WSR 04-16-091

EXPEDITED RULES

MARINE EMPLOYEES' COMMISSION


[ Filed August 3, 2004, 8:18 a.m. ]

Title of Rule and Other Identifying Information: Chapter 316-25 WAC, Marine employees' representation case rules; and chapter 316-35 WAC, Marine employees' unit clarification case rules; WAC 316-25-001 Scope--Contents--Other rules, 316-25-010 Petition for investigation of a question concerning representation of employees--Who may file, 316-25-030 Petition--Time for filing, 316-25-050 Petition form -- Number of copies -- Filing -- Service, 316-25-070 Contents of petition, 316-25-090 Contents of petition filed by department, 316-25-110 Supporting evidence, 316-25-130 List of employees, 316-25-140 Notice to employees, 316-25-150 Amendment and withdrawal, 316-25-170 Intervention -- By incumbent representative, 316-25-190 Intervention -- By organization other than incumbent, 316-25-210 Showing of interest confidential, 316-25-220 Prehearing conferences, 316-25-230 Election agreements, 316-25-250 Cross-check agreements, 316-25-270 Supplemental agreements, 316-25-290 Notice of hearing, 316-25-310 Hearings -- Who shall conduct, 316-25-330 Authority of hearing officer, 316-25-350 Hearings -- Nature and scope, 316-25-370 Blocking charges -- Suspension of proceedings -- Request to proceed, 316-25-390 Proceedings before a hearing officer, 316-25-410 Cross-check of records, 316-25-430 Notice of election, 316-25-450 Disclaimers, 316-25-470 Electioneering, 316-25-490 Election procedures--Balloting, 316-25-510 Challenged ballots, 316-25-530 Votes needed to determine election, 316-25-550 Tally sheet, 316-25-570 Procedure following inconclusive election, 316-25-590 Filing and service of objections, 316-25-610 Procedure where no objections are filed, 316-25-630 Procedure where objections are filed, 316-25-650 Briefs and written arguments on objections, 316-25-670 Commission action on objections, 316-35-001 Scope -- Contents -- Other rules, 316-35-010 Petition for clarification of an existing bargaining unit -- Who may file, 316-35-030 Petition form -- Number of copies -- Filing -- Service, 316-35-050 Contents of petition, 316-35-070 Amendment and withdrawal, 316-35-090 Notice of hearing, 316-35-110 Consolidation of proceedings, 316-35-130 Hearings -- Who shall conduct, 316-35-150 Authority of hearing officer, 316-35-160 Prehearing conferences, 316-35-170 Hearings -- Nature and scope, 316-35-190 Proceedings before a hearing officer, 316-35-210 Proceedings before the commission -- Petition for review, 316-35-230 Filing and service of cross-petition for review, and 316-35-250 Commission action.

NOTICE

THIS RULE IS BEING PROPOSED UNDER AN EXPEDITED RULE-MAKING PROCESS THAT WILL ELIMINATE THE NEED FOR THE AGENCY TO HOLD PUBLIC HEARINGS, PREPARE A SMALL BUSINESS ECONOMIC IMPACT STATEMENT, OR PROVIDE RESPONSES TO THE CRITERIA FOR A SIGNIFICANT LEGISLATIVE RULE. IF YOU OBJECT TO THIS USE OF THE EXPEDITED RULE-MAKING PROCESS, YOU MUST EXPRESS YOUR OBJECTIONS IN WRITING AND THEY MUST BE SENT TO Kathy Marshall, Marine Employees' Commission, P.O. Box 40902, Olympia, WA 98504-0902 , AND RECEIVED BY October 4, 2004.


Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To make housekeeping changes and simplify/reduce language.

Reasons Supporting Proposal: In compliance with Executive Order 97-02, these rules were reviewed and clarification changes made to those rules.

Statutory Authority for Adoption: RCW 34.05.230.

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

Name of Proponent: Marine Employees' Commission, governmental.

Name of Agency Personnel Responsible for Drafting: Kathy Marshall, 711 Capitol Way South, Suite 104, Olympia, WA, (360) 586-6354; Implementation and Enforcement: John R. Swanson, Chairman, 711 Capitol Way South, Suite 104, Olympia, WA, (360) 586-6354.

August 3, 2004

Kathy Marshall

Administrator

OTS-7328.2


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-001   Scope -- Contents -- Other rules.   This chapter ((governs)) directs proceedings before the marine employees' commission on petitions for investigation of questions concerning representation of Washington state ferry system employees. The provisions of this chapter should be read in conjunction with the provisions of:

(1) Chapter 10-08 WAC which ((contains)) lists rules ((promulgated)) adopted by the chief administrative law judge governing the conduct of adjudicative proceedings under chapter 316-25 WAC, except:

(a) WAC 10-08-035, which is ((supplanted)) replaced by detailed requirements in WAC 316-25-070;

(b) WAC 10-08-211, which is ((supplanted)) replaced by WAC 316-25-390, 316-25-590, 316-25-630, and 316-25-670; and

(c) WAC 10-08-230, which is ((supplanted)) replaced by WAC 316-25-005, 316-25-150, 316-25-220, 316-25-230, 316-25-250, and 316-25-270.

(2) Chapter 316-02 WAC, which ((contains)) lists rules of practice and procedure applicable to all types of proceedings before the marine employees' commission.

(3) Chapter 316-35 WAC, which ((contains)) lists rules relating to proceedings on petitions for clarification of an existing ferry system employees' bargaining unit.

(4) Chapter 316-45 WAC, which ((contains)) lists rules ((relating to)) about proceedings on complaints charging unfair labor practices in the Washington state ferry system.

(5) Chapter 316-55 WAC, which ((contains)) lists rules ((relating to)) about resolution of impasses occurring in ferry system collective bargaining.

(6) Chapter 316-65 WAC, which ((contains)) lists rules ((relating to)) about arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement in the Washington state ferry system.

(7) Chapter 316-75 WAC, which ((contains)) lists rules ((relating to)) about determination of union security disputes arising between ferry system employees and employee organizations certified or recognized as their bargaining representative.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-001, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-001, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-010   Petition for investigation of a question concerning representation of employees -- Who may file.   A petition for investigation of a question concerning representation of employees, ((hereinafter referred to as)) from now on called a "petition," may be filed by any employee of the Washington state ferry system, group of employees, employee organization, department of transportation, or their agents.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-010, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-010, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-030   Petition -- Time for filing.   In order to be timely filed:

(1) Where there is a valid written and signed collective bargaining agreement in effect covering an appropriate bargaining unit which includes any or all of the employees to be affected by the petition, a petition may be filed during the period not more than ninety nor less than sixty days prior to the expiration date of the collective bargaining agreement, or after the expiration ((thereof)) date of the collective bargaining agreement.

(2) Where a certification has been issued by the commission covering an appropriate bargaining unit which includes any or all of the employees to be affected by the petition, a petition may be filed not less than twelve months following the date of the certification.

(3) Where neither subsections (1) nor (2) of this section are applicable, a petition may be filed at any time.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-030, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-030, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-050   Petition form -- Number of copies -- Filing -- Service.   Each petition ((shall)) must be prepared on a form furnished by the commission ((or shall be prepared in conformance with WAC 316-25-070. The original petition shall be filed with the commission at its)) and filed at the commission's Olympia office. The party filing the petition ((shall)) must serve a copy on the department and on each employee organization named in the petition as having an interest in the proceedings.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-050, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-050, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-070   ((Contents of)) Petition contents.   Each petition ((shall)) must contain:

(1) The name and address of the department and the name, address and telephone number of the department's principal representative in matters concerning relationships between the department and its ferry system employees.

(2) A description of the bargaining unit which the petitioner claims to be appropriate, specifying inclusions and exclusions, and the approximate number of employees in such bargaining unit.

(3) The names and, if known, the addresses and telephone numbers of the principal representatives of any organizations which may claim to represent any of the employees in the bargaining unit which the petitioner claims to be appropriate.

(4) A statement that: (a) The department declines, after having been requested to do so, to recognize the petitioner as the exclusive representative of the employees in the bargaining unit which the petitioner claims to be appropriate, or (b) the employees in the bargaining unit which the petitioner claims to be appropriate wish to change their exclusive bargaining representative, or (c) the employees in the bargaining unit do not wish to be represented by an employee organization.

(5) Any other relevant facts.

(6) The name, address and affiliation, if any, of the petitioner and the name, address and telephone number of the principal representative, if any, of the petitioner.

(7) The signature and, if any, the title of the petitioner or its representative.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-070, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-070, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-090   Contents of petition filed by department.   Each petition filed by the department ((shall)) must contain all of the information required by WAC 316-25-070, except for that required by WAC 316-25-070(4), and ((shall)) must conform to the following additional requirements:

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

(2) WAC 316-25-110 ((shall)) is not ((be)) applicable to such petitions.

(3) Where the status of an incumbent exclusive bargaining representative is questioned, the department ((shall)) must attach such affidavits and any other available documentation ((as may be available to it)) to demonstrate the existence of a good faith doubt concerning the representation of its employees. To constitute a basis for a good faith doubt under this subsection, signature documents provided to the department by employees must be in a form which would qualify as supporting evidence under WAC 316-25-110 if filed by the employees directly with the commission.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-090, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-090, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-110   Supporting evidence.   The original petition ((shall)) must be accompanied by a showing of interest indicating that the petitioner has the support of not less than thirty percent of the employees in the bargaining unit which the petitioner claims to be appropriate. The showing of interest must be timely filed under the same standards applicable to the petition, and must consist of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. ((Such)) These authorization cards ((shall)) are not ((be)) valid unless signed and dated during the one hundred eighty-day period ((preceding)) before the filing of the petition or the filing of such evidence with the commission, whichever is later.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-110, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-110, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-130   List of employees.   The department ((shall)) must submit ((to the commission)) a list containing the names and last known addresses of all of the employees in the bargaining unit described in the petition to the commission. ((Following)) After administrative determination that the petition is supported by a sufficient showing of interest, the department ((shall, upon)) will, on request, provide a copy of the list of names and addresses to the petitioner. ((Following)) After granting of a motion for intervention, the department ((shall, upon)) will, on request, provide a copy of the list of names and addresses to the intervenor.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-130, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-130, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-140   Notice to employees.   The department ((shall)) must post copies of a notice, ((specified by and furnished)) created and supplied by the commission, advising of the existence of proceedings under this chapter, in conspicuous places on its premises where notices to affected employees are usually posted.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-140, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-170   Intervention -- By incumbent representative.   An organization which demonstrates that it has been the exclusive representative of all or any part of the bargaining unit involved in proceedings under this chapter during the year ((preceding)) before the filing of the petition may, by motion, intervene in the proceedings and, upon granting of its motion for intervention, ((shall be)) is entitled to participate in the proceedings and to have its name listed as a choice on the ballot in any election. No motion for intervention ((shall)) will be considered if made after the close of the hearing on the petition or more than seven days after the filing and posting of an election agreement or cross-check agreement.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-170, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-170, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-190   Intervention -- By organization other than incumbent.   An organization not covered by WAC 316-25-170 may, by motion, intervene in proceedings under this chapter and, upon granting of its motion for intervention, ((shall be)) is entitled to participate in the proceedings and have its name listed as a choice on the ballot in any election. The motion for intervention ((shall)) must be supported by a showing of interest indicating that the intervenor has the support of not less than ten percent of the employees in the bargaining unit which the petitioner claims to be appropriate or of not less than thirty percent of the employees in whatever different bargaining unit the intervenor claims to be appropriate. The showing of interest must consist of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. ((Such)) Authorization cards ((shall)) are not ((be)) valid unless signed and dated during the one hundred eighty-day period preceding the filing of such evidence with the commission. The showing of interest shall be made confidentially to the commission at or before the time the motion for intervention is made: Provided, however, That a motion for intervention may be granted conditionally subject to the subsequent furnishing of a showing of interest under such conditions as the commission may impose to avoid undue delay of the proceedings. No motion for intervention ((shall)) will be considered if made after the close of the hearing on the petition or more than seven days after the filing and posting of an election agreement or cross-check agreement.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-190, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-190, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-210   Showing of interest confidential.   The question of whether a showing of interest requirement for a petition or for intervention has been satisfied is a matter for administrative determination by the commission and may not be litigated at any hearing. The commission shall not disclose the identities of employees whose authorization cards or letters are filed in support of a petition or motion for intervention. ((In order)) To preserve the confidentiality of the showing of interest and the right of employees freely to express their views on the selection of a bargaining representative, the commission ((shall)) will not honor any attempt to withdraw or diminish a showing of interest.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-210, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-210, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-220   Prehearing conferences.   The commission may conduct prehearing conferences with the parties to discuss ((with the parties)) all contested issues of law and fact which may arise in representation cases. The parties are encouraged to reach binding stipulations on all issues during the ((course of the)) prehearing conference. ((Such)) These stipulations are to be embodied in election agreements, cross-check agreements, and/or supplemental agreements provided for in this chapter.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-220, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-230   Election agreements.   Where the department and all other parties agree on a representation election, they may file an election agreement with the commission. ((Such)) The election agreement ((shall)) must contain:

(1) The name and address of the department and the name, address and telephone number of its principal representative.

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

(3) A description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions, and the number of employees in such unit.

(4) A statement by all parties that: (a) No organization is known which is or may be entitled to intervene as an incumbent representative, or (b) the incumbent representative is a party to the election agreement, or (c) the incumbent representative has abandoned the unit as evidenced by documentation attached to the election agreement.

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

(6) 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 is to be used solely for activities related to the election. If the parties request that the election be conducted by mail ballot, the list ((shall)) will 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)) will be the date on which the election agreement is filed.

(7) The suggestions of the parties as to the location, the day or days of the week and the time or times of day for the conduct of the election, or that the election be conducted by mail ballot.

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

The original and one copy of the election agreement ((shall)) must be filed ((with)) at the commission's ((at its)) Olympia office, and copies ((shall)), with employee addressees removed, must be posted by the department in conspicuous places on the department's premises where notices to affected employees are usually posted. The election agreement ((shall)) will remain posted for at least seven days after it is filed with the commission (ten days after it is deposited in the United States mail addressed to the commission).

((Upon)) After the filing of an election agreement conforming to the foregoing requirements and seeking an election in an appropriate bargaining unit, the commission representative(s) ((shall)) will proceed to conduct an election. Objections to the election by a party to the election agreement ((shall)) will be limited to matters relating to specific conduct affecting the results of the election.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-230, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-230, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-250   Cross-check agreements.   ((Where)) If only one organization is seeking certification as the representative of unrepresented employees, the department and the organization may file a cross-check agreement with the commission. ((Such)) The cross-check agreement ((shall)) must contain:

(1) The name and address of the department and the name, address and telephone number of its principal representative.

(2) The name and address of the organization and the name, address and telephone number of its principal representative.

(3) The description of the bargaining unit agreed to be appropriate, specifying inclusions and exclusions and the number of employees in such unit.

(4) 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 commission 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 department.

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

(6) The suggestions of the parties as to the time and place where the records to be cross-checked can be made available to the commission.

(7) The agreement of the parties to be bound by the results of the cross-check.

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

The original and one copy of the cross-check agreement ((shall)) must be filed ((with)) at the commission's ((at its)) Olympia office, and copies ((thereof shall)) must be posted by the department in conspicuous places on the department's premises where notices to affected employees are usually posted. The cross-check agreement ((shall)) must remain posted for at least seven days after it is filed with the commission (ten days after it is deposited in the United States mail addressed to the commission).

((Upon the filing of)) After a cross-check agreement ((conforming to the foregoing)) including the above requirements and seeking a cross-check in an appropriate bargaining unit is filed, the commission ((shall)) will 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)) will be issued until seven days have ((elapsed)) passed after following the filing and posting of the cross-check agreement. Where a motion for intervention is timely filed and granted, no certification ((shall)) will be issued on the basis of the cross-check.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-250, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-250, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-270   Supplemental agreements.   Where the parties are able to agree generally on the matters to be set forth in an election agreement under WAC 316-25-230 or a cross-check agreement under WAC 316-25-250, 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 filing a supplemental agreement under this rule together with an agreement under WAC 316-25-230 or 316-25-250. ((Such)) The supplemental agreement ((shall)) must contain:

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

(2) 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.

(3) 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.

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

The original and one copy of the supplemental agreement ((shall)) must be filed with the commission together with the agreement filed under WAC 316-25-230 or 316-25-250, and ((shall)) must be posted with such agreement.

((Upon the filing of)) After a supplemental agreement is filed, the commission ((shall proceed with the determination of)) will determine the question concerning representation. If ((the)) there are enough challenges ((are sufficient in number)) to affect the outcome, they ((shall)) will be determined ((prior to the issuance of a)) before issuing certification. Otherwise, a conditional certification ((shall)) will be issued which ((shall)) will be amended ((upon)) on final disposition of the issues framed in the supplemental agreement.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-270, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-270, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-290   Notice of hearing.   After a petition has been filed, if it appears to the commission that there is reasonable cause to believe that a question concerning representation exists, ((there shall be issued and)) a notice will be issued scheduling a hearing at a fixed time and place and it will be served on the department and on all organizations listed in the petition and on any organization having ((theretofore)) intervened((, a notice of hearing before the commission or an assigned commissioner at a time and place fixed therein)). The commission ((shall)) will furnish the department with copies of such notice, and the department ((shall)) must post them in conspicuous places on its premises where notices to affected employees are usually posted. Any such notice of hearing may be amended or withdrawn at any time before the close of the hearing.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-290, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-290, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-310   Hearings -- Who shall conduct.   Hearings may be conducted by the commission or by a member of the commission assigned as a hearing officer. ((At any time,)) The commission or another commissioner may be substituted for the hearing officer previously presiding at any time.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-310, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-310, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-350   Hearings -- Nature and scope.   Hearings ((shall be)) are 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. It ((shall be)) is the duty of the hearing officer to inquire fully into all matters in issue and to obtain a clear and complete factual record ((upon)) on which the commission may discharge its duties under chapter 47.64 RCW and these rules.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-350, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-350, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-370   Blocking charges -- Suspension of proceedings -- Request to proceed.   (1) Where representation proceedings have been commenced under this chapter and:

(a) A complaint charging unfair labor practices is filed under the provisions of chapter 316-45 WAC; and

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

(c) Such unfair labor practice could improperly affect the outcome of a representation election; the commission may suspend the representation proceedings under this chapter pending the resolution of the unfair labor practice case.

(2) The complainant(s) in the unfair labor practice case may file a request to proceed, in writing, with the commission. ((Such)) The request to proceed ((shall)) must identify, by case number, the representation proceedings for which it is made, ((shall)) must request that those representation proceedings be continued notwithstanding the pending unfair labor practice case, and ((shall)) must acknowledge that the commission will not entertain objections based on conduct alleged in the unfair labor practice case. ((Upon)) On the filing of a request to proceed conforming to the foregoing requirements the commission ((shall)) will resume the processing of the representation petition and ((shall)) will summarily dismiss any objections filed in conflict with the request to proceed.

(3) Where a complaint charging unfair labor practices is filed after the filing of an election agreement or issuance of a direction of election, the commission ((shall)) will proceed with the determination of the question concerning representation, subject to the right of any party to file objections as provided in WAC 316-25-590.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-370, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-370, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-390   Proceedings before a hearing officer.   The hearing officer may proceed ((forthwith upon)) on the record, after submission of briefs or after hearing, as may be appropriate. The hearing officer ((shall)) determines whether a question concerning representation exists, and ((shall)) issues a direction of election, ((dismiss)) dismisses the petition or makes other disposition of the matter. ((Such)) The actions ((shall be)) are subject to review by the commission only as follows:

(1) Except for rulings as to whether the department is subject to the jurisdiction of the commission, a direction of election and any accompanying rulings ((shall)) are not ((be)) subject to review by the commission except upon objections timely filed under WAC 316-25-590.

(2) An order of dismissal ((shall be)) is subject to review by the commission on its own motion or at the request of any party made within twenty days following the date of the order. Briefs or written arguments ((shall)) must be submitted as provided in WAC 316-25-650. Unless the matter is transferred to the commission for review, an order of dismissal issued by the hearing officer ((shall have)) has the same force and effect as if issued by the commission.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-390, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-390, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-410   Cross-check of records.   ((Where)) If a cross-check of records is to be conducted to determine a question concerning representation, the organization ((shall)) will submit to the commission original individual cards or letters signed and dated by employees in the bargaining unit not more than ninety days prior to the filing of the petition and indicating that such employees authorize the named organization to represent them for the purposes of collective bargaining, or ((shall)) will submit to the commission membership records maintained by the organization as a part of its business records containing the names of employees and indicating those employees currently members in good standing. The department ((shall)) will make available ((to the commission)) original employment records maintained as a part of its business records containing the names and signatures of the employees in the bargaining unit available to the commission. ((Prior to the commencement of)) Before starting the cross-check, the organization may file a request that the question concerning representation be determined by a representation election and such requests ((shall)) will be honored. Where the organization files a disclaimer ((or a request for election)) after the ((commencement)) start of the cross-check, the cross-check ((shall)) will be terminated and the organization ((shall not)) cannot seek to be certified in the bargaining unit for a period of at least one year ((thereafter)) afterward. All cross-checks ((shall)) will be by actual comparison of records submitted by the parties. The commission ((shall)) will not disclose the names of employees giving representation authorization in favor of or appearing on the membership rolls of the organization. ((Upon the conclusion of the comparison of records)) After records have been compared, the commission officer conducting the cross-check ((shall)) will prepare and furnish to the parties a tally sheet containing the number of employees in the bargaining unit, the number of employee records examined and the number of employee records counted as valid evidence of representation.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-410, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-410, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-430   Notice of election.   When an election is to be conducted, the commission ((shall)) will furnish the department with appropriate notices, and the department ((shall)) must post them in conspicuous places on its premises where notices to affected employees are usually posted. The notice ((shall)) must contain:

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

(2) The date(s), hours and polling place(s) for the election.

(3) The cut-off date, if any, or other criteria to be applied in establishing eligibility to vote in the election.

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

Notices of the election ((shall)) must be posted for at least seven days prior to the opening of the polls. ((In)) When computing ((such)) the period, the day of posting ((shall be)) is counted, but the day on which the polls are opened ((shall)) is not ((be)) counted. The reproduction of any document purporting to suggest, either directly or indirectly, that the commission endorses a particular choice may constitute grounds for setting aside an election ((upon objections)) on properly filed objections.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-430, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-430, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-450   Disclaimers.   An organization may file a disclaimer and have its name removed from the ballot((: Provided, however, That if such)). If a disclaimer is filed after the issuance of a notice of election, the organization filing the disclaimer ((shall not)) cannot seek to be certified in that bargaining unit for a period of at least one year thereafter.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-450, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-450, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-470   Electioneering.   (1) The department and employee organizations are prohibited from making election speeches on the department's time to massed assemblies of employees within twenty-four hours before the scheduled time for the opening of the polls for an election conducted under "in person" voting procedures, or within the time period beginning with the issuance of ballots to employees for an election conducted under "mail ballot" voting procedures and ending with the tally of ballots.

(2) There ((shall)) will be no electioneering at or about the polling place during the hours of voting.

Violations of this rule ((shall)) will be grounds for setting aside an election ((upon objections)) on properly filed objections.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-470, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-470, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-490   Election procedures -- Balloting.   All elections ((shall)) must be by secret ballot. Multiple questions, including unit determination elections, may be submitted to employees at the same time on separate ballots. Absentee balloting ((shall)) will not be allowed. Each party may be represented by observers of its own choosing, subject to such limitations as the commission may prescribe((: Provided, however, That)). However, no management official having authority over bargaining unit employees nor any officer or paid employee of an organization ((shall)) will serve as observer.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-490, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-490, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-510   Challenged ballots.   Any observer or the election officer may challenge, for good cause, the eligibility of any person seeking to cast a ballot in the election. No person ((shall)) will be denied the right to cast a challenged ballot. The election officer ((shall)) will not have authority to resolve challenges at the polls, and the ballot of the challenged voter ((shall)) will be placed in a sealed envelope identifying the voter and the observer or election officer challenging the eligibility of the voter. The ballot ((shall)) will not be opened until the challenge is resolved. Any party may withdraw a challenge previously made and, unless the eligibility of the voter is challenged by another party or by the election officer, the challenge ((shall thereby)) will be resolved. If the challenged ballots are insufficient in number to affect the results of the election, they ((shall)) will be impounded and no ruling ((shall)) will be made thereon. If the challenged ballots are sufficient in number to affect the results of the election, the election officer ((shall)) will, after the close of the polls, ((ascertain)) determine the position of each party as to each challenged ballot and ((shall)) will include such information in his report. If challenges raise material questions of fact which cannot be resolved without a hearing, ((there shall be issued and served on each of the parties a notice of hearing before the commission or assigned commissioner)) a hearing notice will be issued and served on each of the parties. The rules relating to the conduct of hearings on petitions ((shall)) will govern hearings on challenges, except that the scope of the hearing ((shall)) will be limited to matters relevant to the disposition of the challenged ballots. An assigned commissioner ((shall have)) has authority to rule on all challenges except those made by a party to preserve an objection to a ruling previously made by the commission as to the eligibility of the challenged voter. If challenges of a type excepted from the authority of the commissioner are sufficient in number to affect the results of the election, the matter ((shall)) will be transferred to the commission for its determination under the provisions of WAC 316-25-670.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-510, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-510, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-530   Votes needed to determine election.   (1) Unit determination elections ((shall)) will be decided by a majority of those eligible to vote in the election.

(2) Representation elections shall be decided by a majority of those voting. Where there are only two choices on the ballot, a tie vote ((shall)) will result in a certification of no representative.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-530, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-530, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-550   Tally sheet.   ((Upon closing the polls)) After the polls are closed, the election officer ((shall)) will prepare and furnish to each of the parties a tally of the votes cast on unchallenged ballots and the number of challenged ballots. After the subsequent resolution of challenged ballots affecting the results of the election, a revised tally ((shall)) will be issued and furnished to the parties. The tally ((shall)) will indicate whether the results of the election were conclusive or inconclusive.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-550, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-550, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-570   Procedure following inconclusive election.   In any election in which there are more than two choices on the ballot, if none of the choices receives the number of votes necessary to determine the election, a run-off election ((shall)) will be held providing for selection between the two choices receiving the largest numbers of valid ballots cast in the inconclusive election. Any organization which would be excluded from a run-off election may file objections to specific conduct affecting the results of the inconclusive election. Where the choice of "no representative" is to be excluded from a run-off election, the department or decertification petitioner may file objections to specific conduct affecting the results of the inconclusive election. Such objections ((shall)) will be resolved ((prior to the conduct of a run-off election)) before the run-off election is conducted. All run-off elections ((shall)) will be determined as provided in WAC 316-25-530.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-570, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-570, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-590   Filing and service of objections.   Within seven days after the tally has been served under WAC 316-25-410 or under WAC 316-25-550, any party may file objections with the commission. Objections may consist of:

(1) Designation of specific conduct improperly affecting the results of the election, by violation of these rules, by the use of deceptive campaign practices improperly involving the commission and its processes, by the use of forged documents, or by coercion or intimidation of or threat of reprisal or promise of reward to eligible voters; and/or

(2) Designation of one or more previous rulings or directions in the matter which the objecting party desires to have reviewed by the commission.

Objections ((shall)) must contain, in separate numbered paragraphs, statements of the specific conduct, if any, alleged to have improperly affected the results of the election and, in separate numbered paragraphs, the specific rulings or directions, if any, which the party filing the objections desires to have reviewed. The original copy of the objections ((shall)) must be filed ((with)) at the commission's ((at its)) Olympia office, and the party filing the objections ((shall)) must serve a copy on each of the other parties to the proceedings. Objections must be timely filed, whether or not challenged ballots are sufficient in number to affect the results of the election.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-590, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-590, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-610   Procedure where no objections are filed.   If no objections are filed within the time set forth above, and if any challenged ballots are insufficient in number to affect the determination of the question concerning representation, and if no run-off election is to be held, the election officer ((shall forthwith)) will certify the results of the proceedings, with the same force and effect as if issued by the commission. The proceedings will ((thereupon)) then be closed.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-610, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-610, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-630   Procedure where objections are filed.   (1) Objections to conduct improperly affecting the results of an election ((shall)) will be referred to a commissioner for investigation. If the objections raise material questions of fact which cannot be resolved without a hearing, ((there shall be issued and served on each of the parties a notice of hearing before the commissioner)) a hearing notice before the commission will be issued and served on each of the parties. Hearings on objections to conduct affecting the results of an election may be consolidated with hearings on challenged ballots in the same proceeding. The rules relating to the conduct of hearings on petitions ((shall)) will govern hearings on objections, except that the scope of the hearing shall be limited to matters relevant to the disposition of the objections.

(2) Objections to prior rulings and/or directions in the matter shall be referred directly to the commission.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-630, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-630, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-650   Briefs and written arguments on objections.   All parties ((shall be)) are entitled to submit briefs or written arguments for consideration by the commission. The briefs or written arguments of all parties ((shall be)) are due simultaneously, as follows:

(1) The deadline for the filing of briefs or written arguments ((shall be)) is fourteen days following the latter of:

(a) The close of an investigation under WAC 316-25-630(1);

(b) The issuance of a transcript of a hearing held under WAC 316-25-630(1); or

(c) The filing of objections under WAC 316-25-590(2).

(2) The commission or assigned commissioner may, for good cause, grant any party an extension of the time for filing of its brief or written argument where a request for additional time is made ((prior to the deadline)) before the previously established deadline.

The original brief or written argument ((shall)) must be filed with the commission's ((at its)) Olympia office and a copy ((shall)) must be served on each of the other parties. If a party presents an issue which requires study of a statute, rule, regulation, or finding of fact, the party should set out the material portions of the text verbatim or include them by facsimile copy in the text or in an appendix to the brief.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-650, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-650, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-116, filed 12/20/89, effective 1/20/90)

WAC 316-25-670   Commission action on objections.   In all cases where objections have been filed, the entire record in the proceedings ((shall)) will be transferred to the commission. The commission may request the parties to appear before it to make oral argument as to certain of the issues or all of the issues in the matter. The commission ((shall)) will determine the objections and any challenged ballots referred to the commission pursuant to WAC 316-25-510, and ((shall)) will issue appropriate orders.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-116, 316-25-670, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-25-670, filed 3/20/84.]

OTS-7329.1


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-001   Scope -- Contents -- Other rules.   This chapter ((governs)) directs proceedings before the marine employees' commission on petitions for clarification of existing bargaining units. The provisions of this chapter should be read in conjunction with the provisions of:

(1) Chapter 10-08 WAC which ((contains)) lists rules ((promulgated)) adopted by the chief administrative law judge governing the conduct of adjudicative proceedings under chapter 316-35 WAC, except:

(a) WAC 10-08-035, which is ((supplanted)) replaced by detailed requirements in WAC 316-35-050;

(b) WAC 10-08-211, which is ((supplanted)) replaced by WAC 316-35-210 and 316-35-230; and

(c) WAC 10-08-230, which is ((supplanted)) replaced by WAC 316-35-070 and 316-35-160.

(2) Chapter 316-02 WAC, which ((contains)) lists rules of practice and procedure ((applicable)) that apply to all types of proceedings before the marine employees' commission.

(3) Chapter 316-25 WAC, which ((contains)) lists rules ((relating to)) about proceedings on petitions for investigation of questions concerning representation of ferry system employees.

(4) Chapter 316-45 WAC, which ((contains)) lists rules ((relating to)) about proceedings on complaints charging unfair lab or practices in the Washington state ferry system.

(5) Chapter 316-65 WAC, which ((contains)) lists rules ((relating to)) about arbitration of grievance disputes arising out of the interpretation or application of a collective bargaining agreement in the Washington state ferry system.

(6) Chapter 316-75 WAC, which ((contains)) lists rules ((relating to)) about determination of union security disputes arising between ferry system employees and employee organizations certified or recognized as their bargaining representative.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-001, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-001, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-010   Petition for clarification of an existing bargaining unit -- Who may file.   ((In the absence of a question concerning representation,)) A petition for clarification of an existing bargaining unit(s) may be filed by the department of transportation, (an) exclusive representative(s) of ferry system employees or its/their agents, or by the parties jointly.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-010, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-010, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-030   Petition form -- Number of copies -- Filing -- Service.   Each completed original petition for clarification of (an) existing bargaining unit(s) ((shall be prepared on a form)) furnished by the commission ((or shall be prepared in conformance with WAC 316-35-050. The original petition shall)), must be filed ((with)) at the commission's ((at its)) Olympia office. If the petition is filed other than as a jointly filed petition, the party filing the petition ((shall)) must also serve a copy on the other party to the collective bargaining relationship in which the disagreement arises.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-030, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-030, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-050   ((Contents of)) Petition contents.   Each petition for clarification of (an) existing bargaining unit(s) ((shall)) must contain:

(1) The name and address of the department and the name and title, if known, address and telephone number of the person designated by the department as the official representative for adjudicatory proceedings under chapter 47.64 RCW.

(2) The name(s), address(es) and affiliation(s), if any, of the exclusive representative(s), and the name(s), address(es) and telephone number(s) of its/their principal representative(s).

(3) The description of the existing bargaining unit, specifying inclusions and exclusions and the number of employees in such bargaining unit(s).

(4) Identification of the proceeding in which any certification of representatives was issued or the date of the recognition agreement(s), and the history of any subsequent modifications of the bargaining unit(s) ((subsequent thereto)).

(5) A description of the proposed clarification, including the position(s), classification(s) or group(s) ((in)) at issue, the number of employees in each ((such)) position, classification or group, the present bargaining unit inclusion or exclusion status of each such position, classification or group, and identification of the party proposing that the present status be changed.

(6) The names and addresses of any other employee organizations claiming to represent any employees affected by the proposed clarification(s), and brief description(s) of the collective bargaining agreement(s), if any, covering such employees.

(7) A statement of the reasons for the proposed clarification.

(8) Any other relevant facts.

(9) The signature(s) and the title(s), if any, of the petitioner(s) and/or his/their representative(s) and his/their title(s).

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-050, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-050, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-090   Notice of hearing.   After a petition for clarification of an existing bargaining unit has been filed, if it appears to the commission that a disagreement exists which might appropriately be the subject of an order clarifying an existing bargaining unit, ((there shall)) a hearing notice will be issued and served on the employer and on the exclusive representative ((a notice of hearing)). The hearing notice ((shall)) will contain:

(1) The name(s), address(es) and telephone number(s) of the person(s) who filed the petition, and their representative(s) or counsel and their title(s), if known, and their address(es) and telephone number(s);

(2) The name(s), address(es) and telephone number(s) of the exclusive bargaining unit(s) which the petitioner(s) want(s) clarified, and its/their principal representative(s) and titles, if known, and their addresses and telephone numbers;

(3) The name, title, address, and telephone number of the person designated by the department as the official recipient of notices involving adjudicatory proceedings under chapter 47.64 RCW;

(4) The official case number for the proceeding;

(5) The name, mailing address, and telephone number of the commissioner who is to be the presiding officer in the hearing;

(6) A statement of the time, place, and nature of the hearing;

(7) A statement of the legal authority under which the hearing is to be held;

(8) A reference to the particular sections of the statute(s) and/or rule(s) involved;

(9) A short and plain statement of the matter to be heard, as asserted by the commission;

(10) ((An enumeration)) A listing of the organizations and/or persons to whom copies of the notice are being provided;

(11) A statement that the commission(er) will take official notice of the applicable collective bargaining agreement(s), if any, in effect at the time of the petition;

(12) Notice of other specific evidence known by the commission(er) to be required, and which party will be required to submit such evidence; and

(13) A statement that a party who fails to attend or participate, personally or by agent or counsel, in the hearing or other stage of the proceeding may be held in default.

Any such notice may be amended or withdrawn prior to the close of the hearing.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-090, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-090, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-110   Consolidation of proceedings.   If a proceeding initiated by a petition for unit clarification under WAC 316-35-010 is pending at the same time as another petition involving all or any part of the same bargaining units and/or a petition for investigation of a question concerning representation filed pursuant to WAC 316-25-010 is/are filed, the proceedings ((shall)) will be consolidated and all issues concerning the description of the bargaining units ((shall)) will be resolved in the consolidated proceedings.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-110, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-110, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-130   Hearings -- Who shall conduct.   Hearings may be conducted by the commission or by a member of the commission designated by the commission as a hearing officer. ((At any time,)) A hearing officer may be substituted for the hearing officer previously presiding at any time.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-130, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-130, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-160   Prehearing conferences.   The commission may conduct prehearing conferences to discuss ((with the parties)) all contested issues of law and fact which may arise in unit clarification cases with the parties. The parties are encouraged to reach binding stipulations on all issues during the ((course of a)) prehearing conference. ((Such)) These stipulations are to be embodied in proposed commission unit clarification orders, amendments to collective bargaining agreement security clauses, or other appropriate agreements.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-160, filed 12/20/89, effective 1/20/90.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-170   Hearings -- Nature and scope.   Hearings ((shall)) will be public and ((shall be)) are limited to matters concerning the determination of the petition for clarification of an existing bargaining unit unless the proceeding has been consolidated with another petition in accordance with WAC 316-35-110. It ((shall be the duty of)) is the hearing officer's ((to inquire fully into all matters in issue and)) duty to obtain a ((full)) clear and complete factual record ((upon)) on which the commission may ((discharge)) fulfill its duties under chapter 47.64 RCW and these rules.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-170, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-170, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-190   Proceedings before a hearing officer.   An assigned commissioner may proceed ((forthwith upon)) on the record, after submission of briefs or after hearing, as may be appropriate. The hearing officer ((shall)) determines the status of each position, classification or group of employees over which there is a disagreement and issues an order clarifying bargaining unit, ((dismiss)) dismissing the petition or ((make)) making other disposition of the matter.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-190, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-190, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-210   Proceedings before the commission -- Petition for review.   The final order of an assigned commissioner ((shall be)) is subject to review by the commission on its own motion, or at the request of any party made within twenty days after the date of the order. The original petition for review ((shall)) must be filed ((with)) at the commission's ((at its)) Olympia office and the party filing the petition ((shall)) must serve a copy on the department and on any other parties. The petition for review ((shall)) must identify the actions or rulings claimed to be in error. Any party to the proceeding may, within fourteen days after the filing of the petition for review, file briefs or written arguments for consideration by the commission. The original brief or written argument ((shall)) must be filed ((with)) at the commission's ((at its)) Olympia office and a copy ((shall)) must be served on the other party. The commission or assigned commissioner may, for good cause, grant any party an extension of the time for filing of its brief or written argument where a request for additional time is made prior to the deadline previously established. The commission may request the parties ((to)) appear before it to make oral arguments ((as to)) about certain ((of the)) issues or all of the issues in the matter.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-210, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-210, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-230   Filing and service of cross-petition for review.   ((Where)) If a petition for review has been timely filed under WAC 316-35-210, ((any)) a party who has not previously filed a petition for review may, within seven days after the last date on which a petition for review may be filed, file a cross-petition for review. ((Such)) The cross-petition for review ((shall)) must be filed and served in the same manner as a petition for review. Upon the filing of a cross-petition for review, the deadline for the submission of briefs or written arguments shall be extended by seven days.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-230, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-230, filed 3/20/84.]


AMENDATORY SECTION(Amending WSR 90-01-117, filed 12/20/89, effective 1/20/90)

WAC 316-35-250   Commission action.   The assigned commissioner ((shall)) will transfer the entire record in the proceeding to the commission. The commission ((shall)) will determine the status of each position, classification or group covered by the petition for review, and ((shall)) will enter appropriate orders, which ((shall be)) are final and binding upon the parties in accordance with RCW 47.64.280.

[Statutory Authority: RCW 47.64.280 and 34.05.220. 90-01-117, 316-35-250, filed 12/20/89, effective 1/20/90. Statutory Authority: RCW 47.64.280. 84-07-037 (Resolution No. 84-01), 316-35-250, filed 3/20/84.]

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