Date of Adoption: January 11, 2000.
Purpose: To give designated staff members the authority to assign cases and to take various actions in the processing of unfair labor practice cases, including issuing preliminary rulings, deficiency notices, orders of dismissal, deferral rulings, and order on motions to amend complaints.
Citation of Existing Rules Affected by this Order: Amending WAC 391-45-070, 391-45-110, and 391-45-130.
Statutory Authority for Adoption: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050.
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: Amendments are necessary to implement a reorganization designed to promote efficiency (RCW 41.58.005) and the general welfare of the public. The amendments allow the executive director to delegate his authority to designated staff members, in order to provide more efficient services to clientele.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 3, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 3, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0. Effective Date of Rule: Immediately.
January 14, 2000
Marvin L. Schurke
Any)) A complaint may be
amended upon motion made by the complainant (( to the executive
director or the examiner prior to the transfer of the case to the
(a) The proposed amendment only involves the same parties as the original complaint;
(b) The proposed amendment is timely under any statutory limitation as to new facts;
(c) The subject matter of the proposed amendment is germane to the subject matter of the complaint as originally filed or previously amended; and
(d) Granting the amendment will not cause undue delay of the proceedings.
(2) Motions to amend complaints shall be subject to the following limitations:
(a) Prior to the appointment of an examiner, amendment shall be freely allowed upon motion to the agency official responsible for making preliminary rulings under WAC 391-45-110;
(b) After the appointment of an examiner but prior to the opening of an evidentiary hearing, amendment may be allowed upon motion to the examiner and subject to due process requirements;
(c) After the opening of an evidentiary hearing, amendment may only be allowed to conform the pleadings to evidence received without objection, upon motion made prior to the close of the evidentiary hearing.
(3) Where a motion for amendment is denied, the proposed amendment shall be processed as a separate case.
[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.140, 41.56.150, 41.56.170, 41.59.140 and 53.18.015. 90-06-074, § 391-45-070, 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. 80-14-048 (Order 80-7), § 391-45-070, filed 9/30/80, effective 11/1/80.]
director or a designated staff member shall determine whether the
as)) alleged in the complaint may constitute an unfair
labor practice within the meaning of the applicable statute.
(1) If ((
it is determined that)) the facts (( as)) alleged do
not, as a matter of law, constitute a violation, (( the executive
director shall issue and cause to be)) 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 (( of dismissal)) shall be issued and served, (( containing))
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
(2) If ((
the complaint is found to)) one or more allegations
state a cause of action for unfair labor practice proceedings
before the commission, ( (the executive director shall set a
period)) a preliminary ruling summarizing the allegation(s) shall
be issued and served on all parties. The preliminary ruling
shall establish the due date for the respondent to file its
answer(( , which shall be ten days or more following the issuance
of the preliminary ruling)).
(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 results of the contractual proceedings shall be considered binding, except where:
(i) The contractual procedures were not conducting 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. 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.]
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
AMENDATORY SECTION(Amending WSR 96-07-105, filed 3/20/96)
Examiner -- Who may act.
The executive director or a designated staff member shall assign an examiner to conduct further proceedings in the matter, and shall notify the parties of that assignment. The examiner may be a member of the agency staff or any other individual designated by the commission or executive director. Upon notice to all parties, an examiner may be substituted for the examiner previously presiding.
[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. 96-07-105, § 391-45-130, 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, 41.56.170 and 53.18.015. 90-06-074, § 391-45-130, 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. 80-14-048 (Order 80-7), § 391-45-130, filed 9/30/80, effective 11/1/80.]