CHAPTER 4

PRELIMINARY PROCESSING OF

REPRESENTATION PETITIONS

(Rules: Chapter 391-25 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 4

PRELIMINARY PROCESSING OF

REPRESENTATION CASES

4.1   INTRODUCTION

Labor and management have historically had disputes concerning the creation, modification and termination of collective bargaining "relationships". The traditional "recognition strike" outlet for frustrations causes unacceptable interruptions of operations and disrupts the economy, however.

Washington statutes authorize the Public Employment Relations Commission (PERC) to resolve any Question Concerning Representation (QCR) involving public employees under its jurisdiction through administrative proceedings, and to certify exclusive bargaining representatives.

PERC has taken a firm hand in assuring peaceful resolution of representation disputes, by holding that unit determination is not a subject for bargaining in the usual mandatory/ permissive/illegal sense, and that it is unlawful for a party to go to impasse on such matters. As with the administration of private sector labor relations by the National Labor Relations Board (NLRB), PERC maintains "laboratory conditions" for employees to exercise their free choice in selecting a bargaining representative.

4.2 STATUTORY AUTHORITY

Although there is a reference to "certification of bargaining representatives in the statute that created the Commission, at RCW 41.58.005(1), that chapter does not contain substantive provisions on QCR case processing. PERC thus draws its authority from the separate statutes covering varying groups of public employees:

♦         Chapter 28B.52 RCW - PERC resolves QCRs involving academic faculty employees of community colleges and technical colleges under RCW 28B.52.030 and .080. Submission to PERC is mandatory, in order to obtain a certification "pursuant to provisions of . . . chapter" under RCW 28B.52.020(7).

♦         Chapter 41.56 RCW - PERC resolves QCRs involving local government employees and some state employees under RCW 41.56.050 thru .080. RCW 41.56.050 impliedly permits voluntary recognition, but: Submission to PERC is mandatory upon disagreement, under no disagreement. This statute also covers:

          ►         Port district employees covered by Chapter 53.18 RCW;

          ►         Public utility district employees covered by Chapter 54.04 RCW; and

          ►         Home care workers covered by Chapter 74.39A RCW.

♦         Chapter 41.59 RCW - PERC resolves QCRs involving K-12 certificated employees under RCW 41.59.070 thru .090. Submission to PERC is mandatory, in order to obtain a determination "pursuant to provisions of . . . chapter". RCW 41.59.020(6)(a).

♦         Chapter 41.76 RCW - PERC resolves QCRs involving faculty employees at Central Washington University, Eastern Washington University, The Evergreen State College, University of Washington, Washington State University, and Western Washington University under RCW 41.76.015 thru .025. Submission to PERC is mandatory, in order to be "determined by the commission" under RCW 41.76.005(8).

♦         Chapter 41.80 RCW - PERC resolves QCRs involving civil service employees of state general government agencies and state institutions of higher education (other than technical colleges covered by Chapter 41.56 RCW) under RCW 41.80.070 thru .080. Submission to PERC is mandatory, in order to be "certified under this chapter" under RCW 41.80.005(9).

♦         Chapter 49.08 RCW - PERC can resolve QCRs involving other employees (private sector and state printing plant) under RCW 49.08.010, implementing the right of employees under Chapter 49.36 RCW to form and join unions. PERC only conducts proceedings upon the consent of all parties. In effect, the ballots cast or authorization cards considered become the record before the "arbitrator" under RCW 49.08.020, and the resulting "arbitration award" is the certification.

4.3 NATURE OF QCR PROCEEDINGS

Representation proceedings are non-adversary in nature, implementing the employees' right to choose which organization, if any, is to represent them for the purposes of collective bargaining. The employer and one or more unions are the nominal "parties" to proceedings, but the rights implemented belong to the employees involved.

4.4 OCCASIONS FOR QCR PROCEEDINGS

A Question Concerning Representation (QCR) can arise whenever one or more of the following circumstances exist:

♦         One or more organizations claims to have the support of a majority of the employees in a group, and seeks to obtain status as exclusive bargaining representative of that group; or

♦         Some or all of the employees in an existing bargaining unit question whether their incumbent exclusive bargaining representative continues to enjoy the support of the majority of the employees in that unit.

♦         An employer (under some laws) questions whether the incumbent exclusive bargaining representative of its employees continues to enjoy the support of the majority of the employees in the existing bargaining unit.

Filing a representation with PERC is then appropriate.

4.5 THE ROLE OF PERC

In processing QCR disputes, the PERC staff implements

the interest of the public in having orderly and stable

bargaining relationships. PERC staff members:

♦         Obtain stipulations and identify issues to be

          decided after a formal hearing.

♦         May conduct formal hearings under the state Administrative Procedure Act, Chapter 34.05 RCW (APA), assuring due process for all parties.

♦         May prepare decisions (for signature by the Executive Director in most circumstances, or by the Hearing Officer under delegated authority) concerning:

          ∙         Procedural issues (including timeliness of petitions and qualification of petitioning organizations for certification).

          ∙         Describing appropriate groupings (bargaining units) of employees; and

          ∙         Eligibility of particular employees/positions for inclusion in a bargaining unit.

♦         Conduct secret-ballot elections (or confidential cross-checks of union authorization cards against employer records, in limited circumstances), to determine whether a majority of the employees in the bargaining unit found appropriate have designated an organization as their exclusive bargaining representative.

♦         May conduct formal hearings under the APA and draft decisions (for signature by the Commission) concerning challenged ballots and objections to conduct improperly affecting the outcome of a question concerning representation.

The parties have a right of appeal to the Commission from actions/decisions of the Executive Director and staff members, but interlocutory orders/actions (such as evidence rulings, direction of election, direction of cross-check, and eligibility rulings) are not subject to appeal until a tally sheet or an order that could become final is issued.

4.6 FINAL RESULT OF QCR PROCEEDINGS

PERC issues formal orders to close all representation cases filed with the agency. The final order will be either:

♦         An order closing case, based on either a disclaimer by the

petitioner, withdrawal of the petition, or voluntary recognition;

♦         An order of dismissal, based on procedural defects or

lack of an appropriate unit;

♦         A certification naming an exclusive bargaining represen-

tative (thereby establishing an ongoing bargaining relation-

ship between the employer and that organization); or

♦         A certification of "no representative" (thereby freeing the

employer to deal directly with its employees).

Final orders issued by PERC in representation cases are subject to judicial review under the Administrative Procedure Act, Chapter 34.05 RCW (APA). Failure to file a timely appeal will preclude a later collateral attack on the certification by refusing to bargain.

4.7 PROFESSIONAL RESPONSIBILITY

PERC staff members must not take on an advocacy role for any party in proceedings before the agency. PERC maintains an impartial posture as the administrative and decision-making body in all representation proceedings.

♦         The substantive processing of representation cases is professional work, within the job descriptions of the Representation Coordinator (QCR) and Labor Relations Adjudicator/Mediator (LRAM) classifications.

♦         PERC's support staff will provide assistance with preparing documents and procedural details, under the supervision of the QCR Coordinator or a LRAM.

This chapter provides the PERC staff with procedural and operational guidance for the processing of representation cases before the agency. These guidelines are not intended to conflict with any statute, Commission rule or Commission precedent.

The QCR Coordinator and LRAMs must maintain independent knowledge of current statutes, rules and precedents. While these guidelines are generally to be followed, it is expected that there will be departures from these procedures when warranted by the exercise of professional judgment.

4.8 RULES AND FORMS

Chapter 391-25 WAC regulates the processing of representation cases. A clientele focus group reviewed those rules in 2000-2001, and they were extensively amended effective August 1, 2001. Some special rules were added to Chapter 391-25 WAC in 2002-2003, to accommodate unique provisions of the four new laws enacted in 2002.

Chapter 391-08 WAC (the Rules of Practice and Procedure adopted by PERC) and Chapter 10-08 WAC (the Model Rules of Procedure adopted by the Chief Administrative Law Judge of the State of Washington) control some general procedures.

The PERC website, www.perc.wa.gov, contains a wealth of information about representation cases, including the applicable statutes (select from "statutes" page), the applicable rules (select Chapter 391-25 WAC from the "rules page), the representation petition form (select the "forms" page and Form E-1), information on pending representation cases (select the "petitions" page), and a summary of the representation case process (select the "services" page).

The statutes and rules are available in paper format, and staff members should honor the requests of clientele by providing copies of those documents by mail, without charge.

4.9 ASSISTANCE TO CLIENTELE

Whenever an inquiry is received about representation case procedures, explore the facts to determine whether the situation is under PERC's jurisdiction:

4.9.1 Parties Outside PERC Jurisdiction

People have a right to petition PERC for a formal ruling on jurisdiction, but staff members responding to inquiries about situations clearly outside of PERC's jurisdiction can properly discourage doomed petitions and refer the person to the appropriate agency (if any):

Railroad and airline industries (covered by Railway Labor Act)

►                     Refer the person to: National Mediation Board (202) 692-5000

Private employers generally (covered by National Labor Relations Act)

►                     Refer the person to: National Labor Relations Board (206) 220-6300

Washington State Ferries (covered by Chapter 47.64 RCW)

►                     Refer the person to: Marine Employees Commission (360) 586-6354

If the person persists, the PERC staff member should make it clear that the conversation is not a basis for the person to claim approval of an exception to any statute or rule. The staff member must also submit a PERC "Information Call Sheet" form to document the conversation and the advice given.

4.9.2 Covered Situations

If the situation appears to be within PERC's jurisdiction, advise the individual of his/her right to file a petition with PERC, and:

♦         Provide individual employees (potential "pro se" parties) with a copy of the "Your Right to be Heard" pamphlet on Representation Cases.

♦         Refer the caller to the PERC website (www.perc.wa.gov) or provide copies of applicable statute(s), rules, and petition forms;

♦         Provide the caller general information about PERC policy and procedure, but say, "We cannot give legal advice" if/when asked for substantive advice;

♦         Encourage the caller to consult their own legal counsel or other advisor, but say "We cannot recommend any specific attorney, law firm, or labor organization" when/if asked for a recommendation; and

♦         Informally point out errors or omissions, to provide the caller an opportunity to remedy defects or otherwise comply with PERC procedures.

4.9.3 Distinguish Between "QCR" and "Unit Clarification" Situations

PERC has separate procedures for clarification of existing bargaining units in Chapter 391-35 WAC. Try to obtain enough facts to guide the person toward the appropriate rules:

♦         Unit clarification proceedings are only available to the employer and the incumbent exclusive bargaining representative of a bargaining unit claiming the employee(s).

♦         Unit clarification proceedings are only available in the absence of a question concerning representation, and so are inapt to any situation where the existence of representation of an entire bargaining unit is being questioned.

♦         The "timeliness" standards for unit clarification are different from those applicable to representation cases.

If the person persists in wanting to claim a QCR where a unit clarification case would be appropriate, they have a right to file a petition with PERC to obtain a formal ruling. The PERC staff member should make it clear that the conversation is not a basis for the person to claim approval of an exception to any statute or rule. The staff member must also submit a Information Call Sheet form to document the conversation.

4.10 FILING OF PETITION

All representation proceedings must be initiated by the filing of a written petition with PERC.

4.10.1 Who May File [WAC 391-25-010]

Access to representation proceedings differs among the statutes.

♦         Employee organizations can file representation petitions under all of the statutes administered by PERC.

♦         Employees within an existing bargaining unit can file a "decertification" petition under all of the statutes administered by PERC.

♦         Employers are permitted/required to file petitions under some statutes administered by PERC, but are prohibited/limited under other statutes.

          ►         Employers can file representation petitions under Chapters 28B.52, 41.56, 41.76 and 49.08 RCW (must file instead of refusing to bargain) to pursue doubt as to a union's continued majority status (WAC 391-25-090).

          ►         Employers cannot file representation petitions under Chapter 41.59 RCW (WAC 391-25-012).

          ►         Employers under Chapter 41.80 RCW can only file representation petitions to question whether a certified exclusive bargaining representative has gone defunct or has abandoned the bargaining unit (WAC 391-25-096).

4.10.2 Location for Filing [WAC 391-08-120; WAC 391-25-050]

Petitions must be filed at the Commission's Olympia office during normal business hours. [Limited Exception: Staff members can accept petitions outside the Olympia office only if they are an outgrowth of another case the staff member is processing (e.g., a petition for a separate unit of supervisors to cut off eligibility issues in a pending rank-and-file unit case), and such petitions will be deemed "Filed" on the date they are received in the field.]

♦         A petition slipped under the door of the PERC office after business hours will be date-stamped as "Filed" on the next business day.

♦         If a party asks to file a petition at a PERC branch office, or asks to give an unrelated petition to a staff member away from the Olympia office, proceed as follows:

          ►         Notify the person of a potential defect, saying, "The materials are only being accepted for forwarding to Olympia, and 'filing' will not officially occur until the materials are received in the Olympia office."

          ►         Affix the branch office date stamp or a note showing the date received.

          ►         Mail or deliver the petition and accompanying materials to Olympia. If U.S. Mail is used, keep a copy of the documents to protect against loss, and note the date when the materials are mailed to Olympia.

CAUTION: Tell a party who is up against a time limit that they may be better off to deliver their petition directly to the Olympia office!

4.10.3 Service of the Petition on Other Parties [WAC 391-08-120; 391-25-110]

The party filing a petition with PERC must serve a copy of the petition on the other parties (the employer and each organization known to claim an interest in the bargaining unit).

NOTE: Showing of interest materials are confidential, and are NOT to be served on other parties.

Service is a "due process" requirement and is easy for parties to complete:

♦         By handing a copy to a representative of the other party;

♦         By sending a copy to the other party by first class mail

or a delivery service;

♦         By fax with a follow-up copy by mail to the other party; or

♦         By e-mail attachment with a follow-up copy by mail

to the other party.

If a failure to serve a petition is brought to PERC's attention later, it will result in dismissal of the petition and/or vacating any proceedings held.

4.10.4 Form of Petition [WAC 391-25-070]

PERC Form E-1, "Petition for Investigation of Question

Concerning Representation" is replicated on the next

two pages. It calls for all information required to file a

representation case. Use of PERC's form is strongly

recommended!

♦         The form can be printed from the "forms" page of

the PERC website.

♦         PERC will process cases filed on obsolete or homemade forms

which are in substantial compliance as to their content.

Detailed instructions are provided on the back side of the petition form, and staff members should answer clientele questions about the form and PERC procedures.

4.11 DOCKETING OF REPRESENTATION CASES

All representation cases are docketed under the "E" case type in PERC's docketing system (PERCCINS). PERC does not make any case numbering distinctions based on who is the

petitioner, or based on the petitioner's desired outcome.

4.11.1 Nature of Dispute Codes

Cryptic codes are used to distinguish general types of cases in PERCCINS as follows:

♦         QCR DECERT = employees seek to get rid of their incumbent

union, ending up with no representation.

♦         QCR RAID = one union seeks certification as representative of

employees currently represented by another union.

♦         QCR SEVERANCE = union seeks separate representation for

employees historically included in a larger bargaining unit.

♦         QCR UNORGANIZED = union seeks certification for a unit

of employees not currently represented for bargaining.

♦         EMPLOYER QCR = petition filed by an employer.

♦         MISC QCR = oddball situations or something not fully understood from the petition.

Parties occasionally ask for explanation of (or may even take offense at) these codes. If the need arises, advise parties: "The computer codes do not constitute a ruling by the Commission, and are only used to categorize cases for statistical purposes."

4.11.2 Notice of Case Filing

PERC mails a "Notice of Case Filing" to each of the parties to a newly-docketed case, giving them the case number, the name/address/phone/fax information then on file for all parties and representatives, and the "Nature of Dispute" code. The "Notice of Case Filing" encourages parties to submit changes or corrections to PERC as soon as possible.

4.11.3 Updating the Docket Record

When changes of representatives or contact information are received by PERC, the information is posted on PERCCINS and PERC issues a "Record of Appearance" notice showing the latest information contained on PERC's docket records. The "Record of Appearance" encourages parties to submit any further changes or corrections to PERC as soon as possible. The update process is repeated when new information is received.

4.12 COMMUNICATIONS WITH PARTIES

Parties may be represented in proceedings before PERC by an attorney or any bona fide officer, employee or other authorized representative of a union. [WAC 391-08-010]

♦         If an attorney or other representative enters an appearance, copies of all correspondence, notices and other documents must be served on that individual.

♦         Whenever an attorney or other representative so requests, all communications (both oral and written) must be with or through only that person.

Even where a party is represented by an attorney, the APA requires that all final orders be served upon the parties, as well as upon their attorneys or representatives.

4.13 INTERESTED PARTIES

The parties at the outset of representation proceedings include:

♦         The employer (even if it does not intend to campaign against the union).

♦         The employee or labor organization that filed the petition.

♦         Any organization named in the petition as having an interest in the unit, or as being a party to an existing or recently expired collective bargaining agreement covering any employees involved is presumed to be a party.

♦         Any other organization known to have expressed an interest (by petition or motion for intervention) in all or any part of the bargaining unit involved.

Parties listed in PERCCINS at the outset of proceedings may be removed at a later stage of the proceedings, if they disclaim interest or fail to move for intervention.

CAUTION: For purposes of initial communications, it is preferable to err on the side of considering a party to be interested in a case. Serious problems can result if the real or potential interest of a party is ignored.

4.14 ASSIGNMENT AND PRIORITY OF PRELIMINARY PROCESSING

Each incoming representation case will be assigned promptly for initial processing. The Commission has historically given a high priority to the processing of representation case issues that are holding up issuance of a certification (as in City of Redmond, Decision 1367-A (PECB, 1982), where the Commission directed that the determination of eligibility issues be deferred to post-election or post-cross-check proceedings, in order to expedite the determination of questions concerning representation).

4.14.1 QCR Coordinator Method

Most representation cases are now assigned to the QCR Coordinator for initial processing. The objectives of specialization are:

♦         To improve efficiency and consistency in handling of detail-laden procedures in QCR cases.

♦         To assure that QCR cases are processed by persons with current training on the issues arising in that specialized area.

4.14.2 Historical Method

LRAMs routinely handled the initial processing of representation cases in the past, and cases may still be assigned to LRAMs from time-to-time. An LRAM must perform the "QCR Coordinator" functions outlined below when assigned to conduct the initial processing of a representation case.

4.15 POSTING OF PETITIONS ON PERC WEBSITE

Notice of representation petitions is posted on the "petitions" page of the PERC website, www.perc.wa.gov, while the opportunity for intervention remains available.

♦         As soon as possible after a petition is filed, the QCR Coordinator must cause the date of filing, name of the employer, and case number to be posted on the PERC website, along with a link to the CTS image of the petition (from which potential intervenors can decide whether the proceeding is of interest to them).

♦         Once the opportunity for intervention in the proceeding has closed (either upon expiration of the time allowed for intervention after posting of an investigation statement or by closing a hearing in the case), the QCR Coordinator must cause the deletion of the item from the "petitions" page of the PERC website.

PERC does not honor standing requests for notice of representation petitions and, apart from the website posting, PERC only sends copies of correspondence and notices to the individuals/organizations listed on PERCCINS for the specific case.

PERCCINS information is public record, and any individual or organization can review the docket records at PERC's Olympia office. No special arrangements are required, but it is advisable to call in advance, to be certain the computer system will be "up" for the visit.

4.16 SUMMARY OF PRELIMINARY PROCESSING STEPS

The QCR Coordinator is responsible for reviewing the petition and showing of interest for general compliance with PERC rules and precedents. Then:

♦         Select and send the appropriate initial response letter(s) (including "show cause" letters where deficiencies are noted) to the parties.

♦         Verify the sufficiency of the showing of interest, and deal with related problems.

♦         Prepare a dismissal order for signature by the Executive Director, where the showing of interest requirement is not met or other procedural defect is not cured.

♦         Make arrangements for an Investigation Conference and supply all parties with the eligibility list and checklist for use during the Investigation Conference.

♦         Conduct the Investigation Conference (usually by telephone conference call).

♦         Prepare/issue an "Investigation Statement" summarizing the results of the Investigation Conference and providing a deadline for filing of objections; or

CAUTION: The form letters set forth in this chapter are based on actual experiences over the years. If alterations are needed to fit a particular situation, consult the Executive Director.

CAUTION: Whenever one of the form letters set forth in this chapter is sent to one party in a case, a copy must be sent to each of the other parties to the case!

TIP: The form letters and other "boilerplate" documents set forth in this chapter are generally available as templates, or can at least be copied from the directory of documents produced by QCR Coordinator Sally Iverson!

4.17 REVIEW PETITION FOR "DEFECTIVE ON ITS FACE" PROBLEMS

The APA establishes a "30 days after the petition is filed" time limit for agencies to review incoming petitions and to give parties formal notice of procedural defects. The QCR Coordinator must review newly-filed representation petitions as soon as possible. If any visible defect is noted, the QCR Coordinator must send a "Deficiency Notice" letter to all of the parties to the case.

4.17.1 Is the Petition Timely?

The QCR Coordinator must check for clear timeliness problems:

♦         Check for a "certification bar" issue: Closely examine the PERCCINS "5-year history" printout for recent "E" cases that could give rise to a "certification bar" issue.

♦         Check for a "contract bar" issue: If the petition indicates a collective bargaining agreement is in effect, use the MS-EXCEL worksheet (P:Common\ex5\Contract.xls) or do a quick calculation to verify the "window" period.

If the petition appears untimely on its face, send the following letter to the parties:

"Visibly Untimely" Form Letter on PERC letterhead

              Mary Moe

             Widgetmakers Local 99

             1234 Westerly Avenue

             West Overshoe, WA 98599

             John Doe

             City of East Overshoe

             9876 Central Avenue

             East Overshoe, WA 98598

                                                                                           DEFICIENCY NOTICE

                                                                                           Re:       City of East Overshoe

                                                                                                        Case 67890-E-09-9876

             Gentlepersons:

This representation case has been reviewed for general compliance with the applicable statute and rules, and appears to be deficient: [insert: The petition appears to involve a bargaining unit for which a "certification bar" exists under WAC 391-25-030(2), based upon [insert citation of certification order] issued on [insert date of certification and/or The documents on file indicate a collective bargaining agreement covering the employees involved will expire on [insert date of expiration] so that a "contract bar" appears to exist under WAC 391-25-030(1).]

             PLEASE TAKE NOTICE that, unless good cause is shown within

10 days following the date of this letter

             as to why such action should not be taken, the petition will be dismissed as untimely.

                                                    [Signature block]

FOLLOW-UP: If the petitioner responds within the time allowed, proceed with the normal processing of the case as described below. If the defect is not cured within the time allowed, prepare the appropriate order of dismissal for signature by the Executive Director.

4.17.2 Has a Required "Showing of Interest" Been Supplied?

Verify that "showing of interest" materials submitted in support of an employee-filed or union-filed petition at least superficially conform to PERC's rules.

♦         PERC does not accept documents containing signatures of multiple employees.

♦         Authorization cards must be individual documents that are dated, and appear to have been signed by the employees.

Place apparently-valid showing of interest materials in an envelope marked with the case number and employer name, and file it (by case number) in the locked file cabinet in the QCR Coordinator's office. (The Operations Manager also has access to a key.)

Send the following letter if a required showing of interest is missing or deficient:

"No Showing" Form Letter Jointly Addressed to All Parties

This representation case has been reviewed for general compliance with the applicable statute and rules, and appears to be deficient. Your attention is directed to WAC 391-25-110, which provides:

WAC 391-25-110 SUPPORTING EVIDENCE . . . (1) A petition filed by employees or an employee organization shall be accompanied by a showing of interest indicating that the petitioner has the support of thirty percent or more of the employees in the bargaining unit which the petitioner claims to be appropriate. The showing of interest shall be furnished under the same timeliness standards applicable to the petition, and shall consist of original or legible copies of individual authorization cards or letters signed and dated by employees in the bargaining unit claimed appropriate. . . .

The petition in this case was not accompanied by a showing of interest conforming to the requirements of that rule.

             PLEASE TAKE NOTICE that, unless good cause is shown within:

10 days following the date of this letter

             the petition will be dismissed as procedurally insufficient under the rules.

If a contract bar "window" period will close prior to the expiration of 10 days, use the last timely day as the deadline in the letter and place a telephone call to alert the petitioner to the shortened time for filing of additional cards.

FOLLOW-UP: If the petitioner supplies a showing of interest within the time allowed, proceed with processing the case as described below. If the defect is not cured within the time allowed, prepare an order of dismissal for signature by the Executive Director.

4.17.3 Defective Employer Petitions

Check to be certain that employer-filed petitions are permitted under the applicable statute, and that any supporting materials at least superficially conform with PERC's rules:

♦         Employer-filed petitions are not allowed under Chapter 41.59 RCW.

♦         Employer-filed petitions are allowed under Chapter 41.80 RCW only where the employer claims the certified exclusive bargaining representative has gone defunct or has abandoned the bargaining unit. (A letter must be sent to the incumbent union, providing a deadline for a response to the petition.)

♦         An employer questioning the status of an incumbent exclusive bargaining representative must attach affidavits or other documentation demonstrating its good faith doubt as to the union's majority status. (Employee-originated documents forwarded by an employer for this purpose must be dated individual cards or letters signed by employees, as would be required to support a union petition.)

Send the following letter to the employer (with a copy to the union involved), if it appears the petition is improper or unsupported:

"Deficient ER Petition" Form Letter Addressed Jointly to All Parties

This representation case has been reviewed for general compliance with the applicable statute and rules, and appears to be deficient: [Insert: WAC 391-25-012 precludes employer-filed petitions involving certificated employees covered by Chapter 41.59 RCW] OR WAC 391-25-096 precludes employer-filed petitions involving employees covered by Chapter 41.80 RCW, except in "defunct" or "abandoned" situations. OR The petition was not accompanied by affidavits or other documentation to demonstrate the existence of a good faith belief that a question concerning representation exists, as required by WAC 391-25-090(2) OR WAC 391-25-090(2)(b) requires that employee-originated documents filed in support of an employer petition must be individual cards or letters signed and dated by the employees, and the documents filed in this case do not conform to that requirement.]

             PLEASE TAKE NOTICE that, unless good cause is shown within:

10 days following the date of this letter

             the petition will be dismissed as procedurally insufficient under the rules.

If a contract bar "window" period will close prior to the expiration of 10 days, use the last timely day as the deadline in the letter and place a telephone call to alert the employer to the shortened time for curing the noted deficiency.

FOLLOW-UP: If the employer responds within the time allowed, proceed with processing the case as described below. If the defect is not cured within the time allowed, prepare an order of dismissal for signature by the Executive Director.

4.18 SUPPLY NOTICES AND REQUEST LIST OF EMPLOYEES

If the petition and supporting documents appear to be in order, the QCR Coordinator must obtain a list of employees from the employer and must supply the employer with notices for posting. Send the following letter to the employer, with copies to all other parties:

"Notice and List" Form Letter Sent to Employer w/ Copy to Petitioner

A petition for investigation of a question concerning representation has been filed with the Public Employment Relations Commission, under Chapter 391-25 WAC. A copy of that petition is enclosed.

The Commission's rules provide, at WAC 391-25-140, for the posting of a "NOTICE TO EMPLOYEES", as follows:

The employer shall post a notice to employees, in the form specified by the commission, advising of the existence of proceedings under this chapter. The agency shall furnish the employer with copies of such notice, and the employer shall post them in conspicuous places on its premises where notices to affected employees are usually posted. The notice shall remain posted until a certification or interim certification is issued in the proceeding.

A "one copy per ten employees plus one copy for the employer" formula has been used in supplying the enclosed notices, based on the number of employees indicated in the petition. You are free to make additional copies if needed to adequately cover the work locations of your employees, or you may obtain additional copies from this office.

             Additional information is needed to facilitate the processing of this case:

1.Please supply a containing the names and last known addresses of all employees currently on the employer's payroll who occupy positions or classifications of the type described in the petition. (For state civil service employees include the job classification and work location.) Submission of such a list is required by WAC 391-25-130. The list should be as complete and accurate as possible, but will be subject to change. Persons the employer wants to have excluded from the bargaining unit (as confidential employees, supervisors, or otherwise) should be listed, with indication of the basis for their proposed exclusion. After we have verified the sufficiency of the showing of interest filed in support of the petition, the list will be the base of information from which the parties will be asked to make stipulations on the employees to be included in or excluded from any bargaining unit. You will be contacted by a member of the Commission staff concerning an investigation conference.

2.For state civil service employees, the employer shall send a copy of the list (excluding employee addresses) to all parties in the case, at the same time the list is sent to the Commission.

3.If any or all of the employees listed are now included in any existing bargaining unit, then: (a) Please furnish a copy of the current or latest collective bargaining agreement for that unit; and (b) indicate whether the petitioned-for employees constitute the entire existing bargaining unit.

Your immediate attention to this matter, and your reply within ten (10) days following the date of this letter, will be appreciated.

The notice enclosed with that letter is PERC Form E-7: "Notice to Employees" as set forth on the next page.

4.18.1 Assemble and Issue Sets of Materials

Assemble sets of materials consisting of the PERC Form E-7 notice and a copy of the petition. Mail sets of materials out to the parties, as follows:

♦         Send the employer the original of the "Notice and List" form letter and its copy of the package, PLUS one set of the package per 10 employees in the proposed unit.

♦         Send a decertification petitioner (if any) its copy of the "Notice and List" form letter plus one copy of the package.

♦         Send each union listed on the PERCCINS docket for the case its copy of the "Notice and List" form letter plus one copy of the package.

If requested by employer, by any employee, or by any participating union, mail out additional copies of the package without charge.

4.18.2 Requests for More Time to Provide List of Employees

The Commission expects/demands reasonably accurate lists from employers, and employers often ask for more time to supply a list of employees. Petitioning unions complain if there is any delay, so the PERC staff must exercise discretion in such matters.

♦         As with any other "continuance" request, WAC 391-08-180 requires:

          ►   The employer must make its request to PERC before the expiration of the time period established in the "Notice and List" form letter.

          ►   The employer must contact all other parties and obtain their positions before it makes any request to PERC.

          ►   The employer must show "good cause" if there is objection from one or more of the other parties to the case.

♦         If an extension is granted, it must be for a reasonable (and as brief as possible) additional period.

The QCR Coordinator must telephone the employer if there is no response within the 10-day period specified in the "Notice and List" form letter. Advise an uncooperative employer that the absence of a list will not prevent the processing of the case, and that PERC will proceed on a (rebuttable) presumption that the showing of interest is sufficient.

CAUTION: The QCR Coordinator must notify the Executive Director of any such situation.

Public Employment Relations Commission

SHOWING OF INTEREST WORKSHEET

Case Number: _______-E-___-_______                                                    Date Filed: _________________

Employer: __________________________________________________________________

                                            Confidentiality of Showing of Interest

This worksheet is created to preserve a written record that the sufficiency of a statutorily-required showing of interest has been verified. The showing of interest process is excluded from the definition of "agency action" under the Administrative Procedure Act, at RCW 34.05.010(3), and the confidentiality of "showing of interest" documents is preserved by WAC 391-08-810 and WAC 391-25-110, as well as by judicial precedent. King County Public Hospital District 2, 24 Wn. App. 64 (Division 1, 1979).

                                              Case Processing Step                                                                              Staff

                                      (Staff Manual Paragraph Number)                             Initials

1. Check Sufficiency of Petitioner’s Showing of Interest in each case (4.19)

1.1   Write name of petitioner: ______________________________________________

1.2   Write:   _______ = Number of arguably eligible employees on list provided by employer. . . . . . _____

1.3   Compute: X .3 (or “.1" for HCQA independent providers unit)

        Write:   ________ = Required number of authorization cards/letters. . . . . . . . . . . . . . . . . . . . . . _____

1.4   [__] -  Required number or more present, so showing of interest is sufficient; OR

        [__] -  Required number not present, so show cause letter or dismissal to be sent.. . . . . . . . . _____

2. Check if a Directed Cross-Check is Possible in appropriate cases (4.19)

2.1   [__] -   Case involves one union seeking unrepresented employees under PECB or

                     PSRA, so this IS a case where a cross-check could be appropriate. . . . . . . . . . . . . . . ._____

2.2   Repeat: ______ = Number of employees from Line 1.2, above.

        Compute: X .7

        Write: ______ = Required number of authorization cards/letters. . . . . . . . . . . . . . . . . . . . . . . ._____

2.3   [__] -    Required number or more present, so directed cross-check is possible. . . . . . . . . . . . . _____

3. Check Showing of Interest Filed in Support of Motion for Intervention (4.23.4)

3.1   Write name of intervenor: ________________________________________________

3.2   Repeat: _______ = Number of employees from Line 1.2, above.

        Compute: X .1

        Write:   ________ = Required number of authorization cards/letters. . . . . . . . . . . . . . . . . . . . . . _____

3.3   [__] -   Required number or more present, so showing of interest is sufficient; OR

        [__] -  Required number not present, so intervention denied.. . . . . . . . . . . . . . . . . . . . . . . . . . ._____

(If there is more than one intervenor, fill out and attach a separate worksheet for each additional intervenor.)

4.19 CHECKING SHOWING OF INTEREST FILED BY UNION OR EMPLOYEES

Showing of interest requirements assure there is sufficient reason for PERC to expend taxpayer funds on processing a representation case, and prevent undue disruption of existing bargaining relationships. The showing of interest should never be thought of or explained as an obstruction thrown in the path of legitimate "decertification" and "raid" attempts. Fill out a "Showing of Interest Worksheet" for each case and have it scanned into CTS for the case, in order to leave a written record that the showing of interest process has been completed!

4.19.1 Basic Showing of Interest Verification

In any case filed by a union or employees, the sufficiency of the showing of interest must be verified before any investigation conference, hearing, or election can be held.

STEP 1: Count the number of arguably-eligible employees on the employer's list.

•     Do not count any elected employer officials (mayors, councilpersons, etc.)

•     Do not count persons with statutorily-excluded titles (e.g., "Superintendent of Schools" or "Chief Administrative Officer" or "Business Manger" under Chapter 41.59 RCW; "administrator" under Chapter 28B.52 RCW).

•     Do count persons that the employer proposes to have excluded from the bargaining unit (e.g., as "supervisors" or as "confidential employees").

•     Give part-time employees a "1" count, the same as full-time employees.

Write the number of arguably eligible employees on Line 1.2 of the "Showing of Interest Worksheet" for the case, and add your initials at the end of the line.

STEP 2: Obtain the authorization cards from the locked file cabinet in the QCR Coordinator office, and preserve the confidentiality of those cards at all times.

STEP 3: Verify that the authorization cards are in acceptable form. Several questions must be asked/answered for each showing of interest document submitted. PERC staff members can make those inquiries sequentially (i.e., going through the whole deck separately for each inquiry) or concurrently (i.e., making all inquiries on each document before going on to the next document). To be accepted as valid:

•     Showing of interest documents must not suggest that PERC endorses the petition or a particular choice or party in the case.

•     Showing of interest documents must not suggest that PERC has approved or authorized the card form.

•     Showing of interest documents must affirmatively indicate support for the party furnishing the document. This does not require that cards list all state and national affiliations of a union, but cards cannot be counted if they:

      ►         Designate a national umbrella organization (e.g., "AFL-CIO" or "Change to Win Coalition") without reference to a specific union.

      ►         Designate an organization with reference to an affiliation that has since changed.

      ►         Merely request an election, without indicating support for a particular result.

      ►         Designate only one of the organizations filing a "joint" petition.

•     Showing of interest documents must be dated.

CAUTION: A 90-day limit on authorization cards was

      eliminated for showing of interest purposes in 2001,

      following a Rules Focus Group discussion about an

      NLRB "continuous campaign" doctrine, but the NLRB

precedents were not expressly cited or codified in the rule. Further research in 2005 disclosed the NLRB generally the effective life of authorization cards to one year, but has made an exception if a union's organizing efforts stretch over a longer period because of employer unfair labor practices. In turn, that suggests the NLRB would require fresh authorization cards if a union interrupts its organizing drive in the absence of unfair labor practices. If authorization cards appear to be excessively old or dated from two separate periods, bring the situation to the attention of the Executive Director as soon as possible.

•     Showing of interest documents must be submitted in a timely manner. Where there is a contract bar under WAC 391-25-030(1), both the petition and showing of interest must be filed within the "window" period.

•     Showing of interest documents must be signed by the

employees. The signature of an individual is the traditional

means of indicating assent in business transactions.

CAUTION: Watch for documents signed with the

same pen, because that can be a tip-off to forgery.

If close examination discloses two or more cards that appear to have been signed by the same person using different names, bring the situation to the attention of the Executive Director as soon as possible.

Use a highlighter pen to mark the defect(s) noted (e.g., lack of date, lack of signature, etc.) on showing of interest documents that appear to be invalid, and set them aside.

STEP 4: Do a name-for-name comparison of the showing of interest documents with the names on the employer's list.

•     If two or more documents are submitted from the same employee, staple those cards together and count them as one.

•     Use a pen or stamp to mark the documents that appear to be valid showing of interest documents matching names on the employer's list. Keep those documents together, and keep a running count of the accepted documents as you go!

•     Reject any documents where the employee name is illegible, or where the employee name does not match a name on the employer's list. Mark the reason for rejection (such as "NOL" for "not on list") on showing of interest documents. Keep those documents separate from the accepted documents.

Discontinue the checking process as soon as you have accepted more cards than the required number computed under Step 1, above. Check the box on Line 1.4 of the "Showing of Interest Worksheet" to indicate the required number of cards (or more) is present or that the required number is not present, and add your initials.

CAUTION 1: The showing of interest requirement is satisfied at the point where a petition has 30% support, and no valid purpose is served by checking additional showing of interest documents or computing the overall percentage of the showing of interest filed in support of the petition.

CAUTION 2: If the size of the bargaining unit increases from the "required number" on the Showing of Interest Worksheet for the case (either by amendment or decision) , the staff member processing the case must re-check the sufficiency of the showing of interest against the increased "required number" and fill out a new "Showing of Interest Worksheet" for the case.

4.19.2 - Showing of Interest Where Directed Cross-Check Could be Available

This part of the process will only be performed in cases where only one union is seeking unrepresented employees under the PECB or PSRA.

STEP 1: Note the Availability of Directed Cross-Check. Check the box on Line 2.1 of the "Showing of Interest Worksheet" for the case, if a directed cross-check is a theoretical possibility, and add your initials.

STEP 2: Compute the 70% Threshold for a Directed Cross-Check. Repeat the number of employees from Line 1.2 on Line 2.2 of the "Showing of Interest Worksheet" for the case, and multiply by ".7" to compute the required number for a directed cross-check. Write the result on Line 2.2 of the "Showing of Interest Worksheet" and add your initials.

STEP 3: Continue with the name-for-name comparison of the showing of interest documents with the employee names on the list provided by the employer.

•     Reject any documents that contain the word "election" anywhere on the card.

•     Reject any documents that were stale when filed with PERC (over 90 days old, generally; over 180 days old for cases under the PSRA).

•     If two or more documents are submitted from the same employee, staple those cards together and count them as one.

•     Use a pen or stamp to mark the documents that appear to be valid showing of interest documents matching names on the employer's list. Keep those documents together, and keep a running count of the accepted documents as you go!

•     Reject any documents where the employee name is illegible, or where the employee name does not match a name on the employer's list. Mark the reason for rejection (such as "NOL" for "not on list") on showing of interest documents. Keep those documents separate from the accepted documents.

Discontinue the checking process when you have accepted more cards than the required number computed on Line 2.2 of the "Showing of Interest Worksheet" for the case. Check the box on Line 2.3 to indicate the required number of cards or more is present, and add your initials. The showing of interest verification is complete at that point.

4.19.2 - Storage of Showing of Interest Materials

Showing of interest materials must be stored to protect their confidentiality. Place the envelope containing all of the authorization cards and a copy of the list in the locked cabinet in the QCR Coordinator office.

CAUTION: If two or more parties submit otherwise-valid authorizations from the same employee, count the card/letter for each such party. See 4.22.1, below.

4.20 RESPONSE ON INSUFFICIENT SHOWING OF INTEREST

If the showing of interest appears to be insufficient, the QCR Coordinator must send a "deficiency notice" letter addressed to the principal representatives of all parties, with copies to all other persons/organizations listed on the PERCCINS docket record for the particular case.

4.20.1 Ascertain Whether Contract Bar Window has Closed

The PERC staff must guard against giving any party misleading information or a false hope, so the first step in preparing a deficiency notice is to ascertain whether there is a potential for a "contract bar" problem. Check any collective bargaining agreement filed with the petition and/or provided by the employer, and compute the "window" period.

♦     If the contract had already expired when the petition was filed, there will be no "contract bar" problem.

OR:

♦     Compute the "window" by using the Microsoft EXCEL

worksheet at: P:Common\ex5\Contract.xls.

OR:

♦     Compute the "window" by counting days on a calendar

backwards from the stated expiration of the contract

(including the last day the contract will be in effect

(e.g., December 31 for calendar year contracts)).

Watch for provisions in (or omissions from) the collective bargaining agreement which would disable the "contract bar" rule:

♦     A contract which lacks a fixed expiration date cannot support a contract bar claim.

♦     A short-term contract (i.e., for a term of less than 120 days under the PSRA, or for a term of less than 90 days under other laws) would prejudice the statutory rights of other parties, and cannot create a "contract bar" for any purpose.

♦     When parties sign a contract that creates a contract bar, they irrevocably create a "window" period at the end of that contract term. Nothing they do can ever close that "window" period. Even if a "rolled over" or prematurely extended contract is binding between the employer and union that negotiated it, other parties will be entitled to file petitions during the "window" period computed from the original expiration date.

♦     A contract in existence by operation of an automatic renewal clause cannot be the basis for a "contract bar" claim if it expressly states that automatic renewal does not constitute a contract bar.

4.20.2 Response if Contract Bar Window has Already Closed

If it appears that the contract bar window has already closed, the QCR Coordinator must send a "show cause" letter to the petitioner, with copies to all other parties, as follows:

"Showing Insufficient" Form Letter

The employer has supplied a list of employees in response to our request in the above-referenced matter, and we have used that list to evaluate the sufficiency of the showing of interest filed in support of the petition. The showing of interest contains valid authorizations from less than 30% of the names on the list supplied by the employer, and so is insufficient under WAC 391-25-110.

We have examined the collective bargaining agreement covering the petitioned-for bargaining unit, and it appears that a "window period" has now closed. A showing of interest must be filed under the same standards applicable to the petition, so it appears that the insufficiency of your showing of interest cannot be remedied by the filing of additional authorization cards.

        PLEASE TAKE NOTICE THAT, unless good cause is shown on or before:

[usually: "Ten (10) days following the date of this letter"]

why such action should not be taken, the petition for investigation of a question concerning representation filed in the above-captioned matter will be DISMISSED.

FOLLOWUP: The QCR Coordinator must follow up on the case:

♦     If no response is received, prepare an order of dismissal for signature by the Executive Director.

♦     If the petitioner responds with arguable claims relating to the showing of interest (supporting the validity of its showing or disputing the employer's list), proceed as described in 4.20.5, below.

♦     If the petitioner responds with claims that do not directly involve the showing of interest, prepare an order of dismissal for signature by the Executive Director.

4.20.3 Response if Contract Bar Window Still Open

If it appears the contract bar window is still open, the QCR Coordinator must try to notify the petitioner of the "insufficient showing of interest" problem by telephone and/or e-mail, to inform the petitioner of the last day of the window period. The QCR Coordinator must also send a "show cause" letter to the petitioner, with copies to all other parties, as follows:

"Showing Insufficient But Window Still Open" Form Letter

The employer has supplied a list of employees in response to our request in the above-referenced matter, and we have used that list to evaluate the sufficiency of the showing of interest filed in support of the petition. The showing of interest contains valid authorizations from less than 30% of the names on the list supplied by the employer, and so is insufficient under WAC 391-25-110.

We have examined the collective bargaining agreement covering the petitioned-for bargaining unit, and it appears that the "window period" will close on the date specified below for response to this letter. A showing of interest must be filed under the same standards applicable to the petition, so your petition will be subject to dismissal unless you remedy the insufficiency of your showing of interest by filing additional authorization cards before the "window period" closes.

        PLEASE TAKE NOTICE THAT, unless good cause is shown on or before:

[insert last day of "window" period]

why such action should not be taken, the petition for investigation of a question concerning representation filed in the above-captioned matter will be DISMISSED.

FOLLOWUP: The QCR Coordinator must follow up on the case:

♦     If no response is received, prepare an order of dismissal for signature by the Executive Director.

♦     If the petitioner responds with arguable claims relating to the showing of interest (supporting the validity of its showing or disputing the employer's list), proceed as described in 4.20.5, below.

♦     If the petitioner responds with claims that do not directly involve the showing of interest, prepare an order of dismissal for signature by the Executive Director.

4.20.4 Response if No Contract Bar Problem Exists

If there is no "contract bar" problem, the QCR Coordinator must promptly send the following letter to the petitioner with copies to all other parties:

"Augment Showing" Form Letter

The employer has supplied a list of {insert number} employees in response to our request in the above-referenced matter, and we have used that list to evaluate the sufficiency of the showing of interest filed in support of the petition. The showing of interest contains valid authorizations from less than 30% of the names on the list supplied by the employer, and so is insufficient under WAC 391-25-110.

        PLEASE TAKE NOTICE THAT, unless good cause is shown on or before:

[usually: "Ten (10) days following the date of this letter"]

why such action should not be taken, the petition for investigation of a question concerning representation filed in the above-captioned matter will be DISMISSED.

FOLLOWUP: The QCR Coordinator must follow up on the case:

♦     If no response is received, prepare an order of dismissal for signature by the Executive Director.

♦     If the petitioner responds with arguable claims relating to the showing of interest (supporting the validity of its showing or disputing the employer's list), proceed as described in 4.20.5, below.

♦     If the petitioner responds with claims that do not directly involve the showing of interest, prepare an order of dismissal for signature by the Executive Director.

4.20.5 Procedure Where Inflated List is Alleged

Petitioners sometimes claim the employer has erroneously or artificially inflated the list of employees. The QCR Coordinator must explore such situations before dismissing the petition. The usual approach will be to hold an in-person prehearing conference, with all parties in attendance. The PERC staff member should point out the statutory basis for the proceeding, and should provide an aura of solemnity to encourage truthfulness.

♦     Establish a common base for discussion:

      ►         In cases involving state civil service employees under Chapter 41.80 RCW, the petitioner should have already received the employer's list of the names, classifications, and work locations (but not home addresses) of the bargaining unit employees. WAC 391-25-136.

      ►         In proceedings under other laws, ascertain if the employer is willing to have its list shared with the petitioner and:

                 •  If the employer has no objection, give the petitioner a copy of the list.

                 •  If the employer objects to release of its list (as it has a right to do until the petitioner meets the showing of interest requirement), the QCR Coordinator should impose conditions to enable orderly processing of the case. Examples:

??? Precondition giving the petitioner access to the list on its agreement that all copies of the list will be returned to PERC at the conclusion of the pre-hearing conference.

??? The QCR Coordinator can maintain custody of the list, but show it to the petitioner or share information from it as necessary.

♦     Work from the list provided by the employer, to identify any erroneous or artificial inflation of the size of the list:

      ►         Focus on job titles and generic occupational types, rather than on individual names. Compare the listed job titles or classifications against the bargaining unit description in the petition.

      ►         Ask the employer representative to make an "official" statement describing its list and the methodology/assumptions used in preparing that list.

      ►         Ask the employer representative what criteria were used to include persons working "less than full-time" on the list.

      ►         Ask the employer representative how many people the employer will seek to have excluded as supervisors or confidential employees. (All such persons should be excluded from the "net body count" used in computing the 30% requirement for showing of interest purposes.)

      ►         If the employer has listed employees in a larger group (usually in connection with a claim that the only appropriate bargaining unit is larger than the petitioned-for group), identify the petitioned-for employees and then re-evaluate the showing of interest against only the petitioned-for unit.

♦     If there is an incumbent exclusive bargaining representative, ask it for an "official" statement concerning the accuracy of the employer's list.

♦     Give the petitioner an opportunity to respond.

      ►         Petitioners who have simply underestimated the number of employees in the petitioned-for classifications have sometimes gracefully withdrawn their petitions in the past, and will hopefully do so in the future.

      ►         If correcting errors reduces the list to a size the petitioner's showing of interest will support, the petitioner will be entitled to a copy of the employer's list. The processing of the case can then go forward normally.

      ►         If a dispute remains, the QCR Coordinator must discuss the case with the Executive Director.

♦     It may be necessary for PERC to hold a formal hearing and issue a formal decision on a "scope of unit" question or on "eligibility" questions before a final determination can be made as to the sufficiency of the petitioner's showing of interest.

4.21 SHOWING OF INTEREST FILED BY EMPLOYER

Employers are entitled to raise a QCR under some of the laws administered by PERC. Because employers cannot interrogate employees about union sympathies or solicit "authorization cards" from them, the requirements for employer-filed petitions differ from other cases:

♦     

Chapter 41.59 RCW: Any employer-filed petition concerning school district certificated employees must be dismissed. WAC 391-25-092.

♦     Chapter 41.80 RCW: An employer-filed petition concerning state civil service employees must be dismissed, unless the employer claims the incumbent union has abandoned the unit or has gone defunct. WAC 391-25-096.

♦     Recognition demands under other statutes: Employer petitions will generally be processed if the employer claims it has been presented with one or more recognition demands, but will be dismissed (without a certification bar), unless at least one organization steps forward with a 30% showing of interest.

CAUTION: Employers sometimes try to nip union activity in the bud by filing a QCR petition at the first suggestion of organizing, but there can be no "question concerning representation" unless one or more unions claim to have majority status.

♦     Good faith doubt claims under other statutes:. Employer petitions will generally be processed if the employer asserts a good faith doubt about whether the incumbent exclusive bargaining representative continues to hold majority status, but the employer must supply affidavits or other documentation to demonstrate objective considerations which form the basis for its claim.

CAUTION 1: Under WAC 391-25-090(2), public employers cannot use the "withdraw recognition" tactic that has become popular among private employers (who can claim doubt about the majority status of an incumbent union under the NLRA). PERC cannot condone a "recognition strike" (as can occur in the private sector when an employer withdraws recognition), so most public employers are required to file a petition with PERC if they want to question the status of an incumbent union.

CAUTION 2: PERC will not process an employer-filed petition supported only by a multi-signature document which would not have been valid as a showing of interest if filed by the employees themselves. See WAC 391-25-090(2)(b), codifying Rose Hill Water & Sewer District, Decision 2488-A (PECB, 1986).

4.22 SHOWING OF INTEREST CONFIDENTIAL

Confidentiality of showing of interest materials submitted to PERC is protected by WAC 391-08-810.

♦                                     The "Showing of Interest Worksheet" prepared for each case confirms that the sufficiency of the showing of interest filed in support of the petition (and each motion for intervention) has been verified, and is the ONLY public record concerning the showing of interest process.

♦                                     The "showing of interest" process is excluded from the definition of "agency action" under the APA, and so is excluded from the judicial review under that statute. See RCW 34.05.010(3)(b).

♦                                     The protection of employee privacy by PERC was affirmed in Public Service Employees v. Evergreen General Hospital, 24 Wn. App. 64 (Division I, 1979).

Representation cases files are generally open to public inspection and copying. Whenever an outside person asks to see an "E" case file, BE CERTAIN THE "SHOWING OF INTEREST" DOCUMENTS ARE NOT IN THE FILE.

4.22.1 Attempts to Withdraw or Supersede Showing of Interest

PERC will not act on any request to "withdraw" or "supersede" a showing of interest. This protects the confidentiality of the showing of interest process, because any action taken by PERC to honor such a request would inherently risk disclosing the identity of a person who signed an authorization card supporting the petition or motion for intervention:

♦     At the point a showing of interest would be declared insufficient, persons outside of PERC could infer that the latest "withdrawal" cards they submitted were from employees who had earlier supported the petition.

♦     Re-use of dual-purpose cards (e.g., authorization to represent + dues checkoff) could disclose which employees were early supporters of the organizing effort.

4.22.2 Options Limited Once Showing of Interest Filed With PERC.

A petitioner feeling a loss of support has the right to withdraw the entire petition before an election or cross-check is held. There will be no certification bar in such situations.

4.23 INTERVENTION BY OTHER PARTIES

An organization other than the petitioner can become a party to a representation case only by making a motion for intervention. This includes any organization(s) previously identified as having a potential interest in the proceedings.

4.23.1 Cross-petitions

PERC will process two or more competing representation petitions pending at the same time concerning overlapping groups of employees. This implements statutory language directing PERC to determine the appropriate bargaining unit on "each" petition, and PERC rejects any "priority of action" concept for competing representation petitions.

♦     The timeliness, sufficiency of showing of interest, and compliance with other procedural requirements must be assessed separately for each petition.

♦     Consolidated proceedings must be held (including investigation conference and/or hearing) to resolve issues concerning the scope of the appropriate bargaining unit(s) and eligibility.

4.23.2 Motion for Intervention

A motion for intervention in a representation case must be filed with or made to PERC in a timely manner, as follows:

♦     By a letter or written motion filed with PERC no later than seven (7) days after the filing and posting of an election agreement or cross-check agreement; OR

♦     By a letter or written motion filed with PERC no later than seven (7) days after the posting of an Investigation Statement which resolves all pre-QCR (election or cross-check) issues; OR

♦     By a letter or written motion filed with PERC prior to a hearing held in advance of an election or cross-check; OR

♦     By a written or oral motion made at a PERC hearing held in advance of an election or cross-check.

If an organization previously identified as having an interest in the bargaining unit does not come forward with a motion for intervention, it will be presumed to have no further interest in the proceedings. (The QCR Coordinator or Hearing Officer must then take steps to remove the organization from the PERCCINS docket record for the case, with comment in the PERCCINS Transaction Log to explain when and why that was done.)

CAUTION: An organization coming in after the deadline for intervention can only be placed on the ballot by consent of all parties, and cannot disrupt election arrangements or have the hearing reopened.

4.23.3 Intervenor Claiming "Incumbent" Status

An organization filing a motion for intervention may claim it has been active as the exclusive bargaining representative of all or any part of the petitioned-for bargaining unit at some time during the one year period preceding filing of the petition.

♦     Evaluate claims of incumbency on the basis of multiple sources:

      ►         Documents submitted in support of the motion for intervention, and

      ►         Other materials already on file.

♦     If it appears the unit was abandoned, or there are other defects with the claim of incumbency, the organization can still intervene as a non-incumbent (see below).

4.23.4 Non-incumbent Intervenors

An organization filing a motion for intervention must normally submit authorization cards/ letters showing it has the support of 10% of the employees in the bargaining unit the petitioner claims appropriate.

♦     Evaluate the sufficiency of the intervenor's showing of interest as soon as possible (preferably prior to the intervenor participating in the proceedings).

♦     Use the procedure/standards for checking the sufficiency of a showing of interest filed in support of a petition (4.19, above) except:

STEP 1: Use the same list copy and "Showing of Interest Worksheet" used in verifying the sufficiency of the petitioner's showing of interest. Fill in the name of the intervenor on Line 3.1 of the "Showing of Interest Worksheet" for the case.

STEP 2: Verify that the authorization cards are in acceptable form, same as in 4.19.1, above.

STEP 3: Compute the required number of cards for intervention. Repeat the number of employees from Line 1.2 on Line 3.2 of the "Showing of Interest Worksheet" and multiply by ".1" to compute the required number for intervention. Write the result on Line 3.2 of the "Showing of Interest Worksheet" and add your initials.

Step 4: Do a name-for-name comparison same as above:

      •         Count a card submitted by an intervenor, even if the same employee signed a card for the petitioner or a previous intervenor.

      •         If two or more documents are submitted from the same employee, staple those cards together and count them as one.

      •         Use a pen or stamp to mark the documents that appear to be valid showing of interest documents matching names on the employer's list. Keep those documents together, and keep a running count of the accepted documents as you go!

      •         Reject any documents where the employee name is illegible, or where the employee name does not match a name on the employer's list. Mark the reason for rejection (such as "NOL" for "not on list") on showing of interest documents. Keep those documents separate from the accepted documents.

Discontinue the comparison process if you exceed the required number computed on Line 3.2 of the "Showing of Interest Worksheet" for the case. Check the box on Line 3.3 to indicate the required number is present or that the required number is not present, and add your initials. The showing of interest process is then complete.

STEP 5: Store-away showing of interest same as above, placing all of the authorization cards back in the envelope, and return it to the locked cabinet in the QCR Coordinator office. In addition, add the intervenor as Party 3 or Party 4 on PERCCINS.

♦     Conditional acceptance of a motion for intervention is permitted, for motions made just prior to a pre-hearing conference or investigation conference, but the showing of interest must then be submitted/checked in a timely manner.

      ►         Impose a time limit (usually "3 business days") for the intervenor to submit its showing of interest.

      ►         If the intervenor complies with the time allowed and its showing of interest is found to be sufficient, proceed with normal case processing.

      ►         If the intervenor does not submit a sufficient showing of interest within the time allowed, the QCR Coordinator must send a letter to deny a motion for intervention (as described below) and put an explanation in the PERCCINS Transaction Log for the case.

4.23.5 Ruling on Intervention Motions

The QCR Coordinator must announce/issue a ruling on any motion for intervention filed prior to assignment of a Hearing Officer:

♦     For intervention motions made during a pre-hearing conference or investigation conference, announce a ruling during the conference, by saying:

(name of union moving for intervention) filed a motion for intervention in this case on (date of motion) . The showing of interest filed in support of that motion has been evaluated administatively and the motion is [select one:]

GRANTED, based on a sufficient showing of interest OR

DENIED, based on absence of a sufficient showing of interest.

♦     For other intervention motions, send a letter (addressed to all parties and representatives of record) to grant or deny the motion, as follows:

"Ruling on Intervention" Form Letter

        Gentlepersons:

(name of union moving for intervention) filed a motion for intervention in the above-referenced case on (date of motion) . The showing of interest filed in support of that motion has been evaluated administatively and the motion is [select one: GRANTED, based on the existence of a sufficient showing of interest OR DENIED, based on absence of a sufficient showing of interest.

4.24 LIMITATIONS ON "UNIT" ISSUES

PERC is not limited to finding the "most appropriate" unit in each case, but PERC rules and precedents do limit the "unit" claims of parties in some situations.

4.24.1 Decertification Situations

WAC 391-25-210(1) specifically prohibits a petitioner, the employer, or the incumbent organization from altering the existing bargaining unit in "decertification" cases.

♦     A petition seeking decertification for only part of the existing bargaining unit (a "severance-decertification") must be dismissed.

♦     The only way a different unit configuration can be considered while a decertification petition is pending is if another organization cross-petitions with a 30% showing of interest for the different unit.

4.24.2 Rights of Intervenors

An intervenor can disagree on whether particular individuals are excludable as supervisors or confidential employees, but cannot argue for a different unit configuration than is being proposed by the petitioner. WAC 391-25-210(2).

4.24.3 Overlapping/Conflicting Unit Configurations

WAC 391-25-210(3) promotes orderly case processing, by specifically prohibiting parties from supporting two or more conflicting unit configurations at the same time.

♦     Other parties are called upon to either stipulate to or oppose the one configuration proposed by a petitioner, and PERC rules on the propriety of that configuration.

♦     Dismissal of a petition because the proposed unit configuration is found inappropriate does not create a "certification bar" under WAC 391-25-030(2), so the petitioner could file a new petition proposing a different unit configuration.

4.24.4 "Raid" Situations

Where a change of exclusive bargaining representatives is sought, the parties are not confined to the historical bargaining unit configuration.

♦     If a unit smaller than the historical unit is sought, "severance" criteria are applied under Yelm School District, Decision 704-A (PECB, 1980).

♦     If the unit sought is larger than a historical unit, ask the parties if there are any residual groups which would still be left over.

4.24.5 Accretion Requests

If a union seeks to organize a long-existing group of employees that could have been included in some other bargaining unit, PERC will certify a separate unit and leave the possibility of consolidation to merger proceedings under 4.24.6, below. PERC has historically rejected "accretion election" procedures in which the employees in a portion of an appropriate bargaining unit vote separately on a question concerning representation. The theory advanced in support of "accretion elections" only operates in one direction: It breaks down if the employees vote "No" on the proposed accretion and thereby strand themselves as an inappropriate fragmentation of an otherwise appropriate unit.

4.24.6 Merger of Bargaining Units

The "severance" criteria embraced in Yelm School District, Decision 704-A (PECB, 1980) are not applied if a union merely represents an "amalgam" of separately-organized bargaining units, but separately-organized units can sometimes be merged into a single bargaining unit under WAC 391-25-420(2):

♦     The incumbent exclusive bargaining representative must file a petition for a merged unit, with a showing of interest demonstrating that at least 30% of the employees in each of the historical units supports the merger.

♦     The merged unit must be stipulated or found to be an appropriate unit.

♦     Unit determination elections will be conducted separately in the historical units.

      ►         If a majority of the eligible employees in each of the historical units support the merger, they will have overruled their separate histories of bargaining.

      ►         If the merger is not validated in all of the historical bargaining units, the proposed merged unit will be deemed inappropriate but the union will continue to represent the historical units.

♦     PERC will ONLY conduct a representation election in the merged unit if the unit determination elections validate the merger AND another organization files a motion for intervention supported by adequate showing of interest for the merged unit.

♦     This "merger of units" process is inapposite or modified under several of the statutes administered by PERC.

      ►         PERC cannot accept or allow unit mergers crossing statutory lines (such as between school district certificated employees under Chapter 41.59 RCW and school district classified employees under Chapter 41.56 RCW, or between technical college faculty under Chapter 28B.52 RCW and technical college classified employees under Chapter 41.56 RCW). See WAC 391-35-300.

      ►         No unit mergers are possible under Chapters 28B.52, 41.59 and 41.76 RCW, because those statutes already require employer-wide units.

      ►         No unit mergers are possible for home care workers and child care workers under Chapter 41.56 RCW, because the statute requires state-wide units.

      ►         No unit mergers are possible for TA/RA personnel under Chapter 41.56 RCW, because the statute already a university-wide unit.

      ►         There can be no unit mergers mixing employees eligible for interest arbitration with employees who are not eligible. See WAC 391-35-310.

♦     WAC 391-25-426 eliminates the showing of interest and unit determination election procedures for mergers of bargaining units under Chapter 41.80 RCW, because of specific language in RCW 41.80.070.

4.25 INVESTIGATION CONFERENCE

An Investigation Conference under WAC 391-25-220 provides a forum for obtaining stipulations on the matters necessary to an election or cross-check. At a minimum, an Investigation Conference should narrow the issues which must go to a formal hearing.

4.25.1 Arranging An Investigation Conference

The QCR Coordinator must make the necessary

arrangements to hold an Investigation Conference.

This is usually done by setting a date (and letting the

parties request a change), but can also be done by

negotiating a date with the parties (at risk they will

still request a change). In setting an Investigation

Conference, be mindful that the process cannot work

unless all parties participate and are prepared to

enter into stipulations on the critical issues in the case.

4.25.2 Delay at Request of Parties

If initial contacts with parties indicate an election agreement, a voluntary recognition (where permitted), or a cross-check agreement (where permitted) can be worked out by the parties without PERC intervention, the QCR Coordinator can exercise discretion to delay scheduling an Investigation Conference. The QCR Coordinator must keep in touch with the parties, to monitor a case that would normally have a high priority for processing.

4.25.3 Telephonic Investigation Conference

The QCR Coordinator usually conducts Investigation Conferences by telephone confer-ence calls where all participants dial in to a specified phone number to join the conference.

NOTE: Telephone conference calls permit persons

who might otherwise be unavailable to participate.

Clientele often prefer spending a few minutes

on the phone, instead of spending substantial

time traveling to/from an on-site meeting.

♦     Send notice of a telephonic investigation

conference to all parties, as follows:

"Conference Call" Form Letter

A petition for investigation of a question concerning representation has been filed in the above-referenced case. and the employer has provided a list of employees. The sufficiency of the showing of interest filed by the petitioner has been verified administratively, and a copy of the employer's list of employees is being provided to the petitioner with this letter.

I have been designated to conduct further proceedings in the case, and will be conducting an Investigation Conference by telephone conference call with the parties' representatives, as follows:

[day/month/date/year and time (am or pm)]

The conference call will be initiated from this office. Please be available at that time at the telephone number listed for you on the attached Record of Appearance, or make arrangements to participate in the Investigation Conference call at a different telephone number.

The purpose of the Investigation Conference is to determine whether matters can be stipulated, and to identify any issues on which a formal hearing is necessary. The enclosed Checklist covers the issues that can properly arise in representation cases, and all of those issues will be addressed during the Investigation Conference. Please review the checklist and have your responses on all issues ready for discussion.

An investigation statement will be issued following the conference call, and will control the future course of the proceedings. Unless there are issues sufficient to warrant a formal hearing, the question concerning representation will be determined in accordance with that statement.

Parties should be prepared to indicate whether election notices and ballots need to be in any language other than English, or whether any eligible voters with disabilities need accommodation.

Thank you for your prompt attention. If you have any questions, or desire that a different person participate in the conference call on behalf of the party you represent, please contact me.

♦     Enclose with that letter:

      ►         A copy of the eligibility list provided by the employer.

      ►         A copy of the "Investigation Conference Checklist" replicated in 4.27, below.

4.25.4 On-Site Investigation Conference

The QCR Coordinator has discretion to hold an Investigation Conference on-site, and is responsible for making all arrangements for any such session.

♦     Send the following letter addressed jointly to the principal representatives of all known interested parties:

"On-Site Investigation Conference" Form Letter

A petition for investigation of a question concerning representation has been filed in the above-referenced case, and the employer has provided a list of employees. The sufficiency of the showing of interest filed by the petitioner has been verified administratively, and a copy of the employer's list of employees is being provided to the petitioner with this letter.

I have been designated to conduct further proceedings in the case, and will be conducting an Investigation Conference with the parties' representatives, as follows:

DATE:

TIME:

PLACE:

Please be available at that time and place, or arrange for someone else to participate on behalf of the party you represent.

The purpose of the Investigation Conference is to determine whether matters can be stipulated, and to identify any issues on which a formal hearing is necessary. The enclosed Checklist covers the issues that can properly arise in representation cases, and all of those issues will be addressed during the Investigation Conference. Please review the checklist and have your responses on all issues ready for discussion.

An investigation statement will be issued following the conference, and will control the future course of the proceedings. Unless there are issues sufficient to warrant a formal hearing, the question concerning representation will be determined in accordance with that statement.

Parties should be prepared to indicate whether election notices and ballots need to be in any language other than English, or whether any eligible voters with disabilities need accommodation.

Thank you for your prompt attention. If you have any questions, or desire that a different person participate in the conference on behalf of the party you represent, please contact me.

♦     Enclose with that letter:

      ►         A copy of the eligibility list provided by the employer.

      ►         A copy of the "Investigation Conference Checklist" replicated in 4.27, below.

4.25.5 Requests to Reschedule Investigation Conference

Parties asking that an investigation conference be rescheduled must contact other parties in advance to obtain their concurrence or opposition. See WAC 391-08-180(2).

CAUTION: Be mindful that the Commission gives a high priority represen-tation cases that are holding up a certification!

5.26 OPENING PATTER FOR INVESTIGATION CONFERENCE

The QCR Coordinator is the convener/chairperson of an Investigation Conference. Use the following "opening patter" (or adjust it to the particular situation):

This Investigation Conference concerns a representation case filed with the Public Employment Relations Commission on (date) . The case number is ___-E-__-___. My name is . I am processing the case for the Commission.

Only limited issues can be resolved in representation proceedings. The purpose of this conference is to find out if matters can be stipulated, and to identify any issues on which a formal hearing will be necessary.

As the state agency responsible for impartial administration of collective bargaining laws, the Commission does not assume an advocacy role for any party. I will lead the participants through the list of issues which could properly come up in this case, and will ask each of you to make your position known on each issue as we discuss it.

CAUTION 1 FOR TELEPHONIC CONFERENCES: Ascertain the names of all participants in the Investigation Conference, and obtain contact information from any who are not already on PERCCINS for the case.

CAUTION 2 FOR ON-SITE CONFERENCES: Circulate an attendance sheet and get information on all persons appearing in a representative capacity (in order to update the PERCCINS docket record for the case) but the state open meetings law precludes agencies from insisting that other persons attending provide their names or other information. See RCW 42.30.040.

4.27 ISSUES FOR DETERMINATION IN REPRESENTATION CASE

The QCR Coordinator must then lead the participants through the following Checklist:

CHECKLIST FOR INVESTIGATION CONFERENCE IN REPRESENTATION CASES

RULES: Chapter 391-25 WAC regulates the processing of representation cases by the Public Employment Relations Commission (PERC). All parties should familiarize themselves with those rules.

PETITION FORM: Parties are encouraged to use PERC Form E-1, "Petition for Investigation of a Question Concerning Representation", which is available from the PERC office and on the PERC website. Instructions are printed on the reverse side of the form.

SHOWING OF INTEREST: The Commission will process a petition only if there is evidence that it has a chance of success:

•A petition filed by employees or an organization must have the support of at least 30% of the employees in the bargaining unit. [WAC 391-25-110.]

•An employer filing a petition must show that it has a good faith doubt as to whether a union represents a majority of the employees in a bargaining unit. [WAC 391-25-090.]

PERC normally obtains a list of employees from the employer and verifies the sufficiency of the showing of interest before an investigation conference is scheduled. The showing of interest is "confidential", and PERC's determination that a showing of interest is sufficient is not subject to litigation in any hearing.

INTERVENORS: Additional organizations may intervene to participate in the case. An incumbent union only needs to show it has represented unit employees in the past year. Other organizations must submit a showing of interest indicating support of at least 10% of the employees in the bargaining unit.

LIST OF EMPLOYEES: The employer is required to supply a list of the employees affected by a petition, and should also indicate the employees it considers to be supervisors or confidential employees. Once their showing of interest requirements are met, the petitioner and any intervenor are entitled to a copy of that list of employees.

All parties should review the list of employees as soon as possible, and be prepared to raise issues about the list or stipulate "eligibility" in the investigation conference.

INVESTIGATION CONFERENCE: The Commission will conduct at least one Investigation Conference on each representation petition. This is normally done by conference call. Participation by all parties is needed for efficient processing of the case; failure of a party to participate in an Investigation Conference may result in the loss or forfeiture of its rights.

SUBJECTS FOR INVESTIGATION CONFERENCE

ONLY LIMITED ISSUES CAN BE RAISED in a representation case. You will be asked to make stipulations on the following issues:

1.JURISDICTION OF THE COMMISSION: Each case must involve parties under PERC jurisdiction. QUESTION: Do all parties stipulate the employees involved are :

|__|a.Employed by a city, county, municipal corporation or political subdivision (including classified employees of school districts and technical colleges) or other employer covered by Chapter 41.56 RCW? OR

|__|b.Employed by a port district covered by Chapter 53.18 RCW as well as Chapter 41.56 RCW? OR

|__|c.Employed as certificated employees of a school district covered by Chapter 41.59 RCW? OR

|__|d.Employed as academic faculty employees of a community college or technical college covered by Chapter 28B.52 RCW? OR

|__|e.Employed as faculty by a state institution of higher education (other than a community college or technical college) covered by Chapter 41.76 RCW? OR

|__|f.Employed as classified employees of a state general government agency or a state institution of higher education (other than a technical college) covered by Chapter 41.80 RCW? OR

|__|g.Employed by another public employer or by private employer in the state of Washington covered by Chapter 49.08 RCW?

2.IDENTIFICATION OF PARTIES: PERC must have complete information to process the case. QUESTION: Does the Commission have the correct names and addresses of:

|__|a.The employer and its representative(s)? AND

|__|b.The petitioner and its (their) representative(s)? PLUS, IF ANY:

|__|c.The incumbent union and its representative(s)? AND/OR

|__|d.The intervening union(s) and its representative(s)?

3.STATUS AS "LABOR ORGANIZATION": Each organization that seeks status as the exclusive bargaining representative of the employees involved must qualify as eligible for certification under the statute applicable to the case. QUESTION: Does each of the parties stipulate:

|__|a.The petitioning organization (omit for decertification cases and employer petitions) is a qualified employee organization or labor organization?

|__|b.The incumbent organization (in raid and decertification cases) is a qualified employee organization or labor organization?

|__|c.Each other intervenor (if any) is a qualified employee organization or labor organization?

[NOTE: This inquiry is inapplicable to an employee or informal group of bargaining unit employees that files a "decertification" petition.]

4.TIMELINESS OF THE PETITION: A representation petition may be filed at any time, except for two exceptions specified in WAC 391-25-030:

A "contract bar" exists while a valid collective bargaining agreement is in effect, so that a petition involving any or all of the employees covered by the agreement will be timely only if it is filed during the "window" period not more than ninety nor less than sixty days [not more than 120 days nor less than 90 days for state civil service employees] prior to the stated expiration date of the collective bargaining agreement.

(a) To constitute a valid collective bargaining agreement for this purpose:

(I) The agreement must cover a bargaining unit that is appropriate under the terms of the applicable statute;

(ii) The agreement must be in writing, and signed by the parties' representatives;

(iii) The agreement must contain a fixed expiration date not less than ninety days after it was signed; and

(iv) The agreement will only operate as a bar for the first three years after its effective date.

(b) An agreement to extend or replace a collective bargaining agreement shall not bar a petition filed in the "window" period of the previous agreement.

(c) A "protected" period is in effect during the sixty days following a "window" period in which no petition is filed, and a successor agreement negotiated by the employer and incumbent exclusive bargaining representative during that period will bar a petition under this chapter. If the filing and withdrawal or dismissal of a petition under this chapter intrudes upon the protected period, the employer and incumbent exclusive bargaining representative shall be given a sixty-day protected period commencing on the date the withdrawal or dismissal is final.

A "certification bar" exists where a certification has been issued by the agency, so that a petition involving the same bargaining unit or any subdivision of that bargaining unit will only be timely if it is filed:

(a) More than twelve months following the date of the certification of an exclusive bargaining representative; or

(b) More than twelve months following the date of the latest election or cross-check in which the employees failed to select an exclusive bargaining representative.

|__|QUESTION: Does any party claim the petition filed in this case is untimely? If so, state the basis for that claim.

5.EXISTENCE OF "BLOCKING CHARGE": PERC may suspend the processing of a representation case where pending unfair labor practice charges could affect the outcome of the representation case.

|__|QUESTION: Does any party claim that an unfair labor practice case currently pending before the Commission should be treated as a "blocking charge"?

NOTE: The complainant in an unfair labor practice case can file a "request to proceed" if it wants to process the representation case and is willing to waive the alleged unfair labor practice as objectionable conduct under the representation case rules. This does not preclude any party from filing an unfair labor practice case at a later time.

6.PROPRIETY OF THE PETITIONED-FOR BARGAINING UNIT: Employees are grouped together for bargaining, based on having a "community of interests". PERC has final say on whether a hearing is necessary. Bargaining units are commonly:

"wall-to-wall" (encompassing all employees of the employer),

"vertical" (encompassing all employees in a department, division or branch of the employer's table of organization), or

"horizontal" (encompassing all employees of an occupational type).

|__|QUESTION: Does each of the parties stipulate that the bargaining unit proposed in the petition is an appropriate bargaining unit?

7.ELIGIBILITY ISSUES: Once an appropriate bargaining unit is described, the list of employees must be adjusted to fit that unit. See WAC 391-35-300 - 356. The issues that commonly arise concern:

•Confidential Employees: Persons with access to confidential information concerning the labor relations policies of the employer may be excluded from the bargaining unit as "confidential".

•Supervisors: Persons who exercise authority (on behalf of the employer) over other employees are categorized as "supervisors". They may have a right to organize and bargain, but are generally excluded from the bargaining unit that includes their rank-and-file subordinates.

•Regular Part-time employees: Employees who work at least one-sixth of the hours of a full-time employee in a twelve month period are generally be included in the same unit with full-time employees performing similar work.

•Casual Employees: Persons who have sporadic employment with an employer lack an ongoing interest in the wages, hours and working conditions of a bargaining unit, and are generally excluded from the unit as "casual" employees.

•Other Community of Interests: Employees in other departments or occupational types will be excluded according to the terms of the unit description.

|__|QUESTION: Who are the employees eligible for inclusion in the bargaining unit?

8.EXISTENCE OF A QUESTION CONCERNING REPRESENTATION: Employers always have a right to demand a certification from PERC. Voluntary recognition by an employer is only possible under Chapter 41.56 or 49.08 RCW, and then only if the employer is satisfied that the only union involved has the support of a majority of the employees in an appropriate bargaining unit. PERC will make an impartial determination if there is any dispute about whether an organization has the support of a majority of the employees in an appropriate bargaining unit.

|__|QUESTION TO EACH UNION/ORGANIZATION: Does your organization claim to have support among the employees in the petitioned-for bargaining unit?

|__|QUESTION TO EMPLOYER WHERE ONLY ONE UNION INVOLVED: Does the employer decline to recognize the petitioner as exclusive bargaining representative without a certification from the Commission?

[NOTE: The "Question to Employer" is unnecessary where two or more unions are involved, because the employer is prohibited from showing a preference between unions.]

9.METHOD FOR DETERMINING QUESTION CONCERNING REPRESENTATION: Arrangements are discretionary with PERC, but the parties' suggestions will be considered:

•PERC normally conducts a secret-ballot election in which all eligible employees will have an opportunity to vote on selection of a bargaining representative. These elections are normally conducted by mail ballot. Absentee ballots are not allowed in on-site elections, except in cases involving state civil service employees.

        •For cases arising under Chapter 41.56, 41.76, 41.80, and 49.08 RCW a confidential "cross-check" procedure can be used instead of an election. A cross-check can be ordered under Chapter 41.56 or 41.80 RCW, if the union has provided a showing of interest in excess of 70% of employees in the bargaining unit.

|__|QUESTION: Do the parties have any suggestions concerning the arrangements for determining the question concerning representation?

The QCR Coordinator must solicit answers to all "checklist" items, even if it is clear that a hearing will be necessary. If a party resists answering questions after making an argument it claims will be dispositive in the case, assure the party that answering the remaining questions will not constitute a waiver or surrender of their other claims.

4.28 ADDITIONAL STATEMENTS AND ISSUES FROM PARTIES

After covering the issues in the 4.27 Checklist, invite the parties to ask any questions or make any other statement they may have. In responding, bear in mind that:

♦     The quality of representation that has been or may be provided by a particular organization is not a proper subject for determination in a representation case. (Even if such matters may be a subject of pre-election campaigning and/or may influence the votes cast by employees, the right to chose belongs to the employees.)

♦     PERC does not receive/consider testimony of employees on "desires of employees" issues, in order to protect the confidentiality of employee views on their choice of bargaining representative. (When necessary, PERC assesses the "desires of employees" by conducting a unit determination election in which all affected employees will have equal voice and vote by secret ballot.)

♦     Unfair labor practices are not proper subjects for a hearing in a representation case. (A party claiming that another party to the representation case has committed an unfair labor practice must file and process a complaint under Chapter 391-45 WAC.)

♦     PERC maintains "laboratory conditions for exercise of employee free choice" during the period that begins with the filing of a representation petition and continues through the tally of ballots. [WAC 391-25-470 and -490.] However, the remedies available through the objections process under WAC 391-25-590 are limited to the representation case:

      ►     Parties are not entitled to file objections until the seven-day period following the issuance of a tally, so any objections filed prior to a tally are premature.

      ►     A party that "wins" an election and wants to preserve that result is effectively precluded from pursuing misconduct via the "objections" procedure.

      ►     A party claiming that another party has engaged in misconduct that constitutes an unfair labor practice has six months to file and process a complaint under Chapter 391-45 WAC. (Unfair labor practice complaints and election objections are sometimes processed simultaneously.)

4.29 RECORD-KEEPING AT INVESTIGATION CONFERENCE

The QCR Coordinator must take notes on the parties' positions and any stipulations made during an Investigation Conference.

4.29.1 List of Employees and Use of "FAX" to Receive/Distribute Lists

Have all parties work from the same list of employees. Use the list originally supplied by the employer, or use an updated list provided for the Investigation Conference. It is often helpful to receive and transmit updated eligibility lists by fax during or following an Investigation Conference conducted by telephone conference call.

PERC-OLYMPIA "FAX" NUMBER: (360) 570-7334

PERC-KIRKLAND "FAX" NUMBER: (425) 814-1105

4.29.2 Giving/Acquiring "Procedural" Information

An Investigation Conference provides an opportunity for the QCR Coordinator to convey and/or to obtain information that will be helpful to the subsequent processing of the case:

♦     Inform the parties that an Investigation Statement will be issued by PERC, and that it will control the future course of the proceedings.

♦     If a formal hearing will be necessary, take down (and forward to the Hearing Officer) any suggestions made by the parties concerning the hearing:

      ►     Any preferred dates for the hearing or time periods to be avoided.

      ►     The estimated duration of the hearing.

      ►     The number of witnesses the parties expect to call.

      ►     Whether witnesses need to be or can be pre-staged (e.g., one on the witness stand and the next one ready to take the stand).

      ►     Whether documents can be stipulated in advance (remind the parties that they need to provide PERC with 2 copies of each exhibit, plus providing 1 copy for each other party which does not have a copy of the document).

      ►     Whether any subpoenas will be needed (remind attorneys that the Administrative Procedure Act authorizes them to issue subpoenas on their own signature, without having to get a subpoena from PERC).

♦     If an ON-SITE election is to be conducted, the parties can be informed:

      ►     PERC prepares all election notices and ballots, and keeps custody of all ballots except while they are in the hands of the voters.

      ►     Copies of the Notice of Election and PERC's "Instructions for Observers" will be mailed to all parties in advance of the election date.

      ►     Eligible voters must present themselves at the polls to cast a ballot. (Absentee ballots are only allowed for elections involving state civil service employees.)

♦     If a MAIL BALLOT election is to be conducted, the parties can be informed:

      ►     PERC prepares all election notices and ballots, sends ballot materials to eligible voters via the U.S. Mail, and keeps custody of all ballots except while they are in the U.S. Mail or in the hands of the voters.

      ►     Employees must return their ballots via the U.S. Mail (to invoke federal mail fraud protections), or by personally delivering their ballot (during business hours and showing proof of identification) at PERC's Olympia office.

      ►     Materials mailed to each eligible voter will include:

             •      A notice containing instructions and other information about the election;

             •      A ballot;

             •      A secrecy envelope; and

             •      A postage-paid, return-addressed envelope with the employee's name, for return of the marked ballot to PERC.

      ►     The employee names on the return envelopes are used to check eligibility (much like having employees give their names to get ballots at an on-site election). After that is done, secrecy is maintained before any ballots are counted, by:

             •      Stripping off all of the return envelopes containing the employee names;

             •      Mixing the secrecy envelopes (and any ballots without secrecy envelopes);

             •      Stripping off the secrecy envelopes; and

             •      Mixing the ballots again to assure the secrecy of the election.

4.30 DOCUMENTING STIPULATIONS

The QCR Coordinator must take good notes to

document all stipulations made and issues framed

by the parties during an Investigation Conference.

PERC takes the stipulations knowingly made by

by parties in representation cases seriously, and

has enforced stipulations against parties that have later attempted to make arguments contrary to their earlier stipulation. Parties will ONLY be relieved of their earlier stipulation(s) only upon a showing of good cause.

4.30.1 PERC "Agreement" Forms

PERC promulgated forms for "consent" agreements prior to the invention of the Investigation Conference procedure. Use of an agreement form can still be appropriate where an Investigation Conference is conducted on-site:

♦     PERC form E-2 is an "election agreement" for use under WAC 391-25-230.

♦     PERC form E-3 is a "cross-check agreement" for use under WAC 391-25-250.

CAUTION: PERC will accept home-made agreements in substantial compliance with the PERC-promulgated forms as to their content.

4.30.2 Investigation Statement

An Investigation Conference takes the place of a pre-hearing conference under the APA, but is usually held before the "issue a notice of hearing" action that starts an adjudicative proceeding under the APA. An Investigation Statement takes the place of a "Statement of Results of Pre-Hearing Conference" issued under WAC 10-08-130. Except where one of the "agreement" forms is filed, the QCR Coordinator must prepare and issue a Statement of Results of Investigation Conference in the following format:

INVESTIGATION STATEMENT

TO BE POSTED FOR SEVEN DAYS

        RE:            [insert name of employer]

                          Case [insert case number]

        DATE:       [insert date]

An Investigation Conference was held on [insert date] at [insert time] [insert "at (location)" or "by telephone conference" as appropriate] . The participants were:

                  [insert name of representative] , on behalf of [insert name of petitioner] .

                  [insert name of representative] , on behalf of the Employer.

                  [insert name of representative] , on behalf of [insert name of intervenor] .

                  [insert name and title of PERC staff member] .

This statement is issued under WAC 10-08-130 to state the stipulations made by the parties at the Investigation Conference and to control the subsequent course of the proceedings. WAC 391-25-220 requires posting of this statement on the employer's premises for a period of at least seven days.

1.The following matters were resolved during the Investigation Conference: [Select from:]

                a.The Public Employment Relations Commission has jurisdiction in this matter under [insert statute, e.g., "Chapter 41.56 RCW"] .

                b.The addresses of the parties are [insert the correct information or "correct as printed on the case docket sheet"] .

c. [Insert name of petitioning union] is a lawful labor organization qualified to act as exclusive bargaining representative under [insert statute e.g., "RCW 41.56.030(3)"].

d. [Insert name of intervening union] is a lawful labor organization qualified to act as exclusive bargaining representative under [insert statute e.g., "RCW 41.56.030(3)"].

e.The Petition for Investigation of a Question Concerning Representation [insert "was" or "was not"] timely filed.

f. [Insert "There is" or "There is not"] a pending unfair labor practice charge that is a blocking charge. [insert "See (U case number)." if blocking charge exists] .

g.The description of an appropriate bargaining unit as: [insert unit description]

h.The correct eligibility list is the list prepared by [insert who prepared the list, usually: "the employer"] dated [insert date of eligibility list] . To be eligible, an employee must have been employed in the bargaining unit on [insert eligibility cutoff date] and must remain an employee on the date of the tally set forth below.

I.A question concerning representation exists between the parties.

j.There [insert "were" or "were no"] requests that the notices and ballots be reproduced in a language other than English, or for disability accommodations [insert "as follows: (provide details)" where requests are made] .

2. [Insert, as appropriate:

{An election will be conducted by mail ballot to determine the question concerning representation. The ballots will be mailed on [insert date of mailing] and will be tallied at the Commission's Olympia Office at 3:00 p.m. on [insert date of tally] .} OR

{An election will be conducted on-site to determine the question concerning representation. The election will be on [insert date] at [insert hours of voting] at [insert location]  , and the ballots will be tallied immediately after the close of the polls.} OR

{A cross-check will be conducted to determine the question concerning representation. The employer is to provide employment records bearing the signatures of the eligible employees, to compare with the authorization cards submitted by the union. The tally will be issued promptly after the records are received from the employer.}

3.The following matters remain in dispute between the parties:

                 [Insert "None" or list disputed issues in separate paragraphs in same order as above].

Any objections to the foregoing must be filed at the Olympia office of the Commission, in writing, within 10 days following the date hereof and shall, at the same time, be served upon each of the other participants named above. This statement becomes part of the record in this case as binding stipulations of the parties, unless modified for good cause by a subsequent order.

                                                    PUBLIC EMPLOYMENT RELATIONS COMMISSION

                                                    By:___________________________________________

COPIES OF THIS STATEMENT AND THE ATTACHED ELIGIBILITY LIST ARE TO BE POSTED BY THE EMPLOYER IN CONSPICUOUS PLACES ON ITS PREMISES WHERE NOTICES TO THE EMPLOYEES ARE USUALLY POSTED FOR SEVEN DAYS, IN LIEU OF POSTING AN ELECTION AGREEMENT.

4.30.3 Posting Required

PERC rules require posting of any Election Agreement, Cross-Check Agreement or Investigation Statement (along with the eligibility list) on the employer's premises, in places where notices to the employees involved are usually posted. The materials must be posted for seven consecutive days.

Posting is essential, because any motion for intervention must be filed within the seven-day period of posting.

CAUTION: Remind parties that failure to post could lead to invalidation of a certification if another organization turns up claiming a lack of notice. They have a self-interest in meeting the posting requirement!

4.30.4 Approval of Agreements

PERC recognizes that the ultimate purpose of a representation proceeding is to establish relationships between the parties to those proceedings (employers, union, and employees),

and PERC is generally receptive to agreements made by the parties in representation cases. The QCR Coordinator is authorized to accept routine stipulations. However:

♦     Election agreements and cross-check agreements filed by

parties are not binding on PERC, and are expressly subject

to approval by the Executive Director.

♦     An agreement cannot create PERC

jurisdiction where none exists by statute.

♦     An agreement clearly contrary to the applicable statute

should not be solicited by the PERC staff, and will not

      be approved by the Executive Director.

♦     PERC will not be bound by parties' agreements that are contrary to PERC policy, procedures or precedent.

♦     PERC has a responsibility to protect the statutory rights of individual employees (including maintaining "laboratory conditions" for employees to exercise their right to select or change their representation), and PERC will not compromise its role at the behest of the parties to a particular case.

PERC staff members should discourage parties from making stipulations which the staff member has reason to believe will not be approved by the Executive Director.

PERC staff members must notify the parties that any unusual requests will be presented to the Executive Director for determination, and must then present the situation to the Executive Director. If the parties' stipulation or request is rejected, the Executive Director will normally remand the case to the QCR Coordinator for another Investigation Conference and further case processing.

4.30.5 Procedure Where Objections to Investigation Statement are Filed

If a party files timely objection to one or more statements made in an Investigation Statement, review the notes and correct any well-taken objections. If one or more stipulations come unraveled, it may be necessary to conduct another Investigation Conference or to set a formal hearing on the case.

4.31 SUMMARY JUDGMENT

WAC 10-08-135 authorizes issuance of a summary judgment "if the written record shows that there is no genuine issue as to any material fact" and that a "party is entitled to judgment as a matter of law". PERC can thus dispense with holding a hearing where:

♦     An Investigation Statement has been issued showing that there are no disputed matters; AND

♦     No objections to the Investigation Statement have been filed by any party.

The QCR Coordinator will normally initiate the summary judgment process with the Executive Director, prior to the assignment of a Hearing Officer.

4.31.1 Show-cause Letter

Whenever summary judgment appears to be a viable possibility in a particular case, the QCR Coordinator must prepare a letter (customized to the case) to be sent to the principal representatives of all parties with copies to all other representatives:

♦     Recite the history of the filing and initial processing of the case, together with the stipulations made by the parties; AND

♦     Give the parties a specified period of time (usually "ten days following the date of this letter") to identify contested issues and/or "show cause" why a designated result should not be ordered.

4.31.2 Preparation/Issuance of Formal Order

The QCR Coordinator must monitor the case, and must take steps to move the case along after the time period prescribed in the show cause letter has expired.

♦     If a party responds within the time allowed and identifies one or more contested issues to be resolved, proceed with the hearing process as described below.

♦     If there are no responses, or if the responses filed do not identify one or more contested issues to be resolved, prepare the appropriate summary judgment order for signature by the Executive Director.

4.32 HANDOFF FOR HEARING

Whenever a formal hearing will be needed on a representation case, the QCR Coordinator must forward the case to the Operations Manager for assignment.

♦     For hearings on issues that hold up the issuance of a certification, mark the case as "HIGH PRIORITY - HOLDING UP QCR" on the case file and on the PERCCINS Transaction Log for the case.

♦     For hearings on eligibility issues reserved for determination after issuance of an interim certification, mark the case as "ROUTINE ELIGIBILITY ISSUES" on the case and on the PERCCINS Transaction Log for the case.