CHAPTER 7

UNIT CLARIFICATION

CASE HEARINGS

(Rules: Chapter 391-35 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 7

UNIT CLARIFICATION CASES

7.1 NATURE OF PROCEEDINGS

Unit clarification proceedings are designed to assist employers and employee organizations with fine-tuning the fundamentals of their existing collective bargaining relationships. The “unit clarification” terminology describes the process very well: When a petition is filed under Chapter 391-35 WAC, we know that the parties need clarification about the edge(s) of a bargaining relationship that neither party is seeking to abolish or eliminate.

Substantive criteria in unit clarification cases and many procedures in Chapter 391-35 WAC are similar to the criteria applied and procedures used in representation cases under Chapter 391-25 WAC. See Chapter 8 of this Staff Manual.

7.2 SOURCE OF AUTHORITY

The determination of appropriate bargaining units is either controlled by the Legislature in statutes administered by PERC and/or a function delegated by the Legislature to PERC.

♦ Chapter 28B.52 RCW (covering academic faculty of community colleges and technical colleges) - Mandatory submission of unit determination disputes to PERC is inferred from RCW 28B.52.020(7) (which limits the definition of “exclusive bargaining representative” to an organization that has been certified under the chapter), and RCW 28B.52.080 (which authorizes PERC to adopt rules for administration of the chapter).

♦ Chapter 41.56 RCW (covering local government and some state employees) - Authority to modify bargaining units is specifically delegated to PERC in RCW 41.56.060. Unit determination is not a mandatory subject of bargaining in the usual sense. Although parties may agree on units, their agreements are not binding on PERC. See City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn.App. 599 (1981), cert. denied, 96 Wn.2d 1004 (1981).

♦ Chapter 41.59 RCW (covering certificated employees of school districts) - Authority to modify bargaining units is specifically delegated to PERC in RCW 41.59.080. That authority is severely restricted by RCW 41.59.080 subsections that require district-wide units of nonsupervisory employees and tightly control the propriety of supervisor, principal, and vocational bargaining units.

♦ Chapter 41.76 RCW (covering faculty at state institutions of higher education awarding baccalaureate and higher degrees) - Authority to resolve unit disputes is specifically delegated to PERC in RCW 41.76.025. That authority is severely restricted by the requirement for institution-wide units in RCW 41.76.005(11).

♦ Chapter 41.80 RCW (covering state civil service employees) - Authority to resolve unit disputes is specifically delegated to PERC in RCW 41.80.070. That authority is limited by a “grandfathering” of pre-existing bargaining units (in RCW 41.80.070(1)), by a requirement for a separation of supervisors from rank-and-file employees (in RCW 41.80.070(1)(a)), and by a requirement for separate bargaining units at state institutions of higher education (in RCW 41.80.070(1)(b)).

♦ Chapter 49.08 RCW (covering private sector employees and public employees not covered by any other statute) - PERC only processes representation cases by consent of all parties (as "arbitration" cases where the ballots cast or cards signed by employees are the record before the arbitrator and the certification is the arbitration award), and it is extremely unusual for parties to submit “clarification” issues to PERC. The PERC staff member assigned to process any such case would need to obtain a clear, written stipulation of the parties to have PERC decide the dispute.

♦ Chapter 53.18 RCW (covering port district employees) - Chapter 41.56 RCW generally applies (via harmonizing the statutes under RCW 53.18.015), but PERC must also apply separate provisions in Chapter 53.18 RCW:

► RCW 53.18.010 excludes “managerial” personnel who have bargaining rights under Chapter 41.56 RCW, as interpreted in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

► RCW 53.18.010 excludes “professional” personnel who have bargaining rights under Chapter 41.56 RCW.

► RCW 53.18.010 excludes “administrative” personnel who have bargaining rights under Chapter 41.56 RCW.

► RCW 53.18.010 excludes “confidential assistants” but that arguably aligns with the exclusion of “confidential employees” under RCW 41.56.030(2)(c), as interpreted in IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

► RCW 53.18.060(c) requires a separation of security personnel that has no counterpart in Chapter 41.56 RCW.

► RCW 53.18.060(c) requires a separation of supervisors that arguably aligns with PERC practice under WAC 391-35-340 and City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

♦ Chapter 54.04 RCW (public utility district employees) - PERC is to apply the Chapter 41.56 RCW procedures (per PUD of Clark County, Decision 2125 (PECB, 1985), aff’d, 110 Wn.2d 114 (1988)), but PERC must apply federal substantive law applicable to the private sector utilities industry:

► Managerial employees must be excluded under Bell Aerospace Co., Division of Textron, 416 U.S. 267 (1974), even though they could have bargaining rights under Chapter 41.56 RCW, as interpreted in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

► Supervisors must be excluded as per Section 2(11) of the NLRA, even though they have bargaining rights under Chapter 41.56 RCW, as interpreted in the METRO case.

► Professional employees are entitled to placement in separate bargaining units or a separate vote per Section (b)(1) of the NLRA, even though Chapter 41.56 RCW would give them no special rights beyond consideration of their “duties, skills, and working conditions” under RCW 41.56.060.

► Security personnel must be in separate bargaining units and separate organizations per Section 9(b)(3) of the NLRA, even though they have no special unit determination provisions in Chapter 41.56 RCW.

The exclusion of “confidential” employees under the “labor nexus” test in NLRB v. Hendricks County Rural Electric Cooperative, 454 U.S. 170 (1981) arguably parallels their exclusion under RCW 41.56.030(2)(c), as interpreted in IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

♦ Chapter 74.39A RCW - Modifies the unit determination criteria in RCW 41.56.060 for individual providers of home care under RCW 74.39A.270(2)(a), requiring that the only appropriate bargaining unit is a “statewide unit of all individual providers”.

♦ Chapter 74.15 RCW - Regulates subsidized child care, which is the basis for child care providers to have collective bargaining rights under Chapter 41.56 RCW.

7.3 OCCASIONS FOR UNIT CLARIFICATION PROCEEDINGS

Unit clarification cases must always involve an existing bargaining relationship and an existing bargaining unit description. These cases arise where:

♦ The historical unit description is unclear with respect to specific classifications of employees or positions; or

♦ The parties disagree as to whether a particular classification of employees or position is within one of the customary exclusionary terms; or

♦ The parties disagree about the proper unit placement of a newly-created classification of employees or position, or

♦ The parties disagree about whether a classification of employees or position should be included or excluded from the existing bargaining unit following a change of circumstances; or

♦ Employees or positions are claimed by two or more existing bargaining units.

7.4 THE ROLE OF PERC

In processing unit clarification disputes, the PERC staff

implements the public’s interest in having orderly and

stable bargaining relationships. PERC staff members:

♦ Obtain stipulations and identify issues to be

decided after a formal hearing.

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

♦ 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).

∙ Modifying the descriptions of appropriate bargaining units; and

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

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 an order that could become final is issued.

Unit clarification proceedings are likely to have a significant long-term effect on the parties, even though the proceedings are labeled as "non-adversarial" in nature. The duty to bargain only exists in, and the contract bar only protects, bargaining relationships covering appropriate bargaining units.

Unit determination and eligibility disputes often invoke personalities, friendships, and loyalties that create a potential for highly-charged emotions, and parties may have strong feelings about how such issues should be resolved. PERC administers the statutory criteria as interpreted in agency and judicial precedents, without regard to personalization of the dispute.

7.5 FINAL RESULT OF UNIT CLARIFICATION PROCEEDINGS

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

♦ An order closing case, based on either a withdrawal of the

petition or a settlement between the parties;

♦ An order accepting the parties' stipulations (which must

not be visibly or known to be in contravention of the

applicable statute or PERC’s unit determination policies);

♦ An order of dismissal, based on procedural defects found to be fatal to the processing of the case; or

♦ An "order clarifying bargaining unit" ruling on whether the employees at issue should be included in or excluded from the existing bargaining unit.

Final orders in unit clarification 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 propriety of the bargaining unit by refusing to bargain.

7.6 PROFESSIONAL RESPONSIBILITY

PERC maintains an impartial posture as the administrative and decision-making body in all unit clarification proceedings.

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

► Unit clarification cases are adjudicative proceedings under the Administrative Procedure Act, Chapter 34.05 RCW (APA). PERC staff members must be familiar with Chapter 391-08 WAC, which establishes some general procedures applicable to all cases processed by PERC, and with the Model Rules of Procedure in Chapter 10-08 WAC, some of which apply before PERC.

► PERC staff members must not take on an advocacy role for any party in proceedings before the agency, but the Hearing Officer has an obligation to make a record in the “investigatory” context of unit clarification proceedings.

► LRAMs must maintain independent knowledge of the statutes, rules and precedents, and departures from these procedures may be warranted by exercise of professional judgment.

♦ PERC's support staff provides assistance with preparing documents and procedural details, under LRAM directions.

7.7 RULES AND FORMS

Chapter 391-35 WAC regulates the processing of unit clarification 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, including:

♦ The applicable statutes (select from "statutes" page);

♦ The applicable rules (select Chapter 391-25 WAC from the “rules” page);

♦ The unit clarification petition form (select the "forms" page and Form C-1);

♦ A summary of the unit clarification 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.

7.8 ASSISTANCE TO TELEPHONE AND WALK-IN CLIENTELE

Whenever clientele inquire about unit clarification procedures, explore the facts to determine whether the situation is under PERC's jurisdiction:

7.8.1 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.

7.8.2 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:

♦ 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 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" 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.

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

PERC has adopted unit clarification procedures in Chapter 391-35 WAC separate from the representation case procedures in Chapter 391-25 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 is only available in the absence of a question concerning representation, and so is inapt where representation of an entire bargaining unit is at issue.

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

♦ The staff member must also submit a Information Call Sheet form to document the conversation.

Persons who persist in wanting a unit clarification have a right to file a petition to obtain a formal PERC 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.

7.9 FILING OF PETITION

All unit clarification cases must be initiated by the filing of a written petition with PERC.

7.9.1 Who May File [WAC 391-35-010]

Access to unit clarification proceedings is limited to:

♦ Employee organizations claiming to be the incumbent exclusive bargaining representative of employees whose status is at issue; and

♦ Employers who disagree with one or more incumbent exclusive bargaining representatives about the bargaining unit status of individuals or classifications.

7.9.2 Location for Filing [WAC 391-08-120; WAC 391-35-030]

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 if they are an outgrowth of another case the staff member is processing. Write the date of receipt on the document, and it will be deemed "Filed" on that date.]

♦ 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!

7.9.3 Form of Petition [WAC 391-35-050]

PERC Form C-1, "Petition for Clarification of Existing Bargaining Unit" is replicated on the previous two pages. It calls for all information required to file a unit clarification 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, if they are in substantial compliance as to their

content.

Detailed instructions are provided on the back side of the PERC

petition form, and staff members should answer clientele questions

about the PERC form and PERC procedures.

7.9.4 Service of the Petition on Other Parties [WAC 391-08-120; 391-35-030]

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).

♦ Service is a "due process" requirement, but it is easy for parties to complete service:

► By handing a copy to a responsible representative of the

other party;

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

or a delivery service;

► By fax to the other party, with a follow-up copy by

mail to the other party; or

► By e-mail attachment to the other party, 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.

7.9.5 Case Type Code

Cases initiated by Unit Clarification petitions are docketed and processed under the "C" case type.

Eligibility issues reserved for post-QCR determination in representation (“E”) cases are processed under their original case numbers, and are not re-docketed as “C” cases.

7.10 PRELIMINARY SCREENING

The Operations Manager is responsible for the initial screening of incoming unit clarification cases. That review includes assessment as to:

♦ Whether the bargaining relationship involved appears to be subject to the Commission’s jurisdiction under one of the statutes described above;

♦ Whether the party filing the petition has legal standing to pursue a unit clarification petition for the employees involved; and

♦ Whether changed circumstances are alleged OR compliance with procedural requirements (the “Toppenish two-step” described below) is alleged.

♦ Whether a “question concerning representation” currently exists for the existing bargaining unit.

The Operations Manager will send a deficiency notice to the parties, to clear up any doubts, and defective petitions will be dismissed.

7.11 ASSIGNMENT TO STAFF MEMBERS

Once the Operations Manager concludes that PERC could have jurisdiction and that the petition could be the basis for a modification of the existing bargaining relationship, the case will be assigned to one of the teams within the Commission staff.

♦ The Field Service Managers make specific case assignments to staff members in the Labor Relations Adjudicator/Mediator (LRAM) classifications.

♦ Staff members must avoid situations where an "appearance of fairness" problem could arise due to previous dealings with the parties or the disputed situation as a member of the PERC staff, or past or present relationships (as member, client, representative, etc.) with one of the parties. Call any such situation to the attention of a Field Service Manager as soon as it becomes known to the staff member.

7.12 COMMUNICATIONS WITH PARTIES

The APA prohibits ex parte communications at RCW 34.05.455. The APA in general, and that standard in particular, applies in unit clarification proceedings.

♦ Jointly address all letters concerning “C” cases to the principal representatives of all of the parties. Send copies of correspondence to the additional representatives listed on the PERCCINS docket record for the case.

► Parties are not required to be represented by attorneys, and may be represented in proceedings before PERC by any bona fide officer, employee or other authorized representative. See WAC 391-08-010.

► If an attorney or other representative files a notice of appearance on a case, you must direct all subsequent correspondence to that person. (If attorneys request that copies of correspondence NOT be sent to their clients, PERC staff members should honor that request as to correspondence only.)

♦ All orders issued by PERC must be served upon the parties themselves under RCW 34.05.461(9), as well as upon their attorneys or other representatives (regardless of any contrary request by the attorney or other representative).

CAUTION: The form letters contained in this manual have been developed through years of actual experience. If special circumstances exist, consult your Field Service Manager, the Operations Manager, or the Executive Director before you modify one of the form letters.

7.13 INTERESTED PARTIES

Most unit clarification cases involve only two parties (the employer and the exclusive representative of the bargaining unit involved), but there can be exceptions to that norm. At the outset of the proceedings in a unit clarification case, the interested parties are presumed to consist of:

♦ The employer.

♦ The exclusive bargaining representative of an existing bargaining unit which is claimed to include the disputed position(s).

♦ Any other labor/employee organization named in the petition as having an interest in the proceedings.

♦ Any other labor/employee organization which has affirmatively expressed an interest in the disputed position(s) (by petition, motion for intervention or otherwise).

CAUTION: PERC does not honor blanket requests for notice of “all” petitions that may be filed or covering a specific employer.

For purposes of initial communications, contact all potential parties. Rather than risking that another party may raise an issue late in the process of the case, spend the time it takes to confirm (and document on PERCCINS) that a potential party actually lacks interest in the case. If you have a question concerning a party’s interest in the case, contact your Field Service Manager or the Operations Manager.

7.14 INTERVENTION

Competing organization(s) which claim jurisdiction over the employees involved must be allowed to intervene in the proceedings, even if they are not named in the original petition.

♦ Watch for “severance” attempts disguised as motions for intervention. If an organization seeking intervention wants to obtain a change of representation for a group of employees within an existing bargaining unit, advise them to file a representation petition under Chapter 391-25 WAC.

♦ Watch for “members only” situations, where the organization seeking intervention may have a membership or authorization card from employees involved, but does not represent an existing bargaining unit that claims (or could claim) the employees.

7.15 ISSUES FOR DETERMINATION IN UNIT CLARIFICATION CASES

Although the Operations Manager attempts to screen unit clarification petitions before they are assigned to other staff members, it is sometimes difficult to spot all potential problems from review of the initial paperwork. All staff members must be familiar with the limitations codified in WAC 391-35-020, and should question the parties about potential defects which are disclosed during the processing of a case.

♦ Timeliness of the petition must be verified.

► A unit clarification petition may be filed at any time if:

• There has been a change of circumstances;

• The petition concerns newly created positions;

• The petition concerns "jurisdictional disputes" where two or more bargaining units claim the disputed position;

• The petition concerns whether the affected employee(s) must have a professional education certificate;

• The petition concerns whether the affected employee(s) are eligible for interest arbitration;

• The dispute concerns whether the affected employee is a confidential employee; or

• The petition claims that the underlying dispute would lead to the creation of a one person bargaining unit.

Where the petition and/or initial contacts indicate any of those situations, the staff member can proceed with a (rebuttable) assumption that the case is properly before the Commission.

► Other unit clarification petitions can be filed only at specific times, in order to protect the contractual rights of the parties:

• If the petition concerns status of supervisors (who are employees within the meaning of most statutes as defined in WAC 391-35-340); or

• If the petition deals with status as “regular part-time employees” (who are employees within the meaning of WAC 391-35-350) or status as “casual employees” (normally excluded from bargaining rights).

The following time limits then apply:

1. The party seeking a change of unit status must wait until negotiations on a successor contract begin, and must propose the status change in those negotiations.

2. If the parties do not agree on the status change in their collective bargaining negotiations, the party seeking the change must file a unit clarification petition with PERC before the conclusion of negotiations (so that the party resisting the status change is on notice that any concessions it has made to keep the current status remain at risk and that signing the new contract will not bar pursuit of the issue before PERC).

3. If the parties do not perform the two-step described in the preceeding paragraphs, they cannot raise “supervisor” or “regular part-time” issues during the term of their new contract, unless they can show a genuine change of circumstances during the term of their new contract.

♦ The purposes to be accomplished must be kept within the range of results permitted by WAC 391-35-020(3) and (4):

► Employees or positions may only be removed from an existing bargaining unit, if there is a change of circumstances altering the community of interests, and the petition is filed within a reasonable time period after that change.

► Employees or positions may only be accreted to an existing bargaining unit if:

• Changed circumstances alter the community of interests, and the petition is filed within a reasonable time period after that change; or

• The existing bargaining unit is the only appropriate unit in which to place the disputed position(s).

♦ Petitions that raise a question concerning representation must be dismissed under WAC 391-35-020(5):

► Positions or classifications that existed (but were ignored) when the bargaining unit was created cannot be added to the bargaining unit at a later time, unless there is some intervening change of circumstances creating a new and compelling community of interests;

► Positions or classifications that were excluded from a bargaining unit by agreement of the parties or by order cannot be added to the bargaining unit at a later time, unless there is some intervening change of circumstances affecting the community of interests;

► Positions or classifications created outside of an existing bargaining unit acquire a history of separate existence in the absence of a timely accretion petition, and then cannot be added to the bargaining unit at a later time unless there is some further change of circumstances affecting the community of interests;

► Positions or classifications cannot be added to an existing bargaining unit if they are of a sufficient number to cause doubt as to whether the exclusive bargaining representative will continue to have majority status; or

► Separately-organized bargaining units cannot be merged through unit clarification proceedings.

The union seeking expansion of an existing bargaining unit could file a representation petition under Chapter 391-25 WAC, to either re-organize the entire bargaining unit (which is a low risk tactic if the union has strong support, but could put its status as exclusive bargaining representative at risk if another union intervenes), or organize a separate unit and then seek a merger of units.

7.16 SETTLEMENT EFFORTS

PERC staff members should NOT conduct settlement mediations in unit clarification cases. Experience shows that efforts by PERC staff to settle substantive issues are of limited success in these cases, and there is a substantial risk of backfire:

♦ The rights being negotiated in unit clarification cases belong to individual employees, who can file (and have filed) unfair labor practice claims if they are dissatisfied with an agreement on their status reached by an employer and union.

♦ The employers and unions in unit clarification cases have ongoing relationships, and will often have exhausted all avenues of compromise on a unit determination issue prior to filing a case with PERC.

♦ Parties’ positions in a unit clarification case are often affected by loyalties, friendships, and personalities that have little or nothing to do with application of the statutory criteria, so that both parties may want or need a ruling from PERC.

♦ Unit determination is not a subject for bargaining and the parties’ agreements on unit matters are not binding on the Commission or on the employees involved, under City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981), so it is logically inconsistent (and inherently risky) for PERC staff members to push parties to settle issues that are not theirs to resolve.

♦ If parties ask for time to attempt settlement of a unit clarification case without staff intervention, the PERC staff member assigned to the case can allow a reasonable delay of the case processing.

► Put the case in “Awaiting Word” status on PERCCINS with appropriate explanation in the narrative field.

► Check back with the parties at least monthly, and bring the case on for hearing if their settlement efforts bog down.

► Issue a “show cause” directive if the parties appear to have settled or abandoned the case without filing a formal withdrawal.

► Prepare and issue an appropriate order to close any unit clarification case that is withdrawn, settled or abandoned.

7.17 PREHEARING CONFERENCES

If initial contacts with the parties indicate that agreements on procedural issues could be obtained, the Hearing Officer has the authority to convene a prehearing conference on his/her own motion or at the request of any party.

♦ Holding a prehearing conference by telephone conference call is recommended, and is often easier to schedule and hold than an “on-site” session.

♦ Prehearing conferences are held under WAC 10-08-130, and the staff member must issue a “Statement of Results” listing the agreements reached and actions taken, and giving the parties a deadline to file objections.

♦ A prehearing conference may give a PERC staff member an opportunity to inform the parties of Commission precedents on the issue(s) to be decided and (by providing or directing the attention of the parties to PERC precedents without giving them a ruling or estimate on their possibility of success at hearing).

♦ A prehearing conference may give a PERC staff member an opportunity to steer one or more of the parties away from issues or arguments that would not be proper subjects for a unit clarification hearing.

♦ Arrange a date, time, and place (or telephone conference line) when all parties can participate.

7.17.1 Announcing the Prehearing Conference

If you are going to convene a prehearing conference, send the following letter (addressed jointly to the principal representatives of all known parties):

Re: (name of employer)

Case 12345-C-05-98765

Gentlepersons:

Please be advised that a prehearing conference will be held in this unit clarification case, as follows:

DATE: Septober 43, 2005

TIME: 2:00 a.m.

MEANS:By telephone conference call initiated from the PERC office (or: By telephone conference in which you dial 1-800-___-____ and enter the code ____ when prompted to do so)

The purpose of the conference is to determine whether matters can be stipulated, and to identify the issues on which a formal hearing is necessary. All parties are asked to have available during the conference any collective bargaining agreement or other documentation which may have a bearing on the matter. One of the principal matters to be addressed in a unit clarification proceeding is the identification of the employees to be included in or excluded from the bargaining unit. The employer is asked to have available during the conference an up-to-date organization chart and a list of all persons currently on its payroll who occupy positions or classifications of the type described in the petition in this case, including persons which the employer will propose to have excluded from the bargaining unit.

If you have any questions, please contact me at your earliest convenience.

Very truly yours,

PUBLIC EMPLOYMENT RELATIONS COMMISSION

________________, Hearing Officer

Send copies of the letter to all other persons listed on the PERCCINS docket record for the case.

7.17.2 Conducting a Prehearing Conference

The Hearing Officer should act as the moderator of the prehearing conference, leading lead the discussion of issues and the solicitation of stipulations. The following "patter" is suggested, subject to individual style:

This is a prehearing conference on a unit clarification petition filed with the Public Employment Relations Commission on (date petition filed) in Case (number) . My name is __________, and I have been assigned as the Hearing Officer in this case. The Commission and its staff members are impartial, and I am not advocating for the position of any party in the proceeding.

The purposes of this prehearing conference are to resolve procedural issues, to determine whether any matters can be stipulated, and to identify the issues on which a formal hearing is needed. I will be leading the parties through the issues which could potentially come up at a formal hearing in this case, and I ask your cooperation in making your position known on each issue as we discuss it.

The Hearing Officer can then lead the parties through the following issues:

♦ Parties. Verify that PERC has the correct names and addresses of all parties, and of all persons appearing in a representative capacity.

CAUTION: Submit the information to the support staff promptly if you get any new or corrected name / address / phone information on parties or their advocates, so the PERCCINS system can be updated.

♦ Timeliness. Ask whether any party claims the petition is untimely, and solicit a stipulation if there is no timeliness claim.

♦ Absence of QCR. Ask whether any party claims that the petition raises a question concerning representation, and solicit a stipulation if there is no QCR claim.

♦ Identification of Disputed Employees/Classifications. Ask the parties to verify the precise position(s) or classification(s) at issue in the case, and solicit a stipulation if they resolve their differences on any employee(s).

If it appears a formal hearing will be necessary, take advantage of the opportunity of having the parties together to handle some of the preliminaries for the hearing:

♦ Suggested dates for the hearing?

♦ Suggested location for the hearing (if it is to be held away from PERC's Olympia or Kirkland offices)?

► If the parties are from King and/or Snohomish counties, reasons for holding the hearing at a location other than PERC's Kirkland office?

► If the parties are from Thurston County, reasons for holding the hearing at a location other than PERC's Olympia office?

♦ Estimated number of witnesses to be called?

► Will there be a request to sequester witnesses?

► Will arrangements be needed to minimize effects on the employer's operations on the day of the hearing (such as expecting the parties to have one witness on the stand, one ready to go on, and one returning to work).

♦ Potential number of exhibits? (Remind the parties that they will need to provide the original and one copy of each exhibit for PERC, plus one for each other party which does not have a copy of the document).

♦ Ask for stipulations on documents.

♦ Ask for stipulations on non-controversial facts that would otherwise require testimony of witnesses.

♦ Will any subpoenas be needed?

♦ Ask if the parties have any other motions or issues which they desire to raise.

Remind the parties that the conduct of a prehearing conference does not foreclose settlement, and that they have the opportunity to resolve their differences at any time up to the issuance of a decision by PERC.

7.17.3 Statement of Results of Prehearing Conference

If a hearing is to be scheduled, the Hearing Officer must issue a "statement" summarizing the results of his/her prehearing activities. The following format is to be used:

(Insert name of employer)

Case _____-C-__-_____

,STATEMENT OF RESULTS OF PREHEARING CONFERENCEA prehearing conference was held (insert “by telephone conference call”, if appropriate) in this case on (insert date) at (insert time) . Those participating were:

(Insert name) , (insert title) , for (insert name of employer)

(Insert name) , (insert title) , for (insert name of union)

(Insert name) , (insert title) , for (insert name of intervening union, if any)

(Insert name) , Hearing Officer, for the Commission

This statement is issued under WAC 10-08-130, to state the stipulations made by the parties and to control the subsequent course of the proceeding.

1.The following matters were resolved during the course of the conference:

(Insert the subjects, or matters on which the parties have stipulated)

2.The following matters remain in dispute and are to be subjects for a hearing in this case.

(Insert the subjects, or matters on which the parties do not agree)

(3. If appropriate, add paragraphs describing amendments to the petition allowed or other matters dealt with at the prehearing conference.)

Any objections to this statement must be filed with the Commission, in writing, within ten days following the date of this statement, and shall be served on each of the other participants named above. Unless modified for good cause, this statement will become a part of the record in this matter and binding on the parties.

Sign the Statement of Results (using your standard signature block as "Hearing Officer") and have it issued with a record of service.

CAUTION: Let the 10-day period for objections expire before holding a hearing based on the stipulations secured by the prehearing statement. (The parties could otherwise defeat the whole purpose of the prehearing conference by withdrawing from their stipulations at the hearing.)

If the prehearing conference or your other activities result in settlement of the case, obtain a written withdrawal from the party that filed the petition and follow up with preparation / issuance of an appropriate order to close the case.

7.18 SUMMARY JUDGMENT

In rare cases, the statement of results of a prehearing conference will leave no contested factual issues to be decided at a hearing. The situation should be reviewed with the Executive Director, to determine if a summary judgment is appropriate.

♦ If a summary judgment appears to be possible, PERC practice has been to issue a “show cause” letter giving the parties one last chance to claim that there is some dispute warranting a hearing.

♦ If a summary judgment is to be issued, consider City of Long Beach, Decision 1051 (PECB, 1980); City of Redmond, Decision 1367-A (PECB, 1982); and Renton School District, Decision 1535 (PECB, 1982) in drafting a decision.

7.19 NOTICE OF HEARING

The Hearing Officer must make arrangements for the date, time, and location of the hearing. Report that information on the PERCCINS system.

♦ Set the hearing as a “routine priority" case to be held when it can be scheduled with the parties.

► A 10-day period of notice is the practical minimum, because the state Administrative Procedure Act (APA) requires at least seven (7) days notice (at RCW 34.05.434), and three extra days should be allowed for mailing.

► Staff members generally ask the parties' representatives for their available dates before setting a hearing on a "C" case.

♦ The Hearing Officer must have a formal notice of hearing served on each person or organization listed on the PERCCINS docket for the case. The support staff attaches:

► A copy of the petition for the case, to assure that the parties will prepare for the correct case.

► A “Record of Service” printout from PERCCINS, to establish when the notice was mailed, and to give all parties name/address information they can use to contact other for discussion of the issues in the case.

Using the mailing labels printed by PERCCINS to mail the Notice of Hearing reduces the potential for typographical errors affecting the sufficiency of notice.

Sample of template for initial notice of hearing:

[Caption]

PLEASE TAKE NOTICE That:

The Public Employment Relations Commission will conduct a public hearing to receive testimony and other evidence in the above-captioned matter, as follows:

DATE:

TIME:

PLACE:

A party that offers an exhibit in evidence is required to provide two copies of the exhibit to the Commission, and to provide a copy to each of the other parties at the hearing.

The Commission has jurisdiction in this matter under RCW 28B.52.030, RCW 41.56.060, RCW 41.59.080, RCW 41.76.025, or RCW 41.80.070. The Commission is conducting this hearing under WAC 391-35-090, WAC 391-35-130 and WAC 391-35-170. A copy of the petition and any amendment is enclosed.

The parties are requested to bring copies to the hearing of: (1) A list of all employees who are or may be included in the bargaining unit; (2) the employer’s table of organization; (3) the current or latest collective bargaining agreement (if any) covering the employees; (4) excerpts (cover, recognition language, duration, and list of covered classifications) from previous collective bargaining agreements that may relevant; and (5) any other relevant information concerning the bargaining unit.

The Commission may take notice of its docket records for information to aid it in deciding issues in this proceeding.

If a limited-English-speaking or hearing impaired party or witness needs an interpreter, a qualified interpreter will be appointed under WAC 391-08-315(1) at no cost to the party or witness. If a disabled party or witness needs accommodation of facilities or services, reasonable accommodation will be provided. Requests for an interpreter or accommodation must be submitted to James E. Lohr at the Commission office (360- 570-7310) at least two weeks prior to the hearing.

The Hearing Officer can conduct all or part of the hearing by telephone under RCW 34.05.449(3) and WAC 10-08-180, if documentary evidence is submitted in advance and advance notice is given to all parties. A party requesting that testimony be taken by telephone must complete the following steps at least two weeks prior to the date of the hearing: ( 1) Notify all other parties and ascertain their consent or opposition to the request; and (2) Notify the Hearing Officer of the request and the positions of other parties.

This notice is given to all parties and representatives whose names and mailing addresses appear on the Commission's docket records for this case, as shown in the attached Record of Service. A party who fails to attend or participate in the hearing or another stage of this adjudicative proceeding may be held in default in accordance with the Administrative Procedure Act, Chapter 34.05 RCW.

Signature block (including address and telephone number)

♦ The Hearing Officer may grant continuances under WAC 391-08-180, for good cause shown.

► Enforce the "requesting party to check with other parties" concept