These rules are adopted pursuant to the authority of section 8, chapter 156, Laws of 1972 ex. sess., (hereinafter referred to as the "act") as supplementary to the act for the purpose of providing rules of procedure to aid and assist the department of labor and industries, its authorized agents, and interested parties in proceedings under the act. The department of labor and industries, (hereinafter referred to as "department") and its authorized agents may waive any requirements of these rules, unless a party shows that it would be prejudiced by such waiver or unless the rule to be waived involves a mandatory provision of the act.

It is the policy of the department to expedite the settlement of labor disputes between health care activities and their employees and to promote peace in labor relations and nothing in these rules should be construed to prevent the department and its authorized agents, where not inconsistent with the intent and purpose of the act, from using its best efforts to adjust through conciliation any labor dispute arising between employers, employees or employee organizations subject to the provisions of the act.

These rules shall be liberally construed to effectuate the purposes and provisions of the act.

Any terms used in these rules that are defined in the act shall have the same meaning as set forth therein.

"Petitioner" shall mean any person, employer or employee association authorized to request the department to take action under the provisions of the act or these rules.

"Authorized agent" of the department shall mean the director, the supervisor of industrial relations, a labor mediator or a hearing officer specifically authorized by the director to conduct proceedings under the act.

In order to qualify as an employee association as referred to in section 3 of the act, any such organization or association:

(1) Upon request by the authorized agent, or any party of interest, must produce authentic records of how, when and by whom the organization was formed.

(2) Shall have a written constitution and/or bylaws which plainly indicates that one of the primary purposes of the organization or association is to represent employees in labor relations matters with employers and is consistent with the requirements of the act and is available for review by any member.

(3) The constitution and/or bylaws must provide:

(a) An approved, customary or recognized method for the nomination and election of officers in accordance with accepted parliamentary procedures, the terms of such officers not to exceed four years.

(b) An approved method of financial record keeping and a financial audit at least once a year, which audit is available to any member for review.

(c) That at least four regular meetings must be held each year with adequate notice of meetings to all members.

(d) That a specific and reasonable minimum number of members or a percentage of the membership must be present to form a quorum before any organization business may be transacted at regular or special meetings.

Applications to the department regarding the selection of a bargaining representative to represent employees of a bargaining unit of an employer shall be by petition on such form or forms as may be provided by the department. A written petition may be accepted by the department if the petition contains substantially the same information required by the forms provided by the department.

The petition for certification, decertification or amendment of certification of the representative of a bargaining unit must be filed either:

(1) With the Supervisor, Division of Industrial Relations, Department of Labor and Industries, General Administration Building, Olympia, Washington 98504; or

(2) If the health care activity is situated in western Washington with the Labor Mediator, Division of Industrial Relations, Department of Labor and Industries, 300 West Harrison Street, Seattle, Washington 98119; or

(3) If the health care activity is situated in eastern Washington with the Labor Mediator, Division of Industrial Relations, Department of Labor and Industries, North 1322 Post Street, Spokane, Washington 99207.

Petitions for the certification, decertification, or amendment of certification of an employee representative of a bargaining unit shall contain the following:

(1) A statement as to whether the petition is filed by a health care activities employee organization, a health care activities employee or a health care activities employer.

Petitions for certification decertification or amendment of certification filed by a health care activities employee organization or a health care activities employees, shall contain:

(1) A description of the bargaining unit which the petitioner claims to be appropriate, a statement as to whether there is any disagreement between the petitioner and interested parties as to the nature and scope of the proposed bargaining unit; and statement that the petitioner is authorized to represent at least thirty percent of the employees within the proposed bargaining unit.

(2) The names and addresses of any persons or employee organizations, known to the petitioner, who claim to represent any employees in the proposed appropriate bargaining unit; the expiration dates and brief descriptions of any collective bargaining agreements which may be in effect between an employer and an employee organization covering all or a portion of the employees in the proposed bargaining unit.

(3) The number and job titles of the employees in the proposed bargaining unit.

(4) A statement that the employer declines to recognize the petitioner as the employee representative, or that the health care activities employer is about to recognize another employee organization as the exclusive bargaining representative or the presently recognized or certified employee organization is no longer the representative of the employees in the proposed bargaining unit.

(5) The name, affiliation, if any, and the address of the petitioner.

(6) Whether a work stoppage or picketing is in progress at the health care activity and, if so, the approximate number of employees participating and the date that such work stoppage or picketing commenced.

(7) Any other relevant factual information.

(8) A specific statement of the relief or remedy that the petitioner seeks the department to invoke.

Petitions for certification or amendment of certification of a bargaining representative filed by a health care activities employer, shall contain:

(1) A factual statement setting forth that one or more individuals or employee organizations has presented to the petitioner a claim to be recognized as the exclusive bargaining representative of all employees in a bargaining unit claimed to be appropriate; the job titles of the employees of such bargaining unit; the number of employees in such unit; and a statement of reasons as to whether the petitioner agrees or disagrees as to the nature or scope of such requested bargaining unit.

(2) The name or names, affiliation, if any, and addresses of individuals or employee organizations known to the petitioner making such claim for recognition as to the exclusive bargaining representative of employees in the health care activity.

(3) A statement regarding whether the petitioner has contracts with any employee organization or other representatives of employees, and if so, the expiration dates of such agreements.

(4) A statement as to whether or not a work stoppage or picketing is in progress at the health care activity involved, and if so, the approximate number of employees participating, and the date such work stoppage or picketing commenced.

(5) A statement of other relevant facts.

(6) A statement regarding the remedy or relief the petitioner requests the department to invoke.

Any third party having a legitimate interest in any proceedings commenced under the act may file a petition seeking intervention in such proceedings setting forth facts sufficient to establish such interests and setting forth in such petition the remedy or relief the petitioner seeks the department to invoke.

For the purposes of third party intervention, "legitimate interest" means that the petitioner must allege in the petition for intervention and be prepared to prove if requested that it is authorized to represent at least thirty percent of the employees within a proposed bargaining unit before leave to intervene may be granted. Any employee organization which has a signed, valid collective bargaining agreement encompassing the proposed bargaining unit or any portion thereof shall be considered to have a legitimate interest upon presentation to the department of an executed authentic copy of such collective bargaining agreement.

Upon the filing of petition for certification, decertification or amendment of certification of an exclusive bargaining representative of employees and the determination of an appropriate bargaining unit, an authorized agent shall confer with and may hold informal conferences with the known interested parties in an effort to ascertain the agreed upon facts of the controversy. The authorized agent shall encourage the parties to agree upon an appropriate bargaining unit within the limitations of the act. Whenever the authorized agent shall determine that the parties are unable to agree upon an appropriate bargaining unit, and is unable to settle the controversy without hearing, a hearing shall be conducted. Notice of such hearing, with the time and place of such hearing, shall be given to all parties by mail at least six days prior to the date of hearing, excluding Saturdays, Sundays and legal holidays. Within a reasonable time following the determination of an appropriate bargaining unit, the authorized agent shall provide for a bargaining representation election in accordance with the provisions of section 3 of the act and as further provided in these rules.

At any time prior to the issuance of the written notice of a bargaining representation election, a petitioning party may, subject to the discretion of the authorized agent, amend or withdraw his petition.

Whenever the department is called upon to make a determination of an appropriate bargaining unit within a health care activity, within the limitations of the act, the department shall consider the duties, skills and working conditions of the health care activities employees; the history of collective bargaining by the health care activities employees and their bargaining representative within the proposed bargaining unit and in the health care industry; the extent of organization among the health care activities employees; the desires of such employees and the affect of the proposed bargaining unit upon the efficiency of administration of the health care activity.

The department will not consider any question of representation within any bargaining unit or subdivision thereof in any health care activity within which in the preceding twelve-month period a valid election has been held. Nor will the department entertain any petition giving rise to the question of representation within any bargaining unit or portion thereof with a health care activity having a collective bargaining agreement in effect, except during the period not more than ninety nor less than sixty days prior to the expiration date of any such agreement. A collective bargaining agreement which contains a provision for automatic renewal or extension of the agreement or which is effective for a term of more than three years shall not be deemed to be a valid collection bargaining agreement for the purposes of this section.

Health care activities employers shall furnish a current list of the names and addresses of all employees in a proposed or agreed upon bargaining unit prior to any scheduled representation hearing. The lists of such employees shall be available upon request to any organization which has been qualified under these rules and meeting the requirements of section 3 of the act.

In order to be acceptable as evidence of representation for the purposes of the thirty percent requirements of section 3 of the act, individual authorization cards must be signed and dated by the employee expressing his intention to be represented by a specific bargaining representative. A card signed and dated six months or more prior to the date on which examination of cards for representation purposes commences shall be considered invalid and not acceptable for representation purposes.

In the event a representation election is conducted for the purposes of certification, the following rules shall apply:

(1) Notice of election shall be given to all interested parties, and shall be prominently posted by the employer at a place or places within the health care services facility reasonably accessible to all employees. Notices of election shall be sent by mail to all interested parties no less than ten days prior to the date of the election excluding Saturdays, Sundays and legal holidays. Notices of election shall contain the following information; the date of election, hours and place of election, a list of employees eligible to vote, a description of the bargaining unit and a listing of employee organizations from which eligible employees may choose by ballot as well as a choice that such employees do not wish to be represented by any bargaining representative.

(2) Employee shall be deemed eligible to vote in an election for the certification of an exclusive bargaining representative of the employees of an appropriate bargaining unit who are regularly employed within the bargaining unit, either full or part time, and who are in the employ of the employer within fourteen days prior to the date of the issuance of the notice of election and on the date of election, except, supervisors as defined in section 2, subsection 5 of the act, and guards as defined in section 2, subsection 6 of the act, unless the bargaining unit is exclusively devoted to employees serving in the capacity of guards. Employees otherwise eligible to vote in a certification election may be permitted to vote by absentee ballot upon the filing of an affidavit with the authorized agent indicating that such person is eligible to vote in the certification election and that by reason of physical incapacity will be unable to be present at the balloting place on the date of election. The casting of ballots in a representation election by proxy will not be permitted.

(3) Each of the interested parties may designate one person as observer at the polls. Unless otherwise stipulated by the interested parties, observers must be nonsupervisory employees of the health care activities employer.

(4) Any observer, or the authorized agent, for good cause may challenge any employee's eligibility to vote. A challenged ballot shall be placed in an envelope bearing no identifying marks. It shall be placed in another envelope upon which shall be written the name of the employee desiring to cast a ballot, the reasons for which the ballot was challenged, by whom it was challenged, the polling place at which it was challenged, and the envelope shall be sealed and initialed by the authorized agent.

(5) The challenged ballots previously placed in separate envelopes shall be placed in a sealed envelope marked "challenged ballots" and sent along with the tally sheet to the authorized agent. The challenged ballots shall not be opened or counted unless the counting of such ballots might affect the results of the election. If the challenged ballots might affect the results of the election, the authorized agent shall conduct an investigation into and if requested conduct a formal hearing on the validity of the challenges made. If it is concluded that the challenge was properly made, that ballot shall be excluded from the count. Otherwise, such ballot shall be counted as cast.

(6) Ballots may not be tallied until after the time for the closing of the polls unless all eligible voters have cast their ballot.

(7) Within five days after the tally of the ballots has been furnished, any party may file with the authorized agent an original and three copies of objections to the conduct of the election, or conduct affecting the results of the election, which shall contain a short factual statement of the reasons for the objections. Such filing must be timely, whether or not the challenged ballots are sufficient in number to affect the results of the election. Copies of such objections shall immediately be served by mail upon the other parties by the party filing them. If objections are filed to the conduct of the election, or conduct affecting the result of the election, the authorized agent shall investigate such objections. If the objections to the conduct of the election were sustained and the objections would affect the results of the election, the authorized agent, if requested by one of the interested parties, shall conduct a formal hearing.

Where more than one employee organization is on the ballot, and neither of the three or more choices receives votes from a majority of the votes cast in the election, a run-off election shall be held. The run-off ballot shall contain the two choices which receive the largest and second largest number of votes.

If no timely objections are filed, the authorized agent will certify, as an exclusive bargaining representative, the employee organization which receives votes from a majority of the employees who vote in the election or any run-off election or will certify that no employee organization receive votes from a majority of the employees who voted in the election or any run-off election. A copy of such certification shall be mailed to all interested parties within ten days of certification, along with a certification of the results of the election.

Any employee or employee organization or a health care activities employer may file in writing an unfair labor practice charge with the department of labor and industries, alleging an unfair labor practice as set forth in the applicable provisions of sections 4 and 5 of the act: Provided, That this section and other sections of these rules relating to unfair labor practice charges, shall not be construed to prohibit an employee, an employee organization or an employer from instituting court proceedings as authorized under section 7 of the act without first having exhausted the remedies provided by these rules, except, in those cases in which an employee, an employee organization or an employer requests the director of labor and industries to exercise the authority invested in him to institute court proceedings to seek relief from the commission of an unfair labor practice. Any decision by a court rendered upon the merits of an unfair labor practice charge pursuant to a legal action instituted under the authority of section 7 shall be deemed res judicata and a bar to maintaining proceedings under this section and other sections of these rules relating to unfair labor practice charges.

Unfair labor practice charges shall be filed on such form or forms provided by the department and shall contain the following:

(1) The name and address of the health care activities employer.

(2) The name and address of the person or organization who is filing the charges.

(3) The statement as to the basis of the charge which shall be specific as to facts, names, addresses, dates and places.

(4) A statement as to whether or not the complainant has instituted legal proceedings under the authority of section 7 of the act seeking relief from the alleged commission of an unfair labor practice.

(5) The unfair labor practice charges shall be verified under oath in substantially the following form:

Upon receipt of an unfair labor practice charge, the department shall determine whether or not the complainant has alleged actionable charges of unfair labor practices under the provisions of the act. If the department finds that actionable charges have been alleged by the complainant, the department may give notice of not less than three days to the parties to the controversy that an informal hearing conference will be held at which conference testimony and evidence will be taken under oath to determine whether such charges are factually meritorious or frivolous. If the charges are found to be actionable charges and the evidence obtained at the informal hearing conference discloses that the charges are made in good faith and give rise to substantial questions of fact or law, the department shall issue a complaint and schedule the matter for hearing. If the informal hearing conference discloses that the unfair labor practice charges are frivolous and not made in good faith and do not give rise to substantial questions of fact or law, the unfair labor practice charges shall be dismissed and those persons or organizations named in such charges shall be notified in writing of such dismissal and the reasons for the dismissal. If the department finds that actionable charges have not been alleged under the provisions of the act, the unfair labor practice charges shall be dismissed and those persons or organizations named in such charges shall be notified in writing of such dismissal and the reasons for the dismissal.

Remedial orders may be issued by the department which shall afford an appropriate remedy or relief consistent with the provisions of the act and the findings and conclusions of the authorized agent, which may include the prominent posting of such remedial orders within the health care activity at such place or places reasonably accessible to all employees for periods of time not to exceed six months.

Whenever in these rules provision is made for the conducting of a hearing by the authorized agent for the purpose of taking testimony and evidence after the giving of a notice of the time and place of such hearing, the authorized agent may upon his own motion change the time for such hearing to a later date and change the place for such hearing. In addition, any party to the hearing process may upon written application to the authorized agent upon the basis of good cause shown in such application be granted an extension of time and a change of the date or place or both for such hearing which is reasonably convenient to the parties.

Whenever either a health care activities employer or the exclusive bargaining representative of the bargaining unit of such health care activity are of the opinion that an impasse has arisen between the parties in the process of collective bargaining, either party may request the department in writing to determine whether an impasse exists in the collective bargaining process.

For the purpose of these rules and supplementary to section 9 of the act, an impasse in the collective bargaining process will be presumed to have been reached when the parties have not agreed upon a collective bargaining contract and an issue or issues remain upon which neither party is willing to agree, nor make in good faith concessions or make further concessions in good faith, nor agree upon any good faith proposal nor make further proposals in good faith for the settlement of any issue remaining unresolved.

For the purpose of these rules and supplementary to the act, the terms "collective bargaining" means the performance of the mutual obligations of the employer and the bargaining representative of the employees to meet at reasonable times, to confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiations of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

In any case in which the department is requested to determine whether an impasse has been reached in the collective bargaining process, the authorized agent shall request the parties representing the employer, and the parties representing the exclusive bargaining representative in the negotiations to meet and confer with the authorized agent for the purpose of an informal hearing conference to enable a determination of the facts to be made as to whether an impasse has been reached in the collective bargaining process. For that purpose the authorized agent may take evidence and testimony under oath. If the authorized agent determines that an impasse has been reached in the collective bargaining process, he shall forthwith enter findings and conclusions forming the basis of his belief that an impasse has been reached and setting forth therein the specific issues remaining unresolved between the parties which constitute the impasse accompanied by an order declaring an impasse and ordering the parties to forthwith choose and impanel a board of arbitrators pursuant to the provisions of section 9 of the act. Which order shall further require the parties to furnish copies of the authorized agent's findings and conclusions and order declaring an impasse to each member of the panel of arbitrators for their guidance upon the subject of the issues remaining unresolved constituting the impasse.

If an impasse is found not to have been reached in the process of collective bargaining, the authorized agent shall enter findings and conclusions and order the parties to resume the process of collective bargaining.

Any employer or employee of a health care activity or employee organization or other person or organization who was a party in the proceeding before the authorized agent and aggrieved by any action taken or decision made by any authorized agent may appeal such action or decision to the director of the department of labor and industries by filing a notice of such appeal with the director of the department of labor and industries and the authorized agent within thirty days of such action or decision. The notice of appeal shall be accompanied by a concise numbered statement of the assignments of error which are to be relied upon and are the subject of the appeal. Copies of the notice of appeal and assignments of error shall be served upon all parties to the proceeding before the authorized agent. Proof of such service shall be filed in the office of the director. The notice of appeal may in the discretion of the director suspend such action or decision of the authorized agent pending the determination of the appeal by the director. The director shall review the record and written briefs on appeal filed by the respective parties and may bear oral argument regarding the issues on appeal. The director shall decide the issues raised by the appeal and shall notify all parties in writing of his decision. The decision of the director in the absence of an appeal to the superior court pursuant to the Administrative Procedure Act shall be final at the expiration of thirty days from the date of filing of such decision.

Typewritten memoranda of authority or appeal briefs shall be filed in the office of the director by the respective parties to the appeal thirty days following the filing of the notice of appeal. Any party to the appeal filing an appeal brief may request that a hearing of oral arguments upon the appeal be held before the director. Parties to the appeal not filing an appeal brief will not be granted oral hearing of arguments before the director nor permitted to present oral arguments to the director at any hearing that may be held for the presentation of arguments on appeal. The time and place for hearing oral arguments, when requested, will be fixed at the expiration of the time for filing briefs and notice of any such hearing will be sent to all parties to the appeal.

In addition to the cover or title pages of the brief and any index, appeal briefs shall consist of the following subdivisions, titled with distinctive type and in the order indicated:

(1) Statement of the case. Under this heading the following shall be included: A brief statement of the nature of the case which is the subject of the appeal and a clear and concise statement of the facts appropriate to an understanding of the nature of the controversy, with page references to the record on appeal.

(2) Assignments of error. Each error relied upon and served with the notice of appeal shall be clearly pointed out and discussed under the appropriately designed headings. No alleged error of the authorized agent will be considered unless the same be definitely pointed out in the assignments of error in the appellant's brief. Whenever error is assigned to any findings of fact or conclusion of the authorized agent, so much of the findings or conclusions claimed to be erroneous shall be set out verbatim in the brief.

(3) Argument of counsel for appellant shall set forth and discuss the authorities in support of the position of the appellant and shall be appropriately designed and arranged for discussion and argument of the assignments of error and the issues arising out of such assignments of error with references where appropriate to the record on appeal.

(4) Argument of counsel for respondent. The brief of respondent on appeal need not contain a subdivision containing the assignments of error on appeal, but in the argument of counsel for respondent there shall be directed, under appropriately titled sections, argument and discussion in opposition to the assignments of error of the appellant, or in support of the decision of rulings of the authorized agent and where appropriate with supporting references to the pages of the record on appeal.

Upon receipt of a copy of the notice of appeal, the authorized agent shall promptly cause to be prepared and forwarded to the office of the director the record on appeal which shall include, a transcript of the proceedings of any hearing held by the authorized agent, the originals of all exhibits or documentary evidence admitted in evidence or rejected in evidence by the authorized agent and any other papers or evidence before the authorized agent relied upon in arriving at his decision. All exhibits shall be appropriately and plainly marked for reference. In addition the authorized agent shall certify in the appropriately titled case the record on appeal as containing all of the evidence, matters and things coming before the authorized agent at the hearing, or relied upon in making his findings, conclusions, decision and any remedial order. A copy of the record on appeal, or any portion thereof, may be obtained by any party to the appeal upon payment to the authorized agent of the reasonable cost per page.