WSR 07-21-067

PROPOSED RULES

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[ Filed October 14, 2007, 2:59 p.m. ]

Supplemental Notice to WSR 07-17-070.

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.

Hearing Location(s): PERC Headquarters Large Conference Room, 112 Henry Street N.E., Suite 300, Olympia, WA 98504-0919, on December 7, 2007, at 10:00. Please visit www.perc.wa.gov for more information.

Date of Intended Adoption: January 15, 2008.

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 October 26, 2007.

Assistance for Persons with Disabilities: Contact Jim Lohr by November 28, 2008 [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: This supplemental notice includes new proposals not included in WSR 07-17-070 and changes to rules originally proposed in WSR 07-17-070. Additionally, date of intended adoption for all proposals, including those posted in WSR 07-17-070 is January 15, 2008.

Statutory Authority for Adoption: WAC 391-08-010 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.080; for WAC 391-25-051, 391-25-210, and 391-35-301 is RCW 41.56.060, 41.56.090, 41.58.050; for WAC 391-25-110, 391-25-140, 391-25-350, 391-25-370, 391-25-390, 391-25-530, 391-35-020, 391-35-170, 391-35-190, 391-45-290, 391-45-310, 391-45-350, 391-95-010, 391-95-030, 391-95-050, 391-95-070, 391-95-130, 391-95-220, 391-95-230 and 391-95-250 is RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060; for WAC 391-25-397 and 391-35-026 is RCW 41.58.050, 41.80.080; and for WAC 391-95-036, 391-95-056, 391-95-076 and 391-95-136 is RCW 41.58.050, 41.80.100.

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

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

October 4, 2007

Dario de la Rosa

General Counsel

OTS-1113.1


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

WAC 391-08-010   Appearance and practice before agency -- Who may appear -- Notice of appearance.   (1) No person may appear in a representative capacity before the agency other than the following:

(a) Attorneys at law duly qualified and entitled to practice before the supreme court of the state of Washington;

(b) Attorneys at law duly qualified and entitled to practice before the highest court of record of any other state, if the attorneys at law of the state of Washington are permitted to appear in a representative capacity before administrative agencies of such other state, and if not otherwise prohibited by our state law;

(c) A bona fide officer, employee or other authorized representative of: (i) Any employer subject to the jurisdiction of the agency, ((or)) (ii) any labor or employee organization, or (iii) individual.

(2) Except where the information is already listed in the agency's docket records for the particular case, a person appearing in a representative capacity shall file and serve a notice of appearance listing the representative's name, address, telephone number, fax number, and e-mail address.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 00-14-048, 391-08-010, filed 6/30/00, effective 8/1/00. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. 90-06-070, 391-08-010, filed 3/7/90, effective 4/7/90; Order 77-1, 391-08-010, filed 1/27/77.]

OTS-1114.1


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 -- Child care providers under RCW 41.56.208 -- Adult family home providers under RCW 41.56.029.   This rule consolidates special rules applicable to:

(1) 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))) (2) Child care providers under RCW 41.56.028, which extends coverage of chapter 41.56 RCW to "child care providers" defined as persons who:

(a) Provide 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) Receive child care subsidies; and

(c) Are either licensed by the state under RCW 74.15.030 or are exempt from licensing under chapter 74.15 RCW.

(3) Adult family home providers under RCW 41.56.029, which extends coverage of chapter 41.56 RCW to "adult family home providers" who are persons defined as a provider as defined in RCW 70.128.010 who receives payments from the Medicaid and state-funded long-term care programs.

(4) 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))) (5) The posting of notice requirement in WAC 391-25-140 is inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270, 74.39A.300, 41.56.028 and 41.56.029.

(((3))) (6) A party wishing to participate as an intervenor in representation proceedings governed by this rule must file a motion to intervene no later than ten days following receipt of the petition for investigation of a question concerning representation.

(7) The description of bargaining unit requirement of WAC 391-25-190 is limited to a single, statewide unit of:

(a) Individual providers under ((I-775)) RCW 74.39A.270 and 74.39A.300; or

(b) Child care providers under RCW 41.56.028; or

(c) Adult family home providers under RCW 41.56.029.

(((4))) (8) The description of bargaining unit requirement of WAC 391-25-210(2) is limited to a single, statewide unit of:

(a) Individual providers under ((I-775)) RCW 74.39A.270 and 74.39A.300; or

(b) Child care providers under RCW 41.56.028; or

(c) Adult family home providers under RCW 41.56.029.

(((5))) (9) 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, 74.39A.300, 41.56.028 and 41.56.029.

(((6))) (10) 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, 74.39A.300, 41.56.028 and 41.56.029.

(((7))) (11) 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, 74.39A.300, 41.56.028 and 41.56.029.

(((8))) (12) 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, 74.39A.300, 41.56.028 and 41.56.029.

(((9))) (13) The unit determination election procedures in WAC 391-25-420 are inapplicable to the bargaining unit affected by ((I-775)) RCW 74.39A.270, 74.39A.300, 41.56.028 and 41.56.029.

(((10))) (14) 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, 74.39A.300, 41.56.028 and 41.56.029.

(((11))) (15) Any representation election for the bargaining unit affected by ((I-775)) RCW 74.39A.270, 74.39A.300, 41.56.028 and 41.56.029 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)) employees may describe the collective bargaining rights established by ((I-775)) RCW 74.39A.270, 74.39A.300, 41.56.028 and 41.56.029 and agreements reached by a petitioning union and the employer concerning the election process;

(b) The notice and ballot materials supplied to ((individual providers)) employees shall be set forth in English ((and Spanish)) and any other language the agency deems reasonably necessary to conduct a fair election;

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

(d) At least ((twenty-four)) twenty-one days shall be provided between the date on which ballot materials are mailed to ((individual providers)) employees 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))) (5) of this section.

(((12))) (16) 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, 74.39A.300, 41.56.028 and 41.56.029.

[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.]


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

WAC 391-25-110   Supporting evidence -- Showing of interest confidential.   (1) A petition filed by employees or an employee organization shall be accompanied by a showing of interest indicating that the petitioner has the support of thirty percent or more of the employees in the bargaining unit which the petitioner claims to be appropriate. The showing of interest shall be furnished under the same timeliness standards applicable to the petition, and shall consist of original or legible copies of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. Authorization cards or letters shall not be valid unless signed and dated during the one-year period preceding the filing of the petition.

(2) The agency shall not disclose the identities of employees whose authorization cards or letters are furnished to the agency in proceedings under this chapter.

(a) A petitioner or intervenor shall not serve its showing of interest on any other party to the proceeding.

(b) The question of whether a showing of interest requirement for a petition or for intervention has been satisfied is a matter for administrative determination by the agency and may not be litigated at any hearing.

(c) In order to preserve the confidentiality of the showing of interest and the right of employees freely to express their views on the selection of a bargaining representative, the agency shall not honor any attempt to withdraw any authorization submitted for purposes of this section.

[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, 391-25-110, filed 6/22/01, effective 8/1/01; 98-14-112, 391-25-110, filed 7/1/98, effective 8/1/98; 96-07-105, 391-25-110, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.070 and 41.59.070. 90-06-072, 391-25-110, 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), 391-25-110, filed 5/31/88. 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), 391-25-110, filed 1/6/81.]


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 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.

(5) When an order of dismissing under WAC 391-25-390 (1)(a) is served upon the parties, the obligations to maintain the status quo under subsection (2) of this section and suspend negotiations with the incumbent exclusive bargaining representative under subsection (4) of this section are lifted.

(a) If a party to the proceeding files a timely notice of appeal of the order of dismissal, then the obligations under subsections (2) and (4) of this section shall be reinstated once the parties to the proceeding are served the notice of appeal. Those obligations shall remain in effect until a final order is issued by the commission under WAC 391-25-670, unless governed by (b) of this subsection.

(b) Where a timely filed notice of appeal reinstates the obligation to maintain the status quo or suspend bargaining, any party to the proceeding may petition the commission to stay either of those obligations where the petitioning party demonstrates a need for a change in terms and conditions of employment due to circumstances that are beyond that party's control, or where the failure to resume bargaining would substantially harm the petitioned-for employees and leave them without an adequate administrative remedy. A petition filed under this subsection shall be accompanied by affidavits and evidence.

(c) Following the receipt of a petition under (b) of this subsection, the due date for any counter-affidavits from other parties is seven days following the date on which that party is served with the petition.

(d) The executive director shall forward all petitions and affidavits to the commission, who shall determine whether to stay the obligations under subsections (2) and (4) of this section at the next regularly scheduled commission meeting.

(e) If the commission uses its authority under (b) of this subsection, any party seeking review of the commission's decision shall seek relief through the courts.

[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 03-11-029, filed 5/15/03, effective 6/15/03)

WAC 391-25-210   Bargaining unit configurations.   (1) In proceedings on a petition for "decertification" under WAC 391-25-070 (6)(c) or 391-25-090(2), the parties shall not be permitted to remove positions from or add positions to the existing bargaining unit;

(2) An organization which files a motion for intervention under WAC 391-25-190 shall not be permitted to seek a bargaining unit configuration different than proposed by the original petitioner.

(3) If petitions filed by two or more organizations under this chapter are pending before the agency at the same time and involve any or all of the same employees, the timeliness of the respective petitions and the sufficiency of the respective showings of interest shall be determined separately and the proceedings shall be consolidated for resolution of all issues concerning the description(s) of the bargaining unit(s). A petition filed after the issuance of a notice of election in another proceeding under WAC 391-25-430 or after the commencement of a cross-check in another proceeding under WAC 391-25-410 shall be dismissed as untimely.

(4) A party to proceedings under this chapter shall not be permitted to propose more than one bargaining unit configuration for the same employee or employees, except where a merger of bargaining units is proposed under WAC 391-25-420.

(5) Where a petitioning union seeks severance of a portion of an existing bargaining unit of classified employees at a school district or educational service district, appropriate bargaining units existing on July 25, 2005, may not be divided into more than one appropriate bargaining unit without the agreement of the employer and certified bargaining representative of the unit where severance is sought.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 41.56.070, 41.59.070, and 41.80.080. 03-11-029, 391-25-210, filed 5/15/03, effective 6/15/03. 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, 391-25-210, filed 6/22/01, effective 8/1/01; 98-14-112, 391-25-210, filed 7/1/98, effective 8/1/98; 90-06-072, 391-25-210, 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), 391-25-210, filed 9/30/80, effective 11/1/80.]


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

WAC 391-25-350   Hearings -- Reopening of hearing -- Briefs.   (1) Hearings shall be public, except where a protective order is issued under WAC 10-08-200(7), and shall be limited to matters concerning the determination of a question concerning representation.

(a) The parties shall be responsible for the presentation of their cases.

(b) The hearing officer shall ascertain the respective positions of the parties, to obtain a full and complete factual record upon which the agency may discharge its responsibilities under the applicable statute. The hearing officer has authority, under WAC 10-08-200 (8) and (9), to ask questions, call witnesses, and explore matters not raised or only partially raised by the parties.

(2) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.

(3) The hearing officer may allow or direct the filing of briefs as to any or all of the issues in a case. Arrangements and due dates for briefs shall be established by the hearing officer. Any brief shall be filed with the hearing officer as required by WAC 391-08-120(1), and copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

(4) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, twelve-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 executive director or his or her designee grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.437, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 01-14-009, 391-25-350, filed 6/22/01, effective 8/1/01; 00-14-048, 391-25-350, filed 6/30/00, effective 8/1/00; 98-14-112, 391-25-350, filed 7/1/98, effective 8/1/98; 96-07-105, 391-25-350, 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, 41.59.070, 41.59.080 and 53.18.015. 90-06-072, 391-25-350, 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), 391-25-350, filed 9/30/80, effective 11/1/80.]


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

WAC 391-25-370   Blocking charges -- Suspension of proceedings -- Request to proceed.   (1) The executive director may suspend the processing of a representation petition under this chapter pending the outcome of related unfair labor practice proceedings, where:

(a) A complaint charging unfair labor practices is filed under the provisions of chapter 391-45 WAC; and

(b) It appears that the facts as alleged may constitute an unfair labor practice; and

(c) Such unfair labor practice could improperly affect the outcome of a representation election.

(2) The complainant(s) in the unfair labor practice case may file and serve, as required by WAC 391-08-120, a written request to proceed with the executive director. The request to proceed shall specify the case number of the representation proceeding, shall request that the representation petition be processed notwithstanding the pending unfair labor practice case, and shall waive the right to file objections under WAC 391-25-590 (1)(a) based on conduct alleged in the unfair labor practice case. Upon the filing of a request to proceed under this subsection, the executive director ((shall)) may resume the processing of the representation petition and shall summarily dismiss any objections filed in conflict with the request to proceed.

(3) Where a complaint charging unfair labor practices is filed after the issuance of a notice of election, the executive director ((shall)) may proceed with the determination of the question concerning representation, subject to the right of any party to file objections as provided in WAC 391-25-590.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 01-14-009, 391-25-370, filed 6/22/01, effective 8/1/01; 98-14-112, 391-25-370, filed 7/1/98, effective 8/1/98; 96-07-105, 391-25-370, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.070 and 41.59.070. 90-06-072, 391-25-370, 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), 391-25-370, filed 9/30/80, effective 11/1/80.]


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

WAC 391-25-390   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.

(a) The executive director shall determine whether a question concerning representation exists, and shall issue a direction of election, dismiss the petition or make other disposition of the matter.

(b) Unless otherwise provided in a direction of election, the cut-off date for eligibility to vote in an election shall be the date of issuance of the direction of election.

(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) A direction of election 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. ((An exception is made for rulings on whether the employer or employees are subject to the jurisdiction of the commission, which may be appealed under WAC 391-25-660.))

(4)(a) A party seeking review by the commission of an interlocutory decision of the executive director or his or her designee must file a motion for discretionary review with the commission and a copy with the executive director or his or her designee within seven days after the decision is issued.

(b) Discretionary review of an interlocutory decision issued by the executive director or his or her designee will be accepted by the commission only:

(i) If the executive director or his or her designee has committed an obvious error which would render further proceedings useless; or

(ii) If the executive director or his or her designee has committed probable error and the decision of the executive director or his or her designee substantially alters the status quo or substantially limits the freedom of a party to act; or

(iii) If the executive director or hearing officer has so far departed from the accepted and usual course of administrative proceedings as to call for the exercise of revisory jurisdiction by the commission.

(c) A motion for discretionary review under this rule, and any response, should not exceed fifteen pages double spaced, excluding appendices.

(d) Denial of discretionary review of a decision does not affect the right of a party to obtain later review of the executive director's or hearing officer's decision or the issues pertaining to that decision.

(5) Unless appealed to the commission under WAC 391-25-660, 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, 41.56.070, 41.56.080, 41.59.070, 41.59.080 and 41.59.090. 01-14-009, 391-25-390, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 98-14-112, 391-25-390, filed 7/1/98, effective 8/1/98; 90-06-072, 391-25-390, 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), 391-25-390, filed 5/31/88. 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), 391-25-390, 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), 391-25-390, filed 9/30/80, effective 11/1/80.]


NEW SECTION
WAC 391-25-397   Special provision -- State employees.   (1) Where only one organization is seeking certification as the representative of unrepresented employees covered by chapters 41.06 and 41.80 RCW, and the showing of interest submitted in support of the petition indicates that the organization has been authorized by a majority of the employees to act as their representative for the purposes of collective bargaining, the executive director shall issue a direction of cross-check.

(2) A 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 cross-check. An exception is made for rulings on whether the employer or employees are subject to the jurisdiction of the commission, which may be appealed under WAC 391-25-660.

[]


AMENDATORY SECTION(Amending WSR 90-06-072, filed 3/7/90, effective 4/7/90)

WAC 391-25-530   Votes needed to determine election.   (1) Unit determination elections shall be decided by a majority of those eligible to vote in the election.

(2) Unless governed by WAC 391-25-531, representation elections shall be decided by a majority of those voting. Where there are only two choices on the ballot, a tie vote shall result in a certification of no representative.

[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.070 and 41.59.070. 90-06-072, 391-25-530, 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), 391-25-530, filed 9/30/80, effective 11/1/80.]

OTS-1115.2


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

WAC 391-35-020   Time for filing petition -- Limitations on results of proceedings.  

TIMELINESS OF PETITION


(1) A unit clarification petition may be filed at any time, with regard to:

(a) Disputes concerning positions which have been newly created by an employer.

(b) Disputes concerning the allocation of employees or positions claimed by two or more bargaining units.

(c) Disputes under WAC 391-35-300 concerning a requirement for a professional education certificate.

(d) Disputes under WAC 391-35-310 concerning eligibility for interest arbitration.

(e) Disputes under WAC 391-35-320 concerning status as a confidential employee.

(f) Disputes under WAC 391-35-330 concerning one-person bargaining units.

(2) A unit clarification petition concerning status as a supervisor under WAC 391-35-340, or status as a regular part-time or casual employee under WAC 391-35-350, is subject to the following conditions:

(a) The signing of a collective bargaining agreement will not bar the processing of a petition filed by a party to the agreement, if the petitioner can demonstrate that it put the other party on notice during negotiations that it would contest the inclusion or exclusion of the position or class through a unit clarification proceeding, and it filed the petition prior to signing the current collective bargaining agreement.

(b) Except as provided under subsection (2)(a) of this section, the existence of a valid written and signed collective bargaining agreement will bar the processing of a petition filed by a party to the agreement unless the petitioner can demonstrate, by specific evidence, substantial changed circumstances during the term of the agreement which warrant a modification of the bargaining unit by inclusion or exclusion of a position or class.


LIMITATIONS ON RESULTS OF PROCEEDINGS


(3) Employees or positions may be removed from an existing bargaining unit in a unit clarification proceeding filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions.

(4) Employees or positions may be added to an existing bargaining unit in a unit clarification proceeding:

(a) Where a petition is filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions; or

(b) Where the existing bargaining unit is the only appropriate unit for the employees or positions.

(5) Except as provided under subsection (4) of this section, a question concerning representation will exist under chapter 391-25 WAC, and an order clarifying bargaining unit will not be issued under chapter 391-35 WAC:

(a) Where a unit clarification petition is not filed within a reasonable time period after creation of new positions.

(b) Where employees or positions have been excluded from a bargaining unit by agreement of the parties or by a certification, and a unit clarification petition is not filed within a reasonable time period after a change of circumstances.

(c) Where addition of employees or positions to a bargaining unit would create a doubt as to the ongoing majority status of the exclusive bargaining representative.

(6) Where a petitioning union seeks severance of a portion of an existing bargaining unit of classified employees at a school district or educational service district, appropriate bargaining units existing on July 25, 2005, may not be divided into more than one appropriate bargaining unit without the agreement of the employer and certified bargaining representative of the unit where severance is sought.

[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. 01-14-009, 391-35-020, filed 6/22/01, effective 8/1/01; 96-07-105, 391-35-020, 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, 391-35-020, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. 88-12-061 (Order 88-03), 391-35-020, filed 5/31/88.]


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

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

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

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

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

(2) Bargaining units)) where these additional state civil service employees share a community of interest with the existing appropriate unit of state civil service employees ((in existence on June 13, 2002, shall be subject to being "perfected")) and where the additional civil service employees have no separate bargaining identity may be accomplished under this section.

(((a))) (2) A petition to have additional employees accreted into an existing appropriate bargaining unit ((perfected)) to "perfect" the existing bargaining unit may be filed by the exclusive bargaining representative((,)) or by the employer and exclusive bargaining representative jointly.

(((b))) (3) The executive director shall investigate all petitions to accrete state civil service employees into an existing appropriate bargaining unit and all of the unit determination criteria set forth in RCW 41.80.070 shall be applicable to proceedings under this section. The history of bargaining in a unit configuration that is fragmentary and/or was based on narrower considerations shall not preclude creation of a "perfected" bargaining unit ((as to which a)) where community of interests is demonstrated with regard to:

(((i))) (a) The duties, skills and working conditions of all positions or classifications in the existing appropriate bargaining unit; and

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

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

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

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

(v))) (d) The petitioned-for employees sought to be accreted into the larger existing appropriate bargaining unit could constitute a separate appropriate bargaining unit; and

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

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060. 03-03-064, 391-35-026, filed 1/14/03, effective 2/14/03.]


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

WAC 391-35-170   Hearings -- Reopening of hearing -- Briefs.   (1) Hearings shall be public, except where a protective order is issued under WAC 10-08-200(7), and shall be limited to matters concerning the clarification of the existing bargaining unit.

(a) The parties shall be responsible for the presentation of their cases.

(b) The hearing officer shall ascertain the respective positions of the parties, to obtain a full and complete factual record upon which the agency may discharge its responsibilities under the applicable statute. The hearing officer has authority, under WAC 10-08-200 (8) and (9), to ask questions, call witnesses, and explore matters not raised or only partially raised by the parties.

(2) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.

(3) The hearing officer may allow or direct the filing of briefs as to any or all of the issues in a case. Arrangements and due dates for briefs shall be established by the hearing officer. Any brief shall be filed with the hearing officer as required by WAC 391-08-120(1), and copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

(4) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, twelve-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 executive director or his or her designee grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.437, 41.56.060 and 41.59.080. 01-14-009, 391-35-170, filed 6/22/01, effective 8/1/01; 00-14-048, 391-35-170, filed 6/30/00, effective 8/1/00; 98-14-112, 391-35-170, filed 7/1/98, effective 8/1/98; 96-07-105, 391-35-170, 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, 41.59.080 and 53.18.015. 90-06-073, 391-35-170, 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), 391-35-170, 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)(a) A party seeking review by the commission of an interlocutory decision of the executive director or his or her designee must file a motion for discretionary review with the commission and a copy with the executive director or his or her designee within seven days after the decision is issued.

(b) Discretionary review of an interlocutory decision issued by the executive director or his or her designee will be accepted by the commission only:

(i) If the executive director or his or her designee has committed an obvious error which would render further proceedings useless; or

(ii) If the executive director or his or her designee has committed probable error and the decision of the executive director or his or her designee substantially alters the status quo or substantially limits the freedom of a party to act; or

(iii) If the executive director or his or her designee has so far departed from the accepted and usual course of administrative proceedings as to call for the exercise of revisory jurisdiction by the commission.

(c) A motion for discretionary review under this rule, and any response, should not exceed fifteen pages double-spaced, excluding appendices.

(d) Denial of discretionary review of a decision does not affect the right of a party to obtain later review of the executive director's or hearing officer's decision or the issues pertaining to that decision.

(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.]


NEW SECTION
WAC 391-35-301   Higher education employees.   A bargaining unit of higher education employees under RCW 41.56.021 shall not include any employees eligible for collective bargaining rights under RCW 41.56.022, 41.56.024, or 41.56.203, chapter 28B.52, 41.76, or 41.80 RCW. Employees whose eligibility for collective bargaining is covered by chapter 28B.52, 41.76, or 41.80 RCW are exempt from the provisions of RCW 41.56.021.

[]

OTS-1116.1


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

WAC 391-45-290   Briefs.   (1) Any party shall be entitled, upon request made before the close of the hearing, to file a brief. The examiner may direct the filing of briefs as to any or all of the issues in a case. Arrangements and due dates for briefs shall be established by the examiner. Any brief shall be filed with the examiner as required by WAC 391-08-120(1), and copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

(2) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, twelve-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 hearing examiner grants such a motion for good cause shown.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.437, 41.56.160 and 41.59.150. 00-14-048, 391-45-290, filed 6/30/00, effective 8/1/00; 98-14-112, 391-45-290, filed 7/1/98, effective 8/1/98; 96-07-105, 391-45-290, 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, 41.56.180, 41.59.150 and 53.18.015. 90-06-074, 391-45-290, 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), 391-45-290, filed 9/30/80, effective 11/1/80.]


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

WAC 391-45-310   Examiner decisions.   (1)(a) A party seeking review by the commission of an interlocutory decision of the hearing examiner must file a motion for discretionary review with the commission and a copy with the executive director or his or her designee within seven days after the decision is issued.

(b) Discretionary review of an interlocutory decision issued by the hearing examiner will be accepted by the commission only:

(i) If the hearing examiner has committed an obvious error which would render further proceedings useless; or

(ii) If the hearing examiner has committed probable error and the decision of the interlocutory decision of the hearing examiner substantially alters the status quo or substantially limits the freedom of a party to act; or

(iii) If the hearing examiner has so far departed from the accepted and usual course of administrative proceedings as to call for the exercise of revisory jurisdiction by the commission.

(c) The commission will not accept motions for discretionary review of:

(i) The issuance of a preliminary ruling by the executive director or his or her designee or a hearing examiner under WAC 391-45-110; or

(ii) Any evidentiary ruling by a hearing examiner during the course of an administrative hearing.

(d) A motion for discretionary review under this rule, and any response, should not exceed fifteen pages double-spaced, excluding appendices.

(e) Denial of discretionary review of a decision does not affect the right of a party to obtain later review of the executive director's or hearing officer's decision or the issues pertaining to that decision.

(2) 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. 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.]

OTS-1117.1


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, the exclusive bargaining representative shall provide each affected employee with)) can be enforced on an employee, the affected employee must be provided a copy of the collective bargaining agreement((, and)).

(2) The exclusive bargaining representative shall specifically advise ((each employee of his or her obligations under that agreement, including informing)) the employee of the amount owed, the method used to compute that amount, when such payments are to be made, and the effects of a failure to pay.

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

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

An employee asserting the right of nonassociation under RCW 28B.52.045, 41.56.113, 41.56.122, 41.59.100, or 41.76.045 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.

[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.]


NEW SECTION
WAC 391-95-036   Special provision -- State civil service employees.   An employee asserting the right of nonassociation under RCW 41.80.100 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.

[]


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.

For employees asserting the right of nonassociation under RCW 28B.52.045, 41.56.113, 41.56.122, 41.59.100, or 41.76.045, the response of the exclusive bargaining representative shall address:

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

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

[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.]


NEW SECTION
WAC 391-95-056   Special provision -- State civil service employees -- Response of exclusive bargaining representative.   (1) For employees asserting the right of nonassociation under RCW 41.80.100, 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 an employee under WAC 391-95-036; 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 paragraph, 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.

(2) 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.

[]


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 charity 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 charity or charitable organization 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.]


NEW SECTION
WAC 391-95-076   Special provision -- State civil service employees -- Disputes resolved by commission.   (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 assert the right of nonassociation; or

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

(c) The exclusive bargaining representative fails to make a timely response under WAC 391-95-056; or

(d) The employee claiming nonassociation fails to name a program of the employee organization 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.

[]


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. Upon being served with a copy of a petition filed under WAC 391-95-070 concerning employees asserting the right of nonassociation under RCW 28B.52.045, 41.56.113, 41.56.122, 41.59.100, or 41.76.045, 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.

[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 391-95-136   Special provision -- State civil service employees -- Escrow of funds.   (1) Upon being served with a copy of a petition filed under WAC 391-95-076 concerning an employee asserting the right of nonassociation under RCW 41.80.100, 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.

(2) While the nonassociation 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.

[]


NEW SECTION
WAC 391-95-220   Settlement conference.   Separate from any prehearing conference held under WAC 10-08-130 to discuss procedural matters, a settlement conference to discuss substantive issues may be held on the examiner's own motion under WAC 10-08-200(15), or at the request of any party to the proceeding. A commission staff member other than the assigned examiner shall be assigned to mediate between the parties on substantive issues, and any settlement conference shall be held in advance of the scheduled hearing date. 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 shall not prejudice that party in any manner. Conversations had and offers made in a settlement conference 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 391-95-230   Hearings -- Reopening of hearing -- Briefs.   (1) Hearings shall be public and shall be limited to the portions of a petition found to state a cause of action under WAC 391-95-150.

(2) The employee has the burden to make a factual showing, through testimony of witnesses and/or documentary evidence, of the legitimacy of his or her beliefs, as follows:

(a) In cases where the claim of a right of nonassociation is based on the teachings of a church or religious body, the claimant employee shall demonstrate:

(i) His or her bona fide religious objection to union membership; and

(ii) That the objection is based on a bona fide religious teaching of a church or religious body; and

(iii) That the claimant employee is a member of such church or religious body.

(b) In cases where the claim of a right of nonassociation is based on personally held religious beliefs, the claimant employee shall demonstrate:

(i) His or her bona fide religious objection to union membership; and

(ii) That the religious nature of the objection is genuine and in good faith.

(3) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.

(4) Any party shall be entitled, upon request made before the close of the hearing, to file a brief. The examiner may direct the filing of briefs as to any or all of the issues in a case. Arrangements and due dates for briefs shall be established by the examiner. Any brief shall be filed with the examiner as required by WAC 391-08-120(1), and copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

(5) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, twelve-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 executive director or his or her designee 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, 34.05.437, 41.56.122 and 41.59.100. 00-14-048, 391-95-230, filed 6/30/00, effective 8/1/00; 98-14-112, 391-95-230, filed 7/1/98, effective 8/1/98; 96-07-105, 391-95-230, 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, 391-95-230, 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), 391-95-230, 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), 391-95-230, filed 9/30/80, effective 11/1/80.]


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

WAC 391-95-250   Examiner decision.   (1)(a) A party seeking review by the commission of an interlocutory decision of the hearing examiner must file a motion for discretionary review with the commission and a copy with the executive director or his or her designee within seven days after the decision is issued.

(b) Discretionary review of an interlocutory decision issued by the hearing examiner will be accepted by the commission only:

(i) If the hearing examiner has committed an obvious error which would render further proceedings useless; or

(ii) If the hearing examiner has committed probable error and the decision of the interlocutory decision of the hearing examiner substantially alters the status quo or substantially limits the freedom of a party to act; or

(iii) If the hearing examiner has so far departed from the accepted and usual course of administrative proceedings as to call for the exercise of revisory jurisdiction by the commission.

(c) The commission will not accept motions for discretionary review of:

(i) The issuance of a preliminary ruling by the executive director or his or her designee or a hearing examiner under WAC 391-95-150; or

(ii) Any evidentiary ruling by a hearing examiner during the course of an administrative hearing.

(d) A motion for discretionary review under this rule, and any response, should not exceed fifteen pages double-spaced, excluding appendices.

(e) Denial of discretionary review of a decision does not affect the right of a party to obtain later review of the executive director's or hearing officer's decision or the issues pertaining to that decision.

(2) 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. 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.]

Washington State Code Reviser's Office