In re: WAC 391-35-356, Decision 10510 (2009)

 

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the MATTER OF the PETITION FOR Rulemaking CONCERNING:

 

 

WAC 391-35-356

 

 

 

DECISION 10510

 

 

ORDER DENYING PETITION

 

 

 

 

 

On May 19, 2008, Eric Nordlof (Nordlof), on behalf of Public School Employees of Washington, filed a rulemaking petition with the Public Employment Relations Commission under RCW 34.05.330, requesting amendment of WAC 391-35-356.  Nordlof’s proposed amendment would have changed the existing rule as follows:

 

WAC 391-35-356 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) Employees who, during a twelve-month period, have worked more than 350 hours; and are therefore eligible pursuant to the provisions WAC 357-04-045 to be included in an appropriate RCW Chapter 41.80 bargaining unit; and who remain available for work on the same basis, shall be presumed regular part-time employees.

(3) 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.

(4) The presumption set forth in this section shall be subject to modification by adjudication.

 

In a letter accompanying the petition, Nordlof argued that adopting such an amendment would clarify that once part-time state civil service employees became eligible for collective bargaining rights under WAC 357-04-045, employees would continue to be eligible to exercise collective bargaining rights provided they enjoy a continuing employment relationship with their employer.  Nordlof also claimed that adopting his proposed amendment would rectify potential litigation before the agency.

 

On June 26, 2009, Executive Director Cathleen Callahan sent a letter to Nordlof informing him that this Commission would consider his petition at the August 11, 2009 public meeting.  Agency staff placed copies of Nordlof’s petition on the agency website, and solicited written comments from interested clientele. 

 

At the August 11, 2009 meeting, Nordlof presented arguments in favor of his petition.  Interested clientele in attendance were also permitted to speak for or against the petition.  Gladys Burbank of the Washington Federation of State Employees spoke in favor of the petition.  Sherer M. Holter, Assistant Vice President, Human Resources, at Central Washington University provided written comments supporting Nordlof’s petition. 

 

At the conclusion of the public comments, and following a brief caucus, this Commission considered a motion to deny the petition.  The motion before the Commission noted that when the Personnel System Reform Act of 2002, Chapter 41.80 RCW, was passed, the Legislature specifically retained authority with the Personnel Resources Board (PRB) to define the eligibility of part-time employees to engage in collective bargaining.  The PRB exercised that authority when it adopted WAC 357-04-045.  The motion also noted that this Commission’s authority under Chapter 41.80 RCW is limited to determining appropriate bargaining units, and it would be inappropriate for this Commission to impinge upon the jurisdiction of another agency through the rulemaking process.  Finally, the motion noted that if Nordlof desired to change the existing eligibility standard for part-time employees, he needed to request that the PRB amend its rule.  This Commission then unanimously adopted the motion to deny the rulemaking petition, and this written order memorializes that action.

 

 

NOW, THEREFORE, it is

 

ORDERED

 

The rulemaking petition filed by Eric Nordlof on behalf of Public School Employees of Washington is DENIED.

 

ISSUED at Olympia, Washington, this   19th   day of August, 2009.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                                MARILYN GLENN SAYAN, Chairperson

 

 

 

                                                PAMELA G. BRADBURN, Commissioner

 

 

 

                                                THOMAS W. McLANE, Commissioner