Original Notice.

Preproposal statement of inquiry was filed as WSR 99-04-013.

Title of Rule: Amendments to chapters 391-08, 391-55, and 391-65 WAC.

Purpose: To improve readability by cross-referencing filing and service requirements; to set forth procedures or grievance mediation services; and to clarify how referrals are made from dispute resolution panel.

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

Statute Being Implemented: WAC 391-08-310 is RCW 2.40.010, 5.56.010 and 34.05.446; WAC 391-08-810 is RCW 28B.52.060, 41.56.070, 41.56.100, 41.56.440, 41.58.020, 41.59.120 and 49.08.010; WAC 391-55-010 is RCW 28B.52.060 and 41.56.100; WAC 391-10-090 is RCW 5.60.072; WAC 391-10-200 is RCW 41.56.450, 41.56.475 and 41.56.492; WAC 391-10-205, 391-10-210, 391-10-215, 391-10-220, 391-10-225, 391-10-230, 391-10-235, 391-10-240, 391-10-245, 391-10-255 and 391-10-265 is RCW 41.56.450; 391-55-310, 391-55-315, 391-55-320, 391-55-330, 391-55-335, 391-55-340, and 391-55-350 is RCW 41.59.120; and WAC 391-65-010, 391-65-030, 391-65-050, 391-65-070, 391-65-090, 391-65-110, 391-65-130, and 391-65-150 is RCW 41.56.125.

Summary: Rule changes are proposed concerning mediation, grievance mediation, grievance arbitration, dispute resolution panel, interest arbitration, fact finding and subpoenas.

Reasons Supporting Proposal: To conform to Executive Order 97-02, including codifying agency procedure where a related unfair labor practice complaint is filed during the pendency of an interest arbitration panel.

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 are designed to make the agency's rules clearer and easier to read. Proposed changes will emphasize confidential nature of mediation process, consolidate existing agency procedures for random selection of dispute resolution panel members, number of names supplied to parties, second lists, method of selection from a list, and payment of fees and expenses. Other changes will allow parties in grievance arbitration cases to jointly express a preference for the appointment of one or more, rather than just one, staff member as their arbitrator. The changes will affect all parties who use the services of the Public Employment Relations Commission.

Proposal Changes the Following Existing Rules: Examples of changes in the interest arbitration rules include requiring parties to submit to the mediator a list of issues they believe should be advanced to hearing, allowing waiver of partisan arbitrators and certain voluntary procedures if parties fail to act in timely manner, establishing minimum experience level for referrals from dispute resolution panel, increasing deadline for parties to exchange written proposals before arbitration hearing to fourteen days, allowing neutral chairperson discretion to convene a prehearing conference, providing that a tape recording is official record of hearing unless parties agree to take a transcript, and providing that although partisan arbitrator may not present a party's case at the hearing, another member of the same organization or firm may do so.

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 8, 1999, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact James E. Lohr by June 1, 1999, (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 1, 1999.

Date of Intended Adoption: June 8, 1999.

May 5, 1999

Marvin L. Schurke

Executive Director

OTS-3051.1

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

WAC 391-08-310
Subpoenas--Form--Issuance to parties.

(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.

(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. 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 agency((, in)) shall preserve the confidentiality of certain records, as follows:

(1) In order to protect the privacy of individual employees ((and in order to respect the confidential nature of the mediation process)), the agency shall not permit the disclosure to any person of (((1))) evidence furnished as a showing of interest in support of a representation petition or motion for intervention((, or)).

(2) In order to respect the confidential nature of mediation, the agency shall not permit the disclosure of notes and memoranda made by any member of the commission or its staff as a recording of communication made or received while acting in the capacity of a mediator between the parties to a labor dispute.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. 98-14-112, § 391-08-810, filed 7/1/98, effective 8/1/98.  Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.060, 41.56.070, 41.56.100, 41.56.440, 41.58.020, 41.59.120 and 49.08.010.  90-06-070, § 391-08-810, filed 3/7/90, effective 4/7/90; Order 77-1, § 391-08-810, filed 1/27/77.]

OTS-3049.2

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

WAC 391-55-001
Scope--Contents--Other rules.

This chapter governs proceedings before the public employment relations commission relating to the resolution of impasses occurring in collective bargaining.  The provisions of this chapter should be read in conjunction with the provisions of:

(1) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission.

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

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

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

(5) 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)) proceedings.

(6) 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, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-001, 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.  ((Special provisions)) 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 ((are)), that special provision is set forth in a separate rule((s)) 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 (Employment relations--Collective bargaining and arbitration), are set forth in WAC sections numbered one digit greater than the general rule on that subject matter.

Special provisions relating to interest arbitration for bargaining units under chapter 41.56 RCW are set forth beginning with WAC 391-55-200.

(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 ((and in a subchapter of rules)). Special provisions relating to fact finding are set forth beginning with WAC 391-55-300.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.  96-07-105, § 391-55-002, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110.  88-12-055 (Order 88-08), § 391-55-002, filed 5/31/88.  Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.  83-24-035 (Order 83-05), § 391-55-002, 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.  80-14-049 (Order 80-8), § 391-55-002, filed 9/30/80, effective 11/1/80.]

A request for mediation may be made in writing, by electronic telefacsimile transmission, or by telephone, but shall be confirmed in writing if made by telephone. The original request shall be submitted to the commission's Olympia office, as required by WAC 391-08-120(2). If the request is not submitted jointly, the party submitting the request shall serve a copy, as required by WAC 391-08-120 (3) and (4), on the other party to the dispute.  The party or parties requesting mediation shall provide the following information to the agency:

(1) The name ((and)), address and telephone number of the employer and the name, address and telephone number of ((the employer's)) its principal representative ((in the negotiations)).

(2) The name ((and)), address and telephone number of the employee organization and the name, address and telephone number of ((the employee organization's)) its principal representative ((in the negotiations)).

(3) ((Identification of the)) The employer's principal business.

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

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

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

(5) A description of the bargaining unit involved, specifying inclusions and exclusions.

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

(7) The history of the bargaining unit, including at least the approximate date of its creation.

(8) The history of the current negotiations, including at least the number of meetings held, the date of the first meeting and whether both parties concur in the request for mediation.

(9) Identification of the issues in dispute and the parties' positions on those issues.

(10) The name(s), signature(s) and, ((and capacity of each officer, attorney, or other individual acting for the filing)) if any, title(s) of the representative(s) of the requesting party ((or)) (parties), and the date(s) of the signature(s).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.060, 34.05.413 and 41.56.100.  96-07-105, § 391-55-010, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-010, filed 9/30/80, effective 11/1/80.]

A request for appointment of a grievance mediator may be made in writing or by electronic telefacsimile transmission. The original request shall be submitted to the commission’s Olympia office, as required by WAC 391-08-120(2). If the request is not submitted jointly, the party submitting the request shall serve a copy, as required by WAC 391-08-120 (3) and (4), on the other party to the collective bargaining agreement under which the dispute arises. The party or parties requesting grievance mediation shall provide the following information to the agency:

(1) Information identifying the parties to the dispute, including:

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

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

(c) The employer's principal business;

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

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

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

(g) The agreement of the party or parties making the request that any unresolved issues shall be submitted to an arbitrator for a final and binding decision; and

(h) The agreement of the party or parties making the request that there shall be no strike or lockout on the matters submitted to grievance mediation.

(2) Identification of the grievance to be resolved in grievance mediation.

(3) Designation of the request as:

(a) A request for appointment of a member of the agency staff as grievance mediator; or

(b) A request for the submission of a list containing a specified number of names from the dispute resolution panel created by WAC 391-55-110.

(4) The name(s), signature(s) and, if any, title(s) of the representative(s) of the requesting party (parties), and the date(s) of the signature(s).

[]

(1) Upon ((filing)) submission of a request for ((mediation)) a mediator under WAC 391-55-010 or 391-55-020 (3)(a), the executive director shall appoint a ((mediator from the list of qualified persons maintained by the commission for that purpose)) member of the agency staff.  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 ((desires)) request.

(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, 41.56.040, 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.]

Upon ((filing)) submission of a unilateral request for mediation, the executive director shall ((determine)) consider the position of the party other than the party making the request, and shall ((determine whether the assistance of the agency is needed.  In making such determination the executive director shall determine)) evaluate whether the parties have exchanged and considered the proposals of one another and whether the intervention of the agency will have a beneficial impact on the negotiating process.  Prior to making ((such)) this determination, the executive director or a member of the agency staff may make an on-site investigation and may engage in conciliation under the general authority ((of the)) conferred on the commission ((under)) by RCW 41.58.020(1).  If it appears that the assistance of the agency is needed, the executive director shall appoint a mediator ((from the list of qualified persons maintained by the commission for that purpose.  If the parties have stipulated the names of one or more persons who are acceptable to both parties as mediator, then the executive director shall consider their desires)).

[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), § 391-55-032, filed 9/30/80, effective 11/1/80.]

Parties requesting the mediation services of the agency are encouraged to ((file with)) submit to the assigned mediator, in advance of scheduled meetings, copies of their latest written proposals on each issue in dispute.

[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), § 391-55-050, filed 9/30/80, effective 11/1/80.]

The mediator shall meet with the parties or their representatives, or both, either jointly or separately, and shall take ((such)) any steps ((as)) that the mediator deems appropriate ((in order)) to ((aid)) assist the parties in voluntarily resolving their differences and effecting an agreement.

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

In the case of mediation involving officers of the Washington state patrol ((personnel as defined in RCW 41.56.020)) appointed under RCW 43.43.020, the mediator shall not consider rates of pay or wage ((or wage-related matters)) levels and any matters relating to retirement benefits or health care benefits or other employee insurance benefits.

[Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110.  88-12-055 (Order 88-08), § 391-55-071, filed 5/31/88.]

((All communications between the mediator and the parties, and all materials submitted to or by the mediator, are privileged and confidential and shall not be divulged by the mediator outside of the mediation process.))  Mediation meetings shall ((be of an executive, private or nonpublic nature)) not be open to the public. Confidential information acquired by a mediator shall not be disclosed to others outside of the mediation process for any purpose, and a mediator shall not give testimony about the mediation in any legal or administrative proceeding.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 5.60.072.  96-07-105, § 391-55-090, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-090, filed 9/30/80, effective 11/1/80.]

The commission shall establish and maintain a panel of individuals qualified to serve in an impartial capacity in the resolution of labor disputes.

(1) Applicants for membership on the dispute resolution panel ((must)) shall demonstrate minimum background and experience equal to the minimum qualifications for the working level positions on the professional staff of the commission:

(a) A master's degree in labor relations, personnel management or industrial relations or closely allied field, or a law degree; and

(b) At least three years of experience ((equivalent to two years of full-time work)) in collective bargaining with major work assignments in ((collective bargaining)) negotiations, contract administration or related work as a union((,)) or management ((or government official)) representative, mediator, arbitrator or educator in the above areas((.  A law degree may be substituted for the master's degree.)); and

(c) Additional qualifying experience ((may be substituted)) shall substitute, year for year, for education.

(2) Applicants for membership on the dispute resolution panel ((must)) shall furnish letters of recommendation supporting their acceptability as an impartial from:

(a) At least one ((attorney, consultant or labor relations director representing)) management representative; and

(b) At least one ((attorney, union officer or business agent representing labor)) union representative; and

(c) At least one impartial arbitrator, mediator or labor relations administrative agency official.  ((Such letters of recommendation must support the acceptability of the applicant as an impartial in the resolution of labor disputes.))

(3) Applicants who desire to be referred for interest arbitration proceedings shall demonstrate their experience as an impartial in at least five grievance arbitration, fact finding or interest arbitration cases, by submitting copies of arbitration awards which can be provided, upon request, to parties selecting an interest arbitrator.

(4) Applicants for membership on the dispute resolution panel ((must file)) shall submit, in the form specified by the executive director, information on their background, qualifications, professional certifications and affiliations.  All information submitted shall be subject to administrative verification.

(((4))) (5) Applications of persons appearing to be qualified for membership on the panel shall be forwarded to the commission for consideration and action.  The commission shall review each application submitted to it, together with the supporting letters of recommendation, and shall notify the applicant of the determination made.  ((Upon initial application or at any subsequent time as it may appear))

(6) Whenever it appears to the commission that ((the)) an applicant or member of the dispute resolution panel has failed or refused to comply with applicable statutes, rules and ethical standards, the application shall be rejected or the member shall be removed from the dispute resolution panel.  A member shall also be removed from the panel if he or she has:

(a) Ceased accepting appointments as an impartial in the resolution of labor disputes; or

(b) Failed to keep the agency informed of their current address and telephone number.

(((5))) (7) Persons referred from the dispute resolution panel ((must)) shall be impartial.  No active member of the dispute resolution panel may serve in any capacity as an advocate or representative for either labor or management in labor relations matters.  Any member of the panel who intends to engage in advocacy work shall ((so)) notify the executive director and shall be placed on inactive status ((on the panel)) while ((such)) their advocacy work continues.

(((6) Upon request of the parties, the executive director shall make a list of members of the dispute resolution panel available to parties for their use in selecting a neutral chairman for an interest arbitration panel, a grievance arbitrator, a fact finder or an ad hoc interest arbitrator.  The parties may use any method agreed upon for selecting an impartial from the list provided by the executive director.  In the absence of agreement on any other method, they shall alternately strike names from the list, with the order of striking determined by lot.

(7))) (8) Upon appointment to the dispute resolution panel by the commission, the panel member may be placed under contract pursuant to chapter 39.29 RCW ((39.29.010)).  Only persons listed on the panel ((will)) shall be compensated by the agency under a personal service contract ((for services)).

[Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.  83-24-035 (Order 83-05), § 391-55-110, filed 12/1/83, effective 1/1/84.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-110, filed 9/30/80, effective 11/1/80.]

(1) All referrals from the dispute resolution panel shall be by random selection among the panel members eligible for the type of proceeding involved, subject to the following:

(a) If the parties do not specify the number of names requested, the agency shall supply seven names.

(b) Where the parties request a specific number of names, the agency shall supply the number requested plus two additional names for use as alternates to reduce the potential need for second lists, or for use as agreed by the parties.

(c) The agency shall furnish biographical information, including background, qualifications and experience, on each of the arbitrators on the list supplied to the parties.

(d) The agency shall supply the parties with a second list, upon submission of their joint written request.

(2) The parties may use any method agreed upon for selecting an impartial from the list provided by the agency. In the absence of agreement on any other method, they shall alternately strike names from the list, with the order of striking determined by lot.

(3) All contacts and arrangements between the parties and a selected dispute resolution panel member are the responsibility of the parties. The fees and travel expenses of the dispute resolution panel member shall be paid by the parties under applicable rules or as agreed by the parties.

[]

Prior to accepting the appointment, or as soon ((thereafter)) as information giving rise to a problem of appearance of fairness becomes known, a person serving in an impartial capacity in a dispute resolution proceeding under the jurisdiction of the commission shall disclose to the parties and to the executive director any circumstances likely to create an appearance of bias or which might disqualify him or her from serving in the impartial capacity.  Employment of the person or any member of his or her immediate family by any party shall be disqualifying.  Each party to the proceeding shall immediately notify the executive director and the appointee or selectee whether it is willing to waive disqualification.  If either party declines to waive the disqualification, the appointment shall be vacated.

[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), § 391-55-130, filed 9/30/80, effective 11/1/80.]

If any person serving in an impartial capacity in dispute resolution proceedings under the jurisdiction of the commission should resign, die, withdraw, refuse or be unable to serve, or should be or become disqualified to perform the duties of the office, the executive director shall declare the office vacant.  The vacancy shall be filled in the same manner as ((provided in these rules)) an original appointment.

[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), § 391-55-150, filed 9/30/80, effective 11/1/80.]

(1) If a dispute involving a bargaining unit eligible for interest arbitration under RCW 41.56.030(7), 41.56.475 or 41.56.492 has not been settled after a reasonable period of mediation, and the mediator is of the opinion that his or her further efforts will not result in an agreement, the following procedure shall be implemented:

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

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

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

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

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

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

(((1))) (3) If ((a)) the dispute ((for)) remains unresolved after the completion of the procedures in subsections (1) and (2) of this section, interest arbitration shall be initiated, as follows:

(a) For a bargaining unit covered by RCW 41.56.030(7) or 41.56.475 ((remains unresolved)), the mediator shall forward his or her recommendation and a list of unresolved issues to the executive director, who shall consider the recommendation of the mediator ((and any statements of position filed by the parties as to the existence of an impasse warranting arbitration)).  The executive director may remand the matter for further mediation.  If the executive director finds that the parties remain at impasse, the executive director shall ((issue a written notice to the parties certifying)) certify the unresolved issues for interest arbitration.

(((2) If a dispute for)) (b) For a bargaining unit covered by RCW 41.56.492 ((remains unresolved)), the mediator shall ((forward a list of unresolved issues to the parties and shall consider any statements of position filed by the parties as to the existence of an impasse warranting arbitration.  If the mediator finds that the parties remain at impasse, the mediator shall issue a written notice to the parties certifying)) certify the unresolved issues for interest arbitration.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.450 and [41.56].492.  96-07-105, § 391-55-200, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-200, filed 9/30/80, effective 11/1/80.]

Within seven days following the issuance of a certification of issues for interest arbitration under WAC 391-55-200, each party shall name one person who is available and willing to serve as its member of the arbitration panel, and shall notify the opposite party and the executive director of the name, address and telephone number of the ((person so designated)) partisan arbitrator.  The ((members so appointed shall proceed as provided in RCW 41.56.450)) partisan arbitrators shall meet within seven days following the appointment of the later appointed member to attempt to choose a third member to act as the neutral chairperson of the arbitration panel.

(1) The use of partisan arbitrators shall be deemed waived if neither party has notified the executive director of its appointee within fourteen days following the issuance of a certification of issues for interest arbitration, and the parties' principal representatives shall then select the neutral chairperson.

(2) A party which has designated a partisan arbitrator may substitute another person as its partisan arbitrator, upon notice to the other party and the executive director.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-205, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.  83-24-035 (Order 83-05), § 391-55-205, filed 12/1/83, effective 1/1/84.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-205, filed 9/30/80, effective 11/1/80.]

(1) If the ((appointed members)) parties agree on the selection of a neutral ((chairman)) chairperson, they shall obtain a commitment from that person to serve, and shall notify the executive director of the identity of the ((neutral chairman so selected)) chairperson.

(2) If the ((appointed members)) parties agree to have the commission appoint a staff member as the neutral ((chairman)) chairperson, they shall ((file with)) submit a written joint request to the executive director ((a written joint request)).  The parties ((and the appointed members)) are not entitled to influence the designation of ((an arbitrator)) a neutral chairperson under this subsection and shall not, either in writing or by other communication, attempt to indicate any preference for or against any person as the neutral ((chairman)) chairperson to be appointed by the commission.  Upon the ((filing)) submission of a request in compliance with this subsection, the executive director shall appoint a neutral ((chairman)) chairperson from the commission staff ((or the dispute resolution panel)).

(3) If the ((appointed members)) parties desire to select a neutral ((chairman)) chairperson from a panel of arbitrators, they shall attempt to agree as to ((which of the agencies designated in RCW 41.56.450)) whether the commission, the Federal Mediation and Conciliation Service or the American Arbitration Association will supply the list of arbitrators.  If the choice of agency is agreed, either party or the parties jointly shall proceed forthwith to request a panel of at least five arbitrators((.  If the appointed members are unable to agree within seven days following their first meeting as to which agency is to supply the list of arbitrators, either of them may apply to the executive director for a list of five available neutral chairmen other than agency staff members and the neutral chairman shall be selected from the commission's dispute resolution panel.  All requests for panels under this subsection shall specify)) specifying: "For interest arbitration proceedings under RCW 41.56.450." ((The)) Referrals and selection from the commission's dispute resolution panel shall be as provided in WAC 391-55-120. Referrals and selection ((of the impartial arbitrator)) from other panels shall be made ((pursuant to)) under the rules of the agency supplying the list of arbitrators((, and the)). The parties shall notify the executive director of the identity of the ((arbitrator so selected)) neutral chairperson.

(4) If the parties have not notified the executive director of their selection of a neutral chairperson within twenty-eight days after certification of issues under WAC 391-55-200, the parties shall be deemed to have waived the procedures in subsections (1) through (3) of this section. The executive director shall issue a list of dispute resolution panel members and the neutral chairperson shall be selected as provided in WAC 391-55-120.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-210, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.  83-24-035 (Order 83-05), § 391-55-210, filed 12/1/83, effective 1/1/84.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-210, filed 9/30/80, effective 11/1/80.]

Proceedings shall be conducted as provided in WAC 391-55-200 through 391-55-255.  The neutral ((chairman)) chairperson shall interpret and apply ((these)) all rules ((insofar as they relate)) relating to the powers and duties of the neutral ((chairman)) chairperson.  Any party who proceeds with arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state its objection ((thereto)) in writing, shall be deemed to have waived its right to object.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-215, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-215, filed 9/30/80, effective 11/1/80.]

At least ((seven)) fourteen days before the date of the hearing, each party shall submit to the members of the panel and to the other party written proposals on all of the issues it intends to submit to arbitration.  Parties shall not be entitled to submit issues which were not among the issues certified under WAC 391-55-200.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-220, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-220, filed 9/30/80, effective 11/1/80.]

(1) The neutral chairperson may, upon his or her own motion or upon request of a party, convene a prehearing conference or conferences.

(a) The purpose or purposes of a prehearing conference include to consider:

(i) Simplification of issues;

(ii) The possibility of obtaining stipulations, admissions of fact and admissions of the genuineness of documents which will avoid unnecessary proof;

(iii) Limitations on the number and consolidation of the examination of witnesses;

(iv) Procedural matters;

(v) Distribution of written testimony and exhibits to the parties prior to the hearing; and

(vi) Such other matters as may aid in the disposition or settlement of the case.

(b) Prehearing conferences may be held by telephone conference call or at a time and place specified by the neutral chairperson.

(c) Following a prehearing conference, the neutral chairperson shall issue an order reciting the action taken at the conference, and the agreements made by the parties concerning all of the matters considered. If no objection is filed within ten days after the date that the order is mailed, it shall control the subsequent course of the case unless modified for good cause by subsequent order.

(2) The arbitration panel shall promptly establish a date, time, and place for a hearing and shall provide reasonable notice ((thereof)) to the parties.  For good cause shown, the neutral ((chairman)) chairperson may adjourn the hearing upon the request of a party or upon his or her own initiative.  The parties may waive oral hearing by written agreement.

(a) A tape recording of the hearing shall be taken and shall be the official record of the hearing, unless the parties agree to take a transcript. If the parties do not agree to take a transcript and share in its cost, a party may take a transcript at its own expense. If a copy of the transcript is provided to the neutral chairperson, all parties shall have access to a copy.

(b) The statutory prohibition against a partisan arbitrator presenting the case for a party shall not preclude another member of the same organization or firm from presenting the case at the hearing.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-225, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-225, filed 9/30/80, effective 11/1/80.]

The order of presentation at the hearing shall be as agreed by the parties or as determined by the neutral ((chairman)) chairperson.  The neutral ((chairman)) chairperson shall be the judge of the relevancy of the evidence.  All evidence shall be taken in the presence of all parties, unless a party is absent in default or has waived its right to be present.  Each documentary exhibit shall be ((filed with)) submitted to the neutral ((chairman)) chairperson and copies shall be provided to the ((appointed members)) partisan arbitrators and to the other parties.  The exhibits shall be retained by the neutral ((chairman)) chairperson until an agreement has been signed or until any judicial review proceedings have been concluded, after which they may be disposed of as agreed by the parties or as ordered by the neutral ((chairman)) chairperson. The neutral chairperson has authority to administer oaths, to require the attendance of witnesses, and to require the production of documents that he or she may deem to be material.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-230, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-230, filed 9/30/80, effective 11/1/80.]

The neutral ((chairman)) chairperson may proceed in the absence of any party who, after due notice, fails to be present or fails to obtain an adjournment.  Findings of fact and the determination of the issues in dispute shall not be made solely on the default of a party, and the neutral ((chairman)) chairperson shall require the participating party to submit ((such)) evidence as may be required for making of the findings of fact and determining the issues.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-235, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-235, filed 9/30/80, effective 11/1/80.]

The neutral ((chairman)) chairperson shall declare the hearing closed after the parties have completed presenting their testimony and/or exhibits and ((filing)) submission of briefs within agreed time limits.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450.  96-07-105, § 391-55-240, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-240, filed 9/30/80, effective 11/1/80.]

The rulings and determination of the neutral ((chairman)) chairperson shall be controlling, and shall not require concurrence, but may be accompanied by the concurring and/or dissenting opinions of the ((appointed members)) partisan arbitrators.  ((Such)) The rulings and determinations shall not be subject to appeal to the commission, but the neutral ((chairman)) chairperson shall submit a copy of the award to the executive director.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.450. 98-14-112, § 391-55-245, filed 7/1/98, effective 8/1/98; 96-07-105, § 391-55-245, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-049 (Order 80-8), § 391-55-245, filed 9/30/80, effective 11/1/80.]

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

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

(1) The executive director shall suspend the certification of some or all issues under WAC 391-55-200, as follows:

(a) A party which claims that a proposal being advanced to interest arbitration is not a mandatory subject of collective bargaining must communicate its concerns to the other party during bilateral negotiations and/or mediation. If the party advancing the proposal does not withdraw the proposal or modify it to eliminate the claimed illegality, the objecting party must file and process a complaint charging unfair labor practices under chapter 391-45 WAC prior to the conclusion of the interest arbitration proceedings.

(b) A party which claims that the other party to negotiations subject to interest arbitration has violated the "collective bargaining" obligations imposed by RCW 41.56.030(4) must file and process a complaint charging unfair labor practices under chapter 391-45 WAC prior to the conclusion of the interest arbitration proceedings.

(c) If a preliminary ruling is issued under WAC 391-45-110 that an unfair practice violation could be found on a complaint filed under (a) or (b) of this subsection, a final ruling on the unfair labor practice complaint shall be made before any determination is made in interest arbitration on the disputed issue or issues.

(2) Issues suspended under subsection (1) of this section shall be acted upon after the conclusion of the unfair labor practice proceedings, as follows:

(a) If it is concluded that the suspended issue or issues was/were unlawfully advanced or affected by unlawful conduct, the issue or issues shall be stricken from the certification under WAC 391-55-200, and the party advancing the proposal shall only be permitted to advance such modified proposals as are in compliance with the remedial order in the unfair labor practice proceedings.

(b) If it is concluded that the suspended issue or issues was/were lawfully advanced, the suspension under this section shall be terminated and the issue or issues shall be remanded to the interest arbitration panel for ruling on the merits.

[]

(1) Upon the ((filing)) submission of a timely request for fact finding, the executive director shall ((furnish)) invite the parties ((a list of five members of the dispute resolution panel from which the parties will be invited)) to exercise their right under RCW 41.59.120(5).  ((Within))

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

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

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

(2) In the absence of an agreement of the parties under subsection (1) of this section, ((who)) the executive director shall designate a fact finder from the commission staff ((or the dispute resolution panel)) other than the person who was the mediator in the dispute.  The parties are not entitled to influence the designation of a fact finder and shall not, either in writing or by other communication, attempt to indicate any preference for or against any person as the fact finder to be appointed by the commission.

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

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

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

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

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

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

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

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

[Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  81-02-034 (Order 81-01), § 391-55-335, filed 1/6/81.]

The fact finder shall declare the hearing closed after the parties have completed presenting their testimony and/or exhibits and ((filing)) submission of briefs within agreed time limits.

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

((Not more than)) 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 shall assign a mediator.

[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-3050.1

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

WAC 391-65-001
Scope--Contents--Other rules.

This chapter governs proceedings before the public employment relations commission relating to arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement.  The provisions of this chapter should be read in conjunction with the provisions of:

(1) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission.

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

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

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

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

(6) 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, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-050 (Order 80-9), § 391-65-001, 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) 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 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.  83-24-036 (Order 83-06), § 391-65-002, 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.  80-14-050 (Order 80-9), § 391-65-002, filed 9/30/80, effective 11/1/80.]

Where there is an agreement to arbitrate, a request for appointment of an arbitrator to hear and determine issues arising out of the interpretation or application of a collective bargaining agreement may be ((filed)) submitted by the employer, the exclusive representative or their agents or by the parties jointly.

[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), § 391-65-010, filed 9/30/80, effective 11/1/80.]

A request for appointment of a grievance arbitrator may be made in writing or by electronic telefacsimile transmission.  The request shall be on a form furnished by the commission or prepared by the party or parties ((filing)) submitting the request in conformance with WAC 391-65-050.  The original request shall be ((filed with)) submitted to the ((agency at its)) commission's Olympia office, as required by WAC 391-08-120(2).  If the request is not ((filed)) submitted jointly((,)) the party ((filing)) submitting the request shall serve a copy, as required by WAC 391-08-120 (3) and (4), on the other party to the collective bargaining agreement under which the dispute arises.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.50.413 and 41.56.125.  96-07-105, § 391-65-030, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-050 (Order 80-9), § 391-65-030, filed 9/30/80, effective 11/1/80.]

Each request for appointment of a grievance arbitrator shall contain:

(1) Information identifying the parties to the dispute, including:

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

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

(c) The employer's principal business;

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

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

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

(g) The agreement of the party or parties making the request to accept the decision of the arbitrator as final and binding; and

(h) The agreement of the party or parties making the request that there ((will)) shall be no strike or lockout on the matters submitted to arbitration.

(2) Identification of the grievance to be resolved in arbitration.

(3) Designation of the request as:

(a) A request for appointment of a member of the agency staff as arbitrator; or

(b) A request for the submission of a list containing a specified number of names from the dispute resolution panel created by WAC 391-55-110.

(4) The name(s), signature(s) and, if any, title(s) of the representative(s) of the requesting party (parties), and the date(s) of the signature(s).

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413 and 41.56.125.  96-07-105, § 391-65-050, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110.  88-12-057 (Order 88-09), § 391-65-050, filed 5/31/88.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-050 (Order 80-9), § 391-65-050, filed 9/30/80, effective 11/1/80.]

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; but may jointly express a preference for appointment of ((a particular)) one or more staff members as their arbitrator, and the executive director shall consider their ((desires)) request.  Upon the ((filing)) submission of a request by one party for the appointment of a member of the agency staff as grievance arbitrator, the executive director shall determine whether the other party to the collective bargaining agreement concurs in the appointment of a staff arbitrator.  Upon concurrence or upon the ((filing)) 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 shall notify the requesting party of the lack of concurrence and shall ((take no further action)) close the case if concurrence is not provided within a reasonable time.

[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.]

Upon the ((filing of a)) request ((for a panel of arbitrators)) of a party, the ((executive director)) agency shall furnish ((the parties)) a list of ((names selected from)) members of the dispute resolution panel.  ((The list shall contain five names unless a different number is specifically requested by the parties or is specified in their collective bargaining agreement.  The executive director shall furnish, whenever available, biographical information, including background, qualifications and experience, on each of the arbitrators on the list supplied to the parties.  If one or more of those named is unavailable to accept appointment as arbitrator or must be disqualified, a substitute name will be provided upon the joint request of the parties.  If all of those named are rejected by the parties, a second list will be provided upon the joint request of the parties.  All contacts and arrangements between the parties and an arbitrator selected under this rule will be the responsibility of the parties.)) Names shall be referred and an arbitrator shall be selected under WAC 391-55-120.

[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), § 391-65-090, filed 9/30/80, effective 11/1/80.]

The arbitrator assigned or selected shall conduct the arbitration proceedings in the manner provided in the collective bargaining agreement under which the dispute arises((.  All such arbitrators shall maintain compliance with the "Code of Professional Responsibility for Arbitrators of Labor-Management Disputes" adopted by the National Academy of Arbitrators, the American Arbitration Association and the Federal Mediation and Conciliation Service on May 29, 1985: Provided, however, That arbitration matters)), subject to the following:

(1) Arbitration cases handled by members of the agency staff shall be ((filed)) kept in the public files of the agency ((and shall not be accorded the privacy required by such code)).

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

(3) Except as provided in subsections (1) and (2) of this section, all arbitrators shall maintain compliance with the "Code of Professional Responsibility for Arbitrators of Labor-Management Disputes" adopted by the National Academy of Arbitrators, the American Arbitration Association and the Federal Mediation and Conciliation Service on May 29, 1985.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125.  96-07-105, § 391-65-110, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-050 (Order 80-9), § 391-65-110, filed 9/30/80, effective 11/1/80.]

Any arbitrator assigned or selected under this chapter for a dispute involving public employees shall, after ((submission of)) sending the arbitration award to the parties, ((file)) submit a copy ((with)) to the executive director.

[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.125.  96-07-105, § 391-65-130, filed 3/20/96, effective 4/20/96.  Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040.  80-14-050 (Order 80-9), § 391-65-130, filed 9/30/80, effective 11/1/80.]

Each party shall pay the expenses of presenting its own case and the expenses and fees of its member, if any, of an arbitration panel.  The expenses of witnesses shall be paid by the party producing them.  The ((fees and traveling expenses of an arbitrator selected by the parties from a panel designated by the commission and any)) costs for recording and/or transcription of proceedings shall be paid by the parties under the terms of their collective bargaining agreement or ((such other arrangements as they may agree upon)) as agreed by the parties.  The commission shall pay the salary and traveling expenses of a staff member assigned ((as a grievance arbitrator)) under WAC 391-65-070, but no other expenses of the proceedings. The parties shall pay the fees and expenses of a dispute resolution panel member selected under WAC 391-65-090, as provided in WAC 391-55-120.

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

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