WSR 07-17-070

PROPOSED RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed August 13, 2007, 3:17 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-13-039.

Title of Rule and Other Identifying Information: Amendments to chapters 391-08, 391-25, 391-35, 391-45, 391-55, 391-65, and 391-95 WAC.

The following existing rules are being repealed: WAC 391-25-076, 391-35-026, 391-45-056, and 391-55-071.

The following existing rules are being amended: WAC 391-08-640, 391-08-650, 391-08-820, 391-25-051, 391-25-140, 391-25-430, 391-25-650, 391-25-660, 391-35-010, 391-35-190, 391-35-210, 391-45-110, 391-45-260, 391-45-310, 391-45-350, 391-55-070, 391-55-200, 391-55-255, 391-55-300, 391-55-310, 391-55-315, 391-55-320, 391-55-325, 391-55-330, 391-55-335, 391-55-340, 391-55-345, 391-55-350, 391-55-355, 391-65-110, 391-65-150, 391-95-010, 391-95-030, 391-95-050, 391-95-070, 391-95-130, 391-95-250, and 391-95-270.

The following new rules are being proposed: WAC 391-08-190, 391-08-905, 391-08-915, 391-08-925, 391-08-935, 391-08-940, 391-08-950, 391-08-960, 391-08-970, 391-25-071, (adopted as an emergency rule in May 2006), 391-25-436, and 391-95-220.

Hearing Location(s): Kirkland Large Conference Room, 9757 Juanita Drive N.E., Suite 201, Kirkland, WA 98034, on September 26, 2007, at 10:00.

Date of Intended Adoption: December 11, 2007.

Submit Written Comments to: Kenneth J. Latsch, Rules Coordinator, P.O. Box 40919, Olympia, WA 98504, e-mail KLatsch@perc.wa.gov, fax (360) 570-7334, by September 7, 2007.

Assistance for Persons with Disabilities: Contact Jim Lohr by September 21, 2007, (360) 570-7310.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To streamline agency practices and procedures, including updating rules to reflect administrative changes in agency functions, update certain rules adopted under the Personnel System Reform Act of 2002 to reflect a greater integration into standard agency practice, repeal certain rules adopted under the Personnel System Reform Act of 2002 that are no longer necessary, and amending certain rules to recommendations by clientele and agency staff to make certain changes in agency practice and procedure. Examples of housekeeping amendments and changes to chapter 391-08 WAC, and all areas of practice and procedure, include adopting rules pertaining to public records requests and placing a page limit upon briefs filed with the agency during proceedings under the Administrative Procedure Act, and clarifying when a decision is ripe for appeal before the full commission. Housekeeping amendments and changes in representation rules, chapter 391-25 WAC, include changes to lifespan of showing of interest cards, changes regarding an employer's obligation to maintain the status quo during the pendency of a representation election, and clarifying the cut-off date for employee eligibility to vote in representation elections. Housekeeping amendments and changes in unit clarification rules, chapter 391-35 WAC, include bargaining unit configurations under chapter 184, Laws of 2007 and RCW 41.56.060(2). Housekeeping amendments and changes in unfair labor practice rules, chapter 391-45 WAC, include clarifying the preliminary ruling process and adopting settlements conference rules. Housekeeping rules to impasse resolution rules, chapter 391-55 WAC, include clarifying that the code of professional conduct for labor mediators applies to agency mediators, clarification of interest arbitration processes, and clarifying that the fact-finding rules apply to state civil service employees under chapter 41.80 RCW. Housekeeping amendments and changes to grievance arbitration rules, chapter 391-65 WAC, including a clarification that the agency does not pay for expenses. Housekeeping amendments and changes to union security dispute rules, chapter 391-95 WAC, include clarifying union's obligation under chapter 41.80 RCW.

Reasons Supporting Proposal: In late 2005, commission staff convened a focus group to examine agency processes and procedures. This group included representatives from both labor and management. The focus group examined all of the commission's rules, and is [has] forwarded the following recommendation for rule amendments to the commission for adoption.

Statutory Authority for Adoption: For WAC 391-08-190, 391-08-640, 391-08-650 and 391-08-820 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; for WAC 391-08-905, 391-08-915, 391-08-925, 391-08-935, 391-08-940, 391-08-950, 391-08-960 and 391-08-970 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 42.56.040; for WAC 391-25-051 and 391-25-071 is RCW 41.56.090, 41.59.050; for WAC 391-25-140, 391-25-430, 391-25-650 and 391-25-660 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; for WAC 391-25-436 is RCW 41.58.050, 41.80.080; for WAC 391-35-010, 391-35-190 and 391-35-210 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; for WAC 391-45-110, 391-45-260, 391-45-310 and 391-45-350 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; for WAC 391-55-070, 391-55-200, 391-55-255, 391-55-300, 391-55-310, 391-55-315, 391-55-320, 391-55-325, 391-55-330, 391-55-335, 391-55-340, 391-55-345, 391-55-350 and 391-55-355 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.090; for WAC 391-65-110 and 391-65-150 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; and for WAC 391-95-010, 391-95-030, 391-95-050, 391-95-070, 391-95-130, 391-95-220, 391-95-250 and 391-95-270 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The agency is proposing that these rule changes be adopted.

Name of Proponent: , governmental.

Name of Agency Personnel Responsible for Drafting: Dario de la Rosa, 112 Henry Street, Suite 300, Olympia, WA 98504, (360) 570-7328; Implementation and Enforcement: Kenneth J. Latsch, 112 Henry Street, Suite 300, Olympia, WA 98504, (360) 570-7320.

No small business economic impact statement has been prepared under chapter 19.85 RCW. Agency rules only obligate public employers, public employees, and unions representing public employees, and do not impose costs on profit-making businesses.

A cost-benefit analysis is not required under RCW 34.05.328. Agency rules are excepted by RCW 34.05.328 (5)(a)(i).

August 13, 2007

Kenneth J. Latsch

Rules Coordinator

OTS-9330.1


NEW SECTION
WAC 391-08-190   Prefiling of collective bargaining agreements.   The agency shall make available a procedure for parties to proceedings before the agency to prefile collective bargaining agreements with the agency in accordance with this section, and to thereafter incorporate prefiled contracts into other filings, by reference. The prefiled copy will then take the place of filing copies otherwise required by rules in TITLE 391 WAC.

(1) An employer and exclusive bargaining representative who request prefiling of their collective bargaining agreement under this section must jointly file a written request with the agency.

(a) The requesting parties shall use the form prescribed by the executive director.

(b) The requesting parties shall attach or enclose a complete electronic copy of the collective bargaining agreement (in Adobe Acrobat, WordPerfect, or Microsoft Word format).

(c) The requesting parties shall attach photocopies of certain pages of the original collective bargaining agreement, as follows:

(i) The front cover or first page(s) showing the names of the parties and the identification of the bargaining unit(s) covered;

(ii) The page(s) containing the effective date and termination dates of the collective bargaining agreement; and

(iii) The page(s) containing the signatures of the parties' representatives.

(2) Upon the filing of a request conforming to subsection (1) of this section, the agency shall put the prefiled collective bargaining agreement into an electronic data base.

(a) The collective bargaining agreements contained in the electronic data base shall be open to public inspection and copying.

(b) The agency shall issue the parties a confirmation code unique to that collective bargaining agreement.

(3) After issuance of a confirmation code under subsection (2)(b) of this section, the parties are authorized to incorporate that prefiled collective bargaining agreement into any paper subsequently filed with the agency under TITLE 391 WAC, by referring to the confirmation code in the subsequent document.

(4) The authorization in subsection (3) of this section shall terminate on the expiration date originally stated in the prefiled collective bargaining agreement.

(5) The authorization in subsection (3) of this section shall terminate if there is any amendment or change to the prefiled collective bargaining agreement. If the parties submit their amended agreement under subsection (1) of this section, a new confirmation code shall be issued under subsection (2) of this section.

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

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

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

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

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

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

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

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

(2) The commission will only consider amicus (friend of the forum) briefs filed in conformity with this subsection.

(a) The person or organization desiring to file an amicus brief must:

(i) Obtain a copy of the decision on appeal, the notice of appeal, and the brief of the party whose position they intend to support;

(ii) Limit any amicus brief to particular issues already raised by the notice of appeal;

(iii) Limit any legal analysis to arguments that differ from those advanced by the party it supports;

(iv) Exclude restatement or reargument of the facts, except as necessary to legal arguments under (a)(iii) of this subsection;

(v) Limit any amicus brief to twenty-five pages in total length (double-spaced, 12-point type); and

(vi) File the amicus brief with the commission within fourteen days following filing and service of the brief of the party whose position it supports, and must serve copies of any such brief on each of the original parties in the case.

(b) The original parties to the case may, within fourteen days following the filing and service of an amicus brief, file and serve written responses to the amicus brief.

(c) A person or organization that files an amicus brief does not thereby acquire any right to reply to the responses filed by the original parties to the case.

(d) A person or organization that files an amicus brief does not thereby become a party to the case for purposes of any further proceedings or appeal.

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.464. 98-14-112, 391-08-640, filed 7/1/98, effective 8/1/98.]


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

WAC 391-08-650   ((Case)) Docketing and numbering.   The agency maintains a computerized ((case)) docketing system which is used to track and manage all requests for the ((dispute resolution)) services provided by the agency.

(1) Each case processed or activity provided by the agency is identified by a unique number consisting of four components.

(a) The first component((, consisting of)) is a ((five-digit)) number, ((indicates)) indicating the sequential number of cases or activities docketed since the agency commenced operations on January 1, 1976.

(b) The second component((, consisting of one)) is an alphabetic code, ((indicates)) indicating the type of ((dispute being processed)) case or activity, as follows:

"A" indicates a grievance arbitration ((proceeding)) under chapter 391-65 WAC, ((wherein)) in which an agency staff member is to interpret or apply an existing collective bargaining agreement.

"B" indicates a grievance arbitration under chapter 41.06 RCW, in which an agency staff member assists the Washington personnel resources board under an interagency agreement per RCW 41.80.902.

"C" indicates a unit clarification ((proceeding)) under chapter 391-35 WAC.

"D" indicates a ((declaratory ruling or)) declaratory order ((proceeding)) under the Administrative Procedure Act((, and formerly included proceedings under chapter 391-95 WAC concerning assertion of the right of nonassociation by employees subject to union security obligations)).

"E" indicates a question concerning representation ((proceeding)) under chapter 391-25 WAC.

"F" indicates a fact-finding ((proceeding)) under chapter 391-55 WAC, to recommend the terms of a collective bargaining agreement.

"G" indicates a grievance mediation ((proceeding)) under chapter 391-55 WAC ((after January 1, 1996)), concerning the interpretation or application of an existing collective bargaining agreement.

"H" indicates a grievance mediation conducted under chapter 41.06 RCW, in which agency staff assists the Washington department of personnel under an interagency agreement per RCW 41.80.902.

"I" indicates an interest arbitration ((proceeding)) under chapter 391-55 WAC, to establish the terms of a collective bargaining agreement.

"M" indicates a mediation ((proceeding)) under chapter 391-55 WAC, ((limited after January 1, 1996, to disputes)) concerning the terms of a collective bargaining agreement.

"N" indicates ((a proceeding)) nonassociation under chapter 391-95 WAC ((after January 1, 1996)), concerning ((assertion of the right of nonassociation by employees)) an employee subject to union security obligations.

"P" indicates a request for a list of arbitrators from the commission's dispute resolution panel for grievance arbitration ((proceedings)) under chapter 391-65 WAC.

"S" indicates a settlement conference conducted under WAC 391-45-260 or 391-95-220.

"T" indicates a training activity provided under chapter 41.58 RCW or WAC 391-08-003.

"U" indicates an unfair labor practice ((proceeding)) under chapter 391-45 WAC.

(c) The third component((, consisting of)) is a two-digit number, ((indicates)) indicating the calendar year in which the case is docketed.

(d) The fourth component((, consisting of)) is a ((five-digit)) number, ((indicates)) indicating the sequential number of the case within the type ((of dispute)) identified in the second component, since the agency commenced operations on January 1, 1976.

(2) Cases and activities involving various departments or divisions of an employer entity are docketed under the name of the employer entity, except that state general government agencies are identified by "state" supplemented by words or an acronym identifying the agency from which the case or activity arises.

(3) Cases and activities filed by an employee organization or labor organization on behalf of one or more individual employees are docketed under the name of the organization, even if employees represented by that organization are named ((individually)) in the pleadings or are affected by the outcome of the proceedings.

(4) Cases filed by ((two or more)) individual employees are docketed separately for each employee.

(5) Cases filed by an individual employee involving multiple respondents are docketed separately for each respondent.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.220. 96-07-105, 391-08-650, filed 3/20/96, effective 4/20/96.]


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

WAC 391-08-820   Agency offices.   (1) The agency maintains its principal office in the city of Olympia, Washington.

(a) The street address of the Olympia office is:


Public Employment Relations Commission

((603 Evergreen Plaza

711 Capitol Way)) 112 Henry Street N.E., Suite 300

Olympia, Washington 98504-0919.


(b) The mailing address of the Olympia office is:


Public Employment Relations Commission

P.O. Box 40919

Olympia, Washington 98504-0919.


(2) The agency maintains a branch office at:


Public Employment Relations Commission

Suite ((150)) 201

9757 Juanita Drive NE

Kirkland, Washington 98034.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 96-07-105, 391-08-820, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-070, 391-08-820, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-045 (Order 80-4), 391-08-820, filed 9/30/80, effective 11/1/80; Order 77-1, 391-08-820, filed 1/27/77.]


NEW SECTION
WAC 391-08-905   Public records -- Authority and purpose.   (1) RCW 42.56.070(1) requires each agency to make nonexempt "public records" available for inspection and copying under published rules. The term "public records" includes documents containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by the agency, including electronic records.

(2) The purpose of the rules in this series is to implement RCW 42.56.070(1) for records of the public employment relations commission. These rules provide information to persons wishing to request access to public records of the agency, and establish expectations both of requestors and of agency staff who are to assist members of the public in obtaining such access.

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NEW SECTION
WAC 391-08-915   Records exempt from disclosure.   While the purpose of chapter 42.56 RCW is to provide the public full access to information concerning the conduct of government, mindful of individuals' privacy rights and the desirability of the efficient administration of government, and while chapter 42.56 RCW and these rules are generally interpreted in favor of disclosure, provisions in chapter 42.56 RCW and other laws exempt or prohibit disclosure of some records.

(1) RCW 42.56.070(2) requires each agency to set forth "for informational purposes" any law outside of chapter 42.56 RCW that exempts or prohibits the disclosure of certain records. The following preclude inspection and copying of some agency documents:

(a) RCW 34.05.446(4) authorizes the issuance of protective orders in adjudicatory proceedings, and materials subject to a protective order are thereby excluded from public disclosure.

(b) RCW 41.59.120(3) gives the parties to a dispute involving school district certificated employees a right to consider fact-finder recommendations privately for a period of seven calendar days after they are issued, and precludes public disclosure of those findings and recommendations if the parties reach an agreement within that period.

(c) RCW 41.80.090 gives the parties to a dispute involving state civil service employees a right to consider fact-finder recommendations privately for a period of fourteen calendar days after they are issued, and precludes public disclosure of those findings and recommendations if the parties reach an agreement within that period.

(2) The agency shall not disclose documents that are exempted from public inspection and copying outlined in chapter 41.56 RCW.

(3) The agency shall not disclose lists of individuals requested for commercial purposes.

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NEW SECTION
WAC 391-08-925   Agency contact information -- Public records officer.   (1) Any person wishing to request access to public records of the agency, or seeking assistance in making such a request, should direct their inquiry to "public records officer" at the Olympia office of the agency.

(2) The public records officer and the agency will provide the "fullest assistance" to requestors in making requests for identifiable public records. The public records officer shall:

(a) Oversee compliance with chapter 42.56 RCW, but can assign another agency staff member to process any request;

(b) Oversee maintenance of searchable indexes of agency decisions and agency documents;

(c) Ensure that public records of the agency are protected from damage or disorganization; and

(d) Prevent fulfilling public records requests from causing excessive interference with essential functions of the agency.

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NEW SECTION
WAC 391-08-935   Availability of public records.   (1) Public records are available for inspection during normal business hours at the Olympia office of the agency: 8:00 a.m. to 5:00 p.m. on Mondays through Fridays, excluding legal holidays.

(2) A searchable data base of decisions and orders issued by or on behalf of the agency in adjudicative proceedings under the state Administrative Procedure Act, chapter 34.05 RCW, is available for use by the agency staff and members of the public, without charge, on the agency's web site: www.perc.wa.gov.

(3) A variety of additional documents are available, without charge, on the agency web site: www.perc.wa.gov. Requestors are encouraged to view the documents available on the web site prior to submitting a records request to the agency.

(4) Requests for copies of public records must be addressed to the public records officer in the agency's Olympia office.

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NEW SECTION
WAC 391-08-940   Requests for public records -- Processing of public records requests.   (1) Any person wishing to inspect or copy public records of the agency is encouraged to submit the request to the agency public records officer in writing, using a form provided by the agency, a letter, a fax, or electronic mail. The request should include the following information:

(a) The name of requestor;

(b) The address of requestor;

(c) Other contact information for the requestor, including telephone numbers, fax numbers, and e-mail addresses;

(d) Identification of the public records being requested, in terms adequate for the public records officer to locate the records.

If the request is to have copies of the records sent, the requestor shall clearly indicate that inspection is not requested.

(2) When the public records officer accepts a request made in-person or by telephone, the public records officer shall provide the requestor a written confirmation of the request listing the exact records that are understood to have been requested.

(3) The agency staff shall affix the agency date stamp or otherwise clearly indicate the date when a public records request is received by the agency.

(4) The public records officer shall exercise discretion to process public records requests in the order received, or in an order that will allow the most requests to be processed in the most efficient manner.

(5) Within five business days after receipt of a request, the public records officer shall do one or more of the following:

(a) Make the records available for inspection;

(b) Send requested copies of the records, and if necessary, upon payment of a deposit or the full charge for copying of the records;

(c) Provide a reasonable estimate of when the requested records will be available;

(d) Request clarification from the requestor, if the request is unclear or does not sufficiently identify the requested records:

(i) Clarification may be requested by telephone; and

(ii) The public records officer may revise the estimate of when records will be available; or

(e) Deny a request for records excluded from disclosure as described in WAC 391-08-810 or 391-08-915, with a brief explanation of why the requested record is being withheld. If only a portion of a record is exempt from disclosure, the public records officer shall redact the exempt portions, provide the remaining portions, and explain to the requestor why portions of the record are being redacted;

(f) To protect the rights of others, the public records officer may:

(i) Provide notice to others whose rights may be affected by a public records request; and

(ii) Withhold the requested records for a time sufficient for the person(s) whose rights may be affected to contact the requestor about the matter or seek an order from a court to prevent or limit the disclosure.

(6) If the public records officer does not respond within five business days after receipt of a request for public disclosure, the requestor should contact the public records officer to determine the reason for the lack of a response.

(7) The agency shall provide space in its Olympia office where requestors can inspect public records.

(a) The agency makes an effort to maintain its records in a reasonably organized manner, and to protect its records from damage and disorganization, but files concerning pending cases may be taken apart from time to time for business purposes of the agency.

(b) A person inspecting agency records shall not disassemble or alter any file or document.

(c) A person inspecting agency records shall not take any records from the agency office.

(d) When a request is for a large number of records, the public records officer may exercise discretion to provide access for inspection in installments, if it would be practical to provide the records in that way.

(e) Requestors must review assembled records within thirty days after the agency notifies them that the records (or an installment of the records) are available for inspection. If the requestor or a representative of the requestor fails to make arrangements to review the records within that period, the agency may discontinue searching for additional installments, may close the request, and may refile the assembled records. A subsequent request for the same or similar records shall be processed as a new request.

(f) The agency shall provide staff assistance to make any copies requested by persons inspecting public records. Requestors shall inform the agency staff as to which documents they wish to have copied.

(g) When the inspection of the requested records is complete, when a requestor withdraws the request, or when a requestor fails to inspect the records in a timely manner, the public records officer shall close the request and indicate to the requestor that the agency has completed a diligent search for the requested records.

(8) If the agency becomes aware of additional relevant documents after informing a requestor that the agency has provided all available records, the agency shall promptly notify the requestor of the additional documents and provide a written explanation as to why they were not previously located and provided.

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NEW SECTION
WAC 391-08-950   Reserved.  

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NEW SECTION
WAC 391-08-960   Costs for copies of public records.   (1) There is no fee for inspecting public records.

(2) A requestor may obtain standard black and white photocopies for fifteen cents per page.

(3) The cost of electronic copies of existing records on a floppy disk is actual cost per disk.

(4) The cost of electronic copies of existing records on a CD-ROM disc is actual cost per disk.

(5) The public records officer may also charge actual costs of mailing.

(6) The copies of public records provided under chapter 42.17 RCW are exempt from state sales tax under RCW 82.12.02525.

(7) Before beginning to make requested copies, the public records officer may require payment from the requestor, as follows:

(a) A deposit of up to ten percent of the estimated costs of copying and postage for all of the records selected by a requestor who has made no previous requests to the agency and/or who has paid in a timely manner for all records previously provided by the agency;

(b) Prepayment of the full estimated costs of copying and postage for all of the records selected by a requestor who has not paid, or was late in paying, for records previously provided by the agency;

(c) Prepayment of the full estimated costs of customized access to electronic records approved under WAC 391-08-950.

(8) The public records officer may require payment in full from a party that has made a deposit under subsection (a) of this section before providing all of the requested records, or may require payment in full for an installment of a body of requested records that is being provided in two or more installments, before moving ahead with the production of additional installments.

(9) Costs for records shall be payable in cash or by checks made out to "public employment relations commission."

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NEW SECTION
WAC 391-08-970   Review of denials of public records.   (1) Any person who objects to a denial or partial denial of a records request by the agency public records officer may appeal to the executive director by filing in writing as provided in WAC 391-08-120. The appeal shall specifically identify the records requested and the written reason(s) given for the denial of the request.

(2) The executive director shall consider the appeal and shall issue a written decision within two business days, either affirming or reversing the denial of the request.

(3) Parties dissatisfied with a written affirmation of a denial of a public records request may have a right to further review under RCW 42.56.530. The attorney general has adopted rules on such requests in WAC 44-06-160.

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OTS-9331.1


AMENDATORY SECTION(Amending WSR 03-03-064, filed 1/14/03, effective 2/14/03)

WAC 391-25-051   Special provision -- Individual providers ((under)) of home care ((quality authority)) under RCW 74.39A.270 and 74.39A.300.   This rule consolidates special rules applicable to individual providers under ((chapter 3, Laws of 2002, Initiative Measure No. 775 (I-775) passed by Washington voters in November of 2001. I-775 extended)) RCW 74.39A.270 and 74.39A.300, which extend the coverage of chapter 41.56 RCW to "individual providers" defined as a person, including a personal aide, who has contracted with the department of social and health services to provide personal care or respite care services to functionally disabled persons under the Medicaid personal care, community options program entry system, chore services program, or respite care program, or to provide respite care or residential services and support to persons with developmental disabilities under chapter 71A.12 RCW, or to provide respite care as defined in RCW 74.13.270.

(1) The showing of interest requirement in WAC 391-25-110 is modified for the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300, to require a ten percent showing of interest for either a petitioner or an intervenor.

(2) The posting of notice requirement in WAC 391-25-140 is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(3) The description of bargaining unit requirement of WAC 391-25-190 is limited to a single, statewide unit of individual providers under ((I-775)) RCW 74.39A.270 and 74.39A.300.

(4) The description of bargaining unit requirement of WAC 391-25-210(2) is limited to a single, statewide unit of individual providers under ((I-775)) RCW 74.39A.270 and 74.39A.300.

(5) The provisions of WAC 391-25-210(3) relating to alternative units or mergers of units are inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(6) The posting requirement in WAC 391-25-220(2), relating to investigation statements, is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(7) The posting requirement in WAC 391-25-230(2), relating to election agreements, is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(8) The cross-check procedures in WAC 391-25-250, 391-25-391, and 391-25-410 are inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(9) The unit determination election procedures in WAC 391-25-420 are inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(10) The requirements of WAC 391-25-430, relating to posting of election notices on the employer's premises, is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

(11) Any representation election for the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300 shall be conducted by mail ballot under WAC 391-25-470, with the following modifications:

(a) Together with the procedures for casting ballots, the notice supplied to individual providers may describe the collective bargaining rights established by ((I-775)) RCW 74.39A.270 and 74.39A.300 and agreements reached by a petitioning union and the employer concerning the election process;

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

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

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

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

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

(12) The procedure for on-site elections in WAC 391-25-490 is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270 and 74.39A.300.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 74.39A.240 and [74.39A].270. 03-03-064, 391-25-051, filed 1/14/03, effective 2/14/03.]


NEW SECTION
WAC 391-25-071   Special provision -- Family child care providers.   (1) 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.

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

(3) 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.

(4) 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.

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

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

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

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

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

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

(11) 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. Upon receipt of a 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 391-25-140 through 391-25-470 shall be interpreted in light of subsection (2) of this section.

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

(13) 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).

[]


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

WAC 391-25-140   Notice to employees -- Limitations on employer actions.   (1) The employer shall post a copy of the petition and a notice, in the form specified by the commission, to inform employees of the existence of proceedings under this chapter. The agency shall furnish the employer with copies of the petition and notice, and the employer shall post them in conspicuous places on its premises where notices to affected employees are usually posted. The petition and notice shall remain posted until a certification or interim certification is issued in the proceeding.

(2) Changes of the status quo concerning wages, hours or other terms and conditions of employment of employees in the bargaining unit are prohibited during the period that a petition is pending before the commission under this chapter.

(3) The employer shall not express or otherwise indicate any preference between competing organizations, where two or more employee organizations are seeking to represent its employees.

(4) Where a petition filed under this chapter involves employees who are represented for the purposes of collective bargaining, the employer shall suspend negotiations with the incumbent exclusive bargaining representative on a successor collective bargaining agreement involving employees affected by the petition. The employer and incumbent union may proceed with negotiations covering employees not affected by the petition((, and)).

(5) Except as provided in subsection (6) of this section, if the petition is dismissed under WAC 391-25-390 and is timely appealed under WAC 391-25-660, subsections (1) through (4) of this section shall remain in effect until the commission issues a final decision under WAC 391-25-670.

(6) The employer and incumbent union may petition the commission to suspend application of subsections (2) through (4) of this section upon a showing of good cause, such as that the suspension of negotiations will risk irreparable harm for which legal remedies are unavailable.

(7) The employer and incumbent union shall resume negotiations on a successor agreement covering the affected employees after the question concerning representation is resolved, if the incumbent exclusive bargaining representative retains its status.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.050. 01-14-009, 391-25-140, filed 6/22/01, effective 8/1/01; 96-07-105, 391-25-140, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and 41.56.050. 90-06-072, 391-25-140, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-054 (Order 88-02), 391-25-140, filed 5/31/88.]


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

WAC 391-25-430   Notice of election.   When an election is to be conducted, the agency shall furnish the employer with appropriate notices, and the employer shall post them in conspicuous places on its premises where notices to affected employees are usually posted. The notice shall contain:

(1) The description of the bargaining unit or voting group(s) in which the election is to be conducted.

(2) The deadline for return of mail ballots or the date(s), hours and polling place(s) for an on-site election.

(3) The cut-off date, if any, or other criteria to be applied in establishing eligibility to vote in the election, including that the eligible employees are limited to those who continue to be employed within the bargaining unit ((on the day of the tally)) when they cast a ballot in an on-site election or at the deadline for return of mail ballots.

(4) A statement of the purpose of the election and the question to be voted upon or a sample ballot.

Notices of the election shall be posted for at least seven days, and shall remain posted until a tally of ballots has been issued. The day of posting shall be counted, but the day on which the polls are opened for an on-site election shall not be counted.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, 41.56.070 and 41.59.070. 01-14-009, 391-25-430, filed 6/22/01, effective 8/1/01; 96-07-105, 391-25-430, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070 and 41.59.070. 90-06-072, 391-25-430, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-046 (Order 80-5), 391-25-430, filed 9/30/80, effective 11/1/80.]


NEW SECTION
WAC 391-25-436   Special provision -- State civil service employees.   Separate and apart from commission precedents on campaign rights, this special rule is adopted as required by RCW 41.80.080. During the period a notice is posted under WAC 391-25-430, employees in a bargaining unit under chapter 41.80 RCW and representatives of employee organizations named on the ballot shall have the right to conduct campaign activities on the employer's premises during working hours, so long as the work of the employees and the operations of the employer are not disturbed.

[]


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

WAC 391-25-650   Briefs and written arguments on objections.   (1) The due date for any appeal brief which the party filing an objection desires to have considered by the commission shall be fourteen days following the later of:

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

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

Any brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).

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

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

(4) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:

(a) It files and serves a motion for permission to file a longer brief in order to address novel or complex issues raised by the objections; and

(b) The commission grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.070 and 41.59.070. 01-14-009, 391-25-650, filed 6/22/01, effective 8/1/01; 00-14-048, 391-25-650, filed 6/30/00, effective 8/1/00; 98-14-112, 391-25-650, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070 and 41.59.070. 90-06-072, 391-25-650, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-25-650, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-046 (Order 80-5), 391-25-650, filed 9/30/80, effective 11/1/80.]


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

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

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

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

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

(4) A party which desires to cite or reassert a document previously filed in the matter shall do so by reference to the document already on file, and shall not file or attach another copy of the document to papers filed regarding an appeal.

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

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

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

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

(9) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:

(a) It files and serves a motion for permission to file a longer brief in order to address novel or complex issues raised by the appeal; and

(b) The commission grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.464, 41.56.070 and 41.59.070. 00-14-048, 391-25-660, filed 6/30/00, effective 8/1/00; 98-14-112, 391-25-660, filed 7/1/98, effective 8/1/98.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 391-25-076 Special provision -- State civil service employees.

OTS-9332.1


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

WAC 391-35-010   Petition for clarification of an existing bargaining unit -- Who may file.   (1) A petition for clarification of an existing bargaining unit may be filed by the employer, the exclusive representative, or their agents, or by the parties jointly.

(2) The commission will not accept a petition for unit clarification regarding positions that are vacant.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. 96-07-105, 391-35-010, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-073, 391-35-010, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-047 (Order 80-6), 391-35-010, filed 9/30/80, effective 11/1/80.]


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

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

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

(3) Rulings in the proceedings up to the issuance of an order under this section are interim orders, and may only be appealed to the commission by a notice of appeal filed after the issuance of an order under this section.

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060 and 41.59.080. 01-14-009, 391-35-190, filed 6/22/01, effective 8/1/01; 98-14-112, 391-35-190, filed 7/1/98, effective 8/1/98; 90-06-073, 391-35-190, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-35-190, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-047 (Order 80-6), 391-35-190, filed 9/30/80, effective 11/1/80.]


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

WAC 391-35-210   Appeals.   An order issued under WAC 391-35-190 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission as follows:

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

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

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

(4) A party which desires to cite or reassert a document previously filed in the matter shall do so by reference to the document already on file, and shall not file or attach another copy of the document to papers filed regarding an appeal.

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

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

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

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

(9) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:

(a) It files and serves a motion for permission to file a longer brief in order to address novel or complex issues raised by the appeal; and

(b) The commission grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.464, 41.56.060 and 41.59.080. 00-14-048, 391-35-210, filed 6/30/00, effective 8/1/00; 98-14-112, 391-35-210, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. 90-06-073, 391-35-210, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-35-210, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-047 (Order 80-6), 391-35-210, filed 9/30/80, effective 11/1/80.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 391-35-026 Special provision -- State civil service employees.

OTS-9333.1


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

WAC 391-45-110   Deficiency notice -- Preliminary ruling -- Deferral to arbitration.   The executive director or a designated staff member shall determine whether the facts alleged in the complaint may constitute an unfair labor practice within the meaning of the applicable statute.

(1) If the facts alleged do not, as a matter of law, constitute a violation, a deficiency notice shall be issued and served on all parties, identifying the defects and specifying a due date for the filing and service of an amended complaint. If the defects are not cured in a timely manner, an order shall be issued and served, dismissing the defective allegation(s) and stating the reasons for that action. Unless appealed to the commission under WAC 391-45-350, an order of dismissal issued under this subsection shall be the final order of the agency on the defective allegation(s), with the same force and effect as if issued by the commission.

(2) If one or more allegations state a cause of action for unfair labor practice proceedings before the commission, a preliminary ruling summarizing the allegation(s) shall be issued and served on all parties.

((The)) (a) A preliminary ruling forwarding a case for further proceedings is an interim order which may only be appealed to the commission by a notice of appeal filed after issuance of an examiner decision under WAC 391-45-310.

(b) The preliminary ruling limits the scope of proceedings before an examiner and the commission. A complainant who claims that the preliminary ruling failed to address one or more causes of action it sought to advance in the complaint must, prior to the issuance of a notice of hearing, seek clarification from the person that issued the preliminary ruling.

(c) The preliminary ruling shall establish the due date for the respondent to file its answer.

(3) The agency may defer the processing of allegations which state a cause of action under subsection (2) of this section, pending the outcome of related contractual dispute resolution procedures, but shall retain jurisdiction over those allegations.

(a) Deferral to arbitration may be ordered where:

(i) Employer conduct alleged to constitute an unlawful unilateral change of employee wages, hours or working conditions is arguably protected or prohibited by a collective bargaining agreement in effect between the parties at the time of the alleged unilateral change;

(ii) The parties' collective bargaining agreement provides for final and binding arbitration of grievances concerning its interpretation or application; and

(iii) There are no procedural impediments to a determination on the merits of the contractual issue through proceedings under the contractual dispute resolution procedure.

(b) Processing of the unfair labor practice allegation under this chapter shall be resumed following issuance of an arbitration award or resolution of the grievance, and the contract interpretation made in the contractual proceedings shall be considered binding, except where:

(i) The contractual procedures were not conducted in a fair and orderly manner; or

(ii) The contractual procedures have reached a result which is repugnant to the purposes and policies of the applicable collective bargaining statute.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 28B.52.073, 34.05.419, 41.56.140, 41.56.150 and 41.59.140. 00-14-048, 391-45-110, filed 6/30/00, effective 8/1/00; 98-14-112, 391-45-110, filed 7/1/98, effective 8/1/98; 96-07-105, 391-45-110, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.140, 41.56.150, 41.59.140 and 53.18.015. 90-06-074, 391-45-110, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-048 (Order 80-7), 391-45-110, filed 9/30/80, effective 11/1/80.]


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

WAC 391-45-260   Settlement conference.   Separate from any prehearing conference concerning procedural matters held by the examiner under WAC 10-08-130, a settlement conference concerning substantive issues may be held under WAC 10-08-200(15)((, on the examiner's own motion or at the request of any party to the proceeding)).

(1) A separate case number shall be assigned, and all files and papers for the settlement conference shall be kept separate from the files and papers for the unfair labor practice proceeding.

(2) A commission staff member other than the assigned examiner shall be assigned to mediate between the parties on the substantive issues.

(3) Any settlement conference shall be held in advance of the scheduled hearing date on the underlying unfair labor practice proceedings.

(4) During a settlement conference, the parties will be encouraged, on factual and legal grounds including precedent on the particular subject, to resolve the unfair labor practice dispute. Participation in a settlement conference is voluntary((.)) and refusal by a party to participate in a settlement shall not prejudice that party in any manner. Conversations had and offers made in a settlement mediation shall not be admissible in evidence at a hearing.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.431, 41.56.160 and 41.59.150. 00-14-048, 391-45-260, filed 6/30/00, effective 8/1/00; 96-07-105, 391-45-260, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.160, 41.59.150 and 53.18.015. 90-06-074, 391-45-260, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-056 (Order 88-05), 391-45-260, filed 5/31/88.]


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

WAC 391-45-310   Examiner decision.   After the close of the hearing and the filing of all briefs, the examiner shall issue a decision containing findings of fact, conclusions of law, and an order. Interim orders and rulings by the examiner may only be appealed to the commission by a notice of appeal filed after issuance of a decision under this section. Unless appealed to the commission under WAC 391-45-350, a decision issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 41.56.160 and 41.59.150. 00-14-048, 391-45-310, filed 6/30/00, effective 8/1/00; 98-14-112, 391-45-310, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-310, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-048 (Order 80-7), 391-45-310, filed 9/30/80, effective 11/1/80.]


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

WAC 391-45-350   Appeals.   An order issued under WAC 391-45-110(1) or 391-45-310 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission as follows:

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

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

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

(4) A party which desires to cite or reassert a document previously filed in the matter shall do so by reference to the document already on file, and shall not file or attach another copy of the document to papers filed regarding an appeal.

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

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

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

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

(9) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:

(a) It files and serves a motion for permission to file a longer brief in order to address novel or complex issues raised by the appeal; and

(b) The commission grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 34.05.464, 41.56.160 and 41.59.150. 00-14-048, 391-45-350, filed 6/30/00, effective 8/1/00; 98-14-112, 391-45-350, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-350, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-45-350, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-048 (Order 80-7), 391-45-350, filed 9/30/80, effective 11/1/80.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 391-45-056 Special provision -- State civil service employees.

OTS-9334.1

Chapter 391-55 WAC

IMPASSE RESOLUTION CASE RULES


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

WAC 391-55-070   Function of mediator.   The mediator shall meet with the parties or their representatives, or both, either jointly or separately, and shall take any steps that the mediator deems appropriate to assist the parties in voluntarily resolving their differences and effecting an agreement. All persons providing mediation services under this chapter shall maintain compliance with the "Code of Professional Conduct for Labor Mediators" adopted jointly by the Federal Mediation and Conciliation Service of the United States and the several state agencies represented by the Association of Labor Relations Agencies.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 99-14-060, 391-55-070, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-070, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending WSR 03-03-064, filed 1/14/03, effective 2/14/03)

WAC 391-55-200   Interest arbitration -- Certification of issues.   (1) If a dispute involving a bargaining unit eligible for interest arbitration under RCW 41.56.030(7), 41.56.475, 41.56.492, 41.56.. . ., or 74.39A.270 (2)(c) has not been settled after a reasonable period of mediation, and the mediator is of the opinion that his or her further efforts will not result in an agreement, the following procedure shall be implemented:

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

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

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

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

(b) The mediator shall exclude from certification any issues resolved by the parties in bilateral negotiations or mediation, ((and)) which the parties may present ((those agreements)) as "stipulations" in interest arbitration under RCW 41.56.465 (1)(b), 41.56.475 (2)(b), 41.56.. . ., or 41.56.492 (2)(b).

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

(3) If the dispute remains unresolved after the completion of the procedures in subsections (1) and (2) of this section, interest arbitration shall be initiated by a certification of issues describing the disputed portions of articles or sections, as follows:

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

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

(4) A certification for interest arbitration under subsection (3) of this section implements authority conferred by the legislature directly upon the mediator or executive director, and may not be appealed to the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 41.56.450, [41.56].475, [41.56].492 and 74.39A.270. 03-03-064, 391-55-200, filed 1/14/03, effective 2/14/03. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.450, 41.56.475 and 41.56.492. 99-14-060, 391-55-200, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.450 and [41.56].492. 96-07-105, 391-55-200, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-200, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-255   Interest arbitration -- Expenses of arbitration.   Each party shall pay the expenses of presenting its own case and the expenses and fees of its member of the arbitration panel. The expenses of witnesses shall be paid by the party producing them. The fees and traveling expense of a neutral chairperson appointed ((pursuant to)) under WAC 391-55-210 (1) or (3), along with any costs for lists of arbitrators and for a ((tape)) recording of the proceedings, shall be shared equally between the parties. The fees and traveling expense of a neutral chairperson appointed ((by the commission pursuant to)) under WAC 391-55-210(2), along with the costs of tapes for a tape recording of the proceedings but not a transcription or the services of a court reporter, shall be paid by the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450. 99-14-060, 391-55-255, filed 7/1/99, effective 8/1/99; 96-07-105, 391-55-255, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-255, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending Order 80-8, filed 9/30/80, effective 11/1/80)

WAC 391-55-300   ((Educational employees -- ))Fact-finding.   If a dispute ((involving educational employees within the meaning of RCW 41.59.020(4) has not been settled after ten days of mediation)) has not been settled after bilateral negotiations and mediation, either party may request the appointment of a fact finder by giving written notice to the commission, the mediator, and the opposite party.

(1) For disputes involving educational employees under chapter 41.59 RCW, a period of ten days of mediation must have elapsed. The parties may, by agreement made at any time prior to the appointment of a fact finder, extend the period for mediation or place in the hands of the mediator the determination of when mediation has been exhausted so as to warrant the initiation of fact-finding.

(2) For disputes involving state civil service employees under chapter 41.80 RCW, fact-finding shall be initiated if resolution is not reached through mediation by one hundred days beyond the expiration date of a contract previously negotiated under that chapter or one hundred days from the initiation of mediation if no such contract exists.

[Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-300, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-310   ((Educational employees -- ))Selection of fact finder.   (1) Upon the submission of a timely request for fact-finding, the executive director shall ((invite the parties to exercise their right under RCW 41.59.120(5).

(a) The executive director shall)) furnish a list of members of the dispute resolution panel, and the parties shall meet within seven days following receipt of the list, to attempt to select a fact finder. Names shall be referred and any fact finder shall be selected under WAC 391-55-120.

(a) The parties may agree to designate the mediator as fact finder.

(b) If the parties agree on a fact finder, they shall obtain a commitment to serve and shall notify the executive director of the identity of the fact finder.

(c) If the parties are unable to agree on a fact finder ((under RCW 41.59.120(5))), they shall notify the executive director.

(d) For disputes under chapter 41.59 RCW, the process described in this subsection implements the right of the parties under RCW 41.59.120(5).

(2) In the absence of an agreement of the parties under subsection (1) of this section, the executive director shall designate a fact finder ((from)).

(a) For disputes under chapter 41.59 RCW, the fact finder shall be a member of the commission staff other than the person who was the mediator in the dispute. The parties are not entitled to influence the designation of a fact finder and shall not, either in writing or by other communication, attempt to indicate any preference for or against any person as the fact finder to be appointed by the commission.

(b) For disputes under chapter 41.80 RCW, the fact finder shall be a member of the dispute resolution panel established in WAC 391-55-120.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-310, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-035 (Order 83-05), 391-55-310, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-310, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-315   ((Educational employees -- ))Conduct of fact-finding proceedings -- Waiver of objections.   Proceedings shall be conducted as provided in WAC 391-55-300 through 391-55-355. The fact finder shall interpret and apply all rules relating to the powers and duties of the fact finder. Any party who proceeds with fact-finding after knowledge that any provision or requirement of these rules has not been complied with and who fails to state its objection in writing, shall be deemed to have waived its right to object.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-315, filed 7/1/99, effective 8/1/99; 96-07-105, 391-55-315, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-315, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-320   ((Educational employees -- ))Submission of proposals for fact-finding.   At least seven days before the date of the fact-finding hearing, each party shall submit to the fact finder and to the other party written proposals on all of the issues it intends to submit to fact-finding. Parties shall not be entitled to submit issues which were not among the issues mediated under WAC 391-55-070.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-320, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-320, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending Order 80-8, filed 9/30/80, effective 11/1/80)

WAC 391-55-325   ((Educational employees -- ))Fact-finding hearing.   The fact finder shall establish a date, time and place for a hearing. The fact-finding hearing shall be open to the public unless otherwise agreed by the parties. For good cause shown, the fact finder may adjourn the hearing upon the request of a party or upon his or her own initiative. The parties may waive oral hearing by written agreement.

[Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-325, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-330   ((Educational employees -- ))Order of proceedings and evidence.   The order of presentation at the fact-finding hearing shall be as agreed by the parties or as determined by the fact finder. The fact finder shall be the judge of the relevancy of the evidence. All evidence shall be taken in the presence of all parties, unless a party is absent in default or has waived its right to be present. Each documentary exhibit shall be submitted to the fact finder and copies shall be provided to the other parties. The exhibits shall be retained by the fact finder until an agreement has been signed, after which they may be disposed of as agreed by the parties or as ordered by the fact finder.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-330, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-330, filed 9/30/80, effective 11/1/80.]


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

WAC 391-55-335   ((Educational employees -- ))Fact-finding in the absence of a party.   The fact finder may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain an adjournment. Fact finders shall treat any subject on which one party has taken a position that it is not a mandatory subject for bargaining in accordance with this rule. Findings of fact and recommendations shall not be made solely on the default of a party, and the fact finder shall require the participating party to submit evidence as may be required for making of the findings of fact and recommendations.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-335, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 81-02-034 (Order 81-01), 391-55-335, filed 1/6/81.]


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

WAC 391-55-340   ((Educational employees -- ))Closing of fact-finding hearings.   The fact finder shall declare the hearing closed after the parties have completed presenting their testimony and/or exhibits and submission of briefs within agreed time limits.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 99-14-060, 391-55-340, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-340, filed 9/30/80, effective 11/1/80.]


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

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 98-14-112, 391-55-345, filed 7/1/98, effective 8/1/98; 96-07-105, 391-55-345, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 81-02-034 (Order 81-01), 391-55-345, filed 1/6/81.]


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

WAC 391-55-350   ((Educational employees -- ))Responsibility of parties after fact-finding.   The parties are entitled to consider the fact finder's recommendations privately, before they are made public.

(1) For cases under chapter 41.59 RCW, within seven calendar days after the findings and recommendations have been issued, the parties shall notify the commission and each other whether they accept the recommendations of the fact finder.

(2) For cases under chapter 41.80 RCW, within fourteen calendar days after the findings and recommendations have been issued, the parties shall notify the commission and each other whether they accept the recommendations of the fact finder.

(3) If the recommendations of the fact finder are rejected by one or both parties and their further efforts do not result in an agreement, either party may ((request mediation pursuant to)) ask the agency to provide further mediation under chapter 41.58 RCW and, upon the concurrence of the other party, the agency shall assign a mediator.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120. 00-14-048, 391-55-350, filed 6/30/00, effective 8/1/00; 99-14-060, 391-55-350, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-350, filed 9/30/80, effective 11/1/80.]


AMENDATORY SECTION(Amending Order 83-05, filed 12/1/83, effective 1/1/84)

WAC 391-55-355   ((Educational employees -- ))Expenses of fact-finding.   Each party shall pay the expenses of presenting its own case. The expenses of witnesses shall be paid by the party producing them. The fees and ((traveling)) expenses of a fact finder shall be paid as follows:

(1) A fact finder appointed by the commission from the commission staff under WAC 391-55-310 (2)(a) shall be paid by the commission.

(2) A fact finder selected from the dispute resolution panel or some other source shall be paid by the parties, in equal shares.

[Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 83-24-035 (Order 83-05), 391-55-355, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-049 (Order 80-8), 391-55-355, filed 9/30/80, effective 11/1/80.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 391-55-071 Special provision -- State patrol personnel.

OTS-9335.1


AMENDATORY SECTION(Amending WSR 03-03-064, filed 1/14/03, effective 2/14/03)

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

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

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

(3) Except as provided in subsections (1) and (2) of this section, all arbitrators shall maintain compliance with the "Code of Professional Responsibility for Arbitrators of Labor-Management Disputes" as last amended with approval of the Federal Mediation and Conciliation Service.

(4) Rulings, actions, and decisions issued by arbitrators under this chapter shall not be subject to appeal to the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060 and 41.56.125. 03-03-064, 391-65-110, filed 1/14/03, effective 2/14/03. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125. 99-14-060, 391-65-110, filed 7/1/99, effective 8/1/99; 96-07-105, 391-65-110, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-050 (Order 80-9), 391-65-110, filed 9/30/80, effective 11/1/80.]


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

WAC 391-65-150   Grievance arbitration -- Expenses.   Each party shall pay the expenses of presenting its own case and the expenses and fees of its member, if any, of an arbitration panel. The expenses of witnesses shall be paid by the party producing them. ((The costs for recording and/or transcription of proceedings shall be paid by the parties under the terms of their collective bargaining agreement or as agreed by the parties.)) The commission shall pay the salary and ((traveling)) expenses of a staff member assigned under WAC 391-65-070, but ((no)) the commission shall not pay any costs for recording and/or transcription of proceedings, or any other expenses of the proceedings. The parties shall pay the fees and expenses of a dispute resolution panel member selected under WAC 391-65-090, as provided in WAC 391-55-120.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125. 99-14-060, 391-65-150, filed 7/1/99, effective 8/1/99. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-050 (Order 80-9), 391-65-150, filed 9/30/80, effective 11/1/80.]

OTS-9336.1

Chapter 391-95 WAC

((UNION SECURITY DISPUTE)) NONASSOCIATION CASE RULES


AMENDATORY SECTION(Amending WSR 03-03-064, filed 1/14/03, effective 2/14/03)

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

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

(3) Disputes concerning interpretation or application of a union security provision shall be resolved through grievance arbitration or other procedures for interpretation or application of the collective bargaining agreement, and shall not be a subject of proceedings under this chapter.)) Failure to give the notice required by this section shall prevent enforcement of union security obligations for any period prior to the date notice is given, but shall not void the union security obligation for periods after the date notice is given.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 28B.52.045, 41.56.122, 41.59.100, 41.76.045 and 41.80.100. 03-03-064, 391-95-010, filed 1/14/03, effective 2/14/03. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-010, filed 6/30/00, effective 8/1/00; 90-06-075, 391-95-010, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-058 (Order 88-10), 391-95-010, filed 5/31/88. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-010, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-030   Assertion of right of nonassociation.   An employee who ((claims)) desires to assert a right of nonassociation based on bona fide religious tenets or teachings of a church or religious body of which such employee is a member shall provide written notice of that claim to the exclusive bargaining representative((, and shall)).

(1) An employee asserting the right of nonassociation under chapter 28B.52, 41.56, 41.59, or 41.76 RCW shall, at the same time, provide the exclusive bargaining representative with the name(s) and address(es) of one or more nonreligious charitable organizations to which the employee is prepared to make alternative payments in lieu of the payments required by the union security provision.

(2) An employee asserting the right of nonassociation under chapter 41.80 RCW may provide the exclusive bargaining representative with his or her choice to receive funds paid under the union security provision, if the employee organization has previously issued a list of union programs and/or charities eligible to receive such funds.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-030, filed 6/30/00, effective 8/1/00; 90-06-075, 391-95-030, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-058 (Order 88-10), 391-95-030, filed 5/31/88. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-030, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-050   Response by exclusive bargaining representative.   Within sixty days after it is served with written notice of a claimed right of nonassociation under WAC 391-95-030, the exclusive bargaining representative shall provide a written response to the employee, setting forth the position of the exclusive bargaining representative ((as to both:)) on the matter.

(1) For employees asserting the right of nonassociation under chapter 28B.52, 41.56, 41.59, or 41.76 RCW, the response of the exclusive bargaining representative shall address:

(a) The eligibility of the employee to make alternative payments; and

(((2) The)) (b) Acceptance or rejection of the charitable organization(s) suggested by the employee under WAC 391-95-030(a).

(2) For employees asserting the right of nonassociation under chapter 41.80 RCW, the response of the exclusive bargaining representative shall address:

(a) The eligibility of the employee to make alternative payments; and either:

(b) Acceptance or rejection of the program or charitable organization designated by the employee under WAC 391-95-030(b); or

(c) The program(s) of the employee organization and/or the charitable organization(s) designated by the employee organization to receive funds paid under the nonassociation provision. Within sixty days after being presented with a list under this subsection (c), the employee asserting a right of nonassociation shall provide the employee organization with written notice of his or her designation of the purpose or purposes on that list, if any, that are in harmony with his or her individual conscience.

(3) The requirements of this section are procedural only, and shall not be a basis to void or negate obligations under the union security provisions of a collective bargaining agreement.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-050, filed 6/30/00, effective 8/1/00; 90-06-075, 391-95-050, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-050, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-070   Disputes resolved by commission.   ((If the exclusive bargaining representative:))

(1) Either the employee or the exclusive bargaining representative may file a petition to obtain a ruling from the commission if:

(a) The exclusive bargaining representative disputes the eligibility of the employee to ((make alternative payments)) assert the right of nonassociation; or

(((2))) (b) The exclusive bargaining representative disputes the program or charitable organization which ((is to receive such)) the employee desires to be the recipient of alternative payments; or

(((3))) (c) The exclusive bargaining representative fails to make a timely response under WAC 391-95-050((, either the employee or the exclusive bargaining representative may obtain a ruling from the commission)); or

(d) The employee claiming nonassociation fails to name a charitable organization or union program to receive alternative payments.

(2) Disputes concerning whether an employee is within the bargaining unit covered by a union security provision shall not be a subject of proceedings under this chapter.

(3) Disputes concerning interpretation or application of the collective bargaining agreement containing the union security provision shall not be a subject of proceedings under this chapter.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-070, filed 6/30/00, effective 8/1/00; 98-14-112, 391-95-070, filed 7/1/98, effective 8/1/98; 90-06-075, 391-95-070, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-070, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-130   Escrow of disputed funds ((by employer)).   Funds at issue in a nonassociation proceeding under this chapter shall be kept separate while the case remains pending before the commission.

(1) Upon being served with a copy of a petition filed under WAC 391-95-070 concerning an employee asserting the right of nonassociation under chapter 28B.52, 41.56, 41.59, or 41.76 RCW, the employer shall preserve the status quo by withholding and retaining the disputed dues for periods during the pendency of the proceedings before the commission. Funds held in escrow shall draw interest at the rate provided by commercial banks for regular passbook savings accounts. While the proceedings remain pending before the commission, the employer shall not honor or otherwise act upon any request for discharge or other action against the affected employee based on the employee's union security obligations. This section shall be applicable to employees covered by chapter 41.56 RCW only upon the employee submitting to the employer a signed authorization for the deduction and escrow of disputed funds.

(2) Upon being served with a copy of a petition filed under WAC 391-95-070 concerning an employee asserting the right of nonassociation under chapter 41.80 RCW, the employee organization shall preserve the status quo by holding the disputed funds in a separate account, and shall not request the discharge or other action against the affected employee based on the employee's union security obligations, until the proceedings under this chapter are concluded.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-130, filed 6/30/00, effective 8/1/00; 90-06-075, 391-95-130, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 81-02-034 (Order 81-01), 391-95-130, filed 1/6/81.]


NEW SECTION
WAC 391-95-220   Settlement conference.   Separate from any prehearing conference concerning procedural matters held by the examiner under WAC 10-08-130, a settlement conference concerning substantive issues may be held under WAC 10-08-200(15).

(1) A separate case number shall be assigned, and all files and papers for the settlement conference shall be kept separate from the files and papers for the nonassociation proceeding.

(2) A commission staff member other than the assigned examiner shall be assigned to mediate between the parties on the substantive issues.

(3) Any settlement conference shall be held in advance of the scheduled hearing date on the underlying nonassociation proceedings.

(4) During a settlement conference, the parties will be encouraged, on factual and legal grounds including precedent on the particular subject, to resolve the nonassociation dispute. Participation in a settlement conference is voluntary and refusal by a party to participate in a settlement shall not prejudice that party in any manner. Conversations had and offers made in a settlement mediation shall not be admissible in evidence at a hearing.

[]


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

WAC 391-95-250   Examiner decision.   After the close of the hearing and the filing of all briefs, the examiner shall issue a decision containing findings of fact, conclusions of law, and an order. Interim orders and rulings by the examiner may only be appealed to the commission by a notice of appeal filed after issuance of a decision under this section. Unless appealed to the commission under WAC 391-95-270, a decision issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 41.56.122 and 41.59.100. 00-14-048, 391-95-250, filed 6/30/00, effective 8/1/00; 98-14-112, 391-95-250, filed 7/1/98, effective 8/1/98; 90-06-075, 391-95-250, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-95-250, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-250, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-270   Appeals.   An order issued under WAC 391-95-150(1) or 391-95-250 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission as follows:

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

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

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

(4) A party which desires to cite or reassert a document previously filed in the matter shall do so by reference to the document already on file, and shall not file or attach another copy of the document to papers filed regarding an appeal.

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

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

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

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

(9) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:

(a) It files and serves a motion for permission to file a longer brief to address novel or complex issues raised by the appeal; and

(b) The commission grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.464, 41.56.122 and 41.59.100. 00-14-048, 391-95-270, filed 6/30/00, effective 8/1/00; 98-14-112, 391-95-270, filed 7/1/98, effective 8/1/98; 96-07-105, 391-95-270, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100. 90-06-075, 391-95-270, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. 85-19-059 (Resolution No. 85-01), 391-95-270, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. 80-14-051 (Order 80-10), 391-95-270, filed 9/30/80, effective 11/1/80.]

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