PROPOSED RULES
Original Notice.
Exempt from preproposal statement of inquiry under RCW 34.05.310(4).
Title of Rule: Amending WAC 356-42-010 Membership in employee organization, 356-42-042 Election provisions -- General, 356-42-045 Union shop elections, 251-14-005 Purpose, 251-14-020 Employee organization filing requirements, 251-14-052 Union shop representative election, 251-14-054 Union shop representative decertification election, 251-14-056 Employee listings, 251-14-058 Union shop requirements, 251-14-060 Contents of written agreements, 251-14-120 Requests for mediation and arbitration and 356-42-105 Requests for arbitration; and repealing WAC 356-42-020 Determination of bargaining unit, 356-42-030 Determination of bargaining unit -- Of exclusive representative, 356-42-040 Decertification of exclusive representative, 356-42-049 Disclaimer of interest -- Notice -- Automatic termination of exclusive representation, 251-14-030 Determination of bargaining unit, 251-14-040 Election and certification of exclusive representative, 251-14-042 Disclaimer of interest petition -- Decertification as exclusive representative, 251-14-050 Petition for decertification of exclusive representative, 251-14-070 Unfair labor practices -- Management -- Employee organizations, 251-14-080 Unfair labor practices -- Powers of board -- Procedure, 251-14-082 Investigation of and disposition of unfair labor practice charges, 251-14-083 Unfair labor practice notice and complaint -- Procedure, 251-14-085 Amendment of complaint or answer -- Unfair labor practice, 251-14-086 Hearings and investigation -- Unfair labor practice, 251-14-087 Enforcement -- Unfair labor practice, 251-14-090 Unfair labor practice -- Hearings, 356-42-060 Unfair labor practices for management, 356-42-070 Unfair labor practices for employee organizations, 356-42-080 Unfair labor practice, 356-42-082 Filing unfair labor practice charge, 356-42-083 Investigation of and disposition of unfair labor practice charges, 356-42-084 Answer to complaint -- Unfair labor practice, 356-42-085 Amendment of complaint or answer -- Unfair labor practice, 356-42-086 Hearing -- Unfair labor practice, 356-42-088 Hearings and investigation -- Unfair labor practice, and 356-42-089 Enforcement -- Unfair labor practice.
Purpose: These rules pertain to bargaining units, exclusive bargaining representatives and unfair labor practice issues.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.150.
Summary: These modifications are necessary due to the passage of SHB 1268. The portion of the bill that affects these rules become effective June 13, 2002.
Name of Agency Personnel Responsible for Drafting: Sharon Whitehead, 521 Capitol Way South, Olympia, WA, (360) 664-6348; Implementation and Enforcement: Department of Personnel.
Name of Proponent: Department of Personnel, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: These rules pertain to bargaining units, exclusive bargaining representatives and unfair labor practice issues. These modifications are due to the passage of Civil Service Reform (SHB 1268). Jurisdiction over these issues will be under the Public Relation Commission effective June 13, 2002.
Proposal Changes the Following Existing Rules: See above.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required.
RCW 34.05.328 does not apply to this rule adoption.
Hearing Location: Department of Personnel, 521 Capitol Way South, Olympia, WA, on July 11, 2002, at 10:00 a.m.
Assistance for Persons with Disabilities: Contact Department of Personnel by July 5, 2002, TDD (360) 753-4107, or (360) 586-8260.
Submit Written Comments to: Sharon Whitehead, Department of Personnel, P.O. Box 47500, fax (360) 586-4694, by July 5, 2002.
Date of Intended Adoption: July 11, 2002.
June 4, 2002
E. C. Matt
Secretary
(((2) Any employee organization or person desiring to
represent state employees before the board or in collective
negotiations with an appointing authority must first file a
notice of intent to represent state employees with the director
of personnel. Such notice of intent to represent state employees
must set forth the name of the person or employee organization,
and if the latter, the name of an agent authorized to speak on
its behalf; a mailing address and telephone number; a general
description of the types of employment falling within the
intended area of representation; and a copy of a constitution,
by-laws, or any other documents defining powers and authorizing
representation of the parties filing the notice of intent.))
(((3))) (2) An employee organization which is, or desires to
be, an exclusive bargaining representative for a bargaining unit
which has chosen to be a union shop must have a written procedure
concerning representation fees which complies with applicable
statutory and constitutional requirements. Such employee
organization must provide to the director a written opinion of
the employee organization's attorney that its representation fee
procedure is in compliance with applicable statutory and
constitutional requirements.
[Statutory Authority: RCW 41.06.150. 98-19-034, § 356-42-010, filed 9/10/98, effective 10/12/98; 89-02-011 (Order 312), § 356-42-010, filed 12/28/88, effective 2/1/89. Statutory Authority: RCW 41.06.150(17). 80-13-047 (Order 147), § 356-42-010, filed 9/16/80; Order 69, § 356-42-010, filed 9/30/74; Order 36, § 356-42-010, filed 7/1/71, effective 8/1/71. Formerly WAC 356-32-010.]
| WAC 356-42-020 | Determination of bargaining unit. |
REPEALER
| WAC 356-42-030 | Determination of bargaining unit -- Of exclusive representative. |
REPEALER
| WAC 356-42-040 | Decertification of exclusive representative. |
(2) The director or designee shall administer all elections and be responsible for the processing and adjudication of all disputes that arise as a consequence of elections.
(3) Upon being notified by the director or designee that a valid petition for an election has been received, the affected appointing authority shall submit to the director or designee and the petitioning party and/or exclusive representative a list of all employees included in the bargaining unit as of the preceding payroll period. This list shall contain the employees' names, job classifications, work locations, and home mailing addresses. For purposes of an election, the director or designee shall also provide such listing to an affected employee organization which has submitted proof that it represents at least ten percent of the employees in the bargaining unit and/or to a group of affected employees who have submitted a written request signed by at least ten percent of the employees in the unit.
(4) Upon receipt of a valid petition for an election, the director or designee shall conduct a preelection conference which shall include representatives of the appointing authority, and representatives of the employee organization and/or petitioning party. At the preelection conference, determinations will be made on such matters as method of balloting, date(s) of election, absentee voting, eligibility of voters, locations, personnel at each election site, campaign activities, and any other matter that should be resolved concerning that election. Following, the preelection conference, the director or designee will establish rules, regulations and procedures for holding the election.
(5) At least ten days prior to the scheduled date, the director or designee will distribute a notice of election for posting in the work areas of affected employees. Such notice will contain information regarding the date(s), time(s) and location(s) of balloting, the rules, regulations and procedures established for the election, and a sample ballot.
(6) To the extent feasible, as determined by the director or designee, on-site voting shall take place during the employees' regular work schedules. Eligible voters shall be given ample opportunity to vote during work time while the polls are open.
(7) An employee who cannot appear at the voting site on the date of the vote, may vote by absentee ballot. A request for an absentee ballot must be submitted to the director or designee prior to the close of voting at the employee's voting site. To be counted, absentee ballots must be postmarked within five calendar days thereafter and must be received by the department of personnel within ten calendar days of the close of the polls.
(8) Employees on leave of absence without pay for the entire calendar month preceding the start of the balloting shall not be eligible to vote.
(9) Rules governing campaign activities shall be determined at the preelection conference. Employees included in the affected bargaining unit and representatives of the petitioning party and/or the affected employee organization shall have the right to conduct such activities on the employer's grounds during work hours so long as the work of the employee and the operation of the employer are not disturbed.
(10) Electioneering shall not be permitted within twenty-five feet of the posted election area during the hours of voting or at any place after the close of the polls.
(11) Each party to an election may have one observer present during on-site voting to assist the election agent in identifying eligible voters. An employee who serves as such an observer shall be released with pay from duties normally performed during his/her work hours.
(12) The department of personnel will maintain the official voter eligibility list and will provide a copy of that list to each party. The official observer for either party may bring a copy of that list to the on-site polling place(s) for his/her own use, provided such use does not interfere with the conduct of the election.
(13) Within five working days of the date of the tally of the ballots, the petitioning party, the affected employee organization, or an employee in the bargaining unit may file objections to the election. Such objections must be in writing and must be received by the director within the five working day period. The director or designee shall investigate and determine an appropriate remedy if the objection is found to be meritorious.
(14) Any violation of these rules should be immediately reported to the director or designee. Upon receiving a complaint, the director or designee will immediately investigate; and if necessary, take steps to cause the violation to stop. If it is found by the director or designee that violations of these rules or the preelection agreements have affected the outcome of the election, the director may invalidate the election, order a new election, or take other appropriate remedial action.
[Statutory Authority: RCW 41.06.150. 88-18-010 (Order 307), § 356-42-042, filed 8/26/88.]
(2) Upon receipt of a valid petition from the certified exclusive bargaining representative, the director or designee shall order a union shop representation election. If the employee organization does not already have the opinion of counsel required by WAC 356-42-010(3) on file with the director, the petition shall not be considered complete until such an opinion is provided.
(3) The election will be conducted under the general procedures outlined in WAC 356-42-042.
(4) A petitioning employee organization will be certified as union shop representative if a majority of the employees who are included in the bargaining unit vote in favor of the union shop.
(5) The petitioning employee organization shall take great care to avoid making untrue statements concerning union shop election issues.
(6) The appointing authority shall cooperate with the director or designee to assure that eligible employees have a maximum opportunity to vote in union shop elections.
(7) The appointing authority, supervisors, and other representatives of management shall remain neutral on the questions, merits and issues of the union shop and the petitioning employee organization for the purposes of union shop elections; except that such individuals who are members of the bargaining unit shall have the right to express their personal opinions and beliefs regarding the issues when their positions are included in the bargaining unit. If an objection is made by the petitioning employee organization or by an employee included in the bargaining unit to written or oral statements made by the appointing authority, supervisors or other representatives of management, the director or designee shall investigate the objection and determine the appropriate remedy if the objection is found to be meritorious.
(8) When ((the board, pursuant to WAC 356-42-020, adds)) a
new classification of employees is added into an existing
bargaining unit which has a union shop provision in place, such
action shall effect an automatic request for a new union shop
certification election to determine the desires of the employees
of the new unit unless fewer than twelve months have elapsed
since the last union shop election and:
(a) The same employee organization is the certified union shop representative for each of the units being combined; or
(b) The results of the union shop election previously held still represent a majority vote in favor of the union shop provision in the new unit; or
(c) A majority of the incumbents in the positions to be added have signed a petition indicating acceptance of the union shop condition.
(9) No union shop election petition will be honored within twelve months following the director's certification of the results of a prior union shop certification election or a prior union shop decertification election.
[Statutory Authority: RCW 41.06.150. 89-02-011 (Order 312), § 356-42-045, filed 12/28/88, effective 2/1/89; 88-18-010 (Order 307), § 356-42-045, filed 8/26/88; Order 69, § 356-42-045, filed 9/30/74; Order 57, § 356-42-045, filed 7/31/73.]
| WAC 356-42-049 | Disclaimer of interest -- Notice -- Automatic termination of exclusive representation. |
[Order 61, § 251-14-005, filed 8/30/77, effective 10/1/77; Order 42, § 251-14-005, filed 5/23/75; Order 25, § 251-14-005, filed 7/17/73.]
(((2))) (1) An employee organization which is, or desires to
be, an exclusive representative for a bargaining unit which has
chosen to be a union shop must have a written procedure
concerning representation fees which complies with applicable
statutory and constitutional requirements. Such employee
organization must provide to the director a written opinion of
the employee organization's attorney that its representation fee
procedure is in compliance with applicable statutory and
constitutional requirements.
[Statutory Authority: RCW 28B.16.100. 88-18-018 (Order 172), § 251-14-020, filed 8/29/88, effective 10/1/88; Order 61, § 251-14-020, filed 8/30/77, effective 10/1/77; Order 42, § 251-14-020, filed 5/23/75; Order 2, § 251-14-020, filed 3/12/70; Order 1, § 251-14-020, filed 9/15/69.]
| WAC 251-14-030 | Determination of bargaining unit. |
REPEALER
| WAC 251-14-040 | Election and certification of exclusive representative. |
REPEALER
| WAC 251-14-042 | Disclaimer of interest petition -- Decertification as exclusive representative. |
REPEALER
| WAC 251-14-050 | Petition for decertification of exclusive representative. |
(2) The director shall, ((upon)) after receipt of a petition
for a union shop representative election, inform all affected
employees of the union shop provisions contained in chapter 41.06 RCW.
(3) The director or designee, at a preelection conference, shall review with the employee organization and appointing authority or designee the standards and procedures for the conduct of the election and shall inform all affected employees of the conditions set forth therein.
(4) The election shall be held on state property during
working hours unless otherwise ((agreed to by all parties))
determined during the preelection conference.
(5) All employees on the active payroll and employed within the bargaining unit on the date of election will be eligible to vote. Eligible employees unable to vote at the time of election may vote by absentee ballot.
(6) Absentee ballots may be requested prior to date of election but will be counted only if received by the director or designee no later than two regular working days following the closing date of election.
(7) Transportation to official places of voting shall be provided to the degree practicable as determined by preelection conference.
(8) Election signs and banners shall not be permitted in the area in which the balloting takes place, nor shall any person in the area discuss the advantages or disadvantages of a union shop.
(9) The director will certify the employee organization as the union shop representative if a majority of employees in the bargaining unit vote in favor of requiring membership in the employee organization to be a condition of employment.
(10) Another union shop representative election shall not be held concerning the same bargaining unit for at least twelve months from the date of the last previous union shop representative election.
[Statutory Authority: RCW 41.06.150. 98-19-035, § 251-14-052, filed 9/10/98, effective 10/12/98. Statutory Authority: RCW 28B.16.100. 88-18-018 (Order 172), § 251-14-052, filed 8/29/88, effective 10/1/88; Order 61, § 251-14-052, filed 8/30/77, effective 10/1/77; Order 25, § 251-14-052, filed 7/17/73.]
(2) Another union shop representative decertification election shall not be held concerning the same bargaining unit for at least twelve months from the date of the last previous union shop decertification election.
(3) The director will issue a notice of union shop representative decertification, which will nullify the requirement of membership in an employee organization or the payment of a representation fee as a condition of employment when a majority of the employees in the bargaining unit vote to rescind membership in an employee organization as a condition of employment.
(4) When existing bargaining units are combined into one new unit and/or additional classes and/or positions are accreted to a bargaining unit, such action shall effect an automatic decertification of any union shop representative provision in effect except in the following instances:
(a) Where the same employee organization is certified as the union shop representative in each of the existing bargaining units that are being combined into one new unit;
(b) Where results of the union shop election previously held still represent a majority vote in favor of the union shop provision in the new unit. Majority vote will be determined by adding the number of employees not previously covered by a union shop provision to the total number of employees eligible to vote in the previous election.
[Order 61, § 251-14-054, filed 8/30/77, effective 10/1/77; Order 25, § 251-14-054, filed 7/17/73.]
[Statutory Authority: RCW 28B.16.100. 88-08-018 (Order 167), § 251-14-056, filed 3/29/88, effective 5/1/88; Order 61, § 251-14-056, filed 8/30/77, effective 10/1/77; Order 42, § 251-14-056, filed 5/23/75; Order 25, § 251-14-056, filed 7/17/73.]
Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.
AMENDATORY SECTION(Amending WSR 89-01-071 (Order 175), filed
12/20/88, effective 2/1/89)
WAC 251-14-058
Union shop requirements.
(1) When a
majority of employees within a bargaining unit determine by
election to require as a condition of employment membership in
the employee organization designated as the exclusive bargaining
representative, all employees included in that bargaining unit
are required to pay to such employee organization the regular
dues of the organization, or pay a representation fee or a
nonassociation fee, within thirty calendar days of the beginning
of their employment within the bargaining unit or within thirty
calendar days of the date of the union shop representative
election, whichever is later.
(2) Membership in the employee organization is satisfied by the payment of monthly or other periodic dues, or representation fees, and does not require payment of initiation, reinstatement, or any other fees or fines, and includes full and complete membership rights.
(3) Employees who wish to exercise the right of nonassociation with an employee organization based on bona fide religious tenets, or teachings of a church or religious body of which they are a member, must present a request for nonassociation to the personnel office of the concerned institution. The appointing authority or designee and the union shop representative must be in agreement that the requests are based on such bona fide reasons. If agreement cannot be reached within a reasonable time, either party may submit the issues in dispute to the director or designee. Should the request for nonassociation be denied by the appointing authority or designee, the employee may submit the issue to the director or designee. The decision of the director regarding nonassociation shall be final.
(4) Employees who are granted the nonassociation right must pay a union shop nonassociation fee to the employee organization. Such fee is equivalent to the regular dues of the organization minus any included monthly premiums for union sponsored insurance programs.
(5) When an employee has qualified for nonassociation with an employee organization on religious grounds, the employee may designate which of the programs of the employee organization are in harmony with the employee's conscience and may then designate that the nonassociation fee shall go to such programs.
(6) The employee who qualifies for the nonassociation clause shall not be a member of the employee organization, but is entitled to the same representation rights as a member of the employee organization.
(7) Employees who object to payment for activities of the exclusive representative which are supported by regular dues and which are not related to representation of the employees in the bargaining unit may pay a representation fee in lieu of regular dues. The representation fee is to be calculated by the representative in accordance with applicable constitutional and statutory requirements. See WAC 251-01-367.
(8) A condition of employment for an employee employed in a bargaining unit where an employee organization is the exclusive union shop representative is membership in that employee organization or the regular payment of a union shop representation fee or a nonassociation fee to such organization. Failure of an employee to become a member of the employee organization or make payment of the union shop representation or nonassociation fee within thirty calendar days following the beginning of employment within the bargaining unit or thirty calendar days after the date of the union shop representative election, whichever is later, constitutes cause for dismissal per the provisions of WAC 251-11-100.
(9) The union shop representative shall inform the appointing authority, in writing, of those employees who have not complied with this section.
(10) The requirement to be a member of an employee
organization or the payment of a union shop representation fee or
a nonassociation fee as a condition of employment will be
nullified when the employee organization which is the union shop
representative is decertified per WAC ((251-14-050 or))
251-14-054.
(11) The appointing authority or designee shall notify affected employees of existing union shop provisions prior to their hire or transfer into a bargaining unit where there is a requirement to be a member of a designated employee organization to pay a union shop representation fee or a nonassociation fee as a condition of employment.
(12) Payroll deductions for employee organization dues or union shop representation or nonassociation fees may be provided by the institution upon written authorization from the employee.
[Statutory Authority: RCW 28B.16.100. 89-01-071 (Order 175), § 251-14-058, filed 12/20/88, effective 2/1/89; 88-18-018 (Order 172), § 251-14-058, filed 8/29/88, effective 10/1/88; 82-16-002 (Order 98), § 251-14-058, filed 7/22/82, effective 9/1/82; Order 61, § 251-14-058, filed 8/30/77, effective 10/1/77; Order 25, § 251-14-058, filed 7/17/73.]
(2) Written agreements shall include a grievance procedure for processing individual and group grievances within the bargaining unit and shall provide for mediation by the director or designee and for arbitration by the board. Mediation by the director or designee and arbitration by the board of a grievance dispute shall not apply in those instances where the same complaint has been filed for hearing either through the unfair labor practice or appeal procedures of the board or the personnel appeals board rules.
(3) Written agreements may contain provisions for payroll deduction of employee organization dues and/or union shop representation fees upon written authorization from the employee. Any employee may cancel his/her payroll deduction of employee organization dues by filing a written notice with the appointing authority or designee and the employee organization thirty calendar days prior to the effective date of such cancellation.
(4) Written agreements shall be for a minimum of one year in
duration and shall not exceed three years. Automatic renewal or
extension provisions may extend the term of a contract for only
one year at a time. ((An automatic renewal or extension
provision in a contract cannot act as a bar to a request for an
exclusive representative decertification election per WAC 251-14-050(1).))
(5) Where there are collective bargaining agreements in
effect in bargaining units which are combined per WAC
((251-14-030)) 251-14-054, the board shall determine the
application of such bargaining agreements or terms thereof when
there is an impasse between the exclusive representative and the
institution.
(6) Institutions shall file signed written agreements with the director. Provisions of such agreements shall not prevail if in conflict with the higher education rules, chapter 41.06 RCW or other applicable law.
[Statutory Authority: RCW 41.06.150. 98-19-035, § 251-14-060, filed 9/10/98, effective 10/12/98; 97-06-012, § 251-14-060, filed 2/25/97, effective 4/1/97. Statutory Authority: RCW 28B.16.100. 86-09-076 (Order 148), § 251-14-060, filed 4/22/86, effective 6/1/86; Order 61, § 251-14-060, filed 8/30/77, effective 10/1/77; Order 52, § 251-14-060, filed 2/26/76; Order 42, § 251-14-060, filed 5/23/75; Order 25, § 251-14-060, filed 7/17/73; Order 2, § 251-14-060, filed 3/12/70.]
| WAC 251-14-070 | Unfair labor practices -- Management -- Employee organizations. |
REPEALER
| WAC 251-14-080 | Unfair labor practices -- Powers of board -- Procedure. |
REPEALER
| WAC 251-14-082 | Investigation of and disposition of unfair labor practice charges. |
REPEALER
| WAC 251-14-083 | Unfair labor practice notice and complaint -- Procedure. |
REPEALER
| WAC 251-14-085 | Amendment of complaint or answer -- Unfair labor practice. |
REPEALER
| WAC 251-14-086 | Hearings and investigation -- Unfair labor practice. |
REPEALER
| WAC 251-14-087 | Enforcement -- Unfair labor practice. |
REPEALER
| WAC 251-14-090 | Unfair labor practice -- Hearings. |
[Statutory Authority: RCW 41.06.150. 97-06-012, § 251-14-120, filed 2/25/97, effective 4/1/97. Statutory Authority: RCW 28B.16.100. 80-15-026 (Order 85), § 251-14-120, filed 10/8/80.]
Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.
REPEALER
| WAC 356-42-060 | Unfair labor practices for management. |
REPEALER
| WAC 356-42-070 | Unfair labor practices for employee organizations. |
REPEALER
| WAC 356-42-080 | Unfair labor practice. |
REPEALER
| WAC 356-42-082 | Filing unfair labor practice charge. |
REPEALER
| WAC 356-42-083 | Investigation of and disposition of unfair labor practice charges. |
REPEALER
| WAC 356-42-084 | Answer to complaint -- Unfair labor practice. |
REPEALER
| WAC 356-42-085 | Amendment of complaint or answer -- Unfair labor practice. |
REPEALER
| WAC 356-42-086 | Hearing -- Unfair labor practice. |
REPEALER
| WAC 356-42-088 | Hearings and investigation -- Unfair labor practice. |
REPEALER
| WAC 356-42-089 | Enforcement -- Unfair labor practice. |
[Statutory Authority: RCW 41.06.150. 98-19-034, § 356-42-105, filed 9/10/98, effective 10/12/98; 88-18-010 (Order 307), § 356-42-105, filed 8/26/88.]