Original Notice.

Preproposal statement of inquiry was filed as WSR 00-04-070.

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

Purpose: To implement recent reorganization of agency staff; to allow for filing of documents by fax or e-mail; to standardize the location for filing of documents; and to streamline procedures for unfair labor practice and nonassociation cases.

Statutory Authority for Adoption: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050.

Statute Being Implemented: WAC 391-08-120 is RCW 34.05.010 (6) and (19); 391-08-310 is RCW 2.40.010, 5.56.010 and 34.05.446; 391-25-050 and 391-25-090 is RCW 28B.52.030, 34.05.413, 41.56.060, 41.56.070, 41.59.070 and 41.59.080; 391-25-230, 391-25-250 and 391-25-270 is RCW 28B.52.030, 41.56.060, 41.56.070, 41.59.070 and 41.59.080; 391-25-350 is RCW 28B.52.030, 34.05.437, 41.56.060, 41.56.070, 41.59.070 and 41.59.080; 391-25-590 is RCW 28B.52.030, 41.56.060 and 41.59.070; 391-25-650 is RCW 41.56.070 and 41.59.070; 391-25-660 and 391-25-670 is RCW 34.05.464, 41.56.070 and 41.59.070; 391-35-030 is RCW 34.05.413, 41.56.060 and 41.59.080; 391-35-170 is RCW 34.05.437, 41.56.060 and 41.59.080; 391-35-210 and 391-35-250 is RCW 34.05.464, 41.56.060 and 41.59.080; 391-45-010 is RCW 28B.52.065, 41.56.040, 41.58.040, 41.59.060 and 53.18.015; 391-45-030 and 391-45-050 is RCW 28B.52.065, 34.05.413, 41.56.160 and 41.59.150; 391-45-070 is RCW 28B.52.073, 41.56.140, 41.56.150, 41.56.170, 41.59.140 and 53.18.015; 391-45-090 is RCW 28B.52.073, 41.56.140, 41.56.150, 41.59.140 and 53.18.015; 391-45-110 is RCW 28B.52.065, 28B.52.073, 34.05.419, 41.56.140, 41.56.150, and 41.59.140; 391-45-130, 391-45-190, 391-45-250 and 391-45-310 is RCW 28B.52.065, 41.56.160 and 41.59.150; 391-45-170 is RCW 28B.52.065, 34.05.434, 41.56.160 and 41.59.150; 391-45-210 is RCW 28B.52.073, 41.56.170, 41.59.150 and 53.18.015; 391-45-260 is RCW 34.05.431, 41.56.160 and 41.59.150; 391-45-290 is RCW 34.05.437, 41.56.160 and 41.59.150; 391-45-350 and 391-45-390 is RCW 28B.52.065, 34.05.464, 41.56.160 and 41.59.150; 391-45-410 is RCW 28B.52.073, 41.56.160, 41.59.150 and 53.18.015; 391-45-430 is RCW 41.56.160(3) and 41.59.150; 391-45-550 is RCW 28B.52.073, 41.56.030(4), 41.59.020(2) and 53.18.015; 391-45-552 and 391-55-350 is RCW 41.59.120; 391-65-070 is RCW 41.56.125; 391-95-010, 391-95-030, 391-95-050, 391-95-070 and 391-95-130 is RCW 28B.52.045, 41.56.122 and 41.59.100; 391-95-090 and 391-95-110 is RCW 28B.52.045, 34.05.413, 41.56.122 and 41.59.100; 391-95-150 is RCW 28B.52.045, 34.05.419, 41.56.122 and 41.59.100; 391-95-170 is RCW 28B.52.045, 34.05.434, 41.56.122 and 41.59.100; 391-95-190, 250 and 310 is RCW 28B.52.045, 41.56.122 and 41.59.100; 391-95-230 is RCW 28B.52.045, 34.05.437, 41.56.122 and 41.59.100; and 391-95-270 and 391-95-290 is RCW 28B.52.045, 34.05.464, 41.56.122 and 41.59.100.

Summary: Rule changes are proposed concerning filing and service of papers, notices of appearance, unfair labor practice complaints, and petitions for ruling on a nonassociation claim.

Reasons Supporting Proposal: To conform to Executive Order 97-02, including eliminating need for copies of filed documents, and requiring parties' representatives to file a notice of appearance unless information on the representative is already on file for the case.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mark S. Downing, Rules Coordinator, 603 Evergreen Plaza, (360) 753-2955.

Name of Proponent: Agency, governmental.

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.

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

Explanation of Rule, its Purpose, and Anticipated Effects: These rule changes implement four new manager positions reporting to the executive director, authorizes them to assign cases, and to issue preliminary rulings and deficiency notices. Under proposed changes, executive director will post a list containing the agency's street and mailing addresses, fax number, e-mail address and software supported by the agency for purposes of filing by e-mail attachment. Unfair labor practice rules are changed to codify the agency's deferral policy under City of Yakima, Decision 3564-A (PECB, 1991). Hearing rules are changed to define issues in dispute at the hearing by attaching a copy of preliminary ruling (rather than copy of complaint or petition).

Proposal Changes the Following Existing Rules: Examples of changes in the unfair labor practice rules include setting forth standards for the amendment of unfair labor practice complaints; requiring withdrawals of complaints to be in writing; limiting parties' abilities to vary a statute of limitations; clarifying standards for answers to complaints, including that counterclaims must be filed and processed as separate cases; and reinforcing that late answers will only be accepted for good cause. Proposed changes emphasize the impartial role of agency in unfair labor practice and nonassociation cases by stating that the parties are responsible for presentation of their own case, and have the burden of proof; or are responsible for presentation of their own defenses, and have the burden of proof as to any affirmative defenses.

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

RCW 34.05.328 does not apply to this rule adoption. Agency rules are excepted by RCW 34.05.328 (5)(a)(i) from the provisions of RCW 34.05.328.

Hearing Location: Second Floor Conference Room, Evergreen Plaza Building, 711 Capitol Way, Olympia, WA, on June 13, 2000, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact James E. Lohr by June 6, 2000, (360) 586-7862.

Submit Written Comments to: Mark S. Downing, Rules Coordinator, P.O. Box 40919, Olympia, WA 98504-0919, fax (360) 586-7091, by June 6, 2000.

Date of Intended Adoption: June 13, 2000.

May 3, 2000

Marvin L. Schurke

Executive Director

OTS-4002.1

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

WAC 391-08-001
Application and scope of chapter 391-08 WAC.

Chapter 391-08 WAC has been added to the Washington Administrative Code by the public employment relations commission pursuant to the authority of section 12, chapter 288, Laws of 1975 1st ex. sess. (RCW 41.59.110); and sections 7, 14 and 20, chapter 296, Laws of 1975 1st ex. sess. (RCW 41.58.050, 28B.52.080 and 41.56.090((); and section 7, chapter 296, Laws of 1975 1st ex. sess. (RCW 41.58.050)), respectively), to promulgate comprehensive and uniform rules for practice and procedure before the agency.      This chapter sets forth general rules applicable to all types of proceedings before the agency, and should be read in conjunction with the provisions of:

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge ((governing the conduct of)) to regulate adjudicative proceedings under chapters 391-25, 391-35, 391-45 and 391-95 WAC, except:

(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-25-070, 391-25-090, 391-35-050, 391-45-050, and 391-95-110;

(b) WAC 10-08-050, which relates to ((procedures of the)) office of administrative hearings((, is)) procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC ((10-08-090, which is replaced by detailed requirements in WAC 391-08-180)) 10-08-083, which is replaced by detailed requirements in WAC 391-08-010;

(d) WAC 10-08-110, which is replaced by detailed requirements in WAC 391-08-120;

(e) WAC 10-08-120, which is replaced by detailed requirements in WAC 391-08-040, 391-08-300 and 391-08-310;

(f) WAC 10-08-140, which is limited by WAC 391-08-040, 391-08-300 and 391-08-310;

(g) WAC 10-08-150, which is limited by WAC 391-08-315;

(h) WAC 10-08-211, which is replaced by WAC 391-08-640 and detailed requirements in WAC 391-25-390, 391-25-391, 391-25-590, 391-25-630, 391-25-650, 391-25-660, 391-25-670, 391-35-210, 391-35-250, 391-45-350, 391-45-390, 391-95-270, and 391-95-290;

(i) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-25-150, 391-25-220, 391-25-230, 391-25-250, 391-25-270, 391-35-070, 391-35-080, 391-45-070, 391-45-090, 391-45-260, and 391-95-170; and

(j) WAC 10-08-250, 10-08-251, and 10-08-252 which are replaced by detailed requirements in WAC 391-08-520.

(2) Chapter 391-25 WAC, which regulates representation proceedings.

(3) Chapter 391-35 WAC, which regulates unit clarification proceedings.

(4) Chapter 391-45 WAC, which regulates unfair labor practice proceedings.

(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.

(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.

In the event of a conflict between a general rule in this chapter and a special rule in another chapter applicable to a particular proceeding, the special rule shall govern.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 98-14-112, § 391-08-001, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-08-001, 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, § 391-08-001, 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.      83-24-031 (Order 83-01), § 391-08-001, 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.      80-14-045 (Order 80-4), § 391-08-001, filed 9/30/80, effective 11/1/80; Order 77-1, § 391-08-001, filed 1/27/77.]

(1) No person may appear in a representative capacity before the agency ((or its designated hearing officer)) other than the following:

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

(((2))) (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;

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

(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 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.]

(b))) Papers to be filed with the ((executive director or with the)) agency ((generally)) shall be filed ((in)) at the commission's Olympia office((;

(c) Papers to be filed with a presiding officer can be filed in the Olympia office or in the office of the presiding officer;

(d) Papers to be filed with the commission, including any objections, notice of appeal or notice of cross-appeal, shall be filed in the Olympia office)). The executive director shall post, and from time to time revise as appropriate, a list containing the street and mailing addresses for filing by actual delivery of papers, the telephone number for filing by electronic telefacsimile transmission (fax), and the electronic mail (e-mail) address and software supported by the agency for filing by e-mail attachment.

(iii) Filing shall ((be deemed complete)) occur only upon actual receipt of the original paper ((and any required copy)) by the agency during office hours ((at the Olympia office or at the office of the agency staff member assigned to process the case.      Papers may be submitted by electronic telefacsimile transmission in cases under this subsection, with)).

(iv) Papers delivered to or left at the agency office after the close of business will be deemed to be filed on the next business day the office is open.

(b) FILING BY FAX shall be subject to the following limitations:

(((a) The maximum length of papers acceptable for submission by electronic telefacsimile transmission is ten pages;

(b) The party sending papers by electronic telefacsimile transmission is responsible for confirming that the material was complete and legible when received by the agency;

(c) An agency staff member processing the case may require mailing of the original papers to the agency;

(d) Electronic telefacsimile transmission)) (i) Parties shall only transmit one copy of the paper, accompanied by a cover sheet or form identifying the party filing the paper, the total number of pages in the fax transmission, and the name, address, telephone number and fax number of the person sending the fax.

(ii) The original paper filed by fax shall be mailed to the commission's Olympia office on the same day the fax is transmitted.

(iii) The case number(s) shall be indicated on the front page of each document filed by fax, except for petitions and complaints being filed to initiate proceedings before the agency.

(iv) Filing by fax shall occur only when a complete legible copy of the paper is received by the agency. If a fax is not received in legible form, it will be treated as if it had never been filed. A party attempting to file a paper by fax bears the risk that the paper will not be timely or legibly received, regardless of the cause.

(v) If receipt of a fax transmission commences after office hours, the paper will be deemed filed on the next business day the office is open.

(vi) Fax shall not be used to submit or revoke authorization cards for purposes of a showing of interest or cross-check under chapter 391-25 WAC.

(c) FILING BY E-MAIL ATTACHMENT shall be subject to the following limitations:

(i) Parties shall only transmit one copy of the paper, as an attachment to an e-mail message identifying the party filing the paper, the total number of pages in the attachment, the software used to prepare the attachment, and the name, address, telephone number and e-mail address of the person sending the e-mail message.

(ii) The original paper filed by e-mail attachment shall be mailed to the commission's Olympia office on the same day the e-mail message and attachment are transmitted.

(iii) The case number(s) shall be indicated on the front page of each document filed by e-mail attachment, except for petitions and complaints being filed to initiate proceedings before the agency.

(iv) Filing by e-mail attachment shall occur only when a complete legible copy of the paper is received by the agency. If an e-mail attachment is not received in legible form, or cannot be opened with software on the list promulgated by the executive director under this section, it will be treated as if it had never been filed. A party attempting to file a paper by e-mail attachment bears the risk that the paper will not be timely or legibly received, regardless of the cause.

(v) If an e-mail transmission is received by the agency after office hours, the paper will be deemed filed on the next business day the office is open.

(vi) E-mail shall not be used to submit or revoke authorization cards for purposes of a showing of interest or cross-check under chapter 391-25 WAC.

(a) Service may be made personally, and shall be regarded as completed when delivered in the manner provided in RCW 4.28.080;

(b) Service may be made by first class, registered, or certified mail, and shall be regarded as completed upon deposit in the United States mail properly stamped and addressed.

(c) Service may be made by ((telegraph or by)) commercial parcel delivery company, and shall be regarded as completed ((when deposited with a telegraph company or)) upon delivery to the parcel delivery company, properly addressed ((and)) with charges prepaid.

(d) Service may be made by ((electronic telefacsimile transmission)) fax, and shall be regarded as completed upon production by the ((telefacsimile device)) fax machine of confirmation of transmission, together with same day mailing of a copy of the papers, postage prepaid and properly addressed, to the person being served.

(e) Service may be made by e-mail attachment, and shall be regarded as completed upon transmission, together with same day mailing of a copy of the papers, postage prepaid and properly addressed, to the person being served.

(a) Obtain an acknowledgment of service from the person who accepted personal service; or

(b) Make a certificate stating that the person signing the certificate personally served the papers by delivering a copy at a date, time and place specified in the certificate to a person named in the certificate; or

(c) Make a certificate stating that the person signing the certificate completed service of the papers by:

(i) Mailing a copy under subsection (3)(b) of this section; or

(ii) Depositing a copy under subsection (3)(c) of this section with a ((telegraph or)) commercial parcel delivery company named in the certificate; or

(iii) Transmitting and mailing a copy under subsection (3)(d) or (e) of this section.

(5) Where the sufficiency of service is contested, an acknowledgment of service obtained under subsection (4)(a) of this section or a certificate of service made under subsection (4)(b) or (c) of this section shall constitute proof of service.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.010 (6) and (19). 98-14-112, § 391-08-120, filed 7/1/98, effective 8/1/98.      Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.010 (6) and (18).      96-07-105, § 391-08-120, 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, § 391-08-120, filed 3/7/90, effective 4/7/90.      Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110.      88-12-053 (Order 88-01), § 391-08-120, filed 5/31/88.      Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.      83-24-031 (Order 83-01), § 391-08-120, filed 12/1/83, effective 1/1/84; Order 77-1, § 391-08-120, filed 1/27/77.]

(1) Postponements, continuances, extensions of time, and adjournments may be ordered by the presiding officer((:

(a))) on his or her own motion((;

(b) With the consent of all parties; or

(c) On the timely oral or written request of any party showing good and sufficient cause)) or may be granted on timely request of any party, with notice to all other parties, if the party shows good cause.

(2) ((Before submitting a request for a continuance,)) A request for a continuance may be oral or written. The party seeking the continuance shall notify all other parties of the request((, and shall attempt to obtain their consent)). The request for a continuance shall ((specify that)) state whether or not all other parties ((either)) agree to ((or disagree on)) the continuance.

(((a))) If all parties do not agree to ((a)) the continuance ((requested before or after a hearing)), the presiding officer shall promptly schedule a prehearing conference to receive argument and to rule on the request.

(((b) If all parties do not agree to a continuance requested during a hearing, the presiding officer shall receive argument and rule on the request.))

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 98-14-112, § 391-08-180, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-08-180, 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, § 391-08-180, 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.      83-24-031 (Order 83-01), § 391-08-180, 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.      80-14-045 (Order 80-4), § 391-08-180, filed 9/30/80, effective 11/1/80; Order 77-1, § 391-08-180, filed 1/27/77.]

(1) Every subpoena shall:

(a) State the name of the agency as: State of Washington, public employment relations commission;

(b) State the title of the proceeding and case number; and

(c) Identify the party causing issuance of the subpoena.

(2) Every subpoena shall command the person to whom it is directed to attend and give testimony or produce designated books, documents, or things under his or her control at the time and place set for the hearing, except no subpoena shall be issued or given effect to require the attendance and testimony of, or the production of evidence by, any member of the commission or any member of the agency staff in any proceeding before the agency.

(3) Subpoenas may be issued by the commission or its presiding officer:

(a) On the request of counsel or other representative authorized to practice before the agency; or

(b) On the request of a party not represented by counsel or other representative authorized to practice before the agency, but may then be conditioned upon a showing of general relevance and reasonable scope of the testimony or evidence sought.

(4) Subpoenas may be issued by attorneys under the authority conferred upon them by RCW 34.05.446(1).

(5) A subpoena may be served by any suitable person over eighteen years of age, by exhibiting and reading it to the witness, or by giving him or her a copy of the subpoena, or by leaving a copy of the subpoena at the place of his or her abode. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit or declaration under penalty of perjury.

(6) The party which issues or requests issuance of a subpoena shall pay the fees and allowances and the cost of producing records required to be produced by subpoena.

(a) Witness fees, mileage, and allowances for meals and lodging shall be at the rates and terms allowed by the superior court for Thurston County.

(b) Witnesses shall be entitled to payment in advance for their fees for one day's attendance, together with mileage for traveling to and returning from the place where they are required to attend, if their demand for payment is made to the officer or person serving the subpoena at the time of service.

(7) The presiding officer, upon motion made at or before the time specified in the subpoena for compliance therewith, may:

(a) Quash or modify the subpoena if it is unreasonable or oppressive; or

(b) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(8) Subpoenas shall be enforced as provided in RCW 34.05.588(1).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 2.40.010, 5.56.010 and 34.05.446. 99-14-060, § 391-08-310, filed 7/1/99, effective 8/1/99; 98-14-112, § 391-08-310, filed 7/1/98, effective 8/1/98.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045(3), 28B.52.060, 41.56.060, 41.56.122(1), 41.56.170, 41.59.080, 41.59.100 and 41.59.150.      90-06-070, § 391-08-310, 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.      83-24-031 (Order 83-01), § 391-08-310, filed 12/1/83, effective 1/1/84; Order 77-1, § 391-08-310, filed 1/27/77.]

     The following section of the Washington Administrative Code is repealed:

WAC 391-08-230

Summary judgment.

OTS-4003.2

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

WAC 391-25-050
Petition form -- Number of copies -- Filing -- Service.

Each petition shall be prepared on a form furnished by the commission or on a facsimile thereof((.      The original and one copy of the petition)), and shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1).      The party filing the petition shall serve a copy on the employer and on each employee organization named in the petition as having an interest in the proceedings, as required by WAC 391-08-120 (3) and (4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.413, 41.56.060, 41.56.070, 41.59.070 and 41.59.080.      98-14-112, § 391-25-050, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-25-050, 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, § 391-25-050, 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.      80-14-046 (Order 80-5), § 391-25-050, filed 9/30/80, effective 11/1/80.]

(1) Where an employer has been presented with one or more demands for recognition of an exclusive bargaining representative of previously unrepresented employees, it may obtain a determination of the question concerning representation.      A petition under this subsection shall contain all of the information required by WAC 391-25-070, except as follows:

(a) The petition shall contain a statement that the employer has been presented with a demand by an organization seeking recognition as the exclusive bargaining representative of the employees in the bargaining unit described in the petition.

(b) WAC 391-25-110 shall not be applicable to petitions filed under this subsection.

(c) The employer shall attach copies of any written demand(s) for recognition or other correspondence pertaining to the claimed question concerning representation.

(2) Where an employer has a good faith belief that a majority of its employees in an existing bargaining unit no longer desire to be represented by their incumbent exclusive bargaining representative, it may obtain a determination of the question concerning representation.      A petition under this subsection shall contain all of the information required by WAC 391-25-070 except as follows:

(a) The employer shall attach affidavits and other documentation as may be available to it to demonstrate the existence of a good faith doubt concerning the representation of its employees.

(b) To constitute a basis for a good faith doubt under this paragraph, signature documents provided to the employer by employees must be in a form which would qualify as supporting evidence under WAC 391-25-110 if filed by the employees directly with the commission.

(3) ((The original and one copy of)) A petition under this section shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1). The employer shall serve a copy on each employee organization named in the petition as having an interest in the proceedings, as required by WAC 391-08-120 (3) and (4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 34.05.413, 41.56.060, 41.56.070, 41.59.070 and 41.59.080.      98-14-112, § 391-25-090, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-25-090, filed 3/20/96, effective 4/20/96.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and 41.56.040.      90-06-072, § 391-25-090, 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), § 391-25-090, filed 5/31/88.      Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.      80-14-046 (Order 80-5), § 391-25-090, filed 9/30/80, effective 11/1/80.]

Where an employer and all other parties agree on a representation election, they may enter into an election agreement.

(1) An election agreement shall contain:

(a) The name and address of the employer and the name, address and telephone number of its principal representative;

(b) The names and addresses of all other parties participating in the election agreement and the names, addresses and telephone numbers of their principal representatives;

(c) A description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions, and the number of employees in that unit;

(d) A statement by the parties that no organization is known which is or may be entitled to intervene as an incumbent representative, or the incumbent representative is a party to the election agreement, or the incumbent representative has abandoned the unit as evidenced by documentation attached to the election agreement;

(e) A statement by the parties that no other organization is known which claims to represent any of the employees in the bargaining unit; that the parties agree that a question concerning representation exists; that a hearing is waived; and that the agency is requested to proceed to conduct an election and certify the results;

(f) A list, attached to the election agreement as an appendix, containing the names of the employees eligible to vote in the election and the eligibility cut-off date for the election.      If the election is to be conducted by mail ballot, the list shall include the last known address of each of the employees eligible to vote.      If no eligibility cut-off date is specified by the parties, the eligibility cut-off date shall be the date on which the election agreement is filed;

(g) The suggestions of the parties as to the arrangements for conducting the election; and

(h) The signatures and, if any, the titles of all parties or their representatives.

(2) ((The original and one copy of the)) An election agreement shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be posted by the employer in conspicuous places on the employer's premises where notices to affected employees are usually posted.      The election agreement shall remain posted for at least seven days after it is filed with the agency.

(3) Upon the filing of an election agreement conforming to the foregoing requirements and seeking an election in an appropriate bargaining unit, the executive director shall proceed to conduct an election.

(4) Objections to the election by a party to the election agreement shall be limited to matters relating to specific conduct affecting the results of the election.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 98-14-112, § 391-25-230, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-25-230, 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 and 41.59.080.      90-06-072, § 391-25-230, 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), § 391-25-230, filed 9/30/80, effective 11/1/80.]

Where only one organization is seeking certification as the representative of unrepresented employees, the employer and the organization may enter into a cross-check agreement.

(1) A cross-check agreement shall contain:

(a) The name and address of the employer and the name, address and telephone number of its principal representative;

(b) The name and address of the organization and the name, address and telephone number of its principal representative;

(c) A description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions, and the number of employees in that unit;

(d) A statement by the parties that no other organization is known which claims to represent any of the employees in the bargaining unit; that the parties agree that a question concerning representation exists; that a hearing is waived; and that the agency is requested to conduct and certify the results of a cross-check of individually signed and dated authorization cards or membership records submitted by the organization against the employment records of the employer;

(e) A list, attached to the cross-check agreement as an appendix, containing the names of the employees in the bargaining unit;

(f) The suggestions of the parties as to the arrangements for conducting the cross-check;

(g) The agreement of the parties to be bound by the results of the cross-check; and

(h) The signatures and, if any, the titles of the representatives of the parties.

(2) ((The original and one copy of the)) A cross-check agreement shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be posted by the employer in conspicuous places on the employer's premises where notices to affected employees are usually posted.      The cross-check agreement shall remain posted for at least seven days after it is filed with the agency.

(3) Upon the filing of a cross-check agreement conforming to the foregoing requirements and seeking a cross-check in an appropriate bargaining unit, the executive director shall proceed with the cross-check of records.      The cross-check may be conducted at any time following the execution of a cross-check agreement; but no certification shall be issued until seven days have elapsed following the filing and posting of the cross-check agreement.      Where a motion for intervention is timely filed and granted, no certification shall be issued on the basis of the cross-check.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 98-14-112, § 391-25-250, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-25-250, 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 and 41.56.070.      90-06-072, § 391-25-250, 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), § 391-25-250, filed 9/30/80, effective 11/1/80.]

Where the parties are able to agree generally on the matters to be set forth in an election agreement under WAC 391-25-230 or a cross-check agreement under WAC 391-25-250, but are unable to agree on limited issues concerning the definition of the bargaining unit or employee eligibility, they may expedite the determination of the question concerning representation while reserving their disagreement for subsequent determination by entering into a supplemental agreement under this rule together with an agreement under WAC 391-25-230 or 391-25-250.     

(1) A supplemental agreement shall contain:

(a) The names of all parties to the election agreement or cross-check agreement and the case number of the proceedings;

(b) Identification of the employees or classifications as to which a dispute exists, together with the identification of the position taken by each party on the dispute;

(c) A statement by all parties requesting that employees affected by the supplemental agreement be permitted to vote by challenged ballot or be challenged for purposes of a cross-check, subject to a subsequent determination of the dispute; and that the certification of the results of the election or cross-check not be withheld pending the determination of the dispute unless the challenges are sufficient in number to affect the outcome; and

(d) The signatures and, if any, the titles, of the representatives of the parties.

(2) ((The original and one copy of the)) A supplemental agreement shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), together with the agreement filed under WAC 391-25-230 or 391-25-250, and copies shall be posted with such agreement.

(3) Upon the filing of a supplemental agreement, the executive director shall proceed with the determination of the question concerning representation. If the challenges are sufficient in number to affect the outcome, they shall be determined prior to the issuance of a certification.      Otherwise, an interim certification shall be issued which shall be amended upon final disposition of the issues framed in the supplemental agreement.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060, 41.56.070, 41.59.070 and 41.59.080. 98-14-112, § 391-25-270, 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, 41.59.070 and 41.59.080.      90-06-072, § 391-25-270, 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), § 391-25-270, filed 9/30/80, effective 11/1/80.]

Hearings shall be public and shall be limited to matters concerning the determination of the existence of a question concerning representation, the appropriate bargaining unit and questions of eligibility.      During the course of the hearing, the hearing officer may, upon motion by any party, or upon his or her own motion, sequester witnesses.      It shall be the duty of the hearing officer to inquire fully into all matters in issue and to obtain a clear and complete factual record upon which the commission and the executive director may discharge their duties under the pertinent statutes and these rules.      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.      ((A party which desires to have a brief or written argument considered shall file an original and one copy)) Any party shall be entitled, upon request made before the close of the hearing, to file a brief. The hearing officer 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 hearing officer. Any brief shall be filed with the hearing officer as required by WAC 391-08-120(1), and ((shall serve)) copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

[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. 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.]

The due date for objections is seven days after the tally has been served under WAC 391-25-410 or under WAC 391-25-550, regardless of whether challenged ballots are sufficient in number to affect the results of the election. The time period for objections cannot be extended.

(1) Objections by the petitioner, the employer or any intervenor shall set forth, in separate numbered paragraphs:

(a) The specific conduct which the party filing the objection claims has improperly affected the results of the election; and/or

(b) The direction of election, direction of cross-check or other interim rulings which the objecting party desires to appeal to the commission.

(2) Objections by individual employees are limited to conduct or procedures which prevented them from casting a ballot.

(3) ((The original and three copies of the)) Any objections shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and the party filing the objections shall serve a copy on each of the other parties to the proceedings as required by WAC 391-08-120 (3) and (4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.030, 41.56.060 and 41.59.070.      98-14-112, § 391-25-590, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-25-590, 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, § 391-25-590, 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), § 391-25-590, filed 9/30/80, effective 11/1/80.]

(1) The due date for any brief which the party filing an objection desires to have considered by the commission is 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).

((The original and three copies of the)) 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 is fourteen days following the date on which that party is served with an appeal brief. ((The original and three copies of the)) 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.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.070 and 41.59.070.      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.]

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) ((The original and three copies of)) 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).

(((5))) (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. ((The original and three copies of the)) 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).

(((6))) (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. ((The original and three copies of the)) 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))) (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.

[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. 98-14-112, § 391-25-660, filed 7/1/98, effective 8/1/98.]

If there are objections under WAC 391-25-590 or an order is appealed under WAC 391-25-660, the entire record in the proceedings shall be ((transferred)) transmitted to the commission members.      The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter.      The commission shall determine the objections or appeal and any challenged ballots referred to the commission pursuant to WAC 391-25-510, and shall issue appropriate orders.

[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.      98-14-112, § 391-25-670, 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 41.59.070.      90-06-072, § 391-25-670, 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), § 391-25-670, filed 9/30/80, effective 11/1/80.]

OTS-4004.1

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

WAC 391-35-030
Petition form -- Number of copies -- Filing -- Service.

Each petition for clarification of an existing bargaining unit shall be prepared on a form furnished by the commission or shall be prepared in conformance with WAC 391-35-050((.      The original and one copy of the petition)), and shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1).      If the petition is filed other than as a jointly filed petition, the party filing the petition shall serve a copy on the other party to the collective bargaining relationship in which the disagreement arises, as required by WAC 391-08-120 (3) and (4).

[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. 98-14-112, § 391-35-030, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-35-030, 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 and 41.59.080.      90-06-073, § 391-35-030, 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), § 391-35-030, filed 9/30/80, effective 11/1/80.]

Hearings shall be public and shall be limited to matters concerning the determination of the petition for clarification of an existing bargaining unit.      During the course of the hearing, the hearing officer may, upon motion by any party, or upon his or her own motion, sequester witnesses.      It shall be the duty of the hearing officer to inquire fully into all matters in issue and to obtain a full and complete factual record upon which the commission and the executive director may discharge their duties under the pertinent statutes and these rules.      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.      ((A party which desires to have a brief or written argument considered shall file an original and one copy)) Any party shall be entitled, upon request made before the close of the hearing, to file a brief. The hearing officer 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 hearing officer. Any brief shall be filed with the hearing officer as required by WAC 391-08-120(1), and ((shall serve)) copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

[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. 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.]

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) ((The original and three copies of)) 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).

(((5))) (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. ((The original and three copies of the)) 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).

(((6))) (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. ((The original and three copies of the)) 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))) (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.

[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. 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.]

If an order is appealed under WAC 391-35-210, the entire record in the proceedings shall be ((transferred)) transmitted to the commission members.      The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter. The commission shall determine the status of each position, classification or group covered by the appeal, and shall issue appropriate orders.

[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. 98-14-112, § 391-35-250, 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, § 391-35-250, 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), § 391-35-250, filed 9/30/80, effective 11/1/80.]

OTS-4005.2

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

WAC 391-45-001
Scope -- Contents -- Other rules.

This chapter governs proceedings before the public employment relations commission on complaints charging unfair labor practices.      The provisions of this chapter should be read in conjunction with ((the provisions of)):

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge ((governing the conduct of)) to regulate adjudicative proceedings under chapter ((391-45 WAC)) 34.05 RCW, except:

(a) WAC 10-08-035, which is ((supplanted)) replaced by detailed requirements in WAC 391-45-050;

(b) WAC 10-08-050, which relates to ((procedures of the)) office of administrative hearings((, and so is)) procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-211, which is ((supplanted)) replaced by detailed requirements in WAC 391-45-350 and ((391-45-370)) 391-45-390; and

(d) WAC 10-08-230, which is ((supplanted)) replaced by detailed requirements in WAC 391-45-070, 391-45-090, and 391-45-260.

(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.

(3) Chapter 391-25 WAC, which ((contains rules relating to)) regulates representation proceedings ((on petitions for investigation of questions concerning representation of employees)).

(4) Chapter 391-35 WAC, which ((contains rules relating to)) regulates unit clarification proceedings ((on petitions for clarification of existing bargaining units)).

(5) Chapter 391-55 WAC, which ((contains rules relating to)) regulates the resolution of impasses ((occurring)) in collective bargaining.

(6) Chapter 391-65 WAC, which ((contains rules relating to)) regulates grievance arbitration ((of grievance disputes arising out of the interpretation or application of a collective bargaining agreement)) and grievance mediation proceedings.

(7) Chapter 391-95 WAC, which ((contains rules relating to determination of)) regulates union security ((disputes arising between employees and employee organizations certified or recognized as their bargaining representative)) nonassociation proceedings.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.      96-07-105, § 391-45-001, 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 and 53.18 RCW.      90-06-074, § 391-45-001, 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), § 391-45-001, filed 9/30/80, effective 11/1/80.]

This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington.      General rules are set forth in sections with numbers divisible by ten.      Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule((,)) numbered as follows:

(1) ((Special provisions relating to chapter 41.56 RCW (Public Employees' Collective Bargaining Act) and to chapter 53.18 RCW (Port employees) are set forth in WAC sections numbered one digit greater than the general rule on that subject matter.

(2))) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter.

(((3) Special provisions relating to chapter 28B.52 RCW (Professional negotiations -- academic faculties of community college districts) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.

(4))) (2) Special provisions relating to chapter 49.08 RCW (Private sector employees) are set forth in WAC sections numbered nine digits greater than the general rule on that subject matter.

[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 and 53.18 RCW.      90-06-074, § 391-45-002, 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.      83-24-034 (Order 83-04), § 391-45-002, 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.      80-14-048 (Order 80-7), § 391-45-002, filed 9/30/80, effective 11/1/80.]

A complaint charging that ((any)) a person has engaged in or is engaging in an unfair labor practice((, hereinafter referred to as a "complaint")) may be filed by any employee, ((group of employees,)) employee organization, employer, or their agents.

[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.065, 41.56.040, 41.58.040, 41.59.060 and 53.18.015.      90-06-074, § 391-45-010, 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.      80-14-048 (Order 80-7), § 391-45-010, filed 9/30/80, effective 11/1/80.]

((Charges shall be in writing, in the form of a)) Each complaint ((of)) charging unfair labor practices((.      The original and one copy)) shall be in writing, and shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1).      The party filing the complaint shall serve a copy on each party named as a respondent, as required by WAC 391-08-120 (3) and (4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 34.05.413, 41.56.160 and 41.59.150. 98-14-112, § 391-45-030, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-45-030, 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, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-030, 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), § 391-45-030, filed 9/30/80, effective 11/1/80.]

Each complaint charging unfair labor practices shall contain, in separate numbered paragraphs:

(1) Information identifying the parties and (if known) their ((relationships)) representatives, including:

(a) The name ((and)), address and telephone number of the employer, and the name, address ((and)), telephone number, fax number, and e-mail address of ((the employer's)) its principal representative ((for the purposes of collective bargaining));

(b) The name ((and)), address and telephone number of the entity (employer((,)) or employee organization ((or other person charged with engaging in, or having engaged in,))) accused of committing unfair labor practices (((hereinafter referred to as the)) (respondent), and((, if known, the names, addresses and telephone numbers)) the name, address, telephone number, fax number, and e-mail address of ((the)) its principal representative((s of the respondent)); and

(c) The name ((and)), address, telephone number, fax number, and e-mail address of the party filing the complaint (((hereinafter referred to as the)) (complainant), and the name, address ((and)), telephone number, fax number, and e-mail address of its principal representative.

(2) Clear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.

(3) A statement of the remedy sought by the complainant.

(4) The name, signature and, if any, ((the)) title of the person filing the complaint, and the date of the signature.

(5) Information concerning the parties' relationships, including:

(a) The employer's principal business;

(b) Identification of the employer department or division in which the dispute arises;

(c) The parties' contractual relationship, indicating that:

(i) The parties have never had a contract; or

(ii) A copy of the current (or most recent) ((applicable)) collective bargaining agreement is attached;

(d) The status of related grievance proceedings between the parties, indicating that:

(i) No grievance has been filed on the dispute involved; or

(ii) A grievance on the dispute is being processed under the parties' collective bargaining agreement; or

(iii) An arbitration award has been issued on a related grievance;

(e) ((The)) A description of the ((existing)) bargaining unit involved, specifying inclusions and exclusions; and

(f) The number of employees in the bargaining unit.

(6) Indication of the sections of the Revised Code of Washington (RCW) alleged to have been violated.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 34.05.413, 41.56.160 and 41.59.150.      96-07-105, § 391-45-050, 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, 41.56.170, 41.56.180, 41.59.150 and 53.18.015.      90-06-074, § 391-45-050, 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.      80-14-048 (Order 80-7), § 391-45-050, filed 9/30/80, effective 11/1/80.]

((Any)) (1) 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 commission)), if:

(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.]

((Any)) (1) A complaint may be withdrawn by the complainant ((under such conditions as the executive director or the commission may impose)), by a written request filed before issuance of a decision by an examiner.

(2) A withdrawal "without prejudice" shall not vary any statutory time limitation for filing of unfair labor practice complaints, unless the parties file a written agreement for a different arrangement prior to the expiration of the applicable statutory period.

[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, § 391-45-090, 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), § 391-45-090, filed 9/30/80, effective 11/1/80.]

The executive director or a designated staff member shall determine whether the facts ((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 containing)) 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 ((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 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.      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.]

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.]

The examiner shall issue a notice of hearing and ((cause to be)) have it served on the parties ((a notice of hearing at a time and place specified therein)).      Attached to the notice of hearing shall be a copy of the ((complaint as approved by the executive director)) preliminary ruling issued under WAC 391-45-110.      ((Any such)) A notice of hearing may be amended or withdrawn before the close of the hearing.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.065, 34.05.434, 41.56.160 and 41.59.150.      96-07-105, § 391-45-170, 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, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-170, 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.      80-14-048 (Order 80-7), § 391-45-170, filed 9/30/80, effective 11/1/80.]

An answer to a complaint charging unfair labor practices shall be in writing. The respondent(((s))) shall((, on or before the date specified in the preliminary ruling or a notice of hearing,)) file ((the original and one copy of)) its answer ((to the complaint)) as required by WAC 391-08-120(1), and shall serve a copy on the complainant, as required by WAC 391-08-120 (3) and (4).

[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. 98-14-112, § 391-45-190, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-45-190, 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, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-190, 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), § 391-45-190, filed 9/30/80, effective 11/1/80.]

(1) An answer filed by a respondent shall specifically admit, deny or explain each ((of the)) fact((s)) alleged in the portions of a complaint((, unless the respondent)) found to state a cause of action under WAC 391-45-110. A statement by a respondent that it is without knowledge of an alleged fact, ((in which case the respondent shall so state, such statement operating)) shall operate as a denial.      ((The failure of)) An answer shall assert any affirmative defenses that are claimed to exist.

(2) Counterclaims by a respondent against a complainant shall be filed and processed as separate cases, subject to procedures for consolidation of proceedings.

(3) Motions to amend answers shall be acted upon by the examiner, subject to the following limitations:

(a) Amendment shall be allowed whenever a motion to amend the complaint has been granted;

(b) Amendment may be allowed prior to the opening of an evidentiary hearing, 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.

(4) If a respondent fails to file ((an)) a timely answer or ((the failure)) fails to specifically deny or explain ((in the answer)) a fact alleged in the complaint, the facts alleged in the complaint shall((, except for good cause shown,)) be deemed to be ((an admission that the fact is)) admitted as true ((as alleged in the complaint)), and ((as a waiver of the respondent of)) the respondent shall be deemed to have waived its right to a hearing as to the facts so admitted. A motion for acceptance of an answer after its due date shall only be granted for good cause.

[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-210, 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.      80-14-048 (Order 80-7), § 391-45-210, filed 9/30/80, effective 11/1/80.]

((If a)) The examiner may direct that the complaint be made more definite and detailed, upon motion of the respondent, if the examiner is satisfied that the complaint is ((alleged by a respondent to be)) so indefinite as to hamper the respondent in the preparation of its answer((, such)).

(1) The respondent ((may,)) shall file its motion on or before the date specified for the filing of an answer((, make a motion for an order that the complaint be made more definite and certain)).      ((Such)) The motion shall be filed and served as required by WAC 391-08-120.

(2) The filing of ((such)) a motion ((will)) under this section shall extend the due date for the respondent's answer until ((such)) a date ((as)) set by the ((executive director or)) examiner ((may set)).      ((The examiner may require the complainant to file and serve a statement supplying information necessary to make the complaint definite and certain.))

[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. 98-14-112, § 391-45-250, 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, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-250, 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), § 391-45-250, filed 9/30/80, effective 11/1/80.]

(((1) Prior to hearing, the parties may be requested to participate in a settlement conference conducted by a member of the commission staff other than the assigned examiner.)) A settlement conference 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. Any settlement conference shall be held in advance of the scheduled hearing date.      During ((the course of)) 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 ((the)) a settlement conference is voluntary((, and the refusal of)). Refusal by a party to participate shall not prejudice ((the nonparticipating)) that party in any manner.

(((2) Whether or not a settlement conference has been held, the examiner may hold a prehearing conference to deal with procedural matters related to the hearing.      The prehearing conference will be conducted pursuant to WAC 10-08-130.      The parties are encouraged to reach binding stipulations on such matters during the course of the prehearing conference.))

[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.      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.]

(1) Hearings shall be public, except where a protective order is issued under WAC 10-08-200(7), and shall be ((adversary in nature,)) limited to ((matters concerning the unfair labor practices alleged in)) the portions of a complaint found to state a cause of action under WAC 391-45-110.

(a) The complainant shall ((prosecute its own complaint)) be responsible for the presentation of its case, and shall have the burden of proof.      ((During the course of the hearing, the examiner may, upon motion by any party, or on his or her own motion, sequester witnesses.      It shall be the duty of the examiner to inquire fully into the facts as to whether the respondent has engaged in or is engaging in an unfair labor practice so as to obtain a clear and complete factual record on which the examiner and commission may discharge their duties under these rules: Provided, however, That such duty of the examiner shall not be construed as authorizing or requiring the examiner to undertake the responsibilities of the complainant with respect to the prosecution of its complaint or of))

(b) The respondent ((with respect to the presentation of)) shall be responsible for the presentation of its defense, and shall have the burden of proof as to any affirmative defenses.

(c) The examiner's authority under WAC 10-08-200 (8) and (9) shall not be construed as authorizing or requiring the examiner to undertake the responsibilities of the complainant or respondent under this subsection.

(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.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.      96-07-105, § 391-45-270, filed 3/20/96, effective 4/20/96.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.170, 41.59.150 and 53.18.015.      90-06-074, § 391-45-270, 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), § 391-45-270, filed 9/30/80, effective 11/1/80.]

Any party shall be entitled, upon request made before the close of the hearing, to file a brief ((or proposed findings of fact, conclusions of law and order, or both, at such time as may be fixed by the examiner)).      The examiner may direct the filing of briefs ((when he or she deems such filing warranted by the nature of the proceeding or of particular issues therein.      A party which desires to have a brief or written argument considered shall file an original and one copy)) 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 ((shall serve)) copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

[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. 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.]

After the close of the hearing and the filing of all briefs, the examiner shall issue ((an order)) a decision containing findings of fact ((and)), conclusions of law, and an order.      Unless appealed to the commission under WAC 391-45-350, ((an order)) 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. 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.]

((On the examiner's own motion or on the motion of any party,)) The examiner may set aside, modify, change or reverse any findings of fact, conclusions of law or order ((at any time within ten days following the issuance thereof)), if any mistake is discovered ((therein: Provided, however, That)) in the decision.

(1) Action may be taken under this section on the examiner's own motion, or on a written motion filed and served by any party as required by WAC 391-08-120.

(2) Action may only be taken under this section within ten days following issuance of the decision.

(3) This section shall be inoperative after the filing of an appeal to the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 98-14-112, § 391-45-330, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-45-330, 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, § 391-45-330, 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), § 391-45-330, filed 9/30/80, effective 11/1/80.]

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) ((The original and three copies of)) 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).

(((5))) (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. ((The original and three copies of the)) 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).

(((6))) (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. ((The original and three copies of the)) 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))) (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.

[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. 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.]

If an order is appealed under WAC 391-45-350, the entire record in the proceedings shall be ((transferred)) transmitted to the commission members.      The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter.      The commission shall, on the basis of the record and any briefs or arguments submitted to it, determine the appeal, and shall issue appropriate orders.

[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. 98-14-112, § 391-45-390, 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, § 391-45-390, 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), § 391-45-390, filed 9/30/80, effective 11/1/80.]

If an unfair labor practice is found to have been committed, the commission or ((its)) examiner shall issue a remedial order.      In calculating back pay orders, the following shall apply:

(1) Individuals reinstated to employment with back pay shall have deducted from any amount due an amount equal to any earnings ((such)) the employee may have received during the period of the violation in substitution for the terminated employment, calculated on a quarterly basis.

(2) Individuals reinstated to employment with back pay shall have deducted from any amount due an amount equal to any unemployment compensation benefits ((such)) the employee may have received during the period of the violation, and the employer shall provide evidence to the commission that ((such)) the deducted amount has been repaid to the Washington state department of employment security as a credit to the benefit record of the employee.

(3) Money amounts due shall be subject to interest at the rate which would accrue on a civil judgment of the Washington state courts, from the date of the violation to the date of payment.

[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, § 391-45-410, 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), § 391-45-410, filed 9/30/80, effective 11/1/80.]

In addition to the remedies available under WAC 391-45-410, ((any)) a complainant in an unfair labor practice proceeding may make a motion requesting that the commission seek appropriate temporary relief through the superior court, and all such motions shall be processed as provided in this section.

(1) When the complaint is filed, or as soon thereafter as facts giving rise to the request for temporary relief become known, the complainant shall file written notice of its intent to make a motion for temporary relief with the executive director as required by WAC 391-08-120(1), and shall serve a copy of ((such)) the notice on each of the other parties to the proceedings as required by WAC 391-08-120 (3) and (4).

(2) Upon the filing of a notice of intent to make a motion for temporary relief, ((the executive director shall expedite)) the processing of the matter shall be expedited under WAC 391-45-110.

(3) After a determination ((by the executive director)) that the complaint states a cause of action under WAC 391-45-110, the complainant may file and serve, as required by WAC 391-08-120, a motion for temporary relief together with affidavits as to the risk of irreparable harm and the adequacy of legal remedies.

(4) If there is a motion for temporary relief, the due date for counter-affidavits from other parties is seven days following the date on which that party is served with a motion for temporary relief. The counter-affidavits shall be filed and served as required by WAC 391-08-120.

(5) The executive director shall forward all ((such)) motions and affidavits to the commission, which shall determine whether an injunction pendente lite should be sought.      In making ((such)) its determination, the commission shall adhere to the following policy:

"The name and authority of the public employment relations commission shall not be invoked in connection with a request for temporary relief prior to the completion of administrative proceedings under WAC 391-45-010, et seq., unless it appears that one or more of the allegations in the complaint of unfair labor practices is of such a nature that, if sustained, the complainant would have no fair or adequate remedy and the complainant would suffer irreparable harm unless the status quo be preserved pending the completion of administrative proceedings."

(a) If the commission concludes that temporary relief should be sought, the executive director, acting in the name and on behalf of the commission and with the assistance of the attorney general, shall petition the superior court of the county in which the main office of the employer is located or wherein the person who is alleged to be engaging in unfair labor practices resides or transacts business for an injunction pendente lite.

(b) Whenever temporary relief has been procured, the complaint which has been the basis for ((such)) the temporary relief shall be heard expeditiously and the case shall be given priority over all other cases except cases of like character.

(c) A determination by the commission that temporary relief should not be sought at a particular time shall not bar renewal of the motion for temporary relief following the completion of administrative proceedings in which unfair labor practice violations have been found to exist.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.160(3) and 41.59.150. 98-14-112, § 391-45-430, 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 and 41.59.150.      90-06-074, § 391-45-430, 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.      80-14-048 (Order 80-7), § 391-45-430, filed 9/30/80, effective 11/1/80.]

It is the policy of the commission to promote bilateral collective bargaining negotiations between employers and the exclusive representatives of their employees.      ((Such)) Parties are encouraged to engage in free and open exchange of proposals and positions on all matters coming into the dispute between them.      The commission deems the determination as to whether a particular subject is mandatory or nonmandatory to be a question of law and fact to be determined by the commission, and which is not subject to waiver by the parties by their action or inaction.      It is the policy of the commission that a party which engages in collective bargaining with respect to ((any)) a particular issue does not and cannot ((thereby)) confer the status of a mandatory subject on a nonmandatory subject.

[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073, 41.56.030(4), 41.59.020(2) and 53.18.015.      90-06-074, § 391-45-550, 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), § 391-45-550, filed 9/30/80, effective 11/1/80.]

The obligation to bargain in good faith imposed upon an employer and the exclusive representative of its employees, respectively, by RCW 41.59.020(2) and 41.59.140 (1)(e) or (2)(c) includes:

(1) The obligation to submit, as to each subject for bargaining advanced by the party, a written statement of the language proposed for incorporation in or deletion from the collective bargaining agreement between the parties, together with a written or oral explanation or justification of ((such)) the proposals.

(2) The obligation to submit, as to each subject for bargaining advanced by the other party, at least one written response ((thereto)), together with a written or oral explanation of ((such)) the response((: Provided, however, That)). However, a party which asserts in a written response that a subject for bargaining advanced by the other party is not a mandatory subject for collective bargaining may thereafter refuse to make further proposals as to ((such)) the subject or subjects for bargaining.

(3) The obligation to receive proposals from the other party as to all subjects for bargaining in dispute between the parties and, until a legal impasse has been reached, to refrain from demanding the removal of ((any such)) the subject from the bargaining table on the basis that it is not a mandatory subject for collective bargaining.

(4) The obligation to exhaust the mediation and fact finding procedure established pursuant to RCW 41.59.120 before implementing all or any part of a final offer in negotiations, except as provided in RCW 41.59.930.

[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.59.110 and 41.59.120.      90-06-074, § 391-45-552, 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), § 391-45-552, filed 1/6/81.]

     The following section of the Washington Administrative Code is repealed:

WAC 391-45-230

Amendment of answer.

OTS-4006.1

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

WAC 391-55-030
Assignment of mediator.

(1) Upon submission of a request ((for a mediator)) under WAC 391-55-010 or 391-55-020 (3)(a), ((the executive director shall appoint)) a member of the agency staff shall be assigned as mediator.      If the parties have stipulated to the names of one or more persons who are acceptable to both parties as mediator, ((then the executive director shall consider)) their request shall be considered in making the assignment.

(2) Upon submission of a request for a list under WAC 391-55-020 (3)(b), names shall be referred and a grievance mediator shall be selected under WAC 391-55-120.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.     99-14-060, § 391-55-030, 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), § 391-55-030, filed 9/30/80, effective 11/1/80.]

Within seven 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.      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 chapter 41.58 RCW and, upon the concurrence of the other party, the ((executive director)) agency shall assign a mediator.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.59.120.      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.]

OTS-4007.1

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

WAC 391-65-070
Grievance arbitration -- Appointment of staff arbitrator.

Upon concurrence of the parties or upon the submission of a joint request, a member of the agency staff shall be assigned as grievance arbitrator. The parties shall not be permitted to select a grievance arbitrator from a list of agency staff members, or to exercise a right of rejection on appointments made ((by the executive director)) under this section; but may jointly express a preference for appointment of one or more staff members as their arbitrator, and ((the executive director)) their request shall ((consider their request)) be considered in making the assignment.      Upon the submission of a request by one party for the appointment of a member of the agency staff as grievance arbitrator, the ((executive director)) agency shall determine whether the other party to the collective bargaining agreement concurs in the appointment of a staff arbitrator.      ((Upon concurrence or upon the submission of a joint request, the executive director shall assign a member of the agency staff as grievance arbitrator.))      In the absence of concurrence, the ((executive director)) agency shall notify the requesting party of the lack of concurrence and shall close the case if concurrence is not provided within a reasonable time.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125.      99-14-060, § 391-65-070, 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.      80-14-050 (Order 80-9), § 391-65-070, filed 9/30/80, effective 11/1/80.]

OTS-4008.2

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

WAC 391-95-001
Scope -- Contents -- Other rules.

This chapter governs proceedings before the public employment relations commission ((relating to union security)) on disputes ((arising between employees and employee organizations certified or recognized as their bargaining representative)) concerning the right of nonassociation under the union security provisions of certain statutes.      The provisions of this chapter should be read in conjunction with ((the provisions of)):

(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge ((governing the conduct of)) to regulate adjudicative proceedings under chapter ((391-95 WAC)) 34.05 RCW, except:

(a) WAC 10-08-035, which is ((supplanted)) replaced by detailed requirements in WAC 391-95-110;

(b) WAC 10-08-050, which relates to ((procedures of the)) office of administrative hearings((, and so is)) procedures inapplicable to proceedings before the public employment relations commission;

(c) WAC 10-08-211, which is ((supplanted)) replaced by detailed requirements in WAC 391-95-270 and ((391-95-280)) 391-95-290; and

(d) WAC 10-08-230, which is ((supplanted)) replaced by detailed requirements in WAC 391-95-170.

(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.

(3) Chapter 391-25 WAC, which ((contains rules relating to)) regulates representation proceedings ((on petitions for investigation of questions concerning representation of employees)).

(4) Chapter 391-35 WAC, which ((contains rules relating to)) regulates unit clarification proceedings ((on petitions for clarification of an existing bargaining unit)).

(5) Chapter 391-45 WAC, which ((contains rules relating to)) regulates unfair labor practice proceedings ((on complaints charging unfair labor practices)).

(6) Chapter 391-55 WAC, which ((contains rules relating to)) regulates the resolution of impasses ((occurring)) in collective bargaining.

(7) Chapter 391-65 WAC, which ((contains rules relating to)) regulates grievance arbitration ((of grievance disputes arising out of the interpretation or application of a collective bargaining agreement)) and grievance mediation proceedings.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.      96-07-105, § 391-95-001, 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 and 53.18 RCW.      90-06-075, § 391-95-001, 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), § 391-95-001, filed 9/30/80, effective 11/1/80.]

((An exclusive bargaining representative which desires to enforce a union security provision contained in)) (1) Whenever a collective bargaining agreement negotiated under the provisions of chapter 28B.52, 41.56, or 41.59 RCW contains a union security provision, the exclusive bargaining representative shall provide each affected employee with a copy of the collective bargaining agreement ((containing the union security provision)), and 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.

[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, § 391-95-010, 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.]

An employee who ((asserts)) claims 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 ((notify)) provide written notice of that claim to the exclusive bargaining representative, ((in writing, of the claim of a right of nonassociation)) and 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 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, § 391-95-030, 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.]

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 ((respond)) provide a written response to the employee, ((in writing, both as to)) setting forth the position of the exclusive bargaining representative as to both:

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

(2) The acceptance or rejection of the charitable organization(s) suggested by the employee.      ((If a dispute exists concerning whether the employee is within a class of employees obligated under the terms of the union security provision, all such matters of contractual interpretation shall be resolved under such procedures as may be available for unit clarification or resolution of disputes concerning the interpretation or application of the collective bargaining agreement.))

[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, § 391-95-050, 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.]

((In the event of a disagreement between an employee and his or her)) If the exclusive bargaining representative ((as to)):

(1) Disputes the eligibility of ((such)) the employee to make alternative payments; or ((as to))

(2) Disputes the charitable organization which is to receive such payments; or

(3) 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(( on the union security obligations of the employee)).

[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. 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.]

Each petition for a ruling on ((union security obligations)) a nonassociation claim shall be ((prepared in conformance with WAC 391-95-110.      The original and one copy of the petition)) in writing, and shall be filed at the commission's Olympia office as required by WAC 391-08-120(1)((, and)). The party filing the petition shall serve a copy on the other party to the dispute and on the employer as required by WAC 391-08-120 (3) and (4).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.413, 41.56.122 and 41.59.100. 98-14-112, § 391-95-090, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-95-090, 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, § 391-95-090, 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), § 391-95-090, filed 9/30/80, effective 11/1/80.]

Each petition for a ruling on a nonassociation claim shall contain, in separate numbered paragraphs:

(1) ((Identification of)) Information identifying the parties and (if known) their representatives, including:

(a) The name ((and)), address and telephone number of the employer, and the name, address ((and)), telephone number, fax number, and e-mail address of ((the employer's)) its principal representative ((for the purposes of collective bargaining));

(b) The name, address and ((affiliation, if any,)) telephone number of the ((exclusive representative)) employee organization, and the name, address ((and)), telephone number, fax number, and e-mail address of its principal representative((, if any)); and

(c) The name, address ((and)), telephone number, fax number, and e-mail address of the ((affected)) employee who has asserted a right of nonassociation, and the name, address ((and)), telephone number, fax number, and e-mail address of his or her representative.

(2) ((Indication of)) Indicate the matters in dispute as including:

(a) The eligibility of the employee to assert a right of nonassociation; and/or

(b) The designation of the charity ((which is)) to receive the alternative payments.

(3) ((Indication of)) Indicate whether the petition is filed on behalf of:

(a) The employee; or

(b) The employee organization.

(4) The name, signature and, if any, title of the person filing the petition, and the date of the signature.

(5) Information concerning the parties' relationships, including:

(a) The employer's principal business;

(b) A copy of the current (or most recent) ((applicable)) collective bargaining agreement; and

(c) ((The)) A description of the ((existing)) bargaining unit involved, specifying inclusions and exclusions((; and

(d) The approximate number of employees in the bargaining unit)).

(6) ((Indication of)) Indicate whether the claimed right of nonassociation is based upon:

(a) Personal religious beliefs((,)); or

(b) Upon the teachings of a church or religious body identified in the petition, including the name, address ((and)), telephone number, fax number, and e-mail address of ((a)) its contact person.

(7) ((Identification of)) The name(s) of the charity or charities to which the petitioner proposes to ((have receive)) make alternative payments, including the name(s), address(es), ((and)) telephone number(s), fax number(s), and e-mail address(es) of ((a)) its/their contact person(s).

(8) ((Indication of)) Indicate whether disputed funds are being held in escrow by the employer.

(9) Any other relevant facts.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.413, 41.56.122 and 41.59.100.      96-07-105, § 391-95-110, filed 3/20/96, effective 4/20/96.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100.      90-06-075, § 391-95-110, 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.      80-14-051 (Order 80-10), § 391-95-110, filed 9/30/80, effective 11/1/80.]

Upon being served with a copy of a petition filed under WAC 391-95-070, 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.      ((Said)) 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 ((provision)) 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 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, § 391-95-130, 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.]

The executive director or a designated staff member shall determine whether the facts ((as)) alleged in the petition may constitute a basis for assertion of a right of nonassociation within the meaning of the applicable statute.

(1) If ((it is determined that the claim does)) the facts alleged do not, as a matter of law, constitute a basis for assertion of a right of nonassociation, ((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 petition. If the defects are not cured in a timely manner, an order ((of dismissal containing)) shall be issued and served, dismissing the defective allegation(s) and stating the reasons for that action. Unless appealed to the commission under WAC 391-95-270, 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 ((the petition is found to)) one or more allegations state a ((claim)) cause of action for nonassociation proceedings before the commission, ((the executive director shall assign the matter to an examiner and shall notify the parties of such assignment)) a preliminary ruling summarizing the allegation(s) shall be issued and served on all parties.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.419, 41.56.122 and 41.59.100. 98-14-112, § 391-95-150, filed 7/1/98, effective 8/1/98.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100.      90-06-075, § 391-95-150, 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), § 391-95-150, 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), § 391-95-150, filed 9/30/80, effective 11/1/80.]

((There shall be issued and served on each of the parties to the dispute and on the employer)) The examiner shall issue a notice of hearing ((before an examiner at a time and place fixed therein.      Any such)) and have it served on the employee and the exclusive bargaining representative. Attached to the notice of hearing shall be a copy of the preliminary ruling issued under WAC 391-95-150. A notice of hearing may be amended or withdrawn ((prior to)) before the close of the hearing.      ((The examiner has discretion to conduct a prehearing conference to discuss with the parties all contested issues of fact, law, and procedure which may arise in union security cases.      The prehearing conference will be conducted pursuant to WAC 10-08-130.      The parties are encouraged to reach binding stipulations on all remaining issues during the course of the prehearing conference.))

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.045, 34.05.431, [34.05].434, 41.56.122 and 41.59.100.      96-07-105, § 391-95-170, 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, § 391-95-170, 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), § 391-95-170, 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), § 391-95-170, filed 9/30/80, effective 11/1/80.]

((Hearings)) 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 ((conducted by the commission, by the executive director, by)) a member of the agency staff or ((by)) any other individual designated by the commission or executive director ((as an examiner)).      ((At any time)) Upon notice to all parties, an examiner may be substituted for the examiner previously presiding.

[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, § 391-95-190, 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), § 391-95-190, filed 9/16/85.      Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.      80-14-051 (Order 80-10), § 391-95-190, filed 9/30/80, effective 11/1/80.]

(1) Hearings shall be public and shall be limited to ((matters concerning the determination of the eligibility of the employee to make alternative payments and the designation of an organization to receive such alternative payments.      During the course of the hearing, the examiner may, upon motion by any party, or upon his or her own motion, sequester witnesses.)) 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:

(((1))) (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:

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

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

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

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

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

(((b))) (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) ((A)) Any party ((which desires to have)) shall be entitled, upon request made before the close of the hearing, to file a brief ((or written argument considered shall file an original and one copy)). 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 ((shall serve)) copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).

[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. 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.]

After the close of the hearing and the filing of all briefs, the examiner shall issue ((an order)) a decision containing findings of fact ((and)), conclusions of law, and an order. Unless appealed to the commission under WAC 391-95-270, ((an order)) 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. 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.]

((On the examiner's own motion or on the motion of any party,)) The examiner may set aside, modify, change, or reverse any findings of fact, conclusions of law or order ((at any time within ten days following the issuance thereof)), if any mistake is discovered ((therein: Provided, however, That)) in the decision.

(1) Action may be taken under this section on the examiner's own motion, or on a written motion filed and served by any party as required by WAC 391-08-120.

(2) Action may only be taken under this section within ten days following issuance of the decision.

(3) This section shall be inoperative after the filing of an appeal to the commission.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050. 98-14-112, § 391-95-260, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-95-260, filed 3/20/96, effective 4/20/96.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100.      90-06-075, § 391-95-260, 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), § 391-95-260, filed 9/16/85.]

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) ((The original and three copies of)) 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).

(((5))) (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. ((The original and three copies of the)) 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).

(((6))) (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. ((The original and three copies of the)) 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))) (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.

[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. 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.]

If an order is appealed under WAC 391-95-270, the entire record in the proceedings shall be ((transferred)) transmitted to the commission members.      The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter. The commission shall, on the basis of the record and any briefs or arguments submitted to it, determine the appeal, and shall issue appropriate orders.

[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. 98-14-112, § 391-95-290, filed 7/1/98, effective 8/1/98.      Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.045, 41.56.122 and 41.59.100.      90-06-075, § 391-95-290, 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.      80-14-051 (Order 80-10), § 391-95-290, filed 9/30/80, effective 11/1/80.]

(1) Where alternative payments in lieu of payments under a union security agreement have been agreed upon by the parties or ordered by the commission((,)):

(a) The employer shall release any funds (together with accumulated interest) held in escrow under WAC 391-95-130 to the designated charitable organization; and

(b) The employee shall thereafter make payments and shall furnish written proof to the exclusive bargaining representative that such payments have been made to the designated charitable organization.

(2) Where the employee is found ineligible to make alternative payments((,)):

(a) The employer shall release any funds (together with accumulated interest) held in escrow under WAC 391-95-130 to the exclusive bargaining representative; and ((shall enforce the union security provision according to its terms.))

(b)      The employer and the exclusive bargaining representative shall allow the affected employee a grace period of not less than thirty days following the agreement or final order of the commission to correct any arrearages.

[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, § 391-95-310, 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.      81-02-034 (Order 81-01), § 391-95-310, filed 1/6/81.]

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