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. . . . . . . . . . . . . _____

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