WSR 06-09-016

EMERGENCY RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed April 11, 2006, 8:58 a.m. , effective April 11, 2006 ]


     Effective Date of Rule: Immediately.

     Purpose: Required to implement section 1 of E2SHB 2353 (chapter 54, Laws of 2006), which grants collective bargaining rights to family child care providers under chapter 41.56 RCW. PERC's normal election rules, chapter 391-25 WAC, require posting of election notices on employer's premises. Because many child care providers operate from their homes, those requirements are impractical.

     Statutory Authority for Adoption: RCW 41.56.090, 41.58.050.

     Other Authority: Chapter 54, Laws of 2006.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: Section 1 of E2SHB 2353 (chapter 54, Laws of 2006) requires that a collective bargaining agreement be negotiated by November 15, 2006, to be ratified by the legislature in 2007, and an election must precede any negotiations. Section 13 declares that sections 1 through 5 of that act are an emergency. In order to effectuate the purposes of section 1 of the act, this rule is necessary in order to conduct a representation election under chapter 41.56 RCW and chapter 391-25 WAC.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 1, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: April 10, 2006.

Marvin L. Schurke

Executive Director


NEW SECTION
WAC 391-25-071   Special provision -- Family child care providers.   This emergency rule consolidates special procedures applicable to family child care providers under the "access to quality family child care act" (FCCA), chapter 54, laws of 2006, which became effective March 15, 2006, upon signature by the Governor. The FCCA extended the coverage of chapter 41.56 RCW to any "family child care provider" defined as a person who: (a) Provides regularly scheduled care for a child or children in the home of the provider or in the home of the child or children for periods of less than twenty-four hours or, if necessary due to the nature of the parent's work, for periods equal to or greater than twenty-four hours; (b) receives child care subsidies; and (c) is either licensed by the state under RCW 74.15.030 or is exempt from licensing under Chapter 74.15 RCW.

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

     (2) The description of bargaining unit requirement of WAC 391-25-190 is limited to a single, statewide unit of family child care providers under the FCCA.

     (3) The description of bargaining unit requirement of WAC 391-25-210(2) is limited to a single, statewide unit of family child care providers under the FCCA.

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

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

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

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

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

     (9) 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 the FCCA.

     (10) Any representation election for the bargaining unit affected by the FCCA 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 family child care providers may describe the collective bargaining rights established by the FCCA and agreements reached by the parties to the proceedings concerning the election process;

     (b) The notice and ballot materials supplied to all family child care providers shall be set forth in English and Spanish;

     (c) The ballot materials supplied to family child care providers shall include a card return-addressed to the commission, by which eligible voters can individually request ballot materials in languages other than English which have been specified by one or more of the parties in an investigation conference conducted under WAC 391-25-220 and, upon receipt of a such request card, the agency shall supply ballot materials to the eligible voter in the requested language.

     (d) At least twenty-eight days shall be provided between the date on which ballot materials are mailed to family child care 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, so long as the principles of secret balloting are preserved.

     (f) The reference in WAC 391-25-470 to WAC 391-25-140 shall be interpreted in light of subsection (1) of this section.

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

     (12) The procedure in WAC 391-25-531 is inapplicable to the bargaining unit affected by the FCCA, and the need for a runoff election shall be determined under WAC 391-25-530(2).


Explanation: This rule is patterned after WAC 391-25-051, which is the special rule adopted by the Commission for representation elections involving individuals providers under the Home Care Quality Authority (HCQA). In both the HCQA and FCCA situations: (1) a state-wide unit is required; (2) the number of eligible voters is very large; (3) the eligible voters are employed in private residences, so required posting of notices on employer premises cannot be enforced; and (4) multiple languages may be needed for ballot materials. The FCCA further reduces the unique "majority of those eligible" test for runoff elections in RCW 41.56.070 to the conventional "majority of those voting" test. The 24-day period for return of ballots in WAC 391-25-051 is changed to 28 days, because 24 days proved to be tight for turnaround of requests for foreign language ballot materials.

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     Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

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