CHAPTER 12

COMPLIANCE PROCEDURES

for

UNFAIR LABOR PRACTICE CASES

(Rules: Chapter 391-45 WAC)

The PERC Staff Manual was issued by the former Executive Director in October 2006 appointed by the Public Employment Relations Commission under RCW 41.58.015(2) and (3), to provide guidance and direction to PERC staff members. The staff manual is subject to constant revision and is to be regarded as a guide. Cases may be processed in a different manner and in the event of any conflict between this PERC Staff Manual and any statute, any Commission rule, or any Commission precedent, the statute, rule or precedent shall prevail.

CHAPTER 12

COMPLIANCE PROCEDURES

12.1 INTRODUCTION

The Public Employment Relations Commission (PERC) administers Revised Code of Washington (RCW) chapters prescribing collective bargaining processes. Both the Commission and Examiners appointed from its staff issue written decisions in unfair labor practice cases that include remedial orders where a violation of state law is found.

The Administrative Procedure Act (APA, at RCW 34.05.578) and various collective bargaining statutes (at RCW 41.56.160, RCW 41.59.150, RCW 41.76.055, and RCW 41.80.120) authorize the Commission to seek enforcement of its remedial orders in the courts. That enforcement authority is outside of the “adjudicative proceedings” provisions of the APA, and so is outside of the “quasi-judicial” exception to the Open Public Meetings Act, at RCW 42.30.140(2) and (3). Thus, Commission actions concerning judicial review and enforcement must be taken at open, public meetings.

The compliance process described in this chapter relates to the Commission’s enforcement authority. The “CPL” assignment code was created in the Public Employment Relations Commission Case Information System (PERCCINS) to enable tracking of cases in the Compliance process. Those cases remain open until compliance is accepted by the Commission or the dispute moves into the courts.

12.2 REMEDIAL ORDERS

Remedial orders issued in unfair labor practice cases are designed to restore injured parties to the situation which existed before the violation of state law occurred. Typical remedial orders require the party that commits an unfair labor practice to:

♦ Cease and desist from specific type(s) of conduct that gave rise to the case.

♦ Cease and desist from interference with employee rights, generally.

♦ Take affirmative action to rectify the damage done (including reinstatement with back pay or restoration of the status quo that existed before an unlawful change).

♦ Post notices to inform employees that a violation of state law has occurred, and the steps taken to rectify the damage done.

♦ Notify the complainant of the steps taken to comply with the remedial order.

♦ Notify the Commission of the steps taken to comply with the remedial order.

12.3 THE COMPLIANCE OFFICER

The “Compliance Officer” performs functions related to remedial orders. These tasks are normally assigned to a member of the PERC management team.

♦ Maintaining familiarity with cases on the “Compliance” docket.

♦ Responding to inquiries (commonly received from unions, employers, employees, the general public, or the news media) about cases on the “Compliance” docket.

♦ Receiving and reviewing materials filed by respondents who tender compliance with remedial orders.

♦ Soliciting, receiving, and reviewing complainants’ responses to the compliance tendered by respondents.

♦ Making reports to the Commission during open, public meetings.

♦ Recommending actions to be taken by the Commission. Alternatives include:

► Acceptance of compliance (and case closure) where the tendered compliance appears sufficient and there is no objection from the complainant.

► Authorizing mediation on a compliance controversy where the parties disagree about the sufficiency of a tender of compliance.

► Authorizing a compliance hearing where the objections to a tender of compliance appear to raise factual issues.

► Issuing an order on the sufficiency of tendered compliance.

► Authorizing the Office of the Attorney General to file suit for enforcement of the remedial order issued in a case.

♦ Conducting mediation sessions on compliance controversies, and/or overseeing mediation of compliance issues by other PERC staff members.

♦ Conducting hearings on compliance controversies, and/or overseeing compliance hearing processes conducted by other PERC staff members.

12.4 COMPUTER CODING / TRACKING OF “COMPLIANCE” CASES

Support staff members and the Compliance Officer share responsibility for changing cases to the “CPL” docket on PERCCINS, as follows:

♦ The support staff member who issues an Examiner decision containing a notice of appeal rights (hereinafter, a “potentially-final” order) in a “U” case must change the PERCCINS assignment code to “REV” with an action date 21 days after the decision is issued.

♦ The Compliance Officer monitors the “REV” docket. If there is no appeal from an Examiner decision containing a remedial order, the Compliance Officer must change the PERCCINS assignment code to “CPL” with a “Ready for Action” or “Awaiting Word” transaction log entry, as appropriate to the situation.

♦ The support staff member issuing a Commission decision containing a remedial order in a “U” case must change the PERCCINS assignment code to “CPL” with an action date 31 days after the decision is issued.

Cases then remain on the “CPL” docket (with or without a PERC staff member as secondary assignee to hold a mediation or hearing) until they are closed.

♦ The Commission accepts compliance on the case.

♦ The case moves into the courts, based on either:

► A petition for judicial review (appeal) filed by a party; or

► An enforcement proceeding is authorized by the Commission.

12.5 POTENTIAL ISSUES ON REINSTATEMENT OF EMPLOYEES OR CONDITIONS

PERC orders in unfair labor practice cases commonly require reinstatement of the conditions which existed before the unfair labor practice was committed (restoration of the “status quo ante”) and/or reinstatement of employees.

♦ Issues may arise about the sufficiency of restoration efforts, or about claims that restoring the status quo ante is impossible.

♦ Issues may arise about the rights and status of outside contractors or other employees who may be displaced by restoration of the status quo ante.

♦ Issues may arise about whether an offered job meets the “same or substantially equivalent” language customarily included in remedial orders, particularly where the job formerly held or work formerly performed no longer exists in the same form.

If a dispute cannot be resolved by negotiations and/or mediation, a PERC staff member will need to hold a hearing for the parties to put on evidence concerning their claims.

12.6 BACKPAY COMPUTATIONS

Remedial orders issued by Examiners and by the Commission in unfair labor practice cases commonly include “back pay” for employees who have been discharged in reprisal for protected activities or who have been laid off or otherwise displaced from their jobs by unlawful unilateral changes. The customary form of order is as follows:

TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter {insert number} RCW:

a.Offer {name} immediate and full reinstatement to {his/her} former position or a substantially equivalent position, and make {him/her} whole by payment of back pay and benefits in the amounts {he/she} would have earned or received from the date of the unlawful {layoff, suspension, discharge} to the effective date of the unconditional offer of reinstatement made pursuant to this order. Such back pay shall be computed, with interest, in accordance with WAC 391-45-410.

Over the years, some respondents (mostly employers) have argued that backpay orders constitute unjust enrichment to employees in some circumstances. The Compliance Officer must deal with issues arising from those orders in the “CPL” process. The standards for computing backpay are set forth in PERC rules, as follows:

WAC 391-45-410 UNFAIR LABOR PRACTICE REMEDIES -- BACK PAY. If an unfair labor practice is found to have been committed, the commission or examiner shall issue a remedial order. In calculating back pay orders, the following shall apply:

(1) Individuals reinstated to employment with back pay shall have deducted from any amount due an amount equal to any earnings the employee may have received during the period of the violation in substitution for the terminated employment, calculated on a quarterly basis.

(2) Individuals reinstated to employment with back pay shall have deducted from any amount due an amount equal to any unemployment compensation benefits the employee may have received during the period of the violation, and the employer shall provide evidence to the commission that the deducted amount has been repaid to the Washington state department of employment security as a credit to the benefit record of the employee.

(3) Money amounts due shall be subject to interest at the rate which would accrue on a civil judgment of the Washington state courts, from the date of the violation to the date of payment.

Principles imbedded in the PERC rule codify long-standing precedents that cut off most unjust enrichment arguments.

♦ The reduction of backpay amounts to offset interim earnings, as codified in WAC 391-45-410(1), is consistent with long-standing practices and precedents of the National Labor Relations Board (NLRB), as well as widely-accepted practice in grievance arbitration.

► The backpay amount for a particular calendar quarter can drop to zero, if an employee who is eligible for backpay actually made more from interim jobs in the calendar quarter than the employee would have earned from the job giving rise to the backpay award.

► Issues can arise where employees eligible for backpay from one employer increase their hours on pre-existing jobs with other employers or increase their hours on their own side businesses. Consider only the increased hours on the outside employment when computing backpay amounts.

♦ The obligation of employees to mitigate damages by seeking interim employment, as codified in WAC 391-45-410(1), dates back to Town of Fircrest, Decision 248-A (PECB, 1977).

♦ The offset of unemployment benefits and their repayment to the Department of Employment Security, as codified in WAC 391-45-410(2), differs from NLRB practice but serves a valid purpose. This arrangement was worked out by PERC with the Assistant Attorney General representing the Employment Security Department. Beyond harmonizing the efforts of two state agencies, the offset and repayment avoids the possibility of an employee who receives a back pay remedy from PERC being denied unemployment benefits for a future legitimate layoff. The employee’s payment record is cleared where, in the absence of voluntary repayment by the employee, the Department of Employment Security would have been able to deny payment for future layoff periods because of the employee having been “overpaid” unemployment benefits for the period remedied by PERC.

♦ The computation of interest on backpay amounts, as codified in WAC 391-45-410(3), dates back to a policy decision made by the Commission before 1979. The PERC practice of using the interest rate used in the local court for the relevant period is rooted in a very practical consideration: PERC must file enforcement lawsuits in the superior courts for the counties in which the respondents do business, and a court might be reluctant to enforce an interest rate in a PERC order that was different from the rate it would otherwise order.

12.6.1 The Backpay Worksheet

The computer printout set forth on the facing page is a low-tech adaptation of a PERC form that was, in turn, adapted from a National Labor Relations Board (NLRB) form. Follow the directions below to avoid corrupting this home-grown template.

♦ Open the MS-Excel software and obtain your own copy of the template:

► The blank worksheet is at P:MANUAL\BackpayCalculator.xls.

► Use “Save As” and insert the case number as your document address.

► Create a separate Backpay Worksheet for each employee who is entitled to a backpay remedy.

♦ Filling in all of the boxes at the top of each form is essential to identifying the completed form in PERC’s Correspondence Tracking System (CTS). It also helps to keep employees and forms straight when there are multiple backpay claims in a case.

♦ The interest calculations change with the payment date! You can use the worksheet to make estimates or evaluate scenarios, but you can only make final calculations when the date for payment is firmly established.

♦ Fill in the form for as many calendar quarters as are applicable. The shaded areas on the sheet contain automated formulas that must not be overwritten.

► Column A: Use Line 1 for the calendar quarter when the employee was laid off or discharged, and insert the last day of that calendar quarter. Use Lines 2 through 15 for subsequent calendar quarters up to and including any partial calendar quarter in which the employee was reinstated (or declined an unconditional offer of reinstatement), and insert the last days of those quarters.

► Column B: Insert the gross salary or wages the employee would have earned in that calendar quarter from the job giving rise to the backpay remedy.

► Column C: Insert the value of benefits or other compensation the employee would have received in that calendar quarter from the job giving rise to the backpay remedy.

► Column D: Insert the interim earnings (if any) the employee received from other employment in that calendar quarter.

► Column E: Insert the amount of unemployment benefits (if any) the employee received in that calendar quarter.

► Column F: Insert the interest rate that was being awarded during that calendar quarter by the Superior Court for the county where the respondent is located.

The shaded portions of the worksheet contain formulas that automatically compute the backpay and repayment amounts. The totals appear at the bottom of the form.

12.6.2 Backpay Payments

All backpay payments must be made by the respondent directly to the employee(s) who are entitled to backpay. PERC has no capacity to receive and re-transmit funds.

12.7 TENDER OF COMPLIANCE

Respondents must file their responses to remedial orders with the Compliance Officer, in writing.

♦ The PERC staff member opening the mail must forward any compliance correspondence for processing through the CTS system.

♦ As part of reviewing incoming mail, the Executive Director may provide special instructions on “CPL” cases or related cases.

♦ The Compliance Officer must review the correspondence, and compare any tender of compliance to the remedial order issued in the case.

♦ Unless the other party volunteers a written response, the Compliance Officer must contact it (usually by telephone), to ascertain whether there is any dispute as to the sufficiency of the tendered compliance.

♦ The Compliance Officer should consult the Executive Director on unusual problems in CPL cases.

12.8 INFORMAL DISPUTE RESOLUTION

The Compliance Officer can serve as a resource to parties, and is authorized to engage the parties in telephonic or e-mail communications to resolve minor controversies.

♦ The Compliance Officer has no authority to modify, add to, or delete any requirement set forth in a remedial order.

♦ The Compliance Officer can use mediation techniques, and can properly have separate discussions with the parties.

♦ The Compliance Officer can have discussions with the parties about available alternatives, likely responses of other parties to statements or positions, and any Commission precedents on the issues raised in the CPL process.

12.9 REPORTS TO THE COMMISSION

The agendas for open, public meetings of the Commission (usually held monthly) must include a “Compliance Docket” item whenever the deadline for compliance has passed on one or more cases held open under the “CPL” assignment code.

♦ The Compliance Officer must supply the Executive Assistant with the information needed to place “CPL” cases on the agenda for the next Commission meeting.

♦ The Executive Assistant must list the “CPL” cases to be reported individually on the agenda for the next Commission meeting, and must mail copies of the agenda to all parties and representatives on each listed case.

♦ The Compliance Officer must present the case at the Commission meeting, as follows:

► Describe the history of the case, the nature of the violation(s) found by the Examiner and/or the Commission, and the terms of the remedial order issued.

► Describe any tender of compliance received from the respondent.

► Describe the presence or absence of any dispute concerning compliance.

• Acceptance of the tendered compliance by the complainant.

• Details of any controversy concerning a tender of compliance.

• Information received concerning the refusal of a respondent to comply with the remedial order (including any petition for judicial review).

► Recommend a course of action for the Commission to follow.

♦ The Commission must act on “CPL” cases by motion made and adopted during an open, public meeting. Alternatives include:

► Accepting the tender of compliance and closing the case.

► Holding the case over to the next meeting, so the Compliance Officer can obtain additional information from the parties.

► Authorizing mediation to resolve the compliance controversy.

► Authorizing a hearing to receive evidence on the compliance controversy.

► Authorizing the Office of the Attorney General to commence an enforcement proceeding against the respondent.

► Closing a case appealed to court, reserving the right to reopen the compliance inquiry if all or part of the remedial order withstands judicial review.

♦ The Executive Assistant must list carried-over “CPL” cases on the agenda for the next Commission meeting, and must mail copies of that agenda to all parties.

12.10 MEDIATION OF COMPLIANCE DISPUTES

The Compliance Officer has overall responsibility for “CPL” cases referred by the Commission for mediation. The actual mediation effort can be assigned to any Field Services Manager or LRAM other than the Examiner in the case.

♦ The Compliance Officer and/or mediator has no authority to modify, add to, or delete any requirement set forth in a remedial order.

♦ The Compliance Officer and/or mediator is authorized to direct the complainant (by letter or telephone) to file and serve a written statement within a specified time (usually 14 days), explaining what is claimed to be insufficient about the compliance that has been tendered by the respondent.

♦ The Compliance Officer and/or mediator must identify the matters at issue, by thoroughly reviewing and comparing the remedial order, any tender of compliance by the respondent, and any written statement filed by the complainant.

♦ The Compliance Officer and/or mediator should use mediation techniques to seek resolution of the controversy.

► Arrange and conduct face-to-face meetings with all parties to discuss the compliance controversy.

► Arrange and conduct separate meetings or communications with the parties, to discuss the compliance controversy.

► Point out the alternatives available (if any) and the likely responses of other parties to a statement or position.

► Point out precedents that are likely to be considered or applied by the Commission if a formal ruling were to become necessary.

♦ If an agreement is reached, the Compliance Officer or mediator must take steps to document the agreement.

► If the respondent acknowledges that its tender of compliance was insufficient, specify a deadline (usually 14 days) for the respondent to file and serve a new tender of compliance.

► If the parties agree on some compromise from their original positions, specify a deadline (usually 14 days) for both parties to file and serve written statements tendering and accepting the modified compliance.

► If the complainant eventually accepts the tender of compliance originally made, specify a deadline (usually 14 days) for it to file and serve a written statement accepting the tendered compliance.

♦ If the parties fail to reach agreement, the Compliance Officer and/or mediator must preserve the confidentiality of the mediation process, consistent with the confidentiality of negotiations to settle litigation (see Chapter 13, below) and the Code of Professional Conduct for Labor Mediators (see Chapter 14, below).

♦ The Compliance Officer must report the success or failure of the mediation effort (but not the arguments advanced or the positions taken) to the Commission at its next meeting after the conclusion of the mediation effort.

12.11 HEARINGS ON COMPLIANCE DISPUTES

The Compliance Officer has overall responsibility for “CPL” cases referred by the Commission for hearing. The hearing can be held by any Field Services Manager or LRAM other than the Examiner in the case.

♦ The Compliance Officer and/or staff member acts as Hearing Officer for the Commission.

► The Hearing Officer has no authority to modify, add to, or delete any requirement set forth in a remedial order; and

► The Hearing Officer has no authority to issue a decision on the case.

♦ The Hearing Officer can direct the complainant to file and serve a written statement within a specified time (usually 14 days), explaining what is claimed to be insufficient about the compliance that has been tendered by the respondent.

♦ The Hearing Officer (with the assistance of the support staff) must issue a formal notice of hearing, setting the date, time and place for the compliance hearing. Adapt the “U-New-Notice” template, as appropriate.

♦ The Hearing Officer (with assistance of the support staff) must have the court reporter contracted by PERC present to make a transcript of the compliance hearing.

12.12 MATERIALS NEEDED AT A COMPLIANCE HEARING

The Hearing Officer should have the following materials available at a compliance hearing:

□ The relevant PERC staff manual volume or materials.

□ Extra copies of the applicable collective bargaining statute and rules (to provide to clientele who do not have them at the hearing).

□ Subpoena forms (for on-the-spot issuance, if needed).

□ Blank copies of the “Backpay Worksheet” (if needed) in sufficient quantity to enable all parties to see how the Commission would compute the backpay payable.

□ Note paper for the Hearing Officer's hearing notes.

□ The Hearing Officer's calendar (to ascertain dates for adjournments).

□ The decision from which the compliance dispute arises, and any correspondence concerning the compliance dispute.

12.13 IMMEDIATELY PRIOR TO COMPLIANCE HEARING

Circulate a pad or an appearance sheet and encourage all participants to sign in so that PERC can have accurate spelling of their names and titles.

Caution: DO NOT INSIST that any person sign the PERC appearance sheet. RCW 42.30.040 prohibits agencies from imposing any conditions on attendance at public meetings.

Explore the possibility of stipulations on issues or exhibits. It is often worthwhile to send the parties out for settlement discussions, if they have not had recent conversations.

Caution: Hearing Officers can undertake a limited “mediation” role in compliance cases, because they will not be signing a decision. Be mindful of “due process” and “appearance of fairness” considerations, however. Avoid the delay that would occur if another PERC staff member has to be assigned to conduct the compliance hearing!

♦ If a complete agreement is reached, do not open the hearing just for the purpose of putting stipulations on the record. It would take at least three weeks to get a transcript from the reporter before you could put the case before the Commission for acceptance of compliance and closure, and a written order may be needed.

► Have the parties sign a document expressly setting forth the terms by which they propose to resolve the compliance dispute, and bring that document back for the Commission to consider.

► Have the complainant file a written withdrawal of the compliance dispute as soon as possible after the hearing.

♦ If some but not all issues are resolved, read the stipulations into the record at the outset of the hearing.

12.14 OPENING STATEMENT FOR COMPLIANCE HEARING

The hearing will be in order. This is a formal hearing before the Public Employment Relations Commission on an unfair labor practice case filed by (complainant name) against (respondent name) . The case number is __-U-_-___. A remedial order was issued previously in the matter, and a dispute exists concerning the sufficiency of a tender of compliance made by the respondent. The Commission has directed that a hearing be held on the compliance dispute. My name is (your name) , and I am the Hearing Officer for the Commission.

The reporter is hired by the Commission to record everything that is said in the hearing room while the hearing is in session, but can only record one speaker at a time.

If you want to speak off-the-record, please direct your request to me, and not to the reporter.

If an objection is made, the witness needs to stop talking until I rule on the objection.

When making or responding to objections, please state your reasons as concisely as possible. Standing objections may be permitted to an entire line of questions.

If you want any changes made in the record after the transcript is issued, please send any proposed or stipulated corrections to me.

The reporter prepares the only official transcript of these proceedings, and all citations in written arguments must refer to the official record. The reporter reserves the right to sell copies of the transcript. If you want a copy, please make arrangements with the reporter during a recess or after the hearing.

After the hearing is closed and any written arguments are filed, the Commission will issue a written decision that will be mailed to all parties. Until that decision is issued, please direct all motions and arguments to me.

My role is as the impartial judge. This hearing is limited to issues concerning compliance with the remedial order already issued. The parties cannot relitigate the underlying decision in this hearing. The respondent is responsible for presenting evidence and arguments supporting the sufficiency of the compliance it has tendered. The complainant is responsible for presenting evidence and arguments on claimed deficiencies with the compliance that has been tendered. The purpose of the hearing is to receive evidence so the Commission can determine whether it should authorize the Attorney General to sue for enforcement of the remedial order under Washington state law.

The parties' representatives are asked to identify themselves for the record.

For the complainant? _________.

For the respondent? _________.

Are there any other appearances?

□ If there are no other appearances, say: Let the record show there are no other appearances.

□ In the unlikely event that somebody else makes an appearance, say: Please state your name and address for the record. _________. Continue with: Please state the basis for your motion for intervention. __________.

Invite statements of position from the original parties, and rule on the intervention motion before proceeding with the hearing. The most likely intervenors will be one or more of the employees entitled to reinstatement or back pay, who may have separate counsel for other litigation pending against the employer or union. Telephoning the office for advice is good practice in these unusual situations.

Appropriate forms of ruling on a motion for intervention are:

□ The motion for intervention is granted. The intervenor will be permitted to participate in this hearing.

□ The motion for intervention is denied. The hearing will proceed with the original parties.

Take care of other preliminaries at this point.

♦ Read any stipulations into the record and admit any stipulated exhibits into evidence.

♦ Take up any preliminary motions.

♦ Invite the parties to make opening statements.

Call upon the parties to present their evidence on the compliance dispute. The Hearing Officer must regulate the hearing process, but does not have prescribed questions to cover.

CAUTION: Cut off any line of questioning that appears to be an attempt to relitigate the underlying Examiner or Commission decision!

12.15 CLOSING ARGUMENTS

Before closing a hearing, the Hearing Officer should be certain that all stipulations have been put on-the-record, and that all disputed issues have been covered. Then address how the parties' positions on all disputed issues will be firmly established:

♦ Discourage oral arguments, because they add length and cost to the transcript, and because they are often disjointed or substantively lacking due to the advocates having insufficient time to review the evidence and prepare their argument.

► If a party states a preference for oral argument, the Hearing Officer should suggest that the parties take a reasonable period of time to submit their arguments in writing (which can be either an informal letter or a more formal brief) instead of making a closing argument at the hearing.

► If oral arguments are to be made, each party must be given the opportunity to state its position, beginning with the petitioner.

► One round of rebuttal arguments should also be allowed.

♦ Encourage written arguments (briefs), because they give advocates an opportunity to organize their thoughts away from the heat of battle at the hearing. That will hopefully produce more cogent arguments than might be slapped together in a few minutes at the hearing:

► The Hearing Officer can direct the filing of written arguments, particularly where substantial legal issues are presented in the case.

► The Hearing Officer (after consultation with the court reporter) should inform the parties when the transcript of the hearing will be available, and ask for suggestions as to when the parties could file their briefs.

► Except in very unusual circumstances, briefs or written arguments in unit clarification cases should be filed by all parties simultaneously.

► In unusual cases, the Hearing Officer can allow a round of reply briefs filed a fixed number of days after the filing and service of the principal briefs.

► It is good practice to announce the deadlines for written arguments on-the-record, before closing the hearing.

12.16 CLOSING THE HEARING

The Hearing Officer must clearly announce the end of a hearing. When he/she believes that all issues have been covered, the Hearing Officer should inquire:

IS THERE ANYTHING FURTHER FOR THIS HEARING?

When any additional issues have been dealt with, the Hearing Officer should state:

THE HEARING IS NOW CLOSED.

CAUTION: Do not use "adjourned" or "recessed" (which are only appropriate when shutting down a hearing for one day in a series of days or when another date is scheduled) at the end of a hearing.

12.17 POST-HEARING PROCEDURES

Before leaving the hearing room, the Hearing Officer should:

♦ Be certain that both sets of exhibits are accounted for.

► The reporter needs one set of the exhibits to prepare the transcript.

► The Hearing Officer should retain custody of the other set of exhibits.

♦ If two copies of one or more exhibits have not been supplied, obtain the additional copies before the Hearing Officer leaves the hearing site, if possible. DO NOT LET GO OF THE ONLY COPY OF AN EXHIBIT!

► Offer the party that moved for admission of the exhibit the option of having the court reporter make (and bill them for) any necessary copies.

► Offer the party that moved for admission of the exhibit an opportunity to obtain and submit another copy from their files.

♦ If the furniture in the hearing room was re-arranged for the convenience of the PERC hearing, return the room to its original condition.

♦ Do anything else necessary to close up the room (e.g., turn out lights, shut windows, remove any coffee cups and other debris).

♦ When using facilities other than a PERC office, a word of thanks to the building custodian or manager is in order. Courtesy may encourage future cooperation with our needs for their facilities.

12.18 "PERCCINS" UPDATE

Change the case status on PERCCINS, as appropriate, upon returning to the office:

♦ Use "TRANSCRIPT" + (date due) , if there will be no briefs. (This signals something in particular to the Executive Director and Field Services Manager.) When the transcript is received, change the status to "READY DECISION" + (date when transcript received) .)

♦ Use "BRIEFS + (due date of last brief) , if briefs will be filed. (This may obscure a two-step process in which receipt of a transcript is followed by a further delay awaiting the briefs, but it signals to the Executive Director and Field Services Manager that nothing will happen until the briefs are received.) When the last brief is received, change the status to "READY DECISION" + (date when last brief received) .)

12.19 COMMUNICATING PROBLEMS

Advise the Compliance Officer, your Field Services Manager, or the Executive Director of any unusual circumstances or issues encountered in a compliance case hearing.

12.20 EXTENSION OF DEADLINES FOR BRIEFS

Parties often request additional time for filing their briefs. The Hearing Officer must deal with such requests.

♦ Extensions should be granted without hesitation, if there is a delay in production of the transcript or other agency-caused impediment to preparation of briefs.

♦ PERC staff members must insist that parties clear their requests with all other parties to the proceedings, prior to bringing their extension request to PERC. A hard-nosed approach (particularly when dealing with pro se parties) is supported by the APA and the Model Rules of Procedure:

► RCW 34.05.437 requires service of all motions on opposing parties.

► WAC 10-08-090 expressly requires parties to contact other parties in advance of requesting an extension:

WAC 10-08-090 ADJUDICATIVE PROCEEDINGS--CONTINUANCES. (1) Postponements, continu-ances, extensions of time, and adjournments may be ordered by the presiding officer on his or her own motion or may be granted on timely request of any party, with notice to all other parties, showing good and sufficient cause therefor.

(2) A request for a continuance made prior to the hearing date may be oral or written and shall state that the party seeking the continuance has notified all other parties of the request and that either all other parties agree to the continuance or that all parties do not agree to the continuance. If all parties do not agree to the continuance, the presiding officer shall promptly schedule a prehearing conference to receive argument and to rule on the request.

(emphasis added). This protects the impartiality of the Hearing Officer and the process. It is impossible to know whether a continuance request will be resisted on grounds of substantive prejudice, unless opposing parties are contacted first!

► RCW 34.05.455 prohibits ex parte communications on any substantive issue.

♦ Hearing Officers can freely grant unopposed continuance requests, particularly where the continuance will not significantly delay the processing of the case.

♦ If a continuance request is opposed, the Hearing Officer must hold a “prehearing conference” (usually by telephone conference call) to take argument and rule on the request. The test is whether "good cause" has been shown by the party requesting the continuance.

♦ Whenever a continuance is granted, the staff member must change the data on the PERCCINS system. Indicate: "BRIEFS + (extended due date for last brief) ".

♦ When the status of the case on the PERCCINS system is changed to: "READY DECISION + (date last brief was filed) ", that status should remain on the case until a decision is issued!

CAUTION: Use an agency-wide perspective, so that a case remains in "Ready for Decision" status until a decision goes out the door. Make entries in the disposition narrative (transaction log) field to describe the movement of drafts and editing within the agency.

12.21 PREPARATION OF DECISION

The Hearing Officer must check with the Compliance Officer about the next steps to be taken, and may be called upon to draft a decision on the case. Some tips to ease the task:

♦ Follow the DOCUMENT FORMATTING PROTOCOL issued separately.

♦ Use the "Decision Tops" template to turn on needed format codes.

♦ The caption should be the same as the decision that included the remedial order, except that "Order on Compliance" must be substituted as the decision title.

♦ The name of an intervenor does not appear in the caption box. The intervenor must be introduced in the appearances and text, as follows:

"Richard Roe, a discriminatee affected by the remedial order, appeared separately on his own behalf."

“Exx and Zee, by Able Zee, Attorney at Law, appeared separately on behalf of Richard Roe, a discriminatee affected by the remedial order.”

The intervenor’s arguments must also be addressed in the decision text.

♦ Use role-defining terms such as "employer" and "union" whenever possible.

♦ Consistently use acronyms (IUOE, IAFF, WSCCCE, etc.) or local union numbers to distinguish between two or more unions within a decision.

♦ Use historical information from the PERCCINS system and from our "Certifications" database to supplement the evidence in the record, with a footnote to announce the taking of administrative notice, as follows:

"Notice is taken of the docket records of the Commission for Case ___-_-__-___, a (type of case) filed on (date) , which indicates (lay out historical facts inferred from docket records and the citation of any decision) ."

♦ A full set of findings of fact and conclusions of law is needed in each case.

12.22 FORM OF ORDERS

The Commission’s decision must rule on whether the compliance tendered by a respondent satisfies the terms of the remedial order previously issued in the case.

♦ The Commission has ordered recalcitrant respondents to pay the attorney fees of complainants for the “compliance” portion of proceedings.

♦ Staff members assigned to draft decisions on compliance cases must review their draft with the Compliance Officer (or with the Executive Director if the Compliance Officer is recused) prior to its delivery to the Commission.

♦ Discuss the draft with the Commission, and make any needed modifications.

♦ The Executive Assistant finalizes all decisions issued by the Commission.

12.23 FOLLOW-UP ON SUPPLEMENTAL ORDERS

If a supplemental order issued by the Commission on a “CPL” case allows the respondent more time to tender compliance, the case must remain open on the "CPL" docket. The Compliance Officer must continue to monitor the case and make progress reports to the Commission.

12.24 PERC PARTICIPATION IN JUDICIAL PROCEEDINGS

The Compliance Officer is responsible for monitoring the status of judicial review proceedings pending in the courts. This includes:

♦ Making reports to the Commission when parties petition for judicial review (appeal) of a PERC decision to the courts.

♦ Making reports to the Commission on changes of status, decisions issued, and further appeals of PERC cases in the courts.

♦ Maintaining an MS-Excel spreadsheet on judicial review and enforcement proceedings, from which statistics are drawn for agency performance measures.

♦ Directing the support staff to insert information on the court docket subsystem within PERCCINS, to provide parallel recording of the information reported to the Commission and recorded on the MS-Excel spreadsheet.

♦ Coordinating with the Assistant Attorney General who represents the Commission, to assure timely and efficient presentation of any PERC arguments to the courts.

The usual practice is to close the case on PERCCINS when a petition for judicial review is filed from a final order issued by PERC.

12.24.1 Limitations on PERC Participation

When parties exercise their right under the APA to seek judicial review of a final order issued by PERC in an adjudicatory proceeding, PERC participation in the court proceedings may be limited.

♦ As to substantive issues, the Commission generally does not take an active role or take positions.

► In Kaiser Aluminum v. Department of Labor and Industries, 121 Wn.2d 776 (1993), the Supreme Court of the State of Washington strongly criticized the state Board of Industrial Insurance Appeals for taking a position on the substance of its decision that was subject to judicial review. The Supreme Court likened the role of administrative agencies that issue decisions in quasi-judicial proceedings to the role of lower court judges, and ruled that agencies should not take an active role on substantive issues in the courts.

► The Assistant Attorney General who represents the Commission usually sends a letter to the parties and to the reviewing court, citing the Kaiser Aluminum decision as a basis for explaining that the Commission will not be taking a position on substantive issues in the case.

♦ As to jurisdictional and procedural issues, the Commission does defend its assertion of jurisdiction, its processes, and its procedural rulings in judicial review proceedings. The Supreme Court left that avenue open to agencies in its Kaiser Aluminum decision. The Assistant Attorney General who represents the Commission then consults with the Compliance Officer and/or Executive Director about the arguments to be advanced on procedural issues in the courts.

12.24.2 Enforcement Proceedings

The Commission has statutory authority to enforce its orders under RCW 34.05.578 (filling any gap in RCW 28B.52.065), RCW 41.56.160(3), RCW 41.59.150(3), RCW 41.76.055(3), and RCW 41.80.120(3). The Commission has recently only authorized enforcement proceedings in limited circumstances, however.

♦ If a respondent neither files a timely petition for judicial review nor complies with the remedial order issued by an Examiner or the Commission, an enforcement proceeding will be the only way to force compliance.

♦ If a respondent fails to comply with the remedial order after a petition for judicial review has been dismissed on procedural grounds or is withdrawn, an enforcement proceeding will be the only way to force compliance.

♦ If a respondent still fails to comply with the remedial order after the Commission’s decision is affirmed by the courts, an enforcement proceeding is required.

♦ The Commission has occasionally exercised discretion to authorize a cross-petition for enforcement where the successful complainant in the case is a pro se employee who would otherwise have to hire an