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Chapter 391-35 WAC

Last Update: 2/15/12

UNIT CLARIFICATION CASE RULES

WAC Sections

HTMLPDF391-35-001Scope—Contents—Other rules.
HTMLPDF391-35-002Sequence and numbering of rules—Special provisions.
HTMLPDF391-35-010Petition for clarification of an existing bargaining unit—Who may file.
HTMLPDF391-35-020Time for filing petition—Limitations on results of proceedings.
HTMLPDF391-35-026Special provision—State civil service employees.
HTMLPDF391-35-030Petition in writing—Number of copies—Filing—Service.
HTMLPDF391-35-050Contents of petition.
HTMLPDF391-35-070Amendment and withdrawal.
HTMLPDF391-35-085Amendment of certification.
HTMLPDF391-35-090Notice of hearing.
HTMLPDF391-35-099Special provision—Private sector and other employees.
HTMLPDF391-35-110Coordination of proceedings.
HTMLPDF391-35-130Hearings—Who shall conduct.
HTMLPDF391-35-170Hearings—Reopening of hearing—Briefs.
HTMLPDF391-35-190Proceedings before the executive director.
HTMLPDF391-35-210Appeals.
HTMLPDF391-35-250Commission action on appeals.
HTMLPDF391-35-254Special provision—Marine employees.
HTMLPDF391-35-300School district employees.
HTMLPDF391-35-301Higher education employees.
HTMLPDF391-35-310Employees eligible for interest arbitration.
HTMLPDF391-35-320Exclusion of confidential employees.
HTMLPDF391-35-326Special provision—State civil service employees.
HTMLPDF391-35-327Special provision—Higher education faculty.
HTMLPDF391-35-330One-person bargaining unit inappropriate.
HTMLPDF391-35-340Unit placement of supervisors—Bargaining rights of supervisors.
HTMLPDF391-35-342Special provision—Educational employees.
HTMLPDF391-35-343Special provision—Academic employees.
HTMLPDF391-35-344Special provision—Marine employees.
HTMLPDF391-35-346Special provision—State civil service employees.
HTMLPDF391-35-347Special provision—Higher education faculty.
HTMLPDF391-35-350Unit placement of regular part-time employees—Exclusion of casual and temporary employees.
HTMLPDF391-35-356Special provision—State civil service employees.
DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS TITLE
391-35-080Prehearing conferences. [Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 34.05.431. WSR 96-07-105, § 391-35-080, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 28B.52.073 and 41.56.040. WSR 90-06-073, § 391-35-080, filed 3/7/90, effective 4/7/90.] Repealed by WSR 01-14-009, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050.
391-35-150Authority of hearing officer. [Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-150, filed 9/30/80, effective 11/1/80.] Repealed by WSR 83-24-033 (Order 83-03), filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080.
391-35-230Filing and service of cross-petition for review. [Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-230, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-230, filed 9/30/80, effective 11/1/80.] Repealed by WSR 98-14-112, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110 and 41.58.050.


PDF391-35-001

Scope—Contents—Other rules.

This chapter governs proceedings before the public employment relations commission on petitions for clarification of existing bargaining units under all chapters of the Revised Code of Washington (RCW) administered by the commission and contains some well-established unit determination standards in a subchapter of rules beginning at WAC 391-35-300. The provisions of this chapter should be read in conjunction with:
(1) Chapter 10-08 WAC, which contains the model rules of procedure promulgated by the chief administrative law judge to regulate adjudicative proceedings under chapter 34.05 RCW, except:
(a) WAC 10-08-035, which is replaced by detailed requirements in WAC 391-35-050;
(b) WAC 10-08-050, which relates to office of administrative hearings procedures inapplicable to proceedings before the public employment relations commission;
(c) WAC 10-08-211, which is replaced by detailed requirements in WAC 391-35-210 and 391-35-250; and
(d) WAC 10-08-230, which is replaced by detailed requirements in WAC 391-35-070.
(2) Chapter 391-08 WAC, which contains rules of practice and procedure applicable to all types of proceedings before the public employment relations commission, and which also replaces some provisions of chapter 10-08 WAC.
(3) Chapter 391-25 WAC, which regulates representation proceedings.
(4) Chapter 391-45 WAC, which regulates unfair labor practice proceedings.
(5) Chapter 391-55 WAC, which regulates the resolution of impasses in collective bargaining.
(6) Chapter 391-65 WAC, which regulates grievance arbitration and grievance mediation proceedings.
(7) Chapter 391-95 WAC, which regulates union security nonassociation proceedings.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060. WSR 03-03-064, § 391-35-001, filed 1/14/03, effective 2/14/03. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. WSR 01-14-009, § 391-35-001, filed 6/22/01, effective 8/1/01; WSR 96-07-105, § 391-35-001, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. WSR 90-06-073, § 391-35-001, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-001, filed 9/30/80, effective 11/1/80.]



PDF391-35-002

Sequence and numbering of rules—Special provisions.

This chapter of the Washington Administrative Code is designed to regulate proceedings under a number of different chapters of the Revised Code of Washington. General rules are set forth in sections with numbers divisible by ten. Where a deviation from the general rule is required for conformity with a particular statute, that special provision is set forth in a separate rule, numbered as follows:
(1) Special provisions relating to chapter 41.56 RCW (Public Employees' Collective Bargaining Act) and to chapter 53.18 RCW (port employees) are set forth in WAC sections numbered one digit greater than the general rule on that subject matter.
(2) Special provisions relating to chapter 41.59 RCW (Educational Employment Relations Act) are set forth in WAC sections numbered two digits greater than the general rule on that subject matter.
(3) Special provisions relating to chapter 28B.52 RCW (Collective Bargaining—Academic Personnel in Community Colleges) are set forth in WAC sections numbered three digits greater than the general rule on that subject matter.
(4) Special provisions relating to chapter 47.64 RCW (Marine employees—Public employment relations) are set forth in WAC sections numbered four digits greater than the general rule on that subject matter.
(5) Special provisions relating to RCW 41.06.340 and/or chapter 41.80 RCW (Personnel System Reform Act) are set forth in WAC sections numbered six digits greater than the general rule on that subject matter.
(6) Special provisions relating to chapter 41.76 RCW (faculty at public four-year institutions of higher education) are set forth in WAC sections numbered seven digits greater than the general rule on that subject matter.
(7) Special provisions relating to chapter 49.39 RCW (symphony musicians) and chapter 49.08 RCW (private sector and other employees) are set forth in WAC sections numbered nine digits greater than the general rule on that subject matter.
[Statutory Authority: RCW 28B.52.080, 41.06.340, 41.56.090, 41.58.050, 41.58.065, 41.59.110, 41.76.060, 41.80.080, and 49.39.060. WSR 12-05-066, § 391-35-002, filed 2/15/12, effective 3/17/12. Statutory Authority: RCW 28B.52.080, 41.06.340, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.080, and 49.39.060. WSR 10-20-172, § 391-35-002, filed 10/6/10, effective 11/6/10. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060. WSR 03-03-064, § 391-35-002, filed 1/14/03, effective 2/14/03. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. WSR 01-14-009, § 391-35-002, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. WSR 90-06-073, § 391-35-002, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. WSR 83-24-033 (Order 83-03), § 391-35-002, filed 12/1/83, effective 1/1/84. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-002, filed 9/30/80, effective 11/1/80.]



PDF391-35-010

Petition for clarification of an existing bargaining unit—Who may file.

A petition for clarification of an existing bargaining unit may be filed by the employer, the exclusive representative, or their agents, or by the parties jointly.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. WSR 96-07-105, § 391-35-010, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. WSR 90-06-073, § 391-35-010, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-010, filed 9/30/80, effective 11/1/80.]



PDF391-35-020

Time for filing petition—Limitations on results of proceedings.

timeliness of petition
(1) A unit clarification petition may be filed at any time, with regard to:
(a) Disputes concerning positions which have been newly created by an employer.
(b) Disputes concerning the allocation of employees or positions claimed by two or more bargaining units.
(c) Disputes under WAC 391-35-300 concerning a requirement for a professional education certificate.
(d) Disputes under WAC 391-35-310 concerning eligibility for interest arbitration.
(e) Disputes under WAC 391-35-320 concerning status as a confidential employee.
(f) Disputes under WAC 391-35-330 concerning one-person bargaining units.
(2) A unit clarification petition concerning status as a supervisor under WAC 391-35-340, or status as a regular part-time or casual employee under WAC 391-35-350, is subject to the following conditions:
(a) The signing of a collective bargaining agreement will not bar the processing of a petition filed by a party to the agreement, if the petitioner can demonstrate that it put the other party on notice during negotiations that it would contest the inclusion or exclusion of the position or class through a unit clarification proceeding, and it filed the petition prior to signing the current collective bargaining agreement.
(b) Except as provided under subsection (2)(a) of this section, the existence of a valid written and signed collective bargaining agreement will bar the processing of a petition filed by a party to the agreement unless the petitioner can demonstrate, by specific evidence, substantial changed circumstances during the term of the agreement which warrant a modification of the bargaining unit by inclusion or exclusion of a position or class.
limitations on results of proceedings
(3) Employees or positions may be removed from an existing bargaining unit in a unit clarification proceeding filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions.
(4) Employees or positions may be added to an existing bargaining unit in a unit clarification proceeding:
(a) Where a petition is filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions; or
(b) Where the existing bargaining unit is the only appropriate unit for the employees or positions.
(5) Except as provided under subsection (4) of this section, a question concerning representation will exist under chapter 391-25 WAC, and an order clarifying bargaining unit will not be issued under chapter 391-35 WAC:
(a) Where a unit clarification petition is not filed within a reasonable time period after creation of new positions.
(b) Where employees or positions have been excluded from a bargaining unit by agreement of the parties or by a certification, and a unit clarification petition is not filed within a reasonable time period after a change of circumstances.
(c) Where addition of employees or positions to a bargaining unit would create a doubt as to the ongoing majority status of the exclusive bargaining representative.
(6) Where a petitioning union seeks severance of a portion of an existing bargaining unit of classified employees at a school district or educational service district, appropriate bargaining units existing on July 25, 2005, may not be divided into more than one appropriate bargaining unit without the agreement of the employer and certified bargaining representative of the unit where severance is sought.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.070. WSR 08-04-058, § 391-35-020, filed 1/31/08, effective 4/1/08. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-020, filed 6/22/01, effective 8/1/01; WSR 96-07-105, § 391-35-020, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. WSR 90-06-073, § 391-35-020, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.58.050, 41.56.090 and 41.59.110. WSR 88-12-061 (Order 88-03), § 391-35-020, filed 5/31/88.]



PDF391-35-026

Special provision—State civil service employees.

In addition to the circumstances described in WAC 391-35-020, bargaining units of state civil service employees may be modified under this section until RCW 41.80.050 and 41.80.080 take effect on July 1, 2004.
(1) Bargaining units of state civil service employees in existence on June 13, 2002, shall be subject to being "divided" into separate units of supervisors and nonsupervisory employees under this section.
(a) A petition to have an existing unit divided may be filed by the exclusive bargaining representative, by the employer, or by those parties jointly.
(b) The separation of bargaining units shall be implemented on or before July 1, 2004.
(2) Bargaining units of state civil service employees in existence on June 13, 2002, shall be subject to being "perfected" under this section.
(a) A petition to have an existing bargaining unit perfected may be filed by the exclusive bargaining representative, or by the employer and exclusive bargaining representative jointly.
(b) All of the unit determination criteria set forth in RCW 41.80.070 shall be applicable to proceedings under this section. The history of bargaining in a unit configuration that is fragmentary and/or was based on narrower considerations shall not preclude creation of a "perfected" bargaining unit as to which a community of interests is demonstrated with regard to:
(i) The duties, skills and working conditions of all positions or classifications to be included in the "perfected" bargaining unit; and
(ii) The extent of organization and avoidance of unnecessary fragmentation shall be implemented to avoid stranding of other positions or classifications in units so small as to prejudice their statutory bargaining rights; and
(iii) The required separation of supervisors and nonsupervisory employees is implemented based on the delegations of authority then in existence; and
(iv) Two or more existing bargaining units can be merged through the procedure set forth in this section; and
(v) The exclusive bargaining representative demonstrates that it has majority support among any employees to be accreted to the bargaining unit(s) being "perfected."
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060. WSR 03-03-064, § 391-35-026, filed 1/14/03, effective 2/14/03.]



PDF391-35-030

Petition in writing—Number of copies—Filing—Service.

Each petition for clarification of an existing bargaining unit shall be in writing, and shall be filed at the commission's Olympia office, as required by WAC 391-08-120(1). If the petition is filed other than as a jointly filed petition, the party filing the petition shall serve a copy on the other party to the collective bargaining relationship in which the disagreement arises, as required by WAC 391-08-120 (3) and (4).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-030, filed 6/22/01, effective 8/1/01; WSR 00-14-048, § 391-35-030, filed 6/30/00, effective 8/1/00; WSR 98-14-112, § 391-35-030, filed 7/1/98, effective 8/1/98; WSR 96-07-105, § 391-35-030, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-030, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-030, filed 9/30/80, effective 11/1/80.]



PDF391-35-050

Contents of petition.

Each petition for clarification of an existing bargaining unit shall contain, in separate numbered paragraphs:
(1) Information identifying the parties and their relationships, including:
(a) The name, address, and telephone number of the employer, and the name, address, telephone number, fax number, and email address of its principal representative;
(b) The name, address, telephone number, fax number, and email address of the exclusive representative, and the name, address, telephone number, fax number, and email address of its principal representative;
(c) The employer's principal business;
(d) The parties' contractual relationship, indicating that:
(i) The parties have never had a contract; or
(ii) A copy of the current (or most recent) collective bargaining agreement is attached;
(e) The status of negotiations between the parties, indicating that:
(i) The parties' contract is closed; or
(ii) The parties are currently in contract negotiations;
(f) The description of the existing bargaining unit, specifying inclusions and exclusions;
(g) The number of employees in the bargaining unit; and
(h) The history of the bargaining unit, including at least the approximate date of its creation.
(2) Identification of the position(s), classification(s) or group(s) at issue, the number of employees in each position, classification or group, the present bargaining unit inclusion or exclusion status of each position, classification or group, identification of the party proposing that the present status be changed, and the reason for the proposed change.
(3) Identification of other interested organizations, including 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 contracts, if any, covering such employees.
(4) Any other relevant facts.
(5) The name, signature(s) and, if any, title(s) of the representative(s) of the petitioner(s), and the date of the signature.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.413, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-050, filed 6/22/01, effective 8/1/01; WSR 96-07-105, § 391-35-050, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-050, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-050, filed 9/30/80, effective 11/1/80.]



PDF391-35-070

Amendment and withdrawal.

Any petition may be amended or withdrawn by the petitioner(s) under such conditions as the executive director or the commission may impose.
[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-070, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-070, filed 9/30/80, effective 11/1/80.]



PDF391-35-085

Amendment of certification.

A party may file a petition to amend an existing certification, and the executive director may amend the certification, provided that the purpose of the amendment is to reflect changed circumstances such as the name of a labor organization or the name of an employer, and the bargaining unit is not affected by the change and there is no question concerning representation.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.100, 41.76.060, 41.80.070. WSR 08-15-032, § 391-35-085, filed 7/9/08, effective 8/9/08.]



PDF391-35-090

Notice of hearing.

If it appears to the executive director or designee that a disagreement exists which could be the basis for issuing an order clarifying the bargaining unit or units, a hearing officer shall issue a notice of hearing and have it served on the parties. A notice of hearing may be amended or withdrawn before the close of the hearing.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.434. WSR 01-14-009, § 391-35-090, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-090, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-090, filed 9/30/80, effective 11/1/80.]



PDF391-35-099

Special provision—Private sector and other employees.

The commission lacks authority to proceed in unit clarification proceedings under chapter 49.08 RCW absent the agreement of all parties. The executive director shall not proceed in such matters unless a written agreement is filed by the parties to submit their dispute for arbitration by the commission under chapter 49.08 RCW and these rules.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050. WSR 01-14-009, § 391-35-099, filed 6/22/01, effective 8/1/01. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapter 49.08 RCW. WSR 90-06-073, § 391-35-099, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-099, filed 9/30/80, effective 11/1/80.]



PDF391-35-110

Coordination of proceedings.

(1) If a petition for clarification under this chapter is pending at the same time as a petition under chapter 391-25 WAC involving all or any part of the same bargaining unit, the proceedings under this chapter shall be suspended, and all issues concerning the description of the bargaining unit shall be resolved in the proceedings under chapter 391-25 WAC.
(2) A unit clarification proceeding may control or be controlled by an unfair labor practice proceeding. If a petition for clarification under this chapter is pending at the same time as a complaint under chapter 391-45 WAC involving all or any part of the same bargaining unit, the executive director or designee shall have discretion to withhold processing of one of the related proceedings pending the outcome of the other related proceeding.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.070. WSR 01-14-009, § 391-35-110, filed 6/22/01, effective 8/1/01; WSR 96-07-105, § 391-35-110, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110 and chapters 28B.52, 41.56, 41.58, 41.59, 49.08 and 53.18 RCW. WSR 90-06-073, § 391-35-110, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-110, filed 9/30/80, effective 11/1/80.]



PDF391-35-130

Hearings—Who shall conduct.

Hearings may be conducted by the commission, by the executive director, by a member of the agency staff or by any other individual designated by the commission or executive director as a hearing officer. At any time, a hearing officer may be substituted for the hearing officer previously presiding.
[Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.56.070, 41.59.070, 41.59.080 and 53.18.015. WSR 90-06-073, § 391-35-130, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-130, filed 9/30/80, effective 11/1/80.]



PDF391-35-170

Hearings—Reopening of hearing—Briefs.

(1) Hearings shall be public, except where a protective order is issued under WAC 10-08-200(7), and shall be limited to matters concerning the clarification of the existing bargaining unit.
(a) The parties shall be responsible for the presentation of their cases.
(b) The hearing officer shall ascertain the respective positions of the parties, to obtain a full and complete factual record upon which the agency may discharge its responsibilities under the applicable statute. The hearing officer has authority, under WAC 10-08-200 (8) and (9), to ask questions, call witnesses, and explore matters not raised or only partially raised by the parties.
(2) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing.
(3) The hearing officer may allow or direct the filing of briefs as to any or all of the issues in a case. Arrangements and due dates for briefs shall be established by the hearing officer. Any brief shall be filed with the hearing officer as required by WAC 391-08-120(1), and copies shall be served on all other parties to the proceeding as required by WAC 391-08-120 (3) and (4).
(4) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, twelve-point type), unless:
(a) It files and serves a motion for permission to file a longer brief in order to address novel or complex legal and/or factual issues raised by the objections;
(b) The executive director, his or her designee, or hearing officer grants such a motion for good cause shown; and
(c) A motion for permission to file a longer brief may be made orally to the hearing officer at the end of the administrative hearing, and the hearing officer has the authority to orally grant such a motion at such time.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.070. WSR 08-04-058, § 391-35-170, filed 1/31/08, effective 4/1/08. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.437, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-170, filed 6/22/01, effective 8/1/01; WSR 00-14-048, § 391-35-170, filed 6/30/00, effective 8/1/00; WSR 98-14-112, § 391-35-170, filed 7/1/98, effective 8/1/98; WSR 96-07-105, § 391-35-170, filed 3/20/96, effective 4/20/96. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060, 41.59.080 and 53.18.015. WSR 90-06-073, § 391-35-170, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-170, filed 9/30/80, effective 11/1/80.]



PDF391-35-190

Proceedings before the executive director.

(1) The executive director may proceed upon the record, after submission of briefs or after hearing, as may be appropriate. The executive director shall determine the status of each position, classification or group of employees over which there is a disagreement and issue an order clarifying bargaining unit, dismiss the petition or make other disposition of the matter.
(2) Where the executive director determines that employee eligibility issues exist, the executive director may delegate authority to the hearing officer to decide those issues.
(3)(a) A party seeking review by the commission of an interlocutory decision of the executive director, his or her designee, or hearing officer must file a motion for discretionary review with the commission and a copy with the executive director or his or her designee within seven days after the decision is issued.
(b) Discretionary review of an interlocutory decision issued by the executive director, his or her designee, or hearing officer will be accepted by the commission only:
(i) If the executive director, his or her designee, or hearing officer has committed an obvious error which would render further proceedings useless; or
(ii) If the executive director or his or her designee has committed probable error and the decision of the executive director, his or her designee, or hearing officer substantially alters the status quo or substantially limits the freedom of a party to act; or
(iii) If the executive director, his or her designee, or hearing officer has so far departed from the accepted and usual course of administrative proceedings as to call for the exercise of revisory jurisdiction by the commission.
(c) A motion for discretionary review under this rule, and any response, should not exceed fifteen pages double-spaced, excluding appendices.
(d) Denial of discretionary review of a decision does not affect the right of a party to obtain later review of the executive director's, his or her designee's, or hearing officer's decision or the issues pertaining to that decision.
(4) Unless appealed to the commission under WAC 391-35-210, a decision issued under this section shall be the final order of the agency, with the same force and effect as if issued by the commission.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.58.050, 41.59.110, 41.76.060, 41.80.070. WSR 08-04-058, § 391-35-190, filed 1/31/08, effective 4/1/08. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-190, filed 6/22/01, effective 8/1/01; WSR 98-14-112, § 391-35-190, filed 7/1/98, effective 8/1/98; WSR 90-06-073, § 391-35-190, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. WSR 85-19-059 (Resolution No. 85-01), § 391-35-190, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-190, filed 9/30/80, effective 11/1/80.]



PDF391-35-210

Appeals.

An order issued under WAC 391-35-190 and any rulings in the proceedings up to the issuance of the order may be appealed to the commission as follows:
(1) The due date for a notice of appeal shall be twenty days following the date of issuance of the order being appealed. The time for filing a notice of appeal cannot be extended.
(2) Where an order has been appealed, the due date for a notice of cross-appeal by other parties shall be seven days after the last date on which a notice of appeal could be timely. The time for filing a notice of cross-appeal cannot be extended.
(3) A notice of appeal or notice of cross-appeal shall identify, in separate numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.
(4) A party which desires to cite or reassert a document previously filed in the matter shall do so by reference to the document already on file, and shall not file or attach another copy of the document to papers filed regarding an appeal.
(5) A notice of appeal or notice of cross-appeal shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).
(6) The due date for any appeal brief which the party filing an appeal or cross-appeal desires to have considered by the commission shall be fourteen days following the filing of its notice of appeal or notice of cross-appeal. Any brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).
(7) The due date for any responsive brief which a party desires to have considered by the commission shall be fourteen days following the date on which that party is served with an appeal brief. Any brief shall be filed at the commission's Olympia office as required by WAC 391-08-120(1), and copies shall be served on all other parties as required by WAC 391-08-120 (3) and (4).
(8) The executive director or designee may extend the due date for an appeal brief or responsive brief. Such requests shall only be considered if made on or before the date the brief is due, and in compliance with WAC 391-08-180. Extensions of time shall not be routine or automatic.
(9) A party filing a brief under this section must limit its total length to twenty-five pages (double-spaced, 12-point type), unless:
(a) It files and serves a motion for permission to file a longer brief in order to address novel and/or complex issues raised by the appeal; and
(b) The commission or its designee grants such a motion for good cause shown. Any motion filed under this subsection shall toll the due date for briefs under subsections (1) and (2) of this section until the commission or its designee responds to such motion.
[Statutory Authority: RCW 41.56.060, 41.56.090, 41.58.050. WSR 08-04-059, § 391-35-210, filed 1/31/08, effective 4/1/08. Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.464, 41.56.060 and 41.59.080. WSR 00-14-048, § 391-35-210, filed 6/30/00, effective 8/1/00; WSR 98-14-112, § 391-35-210, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-210, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 34.04.022, 41.58.050, 41.56.090, 41.59.110 and 28B.52.080. WSR 85-19-059 (Resolution No. 85-01), § 391-35-210, filed 9/16/85. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-210, filed 9/30/80, effective 11/1/80.]



PDF391-35-250

Commission action on appeals.

If an order is appealed under WAC 391-35-210, the entire record in the proceedings shall be transmitted to the commission members. The commission may request the parties to appear before it to make oral argument as to any or all of the issues in the matter. The commission shall determine the status of each position, classification or group covered by the appeal, and shall issue appropriate orders.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 34.05.464, 41.56.060 and 41.59.080. WSR 00-14-048, § 391-35-250, filed 6/30/00, effective 8/1/00; WSR 98-14-112, § 391-35-250, filed 7/1/98, effective 8/1/98. Statutory Authority: RCW 41.58.050, 28B.52.080, 41.56.090, 41.59.110, 41.56.060 and 41.59.080. WSR 90-06-073, § 391-35-250, filed 3/7/90, effective 4/7/90. Statutory Authority: RCW 28B.52.080, 41.56.040, 41.58.050, 41.59.110 and 47.64.040. WSR 80-14-047 (Order 80-6), § 391-35-250, filed 9/30/80, effective 11/1/80.]



PDF391-35-254

Special provision—Marine employees.

If an order is appealed under WAC 391-35-210 involving employees covered by chapter 47.64 RCW, the marine employees' commission shall act in place of the commission, and the entire record in the proceedings shall be transmitted to the marine employees' commission members. The marine employees' commission may request the parties to appear before it to make oral arguments as to any or all of the issues in the matter. The marine employees' commission shall determine the status of each position, classification or group covered by the appeal, and shall issue appropriate orders.
[Statutory Authority: RCW 41.58.050 and 41.58.065. WSR 12-05-066, § 391-35-254, filed 2/15/12, effective 3/17/12.]



PDF391-35-300

School district employees.

A collective bargaining relationship cannot lawfully be maintained under the Educational Employment Relations Act, chapter 41.59 RCW, with respect to school district jobs for which a professional education certificate is not required by chapter 28A.410 RCW, as implemented through rules adopted by the state board of education and the office of the superintendent of public instruction, or by established practice or written policy of the employing school district. Any collective bargaining rights of employees performing school district jobs not requiring a professional education certificate are regulated by the Public Employees' Collective Bargaining Act, chapter 41.56 RCW.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.59.010 and [41.59].020. WSR 96-07-105, § 391-35-300, filed 3/20/96, effective 4/20/96.]



PDF391-35-301

Higher education employees.

A bargaining unit of higher education employees under RCW 41.56.021 shall not include any employees eligible for collective bargaining rights under RCW 41.56.022, 41.56.024, or 41.56.203, chapter 28B.52, 41.76, or 41.80 RCW. Employees whose eligibility for collective bargaining is covered by chapter 28B.52, 41.76, or 41.80 RCW are exempt from the provisions of RCW 41.56.021.
[Statutory Authority: RCW 41.56.060, 41.56.090, 41.58.050. WSR 08-04-058, § 391-35-301, filed 1/31/08, effective 4/1/08.]



PDF391-35-310

Employees eligible for interest arbitration.

Due to the separate impasse resolution procedures established for them, employees occupying positions eligible for interest arbitration shall not be included in bargaining units which include employees who are not eligible for interest arbitration.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050 and 41.56.430. WSR 96-07-105, § 391-35-310, filed 3/20/96, effective 4/20/96.]



PDF391-35-320

Exclusion of confidential employees.

Confidential employees excluded from all collective bargaining rights shall be limited to:
(1) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and
(2) Any person who assists and acts in a confidential capacity to such person.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.030(2) and 41.59.020 (4)(c)(i) and (ii). WSR 01-14-009, § 391-35-320, filed 6/22/01, effective 8/1/01.]



PDF391-35-326

Special provision—State civil service employees.

Confidential exclusions for state civil service employees shall be determined under RCW 41.80.005(4).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060 and 41.80.005(4). WSR 03-03-064, § 391-35-326, filed 1/14/03, effective 2/14/03.]



PDF391-35-327

Special provision—Higher education faculty.

Confidential exclusions for higher education faculty employees shall be determined under RCW 41.76.005 (5) and (10).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060 and 41.76.005 (5) and (10). WSR 03-03-064, § 391-35-327, filed 1/14/03, effective 2/14/03.]



PDF391-35-330

One-person bargaining unit inappropriate.

A bargaining unit cannot be considered appropriate if it includes only one employee.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-330, filed 6/22/01, effective 8/1/01.]



PDF391-35-340

Unit placement of supervisors—Bargaining rights of supervisors.

(1) It shall be presumptively appropriate to exclude persons who exercise authority on behalf of the employer over subordinate employees (usually termed "supervisors") from bargaining units containing their rank-and-file subordinates, in order to avoid a potential for conflicts of interest which would otherwise exist in a combined bargaining unit.
(2) It shall be presumptively appropriate to include persons who exercise authority on behalf of the employer over subordinate employees (usually termed "supervisors") in separate bargaining units for the purposes of collective bargaining.
(3) The presumptions set forth in this section shall be subject to modification by adjudication.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-340, filed 6/22/01, effective 8/1/01.]



PDF391-35-342

Special provision—Educational employees.

Supervisors, principals and assistant principals acquire collective bargaining rights under chapter 41.59 RCW only by means of an election conducted under RCW 41.59.080.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.59.080. WSR 01-14-009, § 391-35-342, filed 6/22/01, effective 8/1/01.]



PDF391-35-343

Special provision—Academic employees.

Administrators acquire collective bargaining rights under chapter 28B.52 RCW only by means of an election conducted under RCW 28B.52.020(3).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 28B.52.020(3). WSR 01-14-009, § 391-35-343, filed 6/22/01, effective 8/1/01.]



PDF391-35-344

Special provision—Marine employees.

The captains of a Washington state ferry vessel, also known as the master of a vessel or the commanding officer, are "supervisors," and shall be placed in a separate bargaining in accordance with section 8, chapter 16 (2ESSB 5742), Laws of 2011 1st sp. sess. and WAC 391-35-340.
[Statutory Authority: RCW 41.58.050 and 41.58.065. WSR 12-05-066, § 391-35-344, filed 2/15/12, effective 3/17/12.]



PDF391-35-346

Special provision—State civil service employees.

Supervisor exclusions for state civil service employees shall be determined under RCW 41.80.005(13) and 41.80.070(1).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 41.80.005(13) and [41.80].070(1). WSR 03-03-064, § 391-35-346, filed 1/14/03, effective 2/14/03.]



PDF391-35-347

Special provision—Higher education faculty.

Administrator exclusions for higher education faculty employees shall be determined under RCW 41.76.005 (5) and (9).
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060 and 41.76.005 (5) and (9). WSR 03-03-064, § 391-35-347, filed 1/14/03, effective 2/14/03.]



PDF391-35-350

Unit placement of regular part-time employees—Exclusion of casual and temporary employees.

(1) It shall be presumptively appropriate to include regular part-time employees in the same bargaining unit with full-time employees performing similar work, in order to avoid a potential for conflicting work jurisdiction claims which would otherwise exist in separate units. Employees who, during the previous twelve months, have worked more than one-sixth of the time normally worked by full-time employees, and who remain available for work on the same basis, shall be presumed to be regular part-time employees. For employees of school districts and educational institutions, the term "time normally worked by full-time employees" shall be based on the number of days in the normal academic year.
(2) It shall be presumptively appropriate to exclude casual and temporary employees from bargaining units.
(a) Casual employees who have not worked a sufficient amount of time to qualify as regular part-time employees are presumed to have had a series of separate and terminated employment relationships, so that they lack an expectation of continued employment and a community of interest with full-time and regular part-time employees.
(b) Temporary employees who have not worked a sufficient amount of time to qualify as regular part-time employees are presumed to lack an expectation of continued employment and a community of interest with full-time and regular part-time employees.
(3) The presumptions set forth in this section shall be subject to modification by adjudication.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.56.060 and 41.59.080. WSR 01-14-009, § 391-35-350, filed 6/22/01, effective 8/1/01.]



PDF391-35-356

Special provision—State civil service employees.

(1) For employees covered by chapter 41.06 RCW who work less than full-time, it shall be presumptively appropriate to include those employees in the same bargaining unit with full-time employees performing similar work.
(2) The presumption set forth in this section is intended to avoid excessive fragmentation and a potential for conflicting work jurisdiction claims which would otherwise exist in separate units of full-time and less than full-time employees.
(3) The presumption set forth in this section shall be subject to modification by adjudication.
[Statutory Authority: RCW 28B.52.080, 41.56.090, 41.59.110, 41.58.050, 41.06.340, 41.76.060, 41.80.005(6) and [41.80].070(1). WSR 03-03-064, § 391-35-356, filed 1/14/03, effective 2/14/03.]