such)) A petition for review ((shall)) must 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)) must 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)) wants the commission to consider. Other parties to the proceeding ((shall)) will have fourteen days ((following)) after the date on which they are served with a copy of ((such)) the petition for review and accompanying brief or written argument to file a responsive brief or written argument. The commission or its ((designee)) appointee may, for good cause, grant any party an extension of the time for filing of its brief or written argument. ((In the event)) If 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)) will automatically become the findings of fact, conclusions of law and order of the commission and ((shall)) will have the same force and effect as if issued by the commission.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-350, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-350, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-370   Filing and service of cross-petition for review.   Where a petition for review has been timely filed under WAC 316-45-350, ((any)) a party who has not previously filed a petition for review may, within seven days after the last date on which a petition for review may be filed, file a cross-petition for review. ((Such)) The cross-petition ((shall)) will be filed and served in the same ((manner)) way as a petition for review. ((Upon the filing of a cross-petition for review, the deadlines for the submission of briefs or written arguments shall be extended by seven days.)) Deadlines for the submission of briefs or written arguments are extended by seven days when a cross-petition for review has been filed.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-370, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-370, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-390   Commission action.   On its own motion, or on the filing of a petition for review, the entire record in the proceeding ((shall be)) is transferred to the commission, and ((thereafter)) from then on all motions and arguments ((shall be)) are directed to the commission. The commission may request the parties ((to)) appear before it to make oral arguments ((as to)) about certain ((of the)) issues or all of the issues in the matter. The commission ((shall)) will, on the basis of the record and any briefs or arguments submitted to it on review, determine the matter.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-390, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-390, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-410   Unfair labor practice remedies.   If upon the preponderance of evidence the commission or ((commissioner shall)) examiner will conclude that any person named in the complaint has engaged in or is engaging in any unfair labor practice, then the ((commission)) examiner or commissioner ((shall)) will state its findings of fact and cause to be served on such person an order requiring him or her to cease and desist from such unfair labor practice and to take such affirmative and corrective action as necessary to effectuate the policies of RCW 47.64.005 and 47.64.006, including but not limited to reinstatement of employees with or without back pay. In calculating back pay orders, the following ((shall)) will apply:

     (1) Employee(s) reinstated to employment with back pay ((shall)) will have deducted from any amount due an amount equal to any earnings such employee(s) may have received during the period of the violation in substitution for the terminated employment, calculated on a quarterly basis.

     (2) Employee(s) reinstated to employment with back pay ((shall)) will have deducted from any amount due an amount equal to any unemployment compensation benefits such employee(s) may have received during the period of the violation, and the employer ((shall)) will provide evidence to the commission that such amount has been repaid to the Washington state department of employment security as credit to the benefit record of the employee(s).

     (3) The commission has the discretion to make money amounts ((due shall be)) subject to interest at the rate which would accrue on a civil judgment of the Washington state courts, from the date of the violation to the date of payment.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-410, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-410, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-430   Motion for temporary relief.   In addition to the remedies available under WAC 316-45-410, any complainant in an unfair labor practice proceeding may file a motion requesting that the commission seek appropriate temporary relief through the superior court, and all such motions ((shall)) will be processed as provided in this section.

     (1) The complainant ((shall)) will, at the time its complaint is filed or as soon thereafter as facts giving rise to the request for temporary relief become known, provide written notice to the commission of its intent to make a motion for temporary relief and ((shall)) will, at the same time, serve a copy of such notice on each of the other parties to the proceedings.

     (2) ((Upon the filing of)) When a notice of intent to make a motion for temporary relief is filed, the commission ((shall)) will expedite the processing of the matter under WAC 316-45-110.

     (3) After the ((determination of the)) commission determines that the complaint states a cause of action, any complainant ((desiring)) wanting temporary relief may file with the commission a motion for temporary relief together with affidavits ((as to)) about the risk of irreparable harm and the adequacy of legal remedies, and ((shall)) serve a copy of ((such)) the motion and affidavits on all other parties to the proceedings. The other parties ((shall)) will have seven calendar days ((thereafter)) afterward to file and serve counter-affidavits.

     (4) The commission ((shall)) determines whether an injunction pendente lite should be sought. ((In)) When making ((such)) that determination, the commission ((shall)) adheres to the following policy:


"The name and authority of the marine employees' commission ((shall)) will not be invoked in connection with a request for temporary relief prior to the completion of administrative proceedings under WAC 316-45-010, 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 commission with the assistance of the attorney general, ((shall)) will petition the superior court of Thurston county or the county 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)) obtained, the complaint which ((has been)) was the basis for such temporary relief ((shall)) will be heard expeditiously and the case ((shall be)) given priority over all other cases except cases of like character.

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

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-430, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-430, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-118, filed 12/20/89, effective 1/20/90)

WAC 316-45-550   Collective bargaining -- Mandatory subjects.   The ((commission deems the)) determination ((as to)) of whether a particular subject is mandatory or nonmandatory ((to be)) is a question of law and fact to be determined by the commission((, and which)). The issue is not subject to waiver by the parties by their action or inaction. It is the commission's policy ((of the commission)) that a party ((which engages)) taking part in collective bargaining with respect to any particular issue does not and cannot ((thereby)) confer the status of a mandatory subject on a nonmandatory subject.

[Statutory Authority: RCW 47.64.280 and 34.05.250. 90-01-118, § 316-45-550, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.260 and chapter 47.64 RCW. 88-10-019 (Order 88-1), § 316-45-550, filed 4/29/88. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), § 316-45-550, filed 3/20/84.]

OTS-6212.2


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-001   Scope -- Contents -- Other rules.   This chapter ((governs)) directs activities of and proceedings before the marine employees' commission relating to the resolution of impasses occurring in collective bargaining. This chapter does not ((contemplate)) reflect, and does not provide procedures for, direct involvement of the commission in the investigation and/or settlement of contested cases between parties. The assistance rendered by the commission to the parties at impasse during collective bargaining, and the commission's review of compliance with fiscal limitations are not adjudicatory in nature and are not governed by RCW 34.05.425 or 34.12.020 or chapter 10-08 WAC. Such assistance and/or review of compliance are ((deemed)) considered to be ministerial acts prescribed by RCW 47.64.170 through 47.64.240. However, ((insofar as)) because the collective bargaining process is related to bargaining unit recognition and clarification, to fair representation of ferry employees, to alleviation of ferry employee grievances, and to fact-finding survey procedures and requests, the ((provisions)) terms of this chapter should be read ((in conjunction)) together with the ((provisions)) terms of:

     (1) Chapter 316-02 WAC, which ((contains)) lists rules of practice and procedure applicable to all types of proceedings before the marine employees' commission.

     (2) Chapter 316-25 WAC, which ((contains)) lists rules ((relating to)) about proceedings on petitions for investigation of questions concerning representation of ferry system employees.

     (3) Chapter 316-35 WAC, which ((contains)) lists rules ((relating to)) about proceedings on petitions for clarification of an existing ferry system employees' bargaining unit.

     (4) Chapter 316-45 WAC, which ((contains)) lists rules ((relating to)) about proceedings on complaints charging unfair labor practices in the Washington state ferry system.

     (5) Chapter 316-65 WAC, which ((contains)) lists rules ((relating to)) about arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement in the Washington state ferry system.

     (6) Chapter 316-75 WAC, which ((contains)) lists rules ((relating to)) about determination of union security disputes arising between ferry system employees and employee organizations certified or recognized as their bargaining representative.

     (7) Chapter 316-85 WAC, which ((contains)) lists rules ((relating to)) about fact-finding surveys of compensation, benefits, and conditions of employment.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-001, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-001, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-005   Impasse procedures -- Duty to adopt.   As the first step in the performance of their duty to bargain, the ferry system management and the ferry employee organization ((shall)) will endeavor to agree upon impasse procedures. ((Said)) Such agreement shall provide for implementation of those impasse procedures not later than July 1((st)) in each odd-numbered year following enactment of the biennial budget. If the parties fail to agree upon impasse procedures by July 1((st)), the impasse procedures provided in WAC 316-55-010 through 316-55-600 ((shall)) will apply.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-005, filed 3/2/90, effective 4/2/90.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-010   Resolution of impasses -- Request for mediation.   ((In the absence of an)) When there is no impasse agreement between the parties, or ((the failure of)) either party fails to utilize the procedures of ((such)) the impasse agreement by August 1((st)) in each odd-numbered year, either party may make a request in writing to the marine employees' commission for mediation. A copy of ((such)) the request ((shall)) is to be served ((upon)) on the other party.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-010, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-010, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-020   Mediation request -- Information required.   The party or parties requesting mediation ((shall)) must provide the following information to the commission:

     (1) The name and address of the department and the name, address and telephone number of the department's principal representative in the negotiations;

     (2) The name and address of the employee organization and the name, address and telephone number of the employee organization's principal representative in the negotiations;

     (3) A clear and concise statement of the disputed issues and the parties' positions ((in relation thereto));

     (4) A description of the size and composition of the bargaining unit involved;

     (5) The expiration date of any collective bargaining agreement then in effect or recently expired;

     (6) Any other relevant information; and

     (7) The name, signature, and capacity of each officer, agent, attorney, or other individual acting for the filing party or parties.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-020, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-020, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-030   Impasse resolution -- Appointment of mediator.   ((Upon the filing of)) When a request for mediation is filed, the commission ((shall)) will appoint a qualified, impartial, and disinterested person to ((act)) serve as mediator. If the parties have ((stipulated)) listed the names of one or more persons who are acceptable to both parties as mediator, then the commission shall consider their desires.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-030, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-030, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-070   Impasse resolution -- Function of mediator.   ((It is the function of)) The mediator's function is to bring the parties together to ((effectuate)) reach a settlement of the dispute. The mediator ((shall)) will meet with the parties or their representatives, or both, either jointly or separately, and ((shall)) will take ((such)) appropriate steps ((as the mediator deems appropriate in order)) to aid the parties in voluntarily resolving their differences and ((effecting)) reaching an agreement. The mediator ((shall)) will not compel the parties to agree.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-070, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-070, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-090   Impasse resolution -- Confidential nature of function.   Information disclosed by the parties to the mediator in confidence during the course of mediation ((shall not be divulged)) will not be revealed by the mediator. Mediation meetings ((shall)) will be of an executive, private or nonpublic nature.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-090, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-090, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-110   Impasse resolution -- Dispute resolution panel.   (1) The commission ((shall establish)) will put together and maintain a panel of qualified mediators/arbitrators and ((shall)) will make a list of members of that arbitration panel available to parties for their use in selecting a mediator, a neutral chairman for an arbitration panel, a grievance arbitrator, a fact-finder or an ad hoc interest arbitrator.

     (2) Any person may apply for membership on the panel((; but the commission, in compiling and maintaining a panel of arbitrators, shall require)). Each applicant ((to)) must submit a resume((,)) which includes but is not limited to:

     (a) A ((complete)) list of the applicant's cases in the most recent ((five-year)) two-year period, with dates, names and addresses of parties, issues involved, whether the applicant acted as advocate, mediator, or arbitrator and other pertinent information;

     (b) Three of the applicant's grievance arbitration or interest arbitration awards, which can be provided to the parties selecting an arbitrator.

     (c) Whether or not and in what capacity, within the past five years the applicant has been employed by the department of transportation or by an organization representing employees in the department;

     (((c))) (d) Whether or not and in what capacity within the past five years a close relative of the applicant has been employed by the department or by an organization representing employees in the department.

     (3) ((The commission shall require)) Members of the panel are required to update their resumes ((biennially)) every two years.

     (4) When referring mediators/arbitrators from its dispute resolution panel to the parties, the commission ((shall)) will provide the parties with the background data submitted by the respective mediators/arbitrators in accordance with subsection (2) of this section. However, the commission ((shall)) is not ((be)) responsible for the validity or accuracy of the data ((so)) provided.

     (5) The commission ((shall)) will maintain a log of those persons referred to the parties as a possible mediator or arbitrator or chairman of an arbitration panel under WAC 316-55-515(5), including dates, parties involved in the dispute, issues, whether or not the person was acceptable to the parties, was used as mediator or arbitrator, or was rejected. The log ((shall)) is to be available for public inspection.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-110, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-110, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-120   Impasse resolution -- Expenses.   Each party ((shall)) will pay the expenses of presenting its own case and the expenses and fees of its member, if any, of an arbitration panel. The fees and expenses of a single arbitrator or of the chairman of ((a)) an arbitration panel ((of arbitrators shall)) will be shared equally by the parties. Fees and expenses of witnesses ((shall)) will be paid by the party for whom they testify. Fees and expenses of persons called or subpoenaed by a single arbitrator or a chairman of a panel ((shall)) will be shared equally by the parties. Costs of meeting in a neutral site, of recording and transcription of proceedings, and of other necessary joint activities ((shall)) will be shared equally by the parties.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-120, filed 3/2/90, effective 4/2/90.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-130   Impasse resolution -- Disclosure.   ((Prior to)) Before accepting the appointment, or as soon ((thereafter)) as information ((giving rise to)) raising a problem of appearance of fairness becomes known, a person serving in an impartial capacity in a dispute resolution proceeding under the jurisdiction of the commission ((shall disclose)) must inform to the parties of any circumstances ((likely to)) which may create an appearance of bias or which might disqualify him or her from serving in the impartial capacity. Employment of the person or any member of his or her immediate family by any party ((shall)) will be disqualifying. Each party to the proceeding ((shall)) will immediately notify the commission and the appointee or selectee whether it is willing to waive disqualification. If either party declines to waive the disqualification, the appointment ((shall)) will be vacated.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-130, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-130, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-150   Impasse resolution -- Vacancies.   If any person serving in an impartial capacity in dispute resolution proceedings under the jurisdiction of the commission ((should)) resigns, dies, withdraws, refuses or ((be)) is unable to serve, or ((should be)) is or becomes disqualified to perform the duties of the office, the commission or its ((designee shall)) appointee will declare the office vacant. The vacancy ((shall)) will be filled as provided in these rules.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-150, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-150, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-160   Fact finding.   ((Prior to)) Before collective bargaining, the commission ((shall)) will conduct a salary survey as required by RCW 47.64.220 in the manner and procedure described in chapter 316-85 WAC. The ((commission shall make such other findings of fact as the parties may request)) parties may request the commission make other findings of fact during bargaining or impasse. The obtained salary survey data ((shall be)) is a public document.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-160, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-160, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-170   Waiver of mediation and fact finding.   By mutual agreement, the parties may waive mediation and fact finding and proceed with binding arbitration. ((Such)) This waiver ((shall)) must be in writing and signed by the representatives of the parties. If the parties waive mediation or fact finding, impasse resolution ((shall be continued as provided)) is to continue as described in WAC 316-55-500 et seq.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-170, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-170, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-500   Binding arbitration.   If impasse ((persists)) continues fourteen days after the mediator's ((has been appointed)) appointment, or beyond any other date mutually agreed to by the parties, all impasse items ((shall)) will be submitted to arbitration. That arbitration ((shall)) will be binding upon the parties in accordance with RCW 47.64.240. The parties ((shall)) will notify the commission in writing. ((Such)) This notice ((shall)) must contain:

     (1) The name and address of the department and the name, address and telephone number of the department's principal representative in the negotiations;

     (2) The name and address of the employee organization party to the impasse and the name, address and telephone number of that party's principal representative in the negotiations;

     (3) A clear and concise statement of the disputed issues and the parties' positions ((in relation thereto));

     (4) A description of the size and composition of the bargaining unit involved;

     (5) The expiration date of any collective bargaining agreement ((then)) in effect at the time or recently expired;

     (6) Any other relevant information; and

     (7) The name, signature and capacity of each officer, agent, attorney or other representative acting for the filing party or parties.

     The original notice ((shall)) must be filed with the commission at its Olympia office. The party filing the notice ((shall)) must serve a copy on each of the other parties to the impasse. Amendments to notices ((shall)) must be filed and served in the same manner as the original notice in the proceeding.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-500, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-500, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-505   Final offer.   In addition to the information required in WAC 316-55-500, each party ((shall)) will submit to the other party and to the arbitrator, if ((said)) the arbitrator has been selected ((or impanelled, and to the commission)), within four days of arbitration request, a final offer on the impasse items with proof of service of a copy to the other party. Each party ((shall also)) will submit a copy of a draft of the proposed collective bargaining agreement to the extent to which agreement has been reached ((and)). Each party will also state the name of its selected arbitrator. The parties may continue to negotiate all offers until an agreement is reached or a decision rendered by an arbitrator or panel of arbitrators. Unless clearly indicated otherwise ((by context)), the word arbitrator ((shall)) will mean a single arbitrator or a panel of arbitrators impanelled in accordance with RCW 47.64.240 (4) and (5) and WAC 316-55-515.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-505, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-505, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-510   Single arbitrator.   The two parties may agree to submit their dispute to a single arbitrator. The full costs of arbitration under this procedure ((shall)) will be shared equally by the parties to the dispute.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-510, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-510, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-515   Arbitration panel.   If the parties cannot agree on an arbitrator within four days, ((a)) an arbitration panel consisting of three members ((shall)) will be appointed in the following manner:

     (1) One member ((shall)) will be appointed by the secretary of transportation;

     (2) One member ((shall)) will be appointed by the ferry employee organization;

     (3) One member ((shall)) will be appointed mutually by the members appointed by the secretary of transportation and the employee organization. The last member appointed ((shall)) will be the chairman of the arbitration panel ((of arbitrators));

     (4) If the third member has not been selected within four days of notification as provided in subsection (3) of this section, the parties ((shall)) will notify the commission in accordance with WAC 316-55-500. A list of seven arbitrators ((shall)) will be submitted to the parties by the marine employees' commission immediately. The two arbitrators selected by ferry system management and the ferry employee organization ((shall)) will determine by lot which arbitrator ((shall)) will remove the first name from the list submitted by the commission. The second arbitrator and the first arbitrator ((shall)) will alternately remove one additional name until only one name remains. The person whose name remains ((shall)) will become the chairman of the arbitration panel ((of arbitrators)) and ((shall)) will call a meeting within thirty days, or at such time mutually agreed to by the parties, at a location designated by him or her. All contacts and/or arrangements between the parties and an arbitrator selected under this rule will be the responsibility of the parties. In lieu of a list of seven nominees for the third member being submitted by the marine employees' commission, the parties may mutually agree to have either the Federal Mediation and Conciliation Service or the American Arbitration Association submit a list of seven nominees.

     (5) No person ((shall)) will serve as an arbitrator in any proceeding in which he/she has any financial or personal interest in the result of the arbitration, unless the parties, in writing, waive such disqualification.

     (6) No final award may be made by the panel until three arbitrators have been chosen.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-515, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-515, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-517   Arbitration panel chairman -- Qualifications -- Replacement.   When submitting names of persons to the parties from which the chairman of ((a panel of arbitrators)) the arbitration panel will be selected under RCW 47.64.240 and WAC 316-55-515, the commission ((shall)) will furnish biographical information, background, qualifications and experience, including ((references)) three arbitration awards required by WAC 316-55-110 (2)(b) and a list of cases ((wherein)) where the person acted as advocate, or as mediator or arbitrator within the most recent ((five-year)) two-year period, for each of the seven names supplied to the parties. If one or more of those named is unavailable to accept appointment as chairman of the arbitration panel, or must be disqualified, a substitute name(s) will be provided upon the joint request of the parties. ((If all of those persons named by the commission are rejected by the parties, a second list will be provided upon the joint request of the parties.)) If the parties reject all seven names and jointly request additional names, the commission will provide a second list.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-517, filed 3/2/90, effective 4/2/90.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-525   Conduct of interest arbitration.   (1) ((The)) Submission of the impasse items to the ((arbitrators shall be)) arbitration panel is limited to those issues upon which the parties have not reached agreement. With respect to each such item, the arbitration panel award ((shall be)) is restricted to the final offers on each impasse item submitted by the parties to the arbitration board on each impasse item.

     (2) The ((panel of arbitrators shall)) arbitration panel will at no time engage in an effort to mediate or otherwise settle the dispute in any manner other than that prescribed in chapter 47.64 RCW.

     (3) From the time of appointment until ((such time as the panel of arbitrators)) the arbitration panel makes its final determination, there ((shall)) is to be no discussion concerning recommendations for settlement of the dispute by the members of the arbitration panel ((of arbitrators)) with parties other than those who are direct parties to the dispute. The arbitration panel ((of arbitrators)) may conduct formal or informal hearings to discuss offers submitted by both parties.

     (4) The ((panel of arbitrators shall)) arbitration panel will consider, in addition to any other relevant factors, the following factors:

     (a) Past collective bargaining contracts between the parties including the bargaining that led up to the contracts;

     (b) Comparison of wages, hours, employee benefits, and conditions of employment of the involved ferry employees with those of public and private sector employees in states along the west coast of the United States, including Alaska, and in British Columbia doing directly comparable work but not necessarily identical work, giving consideration to factors peculiar to the area and the classifications involved;

     (c) The interests and welfare of the public, the ability of the ferry system to finance economic adjustments, and the effect of the adjustments on the normal standard of services;

     (d) The right of the legislature to appropriate and to limit funds for the conduct of the ferry system; and

     (e) The limitations on ferry toll increases and operating subsidies as may be imposed by the legislature.

     (5) The chairman of the arbitration panel ((of arbitrators)) may hold hearings and administer oaths, examine witnesses and documents, take testimony and receive evidence, issue subpoenas to compel the attendance of witnesses and the production of records, and delegate such powers to other members of the arbitration panel ((of arbitrators)). The chairman of the arbitration panel ((of arbitrators)) may petition the superior court in Thurston county, or any county in which any hearing is held, to enforce the order of the chairman compelling the attendance of witnesses and the production of records.

     (6) A majority of the arbitration panel ((of arbitrators shall)) will within thirty days after its first meeting select the most reasonable offer, in its judgment, of the final offers on each impasse item submitted by the parties.

     (7) The selections by the arbitration panel ((of arbitrators)) and items agreed upon by the ferry system management and the employee organization ((shall)) will be deemed to be the collective bargaining agreement between the parties.

     (8) The determination of the arbitration panel ((of arbitrators shall)) will be by majority vote and ((shall)) will be final and binding, subject to RCW 47.64.180 and 47.64.190. The arbitration panel ((of arbitrators shall give written)) will write an explanation for its selection and inform the parties of its decision.

     (9) Two copies of the final award, including the written explanation required by subsection (8) of this section ((shall)) will be filed with the commission.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-525, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-525, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-600   Central filing of agreements.   The parties to collective bargaining agreements entered into as a result of collective bargaining ((pursuant to)) in accordance with chapter 47.64 RCW ((shall)) will file ((with the commission)) two complete copies of their agreement with the commission.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-600, filed 3/2/90, effective 4/2/90; 84-07-037 (Resolution No. 84-01), § 316-55-600, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-700   Result of collective bargaining agreements -- If budget or fares exceeded.   If the secretary of transportation finds that the cumulative fiscal requirements of all bargaining agreements and arbitration orders will exceed the budgetary and fare restrictions imposed by RCW 47.64.180, and so notifies the commission in accordance with RCW 47.64.190(3), the commission ((shall)) will review all negotiated agreements and arbitration orders, and may take written or oral testimony from the parties, regarding compliance with RCW 47.64.180. The commission ((shall)) will determine, within fifteen days of receiving the secretary's request for review, by majority vote, whether or not the cumulative effect of all such agreements and orders exceeds the limitations of RCW 47.64.180.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-700, filed 3/2/90, effective 4/2/90.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-710   Collective bargaining agreements stayed.   Whenever the secretary of transportation requests commission review under RCW 47.64.190, the effect of all agreements and arbitration orders ((shall)) will be stayed, pending the commission's final determination.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-710, filed 3/2/90, effective 4/2/90.]


AMENDATORY SECTION(Amending WSR 90-06-047, filed 3/2/90, effective 4/2/90)

WAC 316-55-730   Commission action.   If the commission determines that the budget and fare limitations imposed by RCW 47.64.180 would be exceeded if all agreements and arbitration orders were given full force and effect, the commission ((shall)) will order the minimum percentage reduction in straight time wage provisions applied equally across the board to all agreements or arbitration orders which will result in compliance with RCW 47.64.180.

[Statutory Authority: RCW 47.64.280. 90-06-047, § 316-55-730, filed 3/2/90, effective 4/2/90.]

Legislature Code Reviser 

Register
© Washington State Code Reviser's Office