WSR 06-18-097

PROPOSED RULES

EMPLOYMENT SECURITY DEPARTMENT


[ Filed September 6, 2006, 9:19 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-04-083.

Title of Rule and Other Identifying Information: These rules apply to the department's referral union program. The unions in this program refer their members to work by referral or dispatch to employment. This is the customary means by which members of these unions find jobs. Individuals who meet the union's referral or dispatch requirements are exempt from conducting an independent search for work. These rules outline the requirements for unions and members for participation in the program.

Hearing Location(s): Employment Security Department, Maple Leaf Room, 2nd Floor, 212 Maple Park, Olympia, WA, on October 12, 2006, at 1:30 p.m.

Date of Intended Adoption: October 20, 2006.

Submit Written Comments to: Juanita Myers, Unemployment Insurance Rules Coordinator, P.O. Box 9046, Olympia, WA 98507-9046, e-mail jmyers@esd.wa.gov, fax (360) 902-9799, by October 10, 2006.

Assistance for Persons with Disabilities: Contact Beverly Peterson by October 12, 2006, TTY (360) 902-9569 or (360) 902-9234.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: RCW 50.20.010 (1)(c) requires individuals receiving unemployment benefits to seek work "pursuant to customary trade practices" and to be available for work. It further provides that when a labor agreement or dispatch rules apply, the customary trade practices used must comply with the applicable agreement or rules. The department has had a "referral union program" in place for many years and has adopted a number of informal policies and guidelines to administer the program. To improve predictability and stability in program administration, the department is adopting regulations in place of the guidelines and policies. These regulations clarify the conditions under which referral unions may participate in the program, the availability and job search requirements that must be met by individual members of participating unions, and the information the department will providing to participating unions.

Reasons Supporting Proposal: RCW 34.05.230 encourages agencies to convert longstanding policy statements into rule. By adopting these rules, the department intends to eliminate confusion concerning the role of referral unions in monitoring the job search activities of their members, and the requirements individual union members must meet to comply with the availability and job search provisions of RCW 50.20.010 (1)(c).

Statutory Authority for Adoption: RCW 50.12.010, 50.12.040, and 50.20.010.

Statute Being Implemented: RCW 50.20.010 (1)(c).

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

Name of Proponent: Employment security department, governmental.

Name of Agency Personnel Responsible for Drafting: Juanita Myers, 212 Maple Park, Olympia, (360) 902-9665; Implementation and Enforcement: Annette Copeland, 212 Maple Park, Olympia, (360) 902-9303.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The rules apply to unions and union members. No requirements are imposed upon business as a result of these rules.

A cost-benefit analysis is not required under RCW 34.05.328. The rules primarily adopt longstanding agency policies and procedures into rule form. They do not include substantive changes from existing policy and procedures that would qualify them as significant legislative rules.

September 5, 2006

Paul Trause

Deputy Commissioner


NEW SECTION
WAC 192-210-100   What is the purpose of the referral union program?   (1) RCW 50.20.010 (1)(c) requires individuals who receive unemployment benefits to actively look for work using customary trade practices. They must also be able to work and available for work. In some trades, labor unions refer members to job openings in that labor market. The referral union program is a way for unions to help its members find work and to give eligibility information about its members to the department when requested. When an individual is a member of a union in the referral union program, the individual's job search must follow the union's dispatch rules.

(2) The term "union" means a bona fide labor organization formed to negotiate with employers, on behalf of workers collectively, about job related issues such as salary, benefits, hours, and working conditions. A "referral union" means a union that refers its members to jobs by referral or dispatch.

(3) A union must apply with and be approved by the department to join the referral union program.

(4) To be eligible to join the referral union program:

(a) The union must have a constitution, bylaws, or working rules that prohibit its members from seeking work in the industry on their own; or

(b) Members are permitted to seek work in the industry on their own but at least fifty percent of the union members eligible for dispatch who got a job during the most recent calendar year did so through referral or dispatch by the union.

(5) For purposes of the referral union program, the terms "referral" and "dispatch" are synonymous.

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NEW SECTION
WAC 192-210-105   May all individuals on a union dispatch list participate in the referral union program?   No. Participation in the referral union program is limited to persons who are eligible for dispatch by the union and actively seeking dispatch. The union must meet the requirements of WAC 192-210-100.

(1) Qualified referral unions. A referral union that does not meet the requirements of WAC 192-210-100(4) is called a "qualified referral union." A qualified referral union is one that permits its members to look for work in the covered industry and, during the most recent calendar year, fewer than fifty percent of the union membership eligible for dispatch obtained employment through their union's referral program. Qualified referral unions are not part of the referral union program. However, a contact with the qualified referral union for a specific job counts as one of the three job search contacts required by RCW 50.20.240. For the remaining contacts, the person must search for work on his or her own.

(2) Eligible for dispatch. For purposes of this chapter, an individual is eligible for dispatch if he or she meets the minimum requirements for the job being filled, including having any license or certificate required for that occupation.

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NEW SECTION
WAC 192-210-110   What are the requirements for unions in the referral union program.   (1) Application. The union's application for participation in the referral union program is subject to approval by the department. By submitting a signed application, the union agrees to:

(a) When requested, tell the department whether a person is a member of the union, eligible for dispatch or referral, and complying with union dispatch and referral rules;

(b) Advise its members that their eligibility for unemployment benefits may be affected if they are not available for suitable work as defined by RCW 50.20.100 or RCW 50.20.110 and that, when requested, any failure to do so will be reported to the department;

(c) Advise its members that any refusal of dispatch or referral by the union to suitable work may affect the claimant's eligibility for unemployment benefits and, when requested, will be reported to the department, even if refusal is permitted under union rules; and

(d) When requested, provide the department other records that will help the department decide if an individual is available for work and actively seeking work, as long as disclosure of this information does not violate state or federal law.

The department will make the requests described in this subsection as needed to confirm the reliability of the referral union program.

(2) Notify department of changes. The union must notify the department within thirty days of any changes in its address, telephone number, or designated contact person, or changes in its procedures that modify the requirements a person must meet to be eligible for dispatch. The union must provide the department with a copy of the revised dispatch requirements within thirty days of implementation. The union's participation in the referral union program will be subject to reapproval based on the revised dispatch requirements.

(3) Renewal. Unions must renew their membership in the referral union program at intervals established by the department. If the union does not renew its membership within sixty days of the date given in the renewal notice, the department will revoke its membership in the referral union program.

(4) Revocation. The department may revoke a union's membership in the referral union program if the union does not comply with the terms of the agreement.

(a) If the revocation is based on failure to meet technical requirements of the program, such as failure to renew its membership or to respond to an information request from the department, the revocation will last until the failure is corrected;

(b) If the revocation is for violations of this section, such as the union's refusal to comply with program requirements, fraud, falsification of information regarding claimants' job search activities, or similar reasons, the revocation will last until the department is satisfied the union will comply with program requirements in future. In the case of serious or repeated violations, the revocation period may also include, at the department's discretion, an additional suspension period of up to sixty days.

(5) Appeal of revocation. An appeal of the revocation of a union's participation in the program is governed by Chapter 34.05 RCW, the Administrative Procedures Act. If an appeal is filed, the revocation will be postponed until a final decision has been issued.

(6) Withdrawal from program. If a union chooses to withdraw from the referral union program, it must give the department 30 days notice. This will give the department time to notify claimants who are members of that union of their new job search requirements.

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Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 192-210-115   How does membership in a referral union impact a claimant's eligibility for benefits?   (1) Job search. If you are a member of a union that has been approved for the referral union program, the department will accept this as meeting the job search requirements of RCW 50.20.010 (1)(c). This means that you are not required to look for work on your own as long as you meet the requirements of WAC 192-210-120.

(2) Union membership. Membership in a referral union means journeymen, apprentices, members in travel status as allowed by union guidelines, and those eligible for dispatch and actively seeking dispatch for suitable work.

(3) Violation of union rules. You are not required to take an action that violates your union rules or places your union standing in jeopardy as a condition of receiving unemployment benefits.

(4) Removal from program. The department will remove you from the referral union program if you do not meet the requirements of WAC 192-210-120. You will be directed to look for work on your own, outside the union dispatch or referral process. You may also be denied benefits for any week(s) in which we decide you were not available for work.

(5) Extended benefits. This section does not apply if you are receiving extended benefits. You must meet the job search requirements listed in WAC 192-240-030.

(6) Union verification. The department will ask the union to verify that you are eligible for dispatch and actively seeking suitable work through the union. This will be done when you file a new application for unemployment benefits, reopen an existing unemployment claim, and at times while you are in continuous claim status. While you are in continuous claim status, the department will also ask your union to report whether you refused an offer of suitable work during the period in question.

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NEW SECTION
WAC 192-210-120   What are the requirements for individuals participating in the referral union program?   (1) Eligibility. You are eligible for the program if you are registered with the union, eligible for dispatch, and you are:

(a) Immediately available for dispatch or referral as required by the union; and

(b) Actively seeking, willing and able to accept any suitable work as defined in RCW 50.20.100 and RCW 50.20.110 that is offered through the union dispatch or referral process.

(2) Reporting. During any week you claim benefits you must report to the department if:

(a) You are not available for dispatch or referral;

(b) You refuse dispatch or referral;

(c) The union assigns jobs using a bid process and you do not bid on a job that, based on your seniority or union rules, you had a reasonable expectation of getting, unless you have already bid on three other jobs that week; or

(d) You are no longer registered or eligible for dispatch with the union.

(3) License or certificate. RCW 50.20.010 (1)(c) requires you to be immediately available to accept suitable work:

(a) If your occupation requires a license, certification or permit to work within your labor market area, your license, certification or permit must be current at the time you are dispatched to a job.

(b) If you do not have a current license, certification or permit when you are dispatched, your availability for work is in question. Your benefits may be denied for any week in which you do not have the license or permit or the license or permit was expired or invalid.

(c) It is your responsibility to keep your license, certification or permit current; it is not the union's responsibility to track your license status.

(d) Nothing in this section requires you to obtain specialty licenses or certifications as long as you are licensed or certified for those jobs for which you are available for dispatch and your failure to obtain a specialty license or certification does not substantially restrict your availability for work.

(4) Refusing work. If you refuse to bid on a job, or refuse dispatch or referral by the union, your availability for work and eligibility for unemployment benefits is in question. While some union rules do not penalize members for refusing dispatch, the refusal may not be allowed for unemployment insurance purposes. For example, your union may permit you to refuse dispatch to two jobs without penalty. However, in the unemployment insurance program this is not permitted unless the work is not suitable. A refusal of dispatch may be considered a refusal of suitable work under RCW 50.20.080. The department will determine whether the work was suitable.

(5) Standby. If permitted by the union, you may be placed on standby by the department if you meet the requirements of WAC 192-110-015.

(6) Fee payers. If you are not registered with the union, eligible for dispatch, and actively seeking work through the union, but have only paid a fee to be on the union's out of work list, you must meet the job search requirements of RCW 50.20.240.

(7) Presumption of availability. The department will presume you have met the availability and job search requirements of RCW 50.20.010 when you file a weekly claim certifying that you are able to work, available for work, and actively seeking work as instructed. A cause for doubting your eligibility will be created if the department receives relevant information for a specific week regarding your eligibility for benefits. (See WAC 192-130-070)

(8) Contact with union. The department will contact you and the union for information about your job search activities and availability for work whenever a cause for doubting your eligibility for unemployment benefits is established for any reason listed in this section.

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NEW SECTION
WAC 192-210-125   What information is the department responsible for providing to participating unions?   The department will:

(1) Notify the union of changes in laws, rules, or policy that impact the referral union program; and

(2) Upon request, provide training to the designated contact person or other union staff on the requirements they must meet to participate in the referral union program.

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Washington State Code Reviser's Office